[J-105-2020] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 33 MAP 2020
:
Appellant : Appeal from the Order of the
: Superior Court at No. 3538 EDA
: 2018 dated August 21, 2019,
v. : Reconsideration Denied October 25,
: 2019, Reversing the Judgment of
: Sentence dated June 19, 2017 of
H.D., : the Bucks County Court of Common
: Pleas, Criminal Division, at No. CP-
Appellee : 09-CR-0005878-2016 and
: Remanding for a New Trial.
:
: ARGUED: December 2, 2020
DISSENTING OPINION
JUSTICE MUNDY DECIDED: March 25, 2021
I respectfully disagree with the majority’s decision insofar as it declines to honor
the plain language of Section 2904(b)(1), and find that an objectively reasonable belief is
required to constitute a defense under the statute. The majority’s interpretation
necessitating only a subjective belief contravenes the objectively reasonable standard
which permeates our law, and with which we typically interpret our statutes. In a myriad
of ways, reasonability and objectivity are the touchstones of our laws. Indeed, in many
other areas of the law, we repeatedly rely on a reasonableness inquiry as a default.
Nevertheless, today’s decision allows defendants to satisfy a less demanding burden,
that of merely an unreasonable belief, that brings with it the added risk of malfeasance.
In eschewing this objective standard set forth by the Commonwealth, the majority
points out that Section 2904 does not contain the particular language explicitly specifying
such an interpretation. Maj. Op. at 9 (“[W]hile the Commonwealth correctly highlights that
the Legislature has explicitly required a reasonable belief to support justification defenses
under Chapter 5 of the Crimes Code . . . this in no way supports a rule that all justification
defenses should be predicated upon a reasonable belief. Instead, Chapter 5 illustrates
that the General Assembly knows how to insert a reasonable belief element into a defense
when that is its intention.”). However, the same can be said for the majority’s
interpretation of the statute applying a subjective belief standard. Had the General
Assembly intended us to allow unreasonable beliefs as a defense, it surely would have
specified so. As this Court has articulated, the statutes of this Commonwealth must be
construed in accordance with the rules of statutory construction. When interpreting a
statute, our objective is to give full effect to its plain language. 1 Pa.C.S. § 1921. Plainly,
the language of this statute does not prescribe a tolerance of honest but unreasonable
beliefs. Such direction is conspicuous, given the law’s usual preference for objectivity.
As its justification for finding that the belief requirement of Section 2904(b)(1)
follows a subjective standard, the majority relies on the General Assembly’s adherence
to the text of the Model Penal Code to deduce that the General Assembly must have
intended to adhere to the same policy initiatives. Majority Op. at 8-9 (“We decline the
Commonwealth’s invitation to infer that the General Assembly blindly patterned Section
2904(b)(1) after Section 212.5 of the Model Penal Code, without any apprehension of the
overt policy choice underlying that provision which was made manifest in its terms.”).
Respectfully, I do not agree. It is undoubtedly true that the Model Penal Code intended
to afford latitude to parents in an emotionally charged situation. Maj. Op. at 8 (citing MPC
& Commentaries, pt. II, § 212.4, cmt. 3, at 259 (“[I]t was thought preferable to preclude
conviction of this offense merely on proof of negligence, and [the relevant defense]
therefore requires only an honest belief that the actor’s conduct was ‘necessary to
[J-105-2020] [MO: Saylor, C.J.] - 2
preserve the child from danger to its welfare.’”)). However, in my opinion, the General
Assembly neither adopts nor refutes the policy initiatives espoused in the Model Penal
Code. It simply does not specify. Our legislature has given us no reason to abandon the
objectively reasonable basis with which we typically interpret our statutes in the name of
a policy it does not note.1 See 18 Pa.C.S. § 2904, Westlaw Editor’s and Revisor’s Note,
Uniform Law: This section is similar to § 212.4 of the Model Penal Code (emphasis
added).
Lastly, I disagree with the majority’s conclusion, under the guise of a statutory
construction analysis, that the General Assembly intended to import a subjective test. As
the majority concludes, “it is not irrational for the Legislature to credit the explicit premises
of the model law from which Section 2904(b)(1) was derived, i.e. that consideration should
be given to the emotional dynamic of custody disputes, and that the courts’ contempt
powers are sufficient to address unreasonable belief intrusions upon child custody falling
short of kidnapping.” Maj. Op. at 9. In so stating, the majority references the well-
established principle to which this Court is bound: that, when ascertaining the legislature’s
intent, we must presume “the General Assembly does not intend a result that is absurd .
. . or unreasonable.” 1 Pa.C.S. § 1922. However, I find this policy no more or less
reasonable than the competing policy espoused by the Commonwealth, which would
protect the interests of the remaining parent, whose custody has been hindered. Simply
put, I do not find the majority’s logic compelling enough to abandon the usual principles
1 The majority notes, “it would be extraordinary for lawmakers to attempt to impose a
materially different connotation on borrowed terminology without saying so.” Maj. Op. at
9. However, as stated infra, I find it equally as extraordinary that the statute would be
read to include reasonable and unreasonable beliefs. Without a doubt, reading Section
2904(b)(1) so as to encompass subjective beliefs severely curtails the prosecution of this
crime since the conduct this section excuses is nearly coterminous with the actions the
General Assembly intended to criminalize.
[J-105-2020] [MO: Saylor, C.J.] - 3
that guide the construction of our statutes. Accordingly, for the aforementioned reasons,
I respectfully dissent.
[J-105-2020] [MO: Saylor, C.J.] - 4