Opinion
J-A28009-18 No. 377 MDA 2018
02-04-2019
COMMONWEALTH OF PENNSYLVANIA Appellant v. RICHARD SCOTT CARVER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 30, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001646-2017 BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.:
The Commonwealth filed this interlocutory appeal from the order, entered in the Court of Common Pleas of Schuylkill County, granting Richard Scott Carver's writ of habeas corpus, dismissing the charges against him, and directing his release from prison. After our review, we affirm in part, and reverse in part.
We adopt the trial court's recitation of the procedural and factual history:
On August 13, 2017, charges were filed against the Defendant based on an incident that allegedly occurred on Saturday, August 12, 2017. The charges included Lur[ing] Child into Motor Vehicle, Criminal Attempt, pursuant to 18 Pa.C.S. § 2910(a)(2), Interference with Custody of Children, Criminal Attempt, pursuant to 18 Pa. C.S. § 2904(a), and Indecent Exposure pursuant to 18 Pa.C.S. § 3127(a). The Defendant was arrested and placed in jail, unable to post bail. At the preliminary hearing, the charges were bound over for Court. The Defendant was then able to post bail on September 18, 2017. However, his bail was revoked on
October 27, 2017, because the Defendant provided the address of a condemned building as his permanent residence, and because the Defendant was seen at the child's bus stop attempting to make contact with the child.
On October 26, 2017, counsel for the Defendant filed a Petition for Writ of Habeas Corpus, alleging that the Commonwealth's evidence was insufficient as a matter of law to establish a prima facie case to support each of the charges. We held a hearing on the Petition on November 21, 2017. [T]he preliminary hearing was not stenographically recorded[;] the parties presented evidence as follows. The alleged victim, Z.K. ("child"), age 12, testified first. We conducted a colloquy and determined that the child was competent to testify. The child testified that on August 12, 2017, he was involved in an incident with the Defendant, whom he identified in Court. It was the day of the annual block party in Girardville, Pennsylvania, and the child was riding his bicycle along the sidewalk with his friend, M.C. M.C. was about a half block ahead of the child, and the child was walking his bike up a hill, when the Defendant pulled up alongside the child in a gold/tan motor vehicle, after having made a U-turn from the other direction. The child testified that he did not know the Defendant personally before this day. The Defendant rolled down the driver's side window of his car, less than halfway, and said "Sup, nigga" to the child. The child was surprised and said "hi" to the Defendant. The Defendant asked the child if he was excited for school, and the child replied, "Not really." The Defendant then rolled his car window down completely, moved his hand slightly out of the window, and said "high five" to the child. The hand was extended with the palm facing upward, in an underhand fashion like a "low five," with his elbow bent. The child shook his head negatively. The Defendant then said, "Come on," and a few seconds later asked the child to "take my hand," to which the child said "no." At this point, the Defendant had extended his hand farther out of the car window. The child turned his bike around. The Defendant then asked the child, "How many years have you known me?" The child replied, "Zero," and got on his bike and rode off to tell his friend M.C. what happened. The Defendant did not follow the child in his car. The child testified that the car turned right and then looked like it then stopped at a house, about a block away from their encounter, in the opposite direction from the direction the child was heading.
The child testified that the Defendant did not tell him or ask him to get in the car, nor did the Defendant try to grab him. The child
testified that during the encounter, the child and Defendant remained approximately 8 feet apart. The child testified that he became very upset by the encounter. He and M.C. went to the block party and told his grandmother about it, and then his grandmother told Joe Catizone ("Mayor"), the Mayor of Girardville. The Mayor then contacted the police, and Patrolman Jody Long ("Officer Long") of the Girardville Police interviewed the child. After the interview, Officer Long, the child, the child's mother (who by then had arrived at the block party) and the Mayor then drove around Girardville in Officer Long's police car looking for the Defendant. The child testified that they were able to locate the Defendant in a trailer on Ogden Street, where the Defendant's car was parked, and that the child was able to identify the Defendant after hearing his voice. Next, M.C., age 16, testified. We conducted a colloquy and determined that he was competent to testify. M.C. was 15 years old at the time of the incident. M.C. does not know the Defendant. However, M.C. had seen the Defendant "around town" prior to August 12, 2017, riding a mini bike, which M.C. admired. That day, M.C. observed the Defendant and the child having a conversation along North Williams Street in Girardville. M.C. observed a gold Buick pull up alongside the child and a voice say, "Come on, give me your hand" or "take my hand" to the child. M.C. heard the child say "no." M.C. did not hear any other part of the conversation. M.C. testified that he knew it was the Defendant because M.C. had seen the Defendant's face when the car pulled up, but M.C. kept going. M.C. said that he next saw the child at the block party because they had gone different ways after the incident. He said the child was upset.
