Com. v. Ondra, J. ( 2022 )

J-A25019-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JAN ONDRA :
:
Appellee : No. 1296 WDA 2020
Appeal from the Order Entered November 2, 2020
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001393-2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: APRIL 13, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Washington County Court of Common Pleas, which granted the
petition for writ of habeas corpus filed by Appellee, Jan Ondra, and dismissed
the charges brought against Appellee. We reverse and remand.
The trial court set forth the relevant facts of this appeal as follows:
On the afternoon of June 20, 2019, the Centerville Borough
Police received a 911-dispatch call to 43 Clark Street in
Clarksville. The 911 caller [was J.A. (“Mother”), and she
described an incident involving her daughter (“Child”) and]
an older white male driving a blue van with white doors….
Shortly after receiving the dispatch, Chief Jeffrey Barone
spotted a van matching the description and conducted a
traffic stop. The driver was [Appellee], and Chief Barone
asked him if he had recently interacted with children in
Clarksville. [Appellee] confirmed that he did. Further,
[Appellee] stated that he was in the area because he was
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* Retired Senior Judge assigned to the Superior Court.
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researching tax sale properties. Additionally, he showed
Chief Barone a list of the properties.
At this time, Chief Barone released [Appellee] and then
proceeded to 43 Clark Street to investigate. When he
arrived, he interviewed [Child] as well as [Mother] about the
encounter. [Child], a ten-year-old girl, told the officer that
a van had stopped at the stop sign at the end of her block,
backed up to her front yard, and from 23 feet away [the
driver] stated, “Come on, I’m gonna take you home to your
daddy.”[1] After hearing this, the girl ran into her home and
told her mother. The van did not leave when the girl ran
into the house, and [Mother] identified the van.
At 43 Clark Street, Chief Barone also interviewed two
additional witnesses. First, he interviewed a child, D.M.,
who was playing with [Child] when the incident occurred.
Second, he interviewed a neighbor that interacted with
[Appellee]. The neighbor told the officer that [Appellee]
asked him questions concerning the sewer system in the
neighborhood. [Appellee’s] discussion with this neighbor
occurred after the incident with [Child].
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1 At the hearing on Appellee’s petition for writ of habeas corpus, Child testified
that Appellee said, “Get in the van. I’m going to take you home to your
daddy.” (N.T. Hearing, 8/17/20, at 26-27). Later at the hearing, Appellee
disputed Child’s account. In support of his assertions, Appellee submitted a
recording of Mother’s 911 call as Exhibit A. Although this exhibit is not
included in the certified record, the trial court summarized the contents of the
call as follows:
In Exhibit A, the 911 phone call from [Mother], [M]other
stated that a man said to her daughter, “Get in the van. I’m
taking you to your daddy.” … However, [Child] can be
heard in the background of this 911 call telling her mother
that a man said, “Come on, I’m gonna take you home to
your daddy.”
(Trial Court Order and Opinion, filed November 2, 2020, at 3 n.4). Thus,
throughout its opinion, the court quotes Appellee’s statement based upon
Child’s comments from the background of the 911 call. The Commonwealth’s
brief, however, quotes Appellee’s statement based upon Child’s testimony at
the hearing.
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Two hours after the 911 call, and one hour after Chief
Barone left 43 Clark Street, [Appellee] arrived at the police
station. [Appellee] drove to the police station because
several vehicles were following him.
At the police station, [Appellee] made a voluntary written
statement describing the incident. He stated that he is in
the real estate business. On the date of the incident, he
spent the day researching approximately 12 to 14 tax sale
properties. In Clarksville, he was examining the property at
57 Taylor Avenue. He stated that he was having difficulty
determining whether there was public sewage so he drove
around the neighborhood looking for manhole covers that
would indicate public sewage. He stated that he saw a boy
and a girl in a front yard, drove up, and asked if their mom
or dad was home. He claimed that he said this because he
wanted to talk to an adult about the sewage system. He
stated that the children ran into the house, and he waited
approximately 30-40 seconds, and when no one came out,
he drove away. When he left, he saw a neighbor sitting on
a porch, and [he] asked the neighbor about the sewage
system. At this point, the neighbor confirmed there was
public sewage in the neighborhood and showed [Appellee]
a sewage manhole cover. After confirming the status of the
public sewage system, [Appellee] drove to look at more tax
properties and Police Chief Barone later stopped him.
