J-A17004-19
2019 PA Super 256
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
H.D. :
:
Appellant : No. 3538 EDA 2018
Appeal from the Judgment of Sentence Entered June 19, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005878-2016
BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.
OPINION BY PANELLA, P.J.: FILED AUGUST 21, 2019
Appellant, H.D., appeals from the judgment of sentence entered on June
19, 2017, in the Court of Common Pleas of Bucks County. This followed her
conviction of Interfering with the Custody of a Child, 18 Pa.C.S.A. § 2904. Our
review of this appeal was delayed because there was originally no direct
appeal; however, Appellant’s direct appeal rights were reinstated nunc pro
tunc following a Petition for Post-Conviction Collateral Relief filed on June 19,
2018. After review, we are constrained to reverse and remand for a new trial.
The primary factual dispute at trial was whether Appellant believed her
child was in danger while in husband’s custody. Thus, the trial court’s
summary of facts is undisputed for purposes of this appeal:
Appellant and her husband had a child in 2010. Appellant’s
husband began divorce proceedings in June, 2015, and on July 8,
2015, Appellant and her husband entered a custody agreement in
which custody of the child was exchanged every 48 hours. They
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both abided by the custody agreement until October, 2015, when
Appellant first withheld custody of the child from her husband for
fifteen days.
Appellant again withheld custody of the child starting in June,
2016, for forty-seven days. Upon belief that her husband was
sexually, verbally, and physically abusing the child, Appellant left
Bucks County with the child and did not tell the child’s father, her
family, or her friends where she was going. Appellant
subsequently traveled from Wilkes Barre to Philadelphia to
Pittsburgh to Miami with the child.
Meanwhile, when Appellant’s husband had not heard from
Appellant or received custody of the child pursuant to the custody
agreement, he called his attorney and the police, and he filed a
missing person’s report. During the forty-seven days while
Appellant and the child were unaccounted for, Appellant’s husband
also hired several private investigators, contacted the National
Center for Missing and Exploited Children, submitted the case to
Bring Our Missing Home, and went to the police department and
his congressman’s office in an effort to have the child listed as
missing.
Detective Peter Lange of the Lower Makefield Township Police
Department got involved in the case on June 27, 2016. On July
2, 2016, Detective Lange filed charges against Appellant for
interference with custody of children and issued a warrant for
Appellant’s arrest. On August 2, 2016, the United States Marshal
Service located Appellant in North Philadelphia, but Appellant did
not tell officers where the child was. Using Appellant’s phone
records, Detective Lange identified a number that Appellant called
often in Miami during her forty-seven-day absence. The United
States Marshall Service located the child at Appellant’s friend’s
sister’s house in Miami, Florida on August 2, 2016. Appellant had
decided to leave the child with friends in Miami for two weeks so
that she could return to Pennsylvania to “figure out what to do.”
The United States Marshals contacted Appellant’s husband to let
him know that Appellant had been arrested and that the child was
safe in Miami. Appellant’s husband retrieved the child in Miami
the next day.
The day before she was arrested in Philadelphia, Appellant
composed, but never mailed, an eight-page letter addressed to
the Director of Bucks County Children and Youth, the Director of
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Bucks County Human Services, the Director of the Pennsylvania
Office of Children and Families, an assistant district attorney at
the Bucks County District Attorney’s Office, a sergeant at the
Pennsylvania State Police, the Attorney General of the
Commonwealth of Pennsylvania, and the Director of the Center
for Missing and Exploited Children, in which she wrote: “I’m
refusing to turn my daughter over to [the child’s father] because
I’m protecting her from danger. [The child’s] father is the danger.
He has sexually, physically, and verbally abused my daughter.
Numerous reports of abuse have been made to the Bucks County
Children and Youth Services to no avail. There [are] individuals,
including a police officer, a psychologist, her nanny and other
individuals who . . . have filed reports of abuse on . . . behalf of
my daughter against [the child’s father]. I filed a report the day
that my daughter personally confided in me that her father had
sexually abused her. It was filed many months after the first
round of sexual assault reports were filed and an investigation
ensued. My decision to refuse to turn my daughter over to her
father . . . in contravention of a Court Order was not made hastily.
To the contrary, I made the decision after failing at every single
effort I made to obtain help for my daughter. After a lengthy and
unsuccessful search for justice for [the child] I was left with no
other viable option.”
All the reports of abuse by Appellant’s husband were determined
to be unfounded by Bucks County Children and Youth and the
Middletown Township Police Department.
