Commonwealth v. Dischman, 1615 WDA 2017

195 A.3d 567

COMMONWEALTH of Pennsylvania, Appellant

v.Kasey Rose DISCHMAN

No. 1615 WDA 2017

Superior Court of Pennsylvania.

Submitted June 18, 2018.

Filed August 29, 2018

Laura D. Pitchford, Assistant District Attorney, Butler, for Commonwealth, appellant.

Joseph L. Smith, Public Defender, Butler, for appellee.

Sara J. Rose, Pittsburgh, for ACLU, amicus curiae.

Susan Frietsche, Pittsburgh, and Margaret H. Zhang, Philadelphia, for Women’s Law Project, amicus curiae.

BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER, J.^*

OPINION BY NICHOLS, J.:

The Commonwealth appeals from the order dismissing one count of aggravated assault of an unborn child under 18 Pa.C.S. § 2606(a) against Appellee Kasey Rose Dischman. The Commonwealth claims that the trial court erred in holding that the nonliability provision in 18 Pa.C.S. § 2608(a)(3) barred the Commonwealth's prosecution of Appellee for the crime against her unborn child.¹ We affirm.

On June 23, 2017, Appellee was transported to the hospital due to a drug-related overdose. N.T., 7/11/17, at 3. Further testing at the hospital revealed that the overdose was due to opioids in Appellee's system. Id. at 4, 6. At the time, Appellee was approximately thirty weeks' pregnant. Id. at 4. Appellee went into cardiac arrest and an emergency Cesarean section had to be performed on June 24, 2017 "because of [her] condition of being on a ventilator and the risk to the child." Id.

Appellee was initially charged with one count of aggravated assault of an unborn child. The magisterial district court held a preliminary hearing on July 11, 2017. The court denied Appellee's motion to dismiss and held the matter over for trial in the court of common pleas. See N.T., 7/11/17, at 12.

On July 17, 2017, Appellee filed a combined petition for a writ of habeas corpus and motion to prohibit the Commonwealth's criminal prosecution. On July 21, 2017, the trial court dismissed Appellee's petition without prejudice for failure to comply with Rule 578 of the Pennsylvania Rules of Criminal Procedure, which governs the filing of omnibus pretrial motions.

On August 2, 2017, the Commonwealth filed a motion to amend the information to include charges of endangering the welfare of children, corruption of minors, and possession of drug paraphernalia.² On August 23, 2017, the trial court granted the Commonwealth's motion.

On August 29, 2017, Appellee filed an omnibus pre-trial motion, seeking, in relevant part, dismissal of the count of aggravated assault of an unborn child. Appellee claimed that section 2608(a)(3) expressly prohibits the prosecution of a pregnant woman for crimes against her own unborn child. Appellee also challenged the propriety of the count of possession of drug paraphernalia.

On October 19, 2017, following the hearing, the trial court granted in part and denied in part Appellee's omnibus pre-trial motion. The court found that although Appellee "is alleged to have done a senseless, selfish, and heinous act that, allegedly, resulted in devastating and permanent injuries to her unborn child," it was

constrained by the clear, plain, and unambiguous language of 18 Pa.C.S.[ ] § 2608(a)(3), and the Pennsylvania Supreme Court's decision in [ Commonwealth v. Bullock , 590 Pa. 480, 913 A.2d 207 (2006) ], to find that our legislature intended for prosecution under the Crimes Against the Unborn Child Act to be barred as to [Appellee], a pregnant woman, for crimes committed against her then unborn child.

Order, 10/19/17 at 3 (unpaginated). The court thus dismissed the one count of aggravated assault of an unborn child and held the remaining charges for trial. Id.

On October 30, 2017, the Commonwealth filed a timely appeal³ and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed an opinion relying on the reasoning set forth in its October 19, 2017 order.

The Commonwealth raises the following issues on appeal:

1. Whether the trial court erred in applying [ Bullock ] as precedent in the case at bar as it is inapplicable to the case at bar and serves no purpose to determine legislative intent for 18 Pa.C.S.[ ] § 2608(a)(3) as well as 18 Pa.C.S.[ ] § 2606(a) [.]

2. Whether the trial court erred in ruling that the language of 18 Pa.C.S.[ ] § 2608(a)(3) is clear and free of ambiguity[.]

3. In the alternative, if this Court were to determine that the language of 18 Pa.C.S.[ ] § 2608(a)(3) is clear and free of ambiguity, whether the trial court erred in determining that it was the intent of the legislature to prohibit prosecution under the facts of this particular case[.]

Commonwealth's Brief at 1 (full capitalization omitted).