Next, Mayor Catizone testified. He first met the Defendant a few years ago, but did not know his name. The Mayor was at the block party when the child came up to him and told him that a stranger had approached the child and tried to talk with him, and the child felt he was potentially in danger. The Mayor called the police. The child appeared shaken. The Mayor and the child went with Officer Long in the patrol car to look for the Defendant. The child was able to describe the color of the car and also believed it was a Buick. They found the vehicle and Officer Long located the Defendant and brought him over to the car. The child was able to identify the Defendant's voice. The Mayor walked back to the block party and later went to the police station to give his statement to the police.
At the police station, the Defendant was yelling that he was having a heart attack and acting extremely agitated. EMTs arrived, checked the Defendant and concluded that he was not having a
heart attack. After the Defendant was cleared by the EMTS, the Defendant remained combative and yelled insults at the Mayor and Officer Long.
Finally, Officer Long testified. He was dispatched to the block party to investigate a possible abduction. The child told Officer Long that a guy in a goldish[-]colored car tried grabbing him. The child described the man as having long dirty blond hair and sunglasses. Officer Long and the Mayor contacted the child's mother; and the five of them drove around town, looking for the suspect. Long also spoke with M.C., who knew that the man's first name was Richard. M.C. told Long that Richard lived on Ogden Street in a trailer. As they arrived at the Ogden Street location, the Defendant came out of the trailer and greeted Officer Long. Officer Long told the Defendant that he was investigating a possible child abduction, and asked the Defendant to submit to an identification. The child identified the Defendant as the man, and asked to hear his voice, so Officer Long brought the Defendant over to the car while the child, who was upset, remained in the back seat with the window slightly lowered. As Officer Long and the Defendant had a verbal discussion, the child got even more upset and said that was "absolutely" the man. Officer Long then arrested the Defendant, handcuffed him in the front, gave him his Miranda warnings and took him to the police station. The Defendant became very combative and uncooperative, and intentionally shoved his body into Officer Long as Officer Long was removing the Defendant from the police car. The Defendant was placed on a bench, still in handcuffs, and Officer Long sat at a desk across from the bench. As Long was typing up the charges, the Defendant continued to be combative and began breathing heavily and spitting on the floor, as if he were hyperventilating. Officer Long kept asking the Defendant to remain seated and to stop spitting in the floor. The Defendant then fell over onto the floor, and after being lifted upright by the officer, stated that he was having a heart attack, and accordingly Officer Long called EMS, and he was medically cleared. The Defendant was then shackled and taken to Mahanoy City to be placed in a holding cell because of his uncooperative conduct. Officer Long then recalled that sometime prior to the claimed heart attack, he had observed that the Defendant had pulled his cotton shorts aside, exposing his genitals. When Officer Long asked what he was doing, the Defendant stated, "I'm going to piss on your floor." Officer Long told the Defendant that he was not going to do that and expressed incredulity at the Defendant, who had not asked to use the
restroom. The Defendant then pulled his shorts back. The Defendant then went on to complain about his health and that he was having a heart attack.Trial Court Opinion, 5/10/18, at 1-7.
At the conclusion of the evidence, the Court offered both parties the opportunity to file post-hearing briefs. Counsel for the Defendant filed a brief on December 5, 2017. In that brief, the Defendant argued that his conduct did not rise to a "luring" [or] attempt to commit interference with the custody of a child, that both charges must be dismissed. We agreed, dismissed the charges and the Commonwealth has appealed.