Trial Court Opinion, 1/18/19, at 1-3 (citations to record omitted).
After being charged, Appellant was found guilty of Interfering with the
Custody of a Child by a jury on March 20, 2017.
At trial, the Commonwealth presented testimony and other evidence
consistent with the facts as summarized by the trial court. Furthermore, the
Commonwealth presented testimony demonstrating that there were
thorough and substantial independent investigations into the alleged abuse,
all of which concluded that the reports of abuse were either unfounded or
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invalid. The defense relied upon the Appellant’s unwavering belief that her
daughter was being abused by the child’s father to justify Appellant’s refusal
to hand over the child in accordance with the custody order.
On June 19, 2017, the trial court sentenced Appellant to a sentence of
time served to twenty-three months with immediate parole, followed by a
consecutive five-year term of probation.
Before we address the issue presented by the Appellant, which deals
with the jury instructions, we must comment on the actions of Appellant in
this case. Although this is clearly not an appeal in a custody matter, we are
mindful of our cautionary words from Commonwealth ex rel. E.H.T. v.
R.E.T., 427 A.2d 1370 (1981):
Although one's violation of a court order is certainly not
controlling in resolving a custody dispute, there is absolutely
nothing improper about considering such a violation in the
evaluation of each party's parental attributes.
When a party, in bad faith, removes a child from another
jurisdiction in order to circumvent an adverse custody
order of a court in that jurisdiction, our courts have held
that such evasion of the law, if proven, should be an
important factor when Pennsylvania courts consider the
custody dispute. Commonwealth ex rel. Rogers v.
Daven, 298 Pa. 416, 148 A. 524 (1930); Irizarry Appeal,
195 Pa.Super. 104, 169 A.2d 307 (1961). The instant case
raises the same troublesome issue. In resorting to self-help
remedies, [appellant] acted in a manner inconsistent with
the orderly and impartial resolution of disputes concerning
the custody of minors. In ascertaining who would best
serve the welfare of the children, the lower court should
consider [appellant's] disrespect for the legal process and
evaluate how it bears on [her] fitness to be awarded
custody of the children.
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In re Leskovich, 253 Pa. Super. [349] at 359, 385 A.2d [373] at
378 (emphasis added) (citations omitted).
427 A.2d at 1376 (brackets in original). See also, Com. ex rel Newcomer
v. King, 447 A.2d 630 (Pa. Super. 1982) (holding that stability for the child
does not automatically outweigh the fact that a parent has kidnapped the
child); Commonwealth ex rel. Snapir v. Snapir, 173 A.2d 694 (Pa. Super.
1961) (holding that father's contempt of court order by taking minor child out
of state and secreting him from family and relatives could have bearing upon
father's fitness for custody).
With that observation, we now address the issues that Appellant
presents for our review. However, all relate to the jury instruction given by
the trial court regarding the defense as provided in 18 Pa.C.S.A. § 2904(b)(1),
so that a single discussion is appropriate.
Chapter 29 of the Pennsylvania Crimes Code, in Section 2904, states
the elements of the crime of Interference with Custody of Children as well as
the statutorily defined defenses. Relevant to the facts of this case are the
following:
§ 2904. Interference with custody of children
(a) Offense defined.--A person commits an offense if he
knowingly or recklessly takes or entices any child under the
age of 18 years from the custody of its parent, guardian or
other lawful custodian, when he has no privilege to do so.
(b) Defenses.--It is a defense that:
(1) the actor believed that his action was necessary to
preserve the child from danger to its welfare.
....
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18 Pa.C.S.A. § 2904.
Appellant argues that the trial court erred when it added a
reasonableness standard to the actions of an “actor” as defined in Section
2904(b)(1). Appellant asserts that this alleged error, which inserted the
standard “reasonably believed” into the state of mind of the “actor,” did not
comport with the elements of the offense and the complete defense as
afforded in the statute.
It is well established in our jurisprudence that “an accused in a criminal
case is entitled to [the] presumption of innocence; the Commonwealth is the
party that must come forward with the evidence to establish guilt. An accused
is not required to disprove [her] alleged guilt of an element of an offense.”
Commonwealth v. Gearhart, 384 A.2d 1321, 1323 (Pa. Super. 1978)
(citations omitted). The prosecution must disprove the defense afforded in §
2904(b)(1) once it is raised by the defense; it is never the defendant’s burden
to disprove the elements of an offense. As a result, the Commonwealth
concedes that it was required to prove, beyond a reasonable doubt, that this
defense did not apply. See Appellee’s Brief, at 16.
