J-S41011-16
2016 PA Super 214
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN GREEN,
Appellant No. 2672 EDA 2014
Appeal from the Judgment Entered September 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011053-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
DISSENTING OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016
Based on the evidence presented at Appellant’s trial, I disagree with
the Majority that Appellant confined the two victims in a place of isolation.
Accordingly, I respectfully dissent.
Appellant primarily relies on two cases in challenging his kidnapping
conviction, Commonwealth v. Hook, 512 A.2d 718 (Pa. Super. 1986), and
Commonwealth v. Rushing, 99 A.3d 416 (Pa. 2014). Appellant maintains
that his case is analogous to Hook and distinguishable from Rushing. After
review of those cases, and for the reasons that follow, I would agree.
First, in Hook, the appellant forced his way into Doris Pyle’s second-
floor apartment, but, after a brief struggle, she was able to escape into an
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S41011-16
elderly neighbor’s apartment. Hook, 512 A.2d at 719. The appellant
followed, threw both women onto a bed, and sexually assaulted Pyle before
passing out due to his intoxication. Id. The elderly neighbor, Thelma
Maust, ran to a clothing store on the first floor of the building, which was
open at the time of the incident, and called police. Id. Police arrived a few
minutes later and arrested the appellant, who was still passed out in Maust’s
apartment. Id.
Ultimately, the appellant was convicted of two counts of kidnapping,
but on appeal, this Court reversed those convictions, reasoning that the
evidence failed to demonstrate that the appellant had confined his victims
“in a place of isolation.” Id. at 720. We stressed that Pyle’s apartment was
accessible to the public, as demonstrated by the appellant’s presence at her
door. We also relied on the fact that Pyle was expecting an employee of a
dry cleaning company to arrive at any moment for a pick up, and that
Maust’s family had visited her apartment earlier that day. Id. Additionally,
the police arrived on scene within minutes of receiving Maust’s call made
from the clothing store, to which Maust had run for help after the appellant
passed out. Id. In sum, we concluded that these facts did not prove that
Pyle and Maust were “confined in a manner that made discovery or rescue
unlikely[,]” and it appeared that “any confinement [the] appellant imposed
on the victims was incidental to his attempt to rape at least one of the
victims.” Id.
-2-
J-S41011-16
Appellant contends that, as in Hook, the confinement of the victims in
this case was not in a place of isolation, and was merely incidental to the
robbery. He stresses that during the entire incident, “the home was
unlocked and open to persons coming and going[,] including [Elizabeth]
Varela herself, her neighbor Ronald Martin and her husband José Torres.”
Appellant’s Brief at 21 (citation to the record omitted). Appellant points out
that Mr. Martin, Mr. Torres, and the police arrived at the home shortly after
Appellant and his cohort fled, thus demonstrating that the circumstances
were not such as to make the discovery or rescue of the victims unlikely. He
further claims that once he and his cohort left the home, “the victims were
able to move about, because … it was only their hands which were bound.”
Id. at 25. In sum, Appellant concludes that, “[t]hese circumstances simply
[do] not rise to the level of a confinement for a substantial period in a place
of isolation as required by the statute.” Id. at 22.
I agree with Appellant. Notably, in this case, the victims’ home was
located in close proximity to other houses, including Mr. Martin’s neighboring
residence. Moreover, as in Hook, the victims’ home was also accessible to
the public, at least to the extent that Appellant and his female companion
were able to approach the victims’ door and knock at approximately 12:30 in
the afternoon without hindrance. Additionally, Ms. Varela testified that when
Appellant and his female cohort returned to her house without Mr. Torres,
the door to her home was unlocked, allowing Appellant and his companion to
walk right in. N.T. Trial, 7/9/14, at 62-63.
-3-
J-S41011-16
I also find it significant that Ms. Varela and her son, Joshua, were only
bound at the hands when Appellant fled, and there was no evidence
demonstrating that they could not have been heard had they screamed for
help, or that they could not have gotten themselves outside or to a window
to yell for assistance. It was simply that the victims had no need to do so,
as Mr. Martin was able to enter their home and immediately come to their
aid after he witnessed Appellant and his female companion fleeing.
Additionally, while the facts of Hook suggest that the victims in that case
lived alone, here, Mr. Torres resided in the home with the victims, and left
only to show Appellant and his female companion a rental apartment. No
evidence produced at trial suggested that Mr. Torres would not be returning
to the home at some point that day. Indeed, Mr. Torres did arrive home just
minutes after Appellant fled the scene, and only shortly after Mr. Martin
entered the home and found the victims. In my view, the fact that help
arrived to rescue the victims just minutes after Appellant left the scene
weighs strongly in favor of an inference that the home was not ‘a place of
isolation.’
Secondly, I agree with Appellant that the facts of his case are in stark
contrast to the evidence found sufficient to demonstrate ‘a place of isolation’
in Rushing. There, Rushing held multiple victims (many of whom were
family members) together inside a home for at least two hours, during which
“the victims were handcuffed and bound, threatened repeatedly to be quiet,
-4-
J-S41011-16
one was sexually assaulted, and all were placed in great fear.” Rushing, 99
A.3d at 426.
Specifically, [one victim,] Cynthia Collier, while attempting to
telephone for help, was handcuffed behind her back, forced onto
the floor of her son's bedroom, threatened at gunpoint with
death if she did not shut up, endured hearing [another] son[,]
Dustin[,] being murdered by blows from a hammer, was
frequently checked on, and was threatened to be silent if she
wanted to live, especially upon [her daughter’s] arrival to the
home. Both Cynthia and her son Matthew, who was also bound,
remained restrained while [Rushing] stole their bank cards and a
ring from Cynthia's finger. Repeatedly returning to check on
Cynthia and Matthew, [Rushing] only later in the ordeal
indicated that Wes Collier would be the next person in the home,
and that they could yell for assistance at that time, and then,
after considering the time, informed them that they could do
what they wanted if [Rushing] was not back by 6:30 a.m.
