Com. v. Pratt, J.

• Court: Superior Court of Pennsylvania
• Decided: April 8, 2025
• Docket: 437 EDA 2024
• Status: Unpublished

Opinion

J-A24024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JULIET L. PRATT : No. 437 EDA 2024

Appeal from the Order Entered January 4, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002586-2023

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY KING, J.: FILED APRIL 8, 2025

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Delaware County Court of Common Pleas, which granted the

motion of Appellee, Juliet L. Pratt, for writ of habeas corpus and dismissed the

charges against her for false imprisonment, endangering the welfare of a child

(“EWOC”), and possessing instruments of crime (“PIC”). We reverse and

remand for further proceedings.

In its order granting Appellee’s motion for writ of habeas corpus, the

trial court set forth the following findings of fact:

1. On March 8, 2023, [Appellee] was charged with the offenses, False Imprisonment of a Minor/Not a Parent, 18 Pa.C.S. § 2903; [EWOC], 18 Pa.C.S. § 4304; [PIC], 18 Pa.C.S. § 907, Unlawful Restrain[t] of a Minor/Not a Parent, 18 Pa.C.S. § 2902; and Simple Assault, 18 Pa.C.S. § 2701.

2. On May 18, 2023, Detective Kevin Knapp testified during the preliminary hearing against [Appellee]. J-A24024-24

3. Detective Knapp testified he was assigned to investigate an incident involving a school bus driver that occurred on March 8, 2023.

4. Detective Knapp testified the police received a call reporting a child had been “taped-up” on a school bus in Upper Darby Township.

5. Detective Knapp photographed school bus number 41 and retrieved the video recorded on that bus from the Upper Darby School District Transportation Center.

6. Detective Knapp identified clip 6 of the video recorded on bus number 41, on March 8, 2023, at 7:39:02 hours.

7. Clip 6 was played from 7:39:02 hours to 7:40:19 hours.

8. Detective Knapp identified clip 10 of the video recorded on bus number 41, March 8, 2023.

9. Clip 10 was played from 00:00 time to 3:31 on the time display on the video player.

10. Detective Knapp testified he observed in Exhibit “C-2” [Appellee] place something in the trash can.

11. Detective Knapp searched the trash can and found rolled up and ripped duct tape.

12. Detective Knapp testified the bus was equipped with shoulder straps and active seat belts to keep the children in their seats.

13. Detective Knapp contacted the parents of the student identified using the video.

14. Detective Knapp then spoke with [Appellee].

15. Detective Knapp testified [Appellee] said she wrapped the student’s feet together with duct tape and taped the shoulder straps.

16. Detective Knapp testified [Appellee] said she removed

-2- J-A24024-24

the duct tape with a cutting instrument.

17. Detective Knapp testified [Appellee] said she had taped the student once before.

18. Detective Knapp testified the student was ten years of age.

19. On cross-examination, Detective Knapp testified he had been employed with the Upper Darby Township Police Department for five years.

20. Detective Knapp was first a patrolman, and then became a detective.

21. Detective Knapp had been a detective for more than two years.

22. On cross-examination, Detective Knapp testified he believed the bus drivers knew the buses were equipped with video cameras.

23. On cross-examination, Detective Knapp testified the video cameras only record video and not sound.

24. On cross-examination, Detective Knapp testified he took [Appellee] into custody at the Upper Darby School District Transportation Center.

25. [Appellee] was in her car in the parking lot of the Upper Darby School District Transportation Center.

26. On cross-examination, Detective Knapp testified [Appellee] exited her car and he advised [Appellee] she was being taken into custody.

27. She was transported in a patrol car to the police headquarters.

28. On cross-examination, Detective Knapp testified [Appellee] was interviewed at the police headquarters.

29. On cross-examination, Detective Knapp testified he read [Appellee] her rights before she gave a statement.

-3- J-A24024-24

30. On cross-examination, Detective Knapp testified [Appellee] said she duct taped the student’s ankles because he was kicking his feet and was having an issue on the bus.

31. On cross-examination, Detective Knapp testified the student had a disability.

32. On cross-examination, Detective Knapp testified the Director of Transportation indicated bus drivers were not allowed to restrain students using duct tape.