On appeal, the Commonwealth raises two issues:
In its Pa.R.A.P 1925(b) statement of errors complained of on appeal, the Commonwealth challenged the dismissal of the attempted interference with child custody charge. The Commonwealth has not brought that issue forward on appeal.
1. Whether the trial court erred by granting Carver's petition for writ of habeas corpus because the evidence, viewed in the light most favorable to the Commonwealth, established a prima facie case that Carver attempted to lure a child into his vehicle through enticing words and/or hand gestures and/or commanding the child to take his hand?Commonwealth's Brief, at 3.
2. Whether the trial court erred by granting Carver's petition for writ of habeas corpus because the evidence, viewed in the light most favorable to the Commonwealth, established a prima facie case that Carver indecently exposed himself by exposing his genitals at a police station where a police officer was nearby?
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. Commonwealth v. James , 863 A.2d 1179, 1182 (Pa. Super. 2004) (en banc). In Commonwealth v. Karetny , 880 A.2d 505 (Pa. 2005), our Supreme Court found that this Court erred in applying an abuse of discretion standard in considering a pre-trial habeas corpus matter to determine whether the Commonwealth had provided prima facie evidence. The Commonwealth's prima facie case for a charged crime is a question of law as to which an appellate court's review is plenary. Id. at 505. "[I]ndeed, the trial court is afforded no discretion in ascertaining whether, as a matter of law and in light of the facts presented to it, the Commonwealth has carried its pre-trial, prima facie burden to make out the elements of a charged crime." Id. See Commonwealth v. Dantzler , 135 A.3d 1109, 1111-12 (Pa. Super. 2016).
To demonstrate 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. Commonwealth v. Fowlin , 676 A.2d 665, 673 (Pa. Super. 1996). Proof beyond a reasonable doubt is not required at the habeas stage, but the Commonwealth's evidence must be such that, if accepted as true, it would justify a trial court in submitting the case to a jury. Id. Additionally, in deciding a habeas petition, a court must view the evidence and its reasonable inferences in the light most favorable to the Commonwealth. Id. Suspicion and conjecture, however, are unacceptable. Id.
The offense of luring a child into a motor vehicle or structure provides as follows:
§ 2910. Luring a child into a motor vehicle or structure18 Pa.C.S.A. § 2910. A "lure," for purposes of the offense of attempted luring of a child into a motor vehicle, 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[.]" Commonwealth v. Hart , 28 A.3d 898, 909 (Pa. 2011).
A person who lures a child into a motor vehicle without the consent, express or implied, of the child's parent or guardian, unless the circumstances reasonably indicate that the child is in need of assistance, commits a misdemeanor of the first degree.
After our review, we conclude that the trial court properly dismissed the charge of attempt to lure a child. We agree with the trial court that, even viewing the evidence in the light most favorable to the Commonwealth, there was no evidence of enticement or temptation to induce the child to enter the vehicle. We rely on the court's opinion to dispose of this claim. See Trial Court Opinion, supra at 9-11 (Carver did not offer any enticement to child, did not attempt to force child to touch his hand, did not get out of his car, child was 8 feet away during entire encounter; evidence does not rise to level needed to establish prima facie case).
With respect to the indecent exposure charge, however, we reverse the court's order. Section 3127 provides:
§ 3127. Indecent exposure18 Pa.C.S.A. § 3127(a).
(a) Offense defined.--A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.
Officer Long's testimony would enable a jury to conclude that Carver exposed his genitals at the police station only a few feet from Officer Long. Further, the trial court acknowledged that Officer Long "expressed incredulity at [Carver.]" Trial Court Opinion, at 6. A jury could reasonably infer from Officer Long's testimony that the station did not have a holding cell, and, thus, the area where Carver was being held was a public place. A jury could also reasonably infer that Carver knew his actions would "offend, affront or alarm." 18 Pa.C.S.A. § 3127(a). Viewing the evidence in the light most favorable to the Commonwealth, we conclude the Commonwealth presented sufficient evidence to establish a prima facie case of indecent exposure.
Order affirmed in part, reversed in part and remanded for further proceedings. Jurisdiction relinquished.
Judge Musmanno joins this Memorandum.
Judge Olson files a Concurring and Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/04/2019
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