(Trial Court Order and Opinion at 2-4) (internal record citation and footnotes
omitted).
On August 27, 2019, the Commonwealth filed a criminal information
charging Appellee with one count of luring a child into a motor vehicle. 2
Appellee filed an omnibus pretrial motion on September 27, 2019, which
included a petition for writ of habeas corpus. In it, Appellee denied “making
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2 18 Pa.C.S.A. § 2910(a).
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the statement attributed to him in addressing the child.” (Omnibus Pretrial
Motion, filed 9/27/19, at 8). Moreover, Appellee insisted that “the mere
offering of a ride to a child does not constitute the offense of luring.” (Id.)
On August 17, 2020, the court conducted a hearing on Appellee’s
pretrial motion. At that time, the Commonwealth asked the court for
permission to amend the criminal information by adding additional counts of
interference with custody of children and attempted interference with custody
of children.3 The court deferred ruling on the Commonwealth’s request, and
the Commonwealth proceeded to present testimony from Child and Chief
Barone. On August 20, 2020, the Commonwealth formally filed a motion to
amend the criminal information. That same day, the court granted the
Commonwealth’s motion.
By order and opinion entered November 2, 2020, the court granted
Appellee’s petition for writ of habeas corpus. Specifically, the court found that
the Commonwealth failed to establish a prima facie case for the offenses at
issue because “[t]here was no promise of pleasure or gain” made by Appellee
to Child. (Trial Court Order and Opinion at 6). The Commonwealth timely
filed a notice of appeal on December 1, 2020. The court did not order the
Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.
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3 18 Pa.C.S.A. §§ 2904(a) and 901, respectively.
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The Commonwealth now raises one issue for our review:
When a middle-aged man, a stranger, backed his van up
from a stop sign to a 10-year-old girl who was playing by
her house and said to her, “Get in the van, I’m going to take
you home to your daddy,” so that she ran inside terrified to
her mother, is there prima facie evidence, viewing the
evidence and its inferences in the light most favorable to the
Commonwealth, that the stranger lured or attempted to lure
her into his van or that he enticed or attempted to entice
her from the custody of her parents?
(Commonwealth’s Brief at 3).
The following principles apply to this Court’s review of an order granting
a pretrial petition for writ of habeas corpus:
We review a decision to grant a pre-trial petition for a writ
of habeas corpus by examining the evidence and reasonable
inferences derived therefrom in a light most favorable to the
Commonwealth. Whether the Commonwealth satisfied its
burden of establishing a prima facie case for each charged
crime is a question of law, to which this Court’s standard of
review is de novo and our scope of review is plenary.
A pre-trial habeas corpus motion is the proper means for
testing whether the Commonwealth has sufficient evidence
to establish a prima facie case. To demonstrate that a prima
facie case exists, the Commonwealth must produce
evidence of every material element of the charged
offense(s) as well as the defendant’s complicity therein. To
meet its burden, the Commonwealth may utilize the
evidence presented at the preliminary hearing and also may
submit additional proof.
Commonwealth v. Wyatt, 203 A.3d 1115, 1117 (Pa.Super. 2019) (internal
citations and quotation marks omitted).
“The Commonwealth establishes a prima facie case when it produces
evidences that, if accepted as true, would warrant the trial judge to allow
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the case to go to a jury.” Commonwealth v. Ouch, 199 A.3d 918, 923
(Pa.Super. 2018) (emphasis in original) (quoting Commonwealth v. Marti,
779 A.2d 1177, 1180 (Pa.Super. 2011)). “The Commonwealth need not prove
the elements of the crime beyond a reasonable doubt; rather, the prima facie
standard requires evidence of the existence of each and every element of the
crime charged.” Id.On appeal, the Commonwealth contends that Appellee “backed his …
van up from a stop sign to a 10-year-old girl who was playing by her house.
He then said to her, ‘Get in the van. I’m going to take you home to your
daddy.’” (Commonwealth’s Brief at 11). The Commonwealth insists these
facts, viewed in the light most favorable to the Commonwealth, established a
prima facie case supporting each charged offense. Regarding the trial court’s
finding that Appellee did not lure, entice, or attempt to lure Child, the
Commonwealth argues that the court improperly weighed the evidence to
determine that Appellee did not perform some affirmative act calculated to
induce Child into entering his van.