Prior to trial, the Commonwealth had presented a motion in limine to
the trial court, requesting that the trial court add the reasonableness standard
to jury instruction. Notes of Testimony, 3-13-17 at 1-8. Defense counsel
objected, arguing that the statute was clear on its face, without any mention
of reasonableness.
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The trial court later decided to include the suggested language. The
relevant portions of the trial court’s instructions were:
Circumstances may exist in a case that provide the defendant a
complete defense to this charge. The Commonwealth must prove
beyond a reasonable doubt that such circumstances did not exist.
The circumstance in this case is that the defendant believed that
her action was necessary to preserve the child from danger to her
welfare. So it is the Commonwealth that has the burden of
disproving this defense.
The Commonwealth has the burden of proving beyond a
reasonable doubt that this circumstance did not exist at the time
the defendant took the child. If it fails to do so, you should find
the defendant not guilty. If the Commonwealth carries its burden
and otherwise proves the elements of the offense as I’ve
previously explained to you, you should find the defendant guilty.
If you find the defendant reasonably believed that [the child’s]
welfare was in imminent danger, you must find the defendant not
guilty. The consideration of long-term psychological damage or
the like does not entitle the defendant to this defense.
So the four elements are first that the defendant took or enticed
[the child] from the lawful custody of her parent. Second, that
[the child] was a child under the age of 18. Third, that the
defendant did not have the legal privilege to take the child. And,
fourth, that the defendant either knew she was doing these things
or acted recklessly in doing them.
In addition, the Commonwealth must disprove the defense, and
the defense here is that the defendant believed that her action
was necessary to preserve the child from danger to her welfare.
Notes of Testimony, 3-20-17 at 103-105 (emphasis added).
After the jury was excused to deliberate its verdict, the jury sent a
communication to the trial judge. The following colloquy occurred on the
record:
The Court: I received a communication from the jury.
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No. 1, what does the actual statute say in terms of the defense
clause and how we should interpret the statute with respect to the
judge’s instruction.
Second, what constitutes reasonable belief of the defendant to
justify the defendant’s withholding of the custody of the minor.
Id. at 112. The result was that the trial court re-read the instruction from the
original jury charge, with no elaboration on the term “reasonable belief.” Id.
at 113-117.
In reviewing a challenged jury instruction, we must review the charge
as a whole and not simply isolated portions. This way we can ascertain
whether the charge fairly conveyed the required legal principles that were at
issue. See Commonwealth v. Batty, 169 A.3d 70, 78 (Pa. Super. 2017). “A
jury instruction will be upheld if it ‘clearly, adequately, and accurately reflects
the law.’” Commonwealth v. Smith, 956 A.2d 1029, 1034–35 (Pa. Super.
2008) (citation omitted).
The concise issue in this case is whether the Commonwealth was
required to prove, beyond a reasonable doubt, that Appellant did not
subjectively believe she was protecting the safety of the child. Appellant
argues that the Commonwealth was. Conversely, the Commonwealth argues,
and the trial court instructed the jury, that the Commonwealth was merely
required to prove, beyond a reasonable doubt, that Appellant’s subjective
belief was unreasonable.
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As explained by the Pennsylvania Supreme Court, “[t]o determine
whether a jury instruction faithfully characterized the statute upon which it
is based, we first must determine the scope and meaning of the provision
in question, thus furnishing a rubric for our inquiry. Statutory interpretation
presents a question of law, which we resolve de novo.” Commonwealth v.
Veon, 150 A.3d 435, 444 (Pa. 2016) (citation omitted).
Once the Court has established the meaning and scope of the statute,
we must determine whether the trial court, which enjoys “broad discretion”
in fashioning its jury charge, clearly, adequately, and accurately related the
law to the jury. Id. Only when the trial court commits an abuse of discretion
or provides the jury with an inaccurate statement of law, which must be
prejudicial to the appellant, is there a reason to find reversible error and
remand for a new trial. See id.
As always, we must first abide by the Statutory Construction Act,
including the primary maxim that the object of statutory construction is to
“ascertain and effectuate” the legislative intent in enacting the provision. 1
Pa.C.S.A. § 1921(a); see also, Commonwealth v. MacPherson, 752 A.2d
384, 391 (Pa. 2000). In pursuing that end, “[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Our courts have
repeatedly held that as a general rule,
the best indication of legislative intent is the plain language of a
statute. In construing the language of a statute, “words and
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phrases are to be construed according to rules of grammar and
according to their common and approved usage.” 1 Pa.C.S. §
1903(a). Words and phrases that have acquired a “peculiar and
appropriate meaning,” however, must be construed according to
that peculiar and appropriate meaning. Id.
