For the Defense - Vol. 6, Issue 4 - 14

Ms. Howard argued that courts must use the Section
302(b)(2) definition of knowingly, and, because the
element involved the result of her conduct (i.e.,
endangering the child's welfare), the Commonwealth had
to prove that she was aware that it is practically certain
that [her] conduct will cause the result of endangering
the child's welfare.
The Commonwealth argued that proof of either prong
of Section 302(b)(2) was sufficient to establish the mens
rea, that the element here involved the nature of Ms.
Howard's conduct, and that it merely had to prove that
the mother was aware of her duty of care for her child's
safety.
The OAJC agreed with Ms. Howard. It found that the
mens rea element involved the result of Ms. Howard's
conduct under Section 302(b)(2)(ii), and that the
Commonwealth had to prove that " Mother was aware
her conduct endangered the welfare of Child. " 24
a perilous or dangerous situation. "
The OAJC defined " endanger " 25 as the " creation of
It found that the
Commonwealth would have needed to prove that Ms.
Howard was aware that her child should have been
restrained in a car seat when riding in the car-for-hire,
and that she was aware that, by allowing the child to ride
unrestrained, she placed her in a perilous or dangerous
situation.26
The opinion noted that proof that Ms.
Howard knew of the exact dangerous situation (i.e., a car
accident) was not required.27
This differs from both versions of the Superior Court's
three-pronged test, which only require the accused to be
aware that her conduct threatened or could threaten the
child's welfare.
Justice Wecht agreed that the circumstances
involved the result of Ms. Howard's conduct under
Section 302(b)(2)(ii), and further stated that EWOC
requires proof that the accused " created a situation
that she knew presented an actual and significant risk
of harm to the child. " 28
Justice Dougherty, in a concurrence joined by Chief
Justice Baer, did not determine if 302(b)(2)(ii) applied in
Howard, stating that, depending on the case, the creation
of the dangerous situation could involve the result of
one's conduct, the nature, or both.29
This concurrence
reasoned that the evidence had to, at minimum, show
that Ms. Howard was aware that she violated a duty of
care, and that it did not do so because the trial judge
based the conviction on a provision of the MVC that
applied to drivers rather than passengers.30
Justice Saylor found for Ms. Howard under the rule
of lenity, explaining that there is a lack of clear laws
regarding the use of car seats in ride-sharing services.31
14 For The Defense l Vol. 6, Issue 4
An Invitation to Challenge the " Common Sense of the
Community " Standard
Along with (the somewhat equivocal) clarification of
the mens rea standard, a major takeaway from Howard is
that defense attorneys should consider bringing the right
EWOC case to challenge the use of the " common sense
of the community " and the " sense of decency, propriety,
and morality which most people entertain " standards.
Pennsylvania courts have long used these standards in
determining whether conduct is sufficient for EWOC. The
Supreme Court recently applied it in Commonwealth v.
Lynn, which involved whether a high-ranking Catholic
official who failed to protect children from a predatory
priest supervised their welfare for the purposes of EWOC.32
The court used the " common sense of the community " as
a guiding principle in finding sufficient evidence.33
Ms. Howard argued that her actions did not offend the
" common sense of the community, " and, instead, were
a mistake in hindsight, at worst. She said that this was
so because accidents are exceedingly rare in routine car
rides, customs and laws are unclear for rideshares, and
people from different regions and socioeconomic classes
would have different views on the conduct at issue.
An amicus brief by the Defender Association of
Philadelphia warned that overly broad and ambiguous
interpretations of EWOC disproportionately harm poor
and minority parents.34
It critiqued the " common sense of
the community " test by explaining that enforcement of
" community " standards differs according to the race, class,
ethnicity, geographic region, and age of the parents.35
Parents who are more visible to police surveillance will
be criminalized for bad parenting decisions, while those
secure within more private enclaves might not.
Noting that this standard is controlling law, the OAJC
held that Ms. Howard's conduct " did not offend the
common sense of the community, and, consequently,
that the Commonwealth did not establish that Mother
knowingly endangered the welfare of Child. " 36
It found significant that the failure to use an ageappropriate
child restraint system is merely a summary
offense for vehicle operators, and reasoned that the
community could not have viewed Ms. Howard's conduct
more harshly than the General Assembly.37
The OAJC
also emphasized that the Commonwealth presented no
evidence of the circumstances of Ms. Howard's decision,
the community where she lived, and the transportation
options that she had.38
Justice Wecht blasted the OAJC's approach as impossible
to apply in a fair or principled way.39
He said that the
standard could lead to outcomes that vary depending
on where the defendant lived and " the decision-maker's
sense of that locality's norms. " 40

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
For the Defense - Vol. 6, Issue 4 - 4
For the Defense - Vol. 6, Issue 4 - 5
For the Defense - Vol. 6, Issue 4 - 6
For the Defense - Vol. 6, Issue 4 - 7
For the Defense - Vol. 6, Issue 4 - 8
For the Defense - Vol. 6, Issue 4 - 9
For the Defense - Vol. 6, Issue 4 - 10
For the Defense - Vol. 6, Issue 4 - 11
For the Defense - Vol. 6, Issue 4 - 12
For the Defense - Vol. 6, Issue 4 - 13
For the Defense - Vol. 6, Issue 4 - 14
For the Defense - Vol. 6, Issue 4 - 15
For the Defense - Vol. 6, Issue 4 - 16
For the Defense - Vol. 6, Issue 4 - 17
For the Defense - Vol. 6, Issue 4 - 18
For the Defense - Vol. 6, Issue 4 - 19
For the Defense - Vol. 6, Issue 4 - 20
For the Defense - Vol. 6, Issue 4 - 21
For the Defense - Vol. 6, Issue 4 - 22
For the Defense - Vol. 6, Issue 4 - 23
For the Defense - Vol. 6, Issue 4 - 24
For the Defense - Vol. 6, Issue 4 - 25
For the Defense - Vol. 6, Issue 4 - 26
For the Defense - Vol. 6, Issue 4 - 27
For the Defense - Vol. 6, Issue 4 - 28
For the Defense - Vol. 6, Issue 4 - 29
For the Defense - Vol. 6, Issue 4 - 30
For the Defense - Vol. 6, Issue 4 - 31
For the Defense - Vol. 6, Issue 4 - 32
For the Defense - Vol. 6, Issue 4 - 33
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For the Defense - Vol. 6, Issue 4 - 40
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For the Defense - Vol. 6, Issue 4 - 54
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