Further, the Commonwealth asserts that the court incorrectly concluded
that “[t]here was no promise of pleasure or gain nor the furnishing of
temptation or enticement … in this case.” (Id. at 25) (quoting Trial Court
Order and Opinion at 6). The Commonwealth emphasizes that the enticement
offered by a defendant need not be limited to “fun” items, such as soda or
money. In the instant case, the Commonwealth maintains that Appellee
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enticed Child with the opportunity to see her father:
[I]f an enticement or inducement under [Commonwealth
v. Hart, 611 Pa. 531, 28 A.3d 898 (2011)] can consist of
“the promise of the opportunity for the child to view an
object of interest like a toy, a game, or a puppy,” it can also
consist of the promise or opportunity for a child to see or be
reunited with a parent.
Indeed, the parent-child relationship is the very thing that
the child luring and interference with custody statutes
protect. Both statutes ensure that children will not be taken
from their parents without parental permission. [Appellee]
weaponized the parent-child relationship when he said to a
child, “Get in the van. I’m taking you to your daddy.” He
tried to use [Child’s] relationship with her father to lure or
entice [Child] into his van.
(Commonwealth’s Brief at 27-28). The Commonwealth concludes that this
Court must reverse the order granting Appellee’s petition for writ of habeas
corpus. We agree.
The Crimes Code defines the offense of luring a child into a motor vehicle
as follows:
§ 2910. Luring a child into a motor vehicle or
structure
(a) Offense.—Unless the circumstances reasonably
indicate that the child is in need of assistance, a person who
lures or attempts to lure a child into a motor vehicle or
structure without the consent, express or implied, of the
child’s parent or guardian commits an offense.
* * *
(c) Definitions.—As used in this section, the following
words and phrases shall have the meanings given to them
in this subsection:
“Child.” A person under 18 years of age.
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“Motor vehicle.” Every self-propelled device in, upon or
by which any person or property is or may be transported
or drawn on a public highway.
* * *
18 Pa.C.S.A. § 2910(a), (c).
Section 2910 sets forth three requirements the Commonwealth must
establish to convict an individual of luring: “(1) the individual attempted to
lure a child into a motor vehicle; (2) without the express or implied consent
of the child’s parent or guardian; and (3) under circumstances which did not
reasonably indicate the child is in need of assistance.” Hart, supra at 548-
49, 28 A.3d at 909.
As the legislature did not define [the] term [“lure”], its
common and approved usage may be ascertained by
examining its dictionary definition.
The most commonly accepted definition of “lure” when used
as a verb is “to tempt with a promise of pleasure or gain.”
Further, “lure suggests an irresistible force, as desire,
greed, curiosity, etc. in attracting someone, esp[ecially] to
something harmful or evil.” Necessarily, then, we
determine that a “lure” involves the making of a promise of
pleasure or gain, the furnishing of a temptation or
enticement, or the performance of some other affirmative
act calculated to strongly induce another individual to take
a particular action, usually and most often likely to result in
his or her harm.
By contrast, the acts of merely extending a plain invitation,
or making a neutral offer to another person, which are
unaccompanied by any inducement intended or designed to
increase the probability that the person will accept, do not,
in their most common understanding, constitute endeavors
to “lure.” Such acts simply do not involve the additional and
extra element of powerful persuasion designed to influence
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the person to take action, which is the sine qua non of a
lure.
Therefore, as the legislature specifically chose to use the
term “lure” in Section 2910, not alternative words such as
“invite” or “offer entry,” and because this is a penal statute
which we must strictly construe, it is only that particular and
specific conduct meeting the definition of a “lure” which this
statute properly may be interpreted to criminally prohibit.
Consistent with the plain and unambiguous meaning of the
term “lure,” we therefore hold that an attempt to lure under
Section 2910 does not occur upon the mere offer of a ride
in a motor vehicle to a child, but, rather, involves only
situations where a child is provided a further enticement or
inducement to enter the vehicle, in addition to the offer of
the ride, particularly under such circumstances which
suggest the child is being led into a potentially harmful
situation.
Id. at 549-50, 28 A.3d at 909-10 (internal citations omitted). See also
Commonwealth v. Walker, 139 A.3d 225 (Pa.Super. 2016), appeal denied,
638 Pa. 767, 158 A.3d 1243 (2016) (holding sufficient evidence supported
defendant’s conviction for luring a child into motor vehicle; victim testified
that defendant pulled his car alongside while she was walking, grabbed her
wrist, and tried to pull her toward his car; defendant committed affirmative
act calculated to strongly induce victim to enter his car).