Commonwealth v. Bradley, 834 A.2d 1127, 1132 (Pa. 2003) (citations
omitted).
The language of Section 2904(b)(1) is straightforward. There is no
mention of a reasonable person standard. Guidance from our Supreme Court
dictates, “while statutes generally should be construed liberally, penal statutes
are always to be construed strictly, 1 Pa.C.S.A. § 1928(b)(1), and any
ambiguity in a penal statute should be interpreted in favor of the defendant.”
Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005).
A “reasonable person” standard is an objective standard and is applied
when a fact-finder must determine whether a person’s conduct conformed
with community standards. It is not a subjective standard. See
Commonwealth v Knox, 190 A.3d 1146, 1155 (Pa. 2018); Petri v. Smith,
453 A.2d 342, 347 (Pa. Super. 1982). For example, under a “reasonable
diligence” standard, a person’s “actions must be evaluated to determine
whether he exhibited ‘those qualities of attention, knowledge, intelligence and
judgment which society requires of its members for the protection of their own
interests and the interests of others.’” Cochran v GAF Corp., 666 A.2d 245,
249 (Pa. 1995).
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The defense provided in Section 2904(b)(1) is a purely subjective test:
whether the defendant “believed that his action was necessary to preserve the
child from danger to its welfare.” This is strictly a credibility decision to be
made by the jury as to the belief of the defendant. This statute does not
provide an opportunity for the jury to compare the actions of the defendant
with a “reasonable person” under similar circumstances. If the Legislature
intended to provide otherwise, it is within the discretion of the Legislature to
amend the statute.
Our analysis is consistent with the Suggested Criminal Jury Instructions
published by the Pennsylvania Bar Institute:
3. Circumstances may exist in a case that provide the defendant
a complete defense to this charge. The Commonwealth must
prove beyond a reasonable doubt that such circumstances did not
exist. [Those circumstances are] [That circumstance is] [give all
that may be applicable under the facts of record]:
[a. that the defendant believed that [his] [her] action was
necessary to preserve the child from danger to [his] [her] welfare.
....
Pa. SSJI (Crim), §15.2904 (2016). The Subcommittee Notes following the
instruction state the subcommittee’s rationale for not including the
reasonableness standard:
Interfering With Custody of a Child--Defenses
This instruction is appropriate when one of the defenses under
Crimes Code section 2904(b)(1) is raised.
Regarding the bracketed defense under subdivision 3(a), there is
debate about whether the defendant's belief that his or her actions
were necessary to preserve the welfare of the child must be
reasonable. Some say that this requirement is implied in the
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statute, but the Model Penal Code rejects the standard, as it may
implicate a parent who honestly thought he or she was protecting
his or her child from danger, even if the belief may have been
objectively unreasonable. ALI, Model Penal Code and
Commentaries, comment 3 at 259-61 (1980). The “reasonable”
language has been omitted from this instruction because it
is not mentioned expressly in the statute.
However, Commonwealth v. Chubb, 3 Pa.D.&C.3d 676, 680
(C.P. Cumberland, 1977), held that it must be shown that the
child's welfare was in danger or at least that the actor reasonably
believed that it was. Furthermore, the belief of the actor must
relate to imminent danger. The consideration of long-term
psychological damage or the like does not entitle the defendant to
this defense.
Id., Subcommittee Note (emphasis added). Obviously, we have decided not
to follow the Chubb decision. Moreover, in Commonwealth v. McNemar,
2015 WL 6457903 (Pa. Super. 2015), a non-precedential decision mentioned
in the Appellee’s brief, the issue of the inclusion of the reasonableness
standard in the jury charge was not an issue on appeal. Therefore, the
McNemar memorandum provides us no guidance on the issue herein.
Clearly, based upon the question presented to the trial court, the jury
was confused as to the standard it was supposed to utilize in reviewing the
actions of the Appellant. Because the jury was directed to evaluate the criteria
of the defense provided in 18 Pa.C.S.A. § 290(b)(1) with an incorrect
standard, prejudice has been established and a new trial is necessary.
Judgment of sentence reversed. Case remanded to the trial court for
further proceedings consistent with this Opinion. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott joins the opinion.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2019
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