Commonwealth v. Ortiz

197 A.3d 256

COMMONWEALTH of Pennsylvania, Appellant

v.Tex Xavier ORTIZ, Appellee

No. 45 WAP 2017

Supreme Court of Pennsylvania.

Argued: April 11, 2018

Decided: November 21, 2018

Michael Wayne Streily, Allegheny County District Attorney's Office, Pittsburgh, PA, for Appellant.

Elliot C. Howsie, Brandon Paul Ging, Victoria H. Vidt, Allegheny County Public Defender's Office, Pittsburgh, PA, for Appellee.

OPINION

CHIEF JUSTICE SAYLOR

The question presented in this appeal concerns whether the criminal offense of interference with custody of children, committed by a biological parent, can serve as a predicate felony giving rise to the crime of kidnapping of a minor.

In the relevant time period, Appellee was the single father of a two-and-one-half-year-old daughter, J.O., with whom he resided in Allegheny County. In December 2015, the child's maternal grandmother secured interim primary legal and physical custody of J.O. in a judicial proceeding at which Appellee failed to appear. The grandmother and others made various attempts to implement the custody order, but initially neither Appellee nor J.O. could be located. Appellee apparently took various measures to conceal his and J.O.'s whereabouts, and he was eventually located in Blair County, where he surrendered the child to authorities and was arrested.

Appellee was charged with various offenses including interference with custody of children ("ICC") as a felony of the third degree, which occurs when a defendant has knowingly or recklessly taken any child from the custody of a lawful custodian without any privilege to do so. See 18 Pa.C.S. § 2904(a), (c).¹ The charges also included kidnapping of a minor under Section 2901(a.1)(2) of the Crimes Code, which entails a defendant unlawfully removing a child a substantial distance from the place where the child is found, or unlawfully confining the child for a substantial period in a place of isolation, with a specific intention "[t]o facilitate commission of any felony or flight thereafter." 18 Pa.C.S. § 2901(a.1)(2).² Appellee was convicted of those offenses.³

Throughout the proceedings, Appellee maintained that ICC, committed by a biological parent, could not serve as a predicate felony for purposes of kidnapping of a minor under Section 2901(a.1)(2). Appellee relied substantially upon Commonwealth v. Barfield , 768 A.2d 343, 347 (Pa. Super. 2001) (indicating that, in fashioning the crime of ICC, the General Assembly "removed from the general crimes of kidnapping the special case of custodial interference").

The trial court, however, rejected that position. Unfortunately, the court intermixed into its explanation a classification of kidnapping with which Appellee was not charged. See Commonwealth v. Ortiz , No. CC 201500547, slip op. at 5 (C.P. Allegheny Sep. 8, 2016) (discussing the application of Section 2901(a.1)(4) ).⁴

On appeal, the Superior Court reversed, relying substantially upon the Barfield decision. See Ortiz , 160 A.3d at 238-41. The court recognized that intermediate-court decisions subsequent to Barfield had determined that a parent could be validly convicted of kidnapping of a minor. See, e.g. , Commonwealth v. Rivera , 828 A.2d 1094, 1100-01 (Pa. Super. 2003) (upholding the conviction of a parent for kidnapping of a minor under the classification that he intended to inflict bodily injury on or to terrorize his child, see supra note 2, based on evidence of record bearing out this fact). According to the Superior Court, however, where the intention of a defendant-parent is solely to retain custody and/or, correspondingly, reflects a desire to maintain an existing bond with a child, kidnapping of a minor will not lie. See Ortiz , 160 A.3d at 239. Ultimately, the intermediate court determined that ICC cannot serve as a predicate offense, under Section 2901(a.1)(2), where the defendant is the biological parent of the child addressed by the relevant custody order. See id. at 241. As in Barfield , the court drew support from the Model Penal Code, from which Section 2901(a.1) derives, as well as the associated commentaries. See id. at 239-40.⁵

In the present appeal by allowance, the Commonwealth maintains that, "[i]n the unique circumstances of this case," ICC can validly serve as a predicate felony to support kidnapping of a minor. Brief for Appellant at 23. According to the Commonwealth, the uniqueness stems from the fact that Appellee's purpose in fleeing was to defy the primary custody awarded to J.O.'s grandmother.⁶ The Commonwealth also emphasizes that kidnapping of a minor requires that the victim be removed a substantial distance or confined for a substantial period in a place of isolation, whereas ICC requires only the act of taking.