The Crimes Code defines the offense of interference with custody of
children as follows:
§ 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.
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18 Pa.C.S.A. § 2904(a).
A “taking” from custody “connotes a substantial interference
with parental control.” Although no case has assigned a
specific definition to “taking,” it appears that an affirmative
physical removal of the child is necessary. Similarly,
“enticing” has been defined as “[t]o wrongfully solicit,
persuade, procure, allure, attract, draw by blandishment,
coax or seduce.” Finally, “it is the interruption of lawful
custody, and not merely the ‘taking,’ that constitutes the
statutory offense.”
Commonwealth v. Rodgers, 599 A.2d 1329, 1331 (Pa.Super. 1991)
(internal citations omitted). Additionally, “[a] person commits an attempt
when, with intent to commit a specific crime, he does any act which constitutes
a substantial step toward the commission of that crime.” 18 Pa.C.S.A. §
901(a).
Instantly, Child’s testimony from the August 17, 2020 hearing
established that she was playing with a friend “in the front yard at [her] mom’s
house” on the day of the incident. (N.T. Hearing at 26). Child described what
happened next as follows: 22
So a guy pulled up in a van. He went all the way down the
street, stopped at the stop sign, and then backed up and he
said, get in the van. I’m going to take you home to your
daddy.
(Id. at 26-27). Child identified Appellee as the driver of the van. (See id. at
28). Child also explained that she did not know Appellee, and she was not
supposed to go anywhere with him. (Id. at 27).
Despite this evidence, the court determined that the Commonwealth
failed to provide prima facie evidence of the offenses at issue:
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There was no promise of pleasure or gain nor the furnishing
of temptation or enticement … in this case. This is not a
case where a victim was offered “fun,” a soda, or money.
Rather, the [c]ourt must determine whether there was an
affirmative act calculated to strongly induce the victim to
get into the vehicle.
(Trial Court Order and Opinion at 6) (internal footnotes omitted).
Contrary to the court’s assertions, Child’s testimony established the
furnishing of an enticement. Appellee tried to entice Child to enter the vehicle
by offering to take her to her father. While the court correctly noted that
Appellee’s offer did not include a “fun” item like soda or candy, we cannot say
that the objects of a child’s interest are limited to “fun” items, particularly at
the prima facie stage of the proceedings. See Hart, supra at 550-51, 28
A.3d at 910 (explaining enticement or inducement may be promise of
pleasurable reward for entry into vehicle, such as receiving money or treat
such as candy; likewise, similar attractive temptation could be created with
the promise of the opportunity for the child to view object of interest). Under
the totality of these circumstances, one could reasonably infer that Appellee’s
words amounted to a “promise of pleasure or gain” or “enticement” to Child
through the offer of an opportunity to be driven to see a loved one.4 Id. at
549, 28 A.3d at 909; Rodgers, supra at 1331.
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4Because the court determined that there was no promise of pleasure or gain
or furnishing of temptation or enticement, it proceeded to analyze whether
Appellee performed some other affirmative act calculated to strongly induce
Child to take a particular action. In its analysis, the court conceded that “the
(Footnote Continued Next Page)
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Our review of the testimony produced at the hearing, viewed in the light
most favorable to the Commonwealth, leads us to conclude that the
Commonwealth presented sufficient evidence to establish a prima facie case
as to the charges filed against Appellee. See Wyatt, supra; Ouch, supra.
Accordingly, we reverse the order granting Appellee’s petition for writ of
habeas corpus and remand this case for further proceedings consistent with
this opinion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2022
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Supreme Court does not outline specific factors” to provide guidance on
whether this element is present. (Trial Court Order and Opinion at 6).
Nevertheless, the court reviewed case law and found that one factor it should
consider was the distance between Appellee and Child at the time of the
incident. The court cited two cases for the proposition “that a close proximity,
up to 10 feet, is a factor that supports strong inducement.” (Id. at 7). With
respect to this conclusion, we reiterate that Child’s testimony supported the
inference that Appellee furnished an enticement. Therefore, the court did not
need to analyze any additional factors to assess whether Appellee committed
an affirmative act calculated to strongly induce Child to get into the vehicle,
especially considering that this was the prima facie stage of the proceedings.
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