The Commonwealth claims that the trial court erred in its interpretation and application of the nonliability provision in section 2608(a)(3).⁴ According to the Commonwealth, section 2608 does not limit the prosecution of a pregnant woman who inflicts harm upon her unborn child "through the intentional and reckless use of an illegal substance known to cause death." Id. at 7. In support, the Commonwealth advances three arguments, which we address jointly.⁵

First, the Commonwealth begins with the premise that the General Assembly enacted Chapter 26 of the Crimes Code to protect unborn children. Id. at 10. The Commonwealth asserts that before the enactment of Chapter 26, the term "child" or "person" did not extend to a fetus. Id. Thus, the enactment of Chapter 26 recognized "the rights of an unborn child within the criminal realm to receive justice as a victim" of certain crimes. Id.

Second, the Commonwealth argues that section 2608 is ambiguous when read in isolation. Id. at 9. The Commonwealth asserts that section 2608 contains two additional subsections that prohibit prosecutions under Chapter 26 in instances of abortion and other legally protected medical procedures. Id. at 8-9. The Commonwealth thus contends that section 2608, when read as a whole, protects "a pregnant woman from prosecution for engaging in otherwise legal activities such as abortion and medical procedures." Id. The Commonwealth concludes that it would be absurd and contrary to the intent of Chapter 26 to interpret section 2608(a)(3) in a carte blanche manner to prevent prosecution of a pregnant woman engaged in illegal and reckless behavior such as drug use.⁶ Id. at 8-9, 11-12.

Third, the Commonwealth asserts that the trial court erred in relying on Bullock . Id. at 5. The Commonwealth notes that the discussion of the potential nonliability of a pregnant woman in Bullock was dicta . Id. at 6. The Commonwealth instead suggests that the decision of In the Interest of L.B., a Minor , 177 A.3d 308 (Pa. Super. 2017), appeal granted , 183 A.3d 971 (Pa. 2018), is more instructive because it addresses "the illegal opiate drug use by a pregnant mother that results in harm to her unborn child." Id. at 7.

Appellee and the amici curiae⁷ assert that the trial court properly construed the nonliability provision of section 2608(a)(3) as clear and unambiguous. Appellee's Brief at 14-15; ACLU's Amicus Brief at 2; Women's Law Project's Amicus Brief at 5-6. They assert that the statutory text of section 2608(a)(3) precludes the Commonwealth's suggested distinction between a pregnant woman's legal acts and illegal acts that harm her unborn child. Appellee's Brief at 14-15; ACLU's Amicus Brief at 2; Women's Law Project's Amicus Brief at 5-6. Moreover, they assert that because section 2608(a)(3) is unambiguous, there is no need to examine the policy considerations underlying Chapter 26 as a whole. Appellee's Brief at 14-15; ACLU's Amicus Brief at 2; Women's Law Project's Amicus Brief at 5-6. The ACLU further asserts that the Commonwealth's suggested construction of section 2608(a)(3) raises serious constitutional concerns. See ACLU's Amicus Brief.

The Commonwealth's claim requires us to interpret the statutory language in section 2608(a)(3), which raises a question of law. See Commonwealth v. Rushing , 627 Pa. 59, 99 A.3d 416, 420 (2014). Thus, our standard of review is de novo and our scope of review is plenary. See id.

Our Supreme Court has stated that in construing a statute, we rely on the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991. The Court further explained:

The objective of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. [ 1 Pa.C.S.] § 1921(a). The best indication of the legislature's intent is the plain language of the statute. When considering statutory language, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." Id. § 1903(a). Further, when the words of a statute are clear and unambiguous, there is no need to go beyond the plain meaning of the language of the statute "under the pretext of pursuing its spirit." Id. § 1921(b). Thus, only when the words of a statute are ambiguous, should a reviewing court seek to ascertain the intent of the General Assembly through considerations of the various factors found in Section 1921(c).^{[8 ]} Id. § 1921(c) ; see generally Bayada Nurses Inc. v. Com. Dept. Labor and Indus. , [607 Pa. 527, 8 A.3d 866, 880–81 (2010) ].

Rushing , 99 A.3d at 423. When reviewing a statute, "we may not render language superfluous or assume language to be mere surplusage." Commonwealth v. Durso , 86 A.3d 865, 867 (Pa. Super. 2013) (citation omitted).

Chapter 26 of the Crimes Code,⁹ also referred as the Crimes Against the Unborn Child Act (Act), defines several crimes against unborn children,¹⁰ including murder, voluntary manslaughter, and aggravated assault. See 18 Pa.C.S. §§ 2604 - 2606. Section 2606(a) provides that a "person commits aggravated assault of an unborn child if he attempts to cause serious bodily injury to the unborn child or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the life of the unborn child." 18 Pa.C.S. § 2606(a).

Section 2608, in turn, enumerates "nonliability" and "defenses" under Chapter...