33. Apparently, the police investigation did not include a review of the Upper Darby School District written policies since Detective Knapp testified he did not know what those school district policies were regarding student transport safety.

34. On cross-examination, Detective Knapp testified the student sustained no injury.

35. On cross-examination, Detective Knapp testified that, based upon his knowledge, the student did not seek medical treatment.

36. On May 18, 2023, Abibetu Turay testified during the preliminary hearing against [Appellee].

37. Abibetu Turay testified she is the mother of M.G.B. (a “Minor”).

38. Abibetu Turay testified M.G.B. is diagnosed with Down Syndrome and a heart condition.

39. Abibetu Turay testified M.G.B. takes the bus to school.

40. Abibetu Turay testified [Appellee] was M.G.B.’s bus driver in March of 2023.

41. Abibetu Turay testified she spoke with [Appellee] to thank her for driving M.G.B.

42. In addition, Abibetu Turay testified she apologized to [Appellee] for an issue on the bus in which M.G.B. refused

-4- J-A24024-24

to sit while riding the bus, and was kicking the bus.

43. Abibetu Turay testified she signed a paper in which the Upper Darby School District notified her someone it selected would be on the bus assigned to assist M.G.B.

44. Abibetu Turay testified that when she apologized [Appellee] yelled at Abibetu Turay, and as a result Abibetu Turay became afraid for M.G.B.’s safety and contacted his teacher.

45. Abibetu Turay testified the next day, the police notified her there was an incident on the bus.

46. Abibetu Turay testified M.G.B. cannot speak.

47. Abibetu Turay testified she did not give [Appellee] permission to restrain, to discipline, to deal with M.G.B.’s behavior, or to use duct tape to restrain him.

48. Abibetu Turay testified M.G.B. was ten years old on March 8, 2023.

49. On cross-examination, Abibetu Turay testified [Appellee] was M.G.B.’s bus driver when the school year began in August or September of 2022.

50. On cross-examination, Abibetu Turay testified M.G.B. used a car seat with a seat belt on the bus.

51. On cross-examination, Abibetu Turay testified that at times, she put M.G.B. on the bus in the morning and took him off the bus in the evening.

52. On cross-examination, Abibetu Turay testified she thought M.G.B.’s brother put him on the bus on the morning of the incident.

53. Upon conclusion of the preliminary hearing, the Magistrate District Judge held the offenses of False Imprisonment, [EWOC], and [PIC] for trial.

54. The Magistrate District Judge dismissed the offenses of Unlawful Restraint and Simple Assault.

-5- J-A24024-24

55. On July [12], 2023, [Appellee] filed … Omnibus Motions for Pre-Trial Relief which included this Motion for Writ of Habeas Corpus for Discharge, a Motion to Suppress Statements of [Appellee], and a Motion for Leave to File Additional Pre-Trial Motions.

56. On November 29, 2023, a hearing was held upon [Appellee’s] Motion for Writ of Habeas Corpus for Discharge.

57. The Commonwealth presented the following exhibits:

a. The May 18, 2023 Preliminary Hearing Transcript transcribed by York Stenographic Services, Inc. (Commonwealth Exhibit “A”).

b. The video recorded on the bus, Clips 1 through 10 (Commonwealth Exhibit “B”).

c. The video interview of [Appellee] (Commonwealth Exhibit “C”).

d. Photographs of the bus interior, and single and double shoulder strap safety belts (Commonwealth Exhibit “D”). This [c]ourt takes judicial notice that Commonwealth Exhibit “D” appears to show three single shoulder strap safety belts and five double shoulder strap safety belts.

e. Photograph of the duct tape in the trash can (Commonwealth Exhibit “E”).

f. Photograph of the duct tape retrieved by the police from the trash can (Commonwealth Exhibit “F”).

g. Photograph of the car seat with shoulder straps and safety belts (Commonwealth Exhibit “G”).

58. [Appellee] presented the following exhibits:

a. The May 18, 2023 Preliminary Hearing Transcript transcribed by Media Court Reporting (Defense Exhibit “D-1”).

-6- J-A24024-24

b. The March 18, 2023 Recorded Interview of [Appellee] transcribed by Media Court Reporting (Defense Exhibit “D-2”).

59. Contrary to the Commonwealth’s argument, this [c]ourt considers all ten clips of video recorded on the bus to be relevant.