The Commonwealth further distinguishes Barfield on the basis that the decision was issued prior to the enactment of Section 9303 of the Judicial Code, which provides:

Notwithstanding the provisions of 1 Pa.C.S. § 1933 (relating to particular controls general) or any other statute to the contrary, where the same conduct of a defendant violates more than one criminal statute, the defendant may be prosecuted under all available statutory criminal provisions without regard to the generality or specificity of the statutes.

42 Pa.C.S. § 9303. The Commonwealth stresses that Section 9303 permits convictions under multiple criminal provisions, some specific and some general, for the same conduct.

The issue presented is one of law over which our review is plenary. See, e.g., Six L's Packing Co. v. WCAB (Williamson) , 615 Pa. 615, 629, 44 A.3d 1148, 1157 (2012). We apply conventional principles of statutory construction, which are regularly discussed throughout this Court's decisions. See, e.g. , Norfolk S. Ry. Co. v. PUC , 621 Pa. 312, 328, 77 A.3d 619, 629 (2013). The analysis encompasses close adherence to terms of a statute that are plain and clear and resort to other approaches of discernment only in the presence of ambiguity or inexplicitness. See id. Where ambiguity or inexplicitness exists, the Court may afford weight to other considerations, including the object to be attained by the statute under consideration, the consequences of a particular interpretation, and sources from which the law was derived. See id. See generally 1 Pa.C.S. §§ 1921 - 1939.

As reflected above, the kidnapping-of-a-minor statute contains two essential pillars: there must be, first, an unlawful substantial-distance removal or substantial-period confinement, as reflected in Section 2901(a.1) ; and second, a particular intended purpose associated with the taking, prescribed in subparts (1) through (4). See 18 Pa.C.S. § 2901(a.1)(1)-(4) ; see also supra note 2. As relevant here, the kidnapping statute defines a removal or confinement as unlawful when, "in the case of a person under 14 years of age, ... it is accomplished without consent of a parent, guardian or other person responsible for general supervision" of the child. Id. § 2901(b)(2).⁷ This closely tracks the taking that is described by the ICC statute. See id. § 2904(a) (prohibiting the taking of a minor "from the custody of its parent, guardian or other lawful custodian, when [the actor] has no privilege to do so"). Thus, Appellee's act of taking the child in this case, which constituted an ICC violation, overlaps with the removal or confinement element of the kidnapping statute.

Turning to the associated kidnapping purposes, and in particular, subpart (2), it requires that the unlawful removal or confinement be done with the intention to "facilitate commission of any felony or flight thereafter." Id. § 2901(a.1)(2) (emphasis added). As commonly understood, see 1 Pa.C.S. § 1903(a), "facilitate" means to "make easy or easier." Facilitate , WEBSTER'S NEW WORLD COLLEGE DICTIONARY (4th ed. 1999); see also Facilitate , BLACK'S LAW DICTIONARY (10th ed. 2014) ("Criminal law , To make the commission of (a crime) easier."). In this regard, it is logically problematic to assert that Appellee unlawfully removed J.O. pursuant to the kidnapping statute with the intent to make it easier to unlawfully remove the child as contemplated by the ICC statute. Accord Brief for Appellee at 29 (arguing that employing ICC as the predicate felony for a kidnapping charge reflects "circular logic"). Stated otherwise, the act of taking does not, sensibly, facilitate the act of taking, since they are one and the same.

This incongruity gives rise to sufficient ambiguity and/or inexplicitness to support recourse to the tools of statutory construction, see 1 Pa.C.S. § 1921(c), including consideration of the derivation from the Model Penal Code. Accord Commonwealth v. Rushing , 627 Pa. 59, 73-74, 99 A.3d 416, 424-25 (2014) (relying, in part, upon the Model Penal Code in construing Section 2901(a) ).⁸

In this regard, the literature discussing the relevant Model Penal Code provisions, from which Pennsylvania's kidnapping and ICC statutes are derived, supports the conclusion that ICC, committed by a biological parent, is not intended to serve as a predicate felony pursuant to subpart (2). For example, the commentaries to the Model Penal Code explain that ICC and kidnapping offenses address distinct concerns.

Kidnapping protects against physical danger, extortion, and terrorization by abduction. [ICC], on the other hand, is designed to maintain ... the parental custody of children ... against all unlawful interference. This interest may be violated even if the actor does not have one of the purposes required by the kidnapping offense .... Interference with custody is further distinguished from kidnapping by the likelihood that the actor will be a parent or other person favorably disposed toward the child or committed person, thus justifying a different penalty structure and the consideration of special defenses.

MPC & COMMENTARIES , pt. II, § 212.4, at 252 (footnotes omitted). In this respect, the intended kidnapping purposes, as prescribed by subparts (a.1)(1)-(4), operate as limiting...