Similarly, [Rushing] confined Matthew, even though handicapped
and using a wheelchair, to a bed by tying his hands and legs,
rendering him unable to seek assistance by escape or telephone.
Again, Matthew was checked on multiple times to prevent his
escape or calls for assistance during the early morning events.
Finally, with respect to [another victim,] Samantha, upon her
arrival at the home, she was directed into her bedroom, shown
the dead body of her son's father [(Justin Berrios, whom Rushing
had murdered earlier in the night)], forced onto her stomach at
gunpoint while her hands were tied behind her back and her feet
bound with a cable. She was forced to remain on her bed under
threat of rape, indecently assaulted, was checked on multiple
times, and her cell phone was removed, and then thrown on
Justin's dead body. Samantha's car keys were taken, and
[Rushing] indicated that he had already killed, and would kill
more individuals if the police did not find him. Samantha was
bound such that she could not free herself and was only able to
call for assistance after retrieving her phone from Justin's dead
body and dialing with her toe, reaching the police only after
numerous attempts.
Id.
-5-
J-S41011-16
In concluding that these egregious facts were sufficient to demonstrate
that the victims were confined in ‘a place of isolation,’ our Supreme Court
stated:
In short, while confined in their own home, the victims were
nevertheless tightly bound and unable to seek discovery or
rescue. Indeed, the victims were threatened with death if they
attempted to obtain help from neighbors or the police. There is
no evidence that others had access to the home, other than
Wes, whose return was expected, but the time of his arrival was
uncertain and not imminent. Rather than being incidental to the
other crimes, [Rushing’s] confinement of the victims was with
the intent to commit those other crimes, and to facilitate [his]
escape. Thus, based upon these facts, we believe the
Commonwealth established that the victims were confined in a
place of isolation which rendered them separated from the
normal protections of society in a fashion that made their
discovery or rescue unlikely, thus satisfying the requirements of
the kidnapping statute.
Id. at 426-27.
While here, Appellant certainly placed his victims in significant fear by
his conduct, he did not physically assault, threaten, or force them to endure
mental anguish comparable to that imposed by Rushing on his victims. Also,
in contrast to Rushing’s early morning attack, here Appellant’s confinement
of the victims occurred in the middle of the afternoon, and in a place where
other homes, such as Mr. Martin’s, were in close proximity. Despite this
broad-daylight confinement, and close proximity of other people, Appellant
did not threaten the victims to discourage them from seeking rescue. He
also did not tape their mouths to prevent them from screaming for help, or
bind their feet to inhibit them from moving outside or to a window to seek
-6-
J-S41011-16
rescue. See Commonwealth v. Markman, 916 A.2d 586 (Pa. 2007)
(concluding the victim was confined in a place of isolation where Markman
brought the victim to the living room of a trailer in a trailer park, and then
“bound [the victim’s] hands and feet, placed a cloth rag into her mouth, and
gagged her so that she could not cry out”).
Moreover, I again stress that Mr. Torres lived in the victims’ home,
thus ensuring that he would at some point return. Unlike the returning
family member in Rushing, the evidence indicated that Mr. Torres’ return
was imminent. Namely, Mr. Torres left his home on 5th Street in order to
show Appellant and his female companion a nearby apartment on 6 th Street.
N.T. Trial, 7/9/14, at 116-117.1 Mr. Torres testified that he told Appellant
that he would wait in the 6th Street apartment for “about an hour[]” while
Appellant went to get rent money. Id. at 120. There was no evidence
suggesting that Mr. Torres planned to travel to any location after his visit to
the 6th Street apartment and before returning to the home he shared with
the victims. Additionally, not only was Mr. Torres’ arrival assured and
____________________________________________
1
Mr. Torres stated that the 6th Street apartment was “about 5, 10, 15”
minutes away from his home by foot, and “maybe two minutes … [or] three
minutes” by car. N.T. Trial, 7/9/14, at 117. Mr. Torres also testified that he
“took” Appellant to the 6th Street apartment, but he did not state whether
they walked or drove. Thus, the evidence demonstrated that Mr. Torres was
no more than 15 minutes away from the home where the victims were
confined during the course of the robbery. I also note that Ms. Varela
testified that her husband arrived at the house about “five minutes” after
Appellant and his cohort fled. Id. at 73.
-7-
J-S41011-16
imminent, Mr. Martin was also able to access the victims’ home and rescue
them immediately after seeing Appellant and his female cohort flee. Nothing
in the record suggests that Mr. Martin struggled to gain entry to the home,
or had difficulty locating the victims inside.
In sum, I agree with Appellant that the facts of this case are
distinguishable from Rushing, and are closely aligned with Hook. So much
so, in fact, that I believe the Majority’s decision is effectively overruling
Hook, which is beyond this panel’s authority to do. See Commonwealth
v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (concluding that a three-judge
panel of this Court may not overrule a previously published opinion by this
Court). In my view, Appellant did not separate the victims from the normal
protections of society in a manner that made their discovery or rescue
unlikely. Thus, I would hold that the evidence was insufficient to
demonstrate that Appellant confined the victims in a ‘place of isolation,’ a
required element of the offense of kidnapping. Consequently, I would
reverse Appellant’s two kidnapping convictions.2
____________________________________________
2
I note that I agree with the Majority’s well-reasoned analysis of Appellant’s
other two issues.
-8-