60. This [c]ourt [reviewed all] ten clips of video recorded on the bus. [There is no Upper Darby School District aide or other adult person present on bus number 41 other than Appellee during any of the ten clips of video recorded on the bus until the bus reaches the school.]

(Findings of Fact/Conclusions of Law, filed 1/4/24, at ¶¶ 1-60) (internal

citations and footnotes omitted).1

On January 4, 2024, the trial court granted Appellee’s motion for writ of

habeas corpus and dismissed the charges of false imprisonment, EWOC, and

PIC. The Commonwealth timely filed a notice of appeal pursuant to Pa.R.A.P.

311(d) on February 1, 2024.2 The court did not order the Commonwealth to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and the Commonwealth filed none.

____________________________________________

1 The trial court goes on to explain what is depicted in the video clips. (See id. at ¶ 60). Despite some testimony indicating that the video clips do not have audio, our review of the video clips confirms that they do have audio. The trial court then details the content of the recorded video interview between Appellee and Detective Knapp on March 8, 2023. (Id. at ¶ 61). We have reviewed the video clips and transcript of the recorded interview and discuss the relevant portions of same infra.

2 See Pa.R.A.P. 311(d) (allowing appeal as of right where Commonwealth certifies in notice of appeal that trial court’s order will terminate or substantially handicap prosecution).

-7- J-A24024-24

The Commonwealth raises one issue for our review:

Whether the trial court erred in granting [Appellee’s] motion for habeas corpus relief to dismiss the charges where the evidence presented by the Commonwealth unequivocally established a prima facie case on the charges of false imprisonment, [EWOC], and [PIC]?

(Commonwealth’s Brief at 3).

The Commonwealth argues that the evidence produced at the

preliminary hearing and the hearing on Appellee’s motion for habeas corpus,

viewed in the light most favorable to the Commonwealth and accepted as true,

demonstrates that the Commonwealth established a prima facie case for the

charges of false imprisonment, EWOC, and PIC. Regarding false

imprisonment, the Commonwealth contends that the court erred in concluding

that it failed to establish Appellee’s deprivation of M.G.B.’s freedom to leave

a particular place. The Commonwealth maintains that the trial court

improperly concluded that because M.G.B. required assistance getting on and

off the bus, and was a non-verbal child with special needs, that he lacked

individual liberty. The Commonwealth insists that the fact that M.G.B.’s

mother signed a paper permitting the school to assign someone to assist him

on the bus did not mean M.G.B.’s mother consented to Appellee duct taping

her son’s legs together such that he would be restricted from moving them in

the event of an emergency.

The Commonwealth emphasizes that the evidence established that

Appellee restrained a non-verbal ten-year-old child with multiple physical and

-8- J-A24024-24

mental disabilities by duct taping his ankles together and duct taping the

seatbelt harness across his chest. The Commonwealth highlights Appellee’s

statement that she had to cut M.G.B. out of the duct tape upon arriving at the

school to free him from the restraints imposed. The Commonwealth avers

that this type of restraint “substantially” interfered with M.G.B.’s liberty as

required by the statute and completely stripped M.G.B. of any liberty or

agency. The Commonwealth further highlights that the video shows M.G.B.

entering the bus with assistance; it does not show that M.G.B. was unable to

walk at all. The Commonwealth posits that had an emergency occurred,

Appellee’s actions wholly restrained M.G.B. from helping himself.

Further, the Commonwealth challenges the court’s conclusion that the

restraint was not “unlawful” because the Commonwealth allegedly failed to

present evidence that Appellee acted without justification or excuse. The

Commonwealth claims that the court erroneously concluded that Appellee did

not demonstrate “consciousness of guilt” because Appellee knew she was

likely on camera. The Commonwealth also asserts that the court improperly

credited Appellee’s statement to police regarding her alleged justification for

her actions, where credibility is not an issue for the court to resolve at this

stage of the proceedings. In light of the low evidentiary burden at this

juncture, the Commonwealth submits that it established the restraint was

unlawful, i.e., that it was with force or threats, and was without justification

or excuse. The Commonwealth stresses that the video clips depict Appellee’s

-9- J-A24024-24

frustration with M.G.B., and not a safety concern. The Commonwealth further

contends that any claim that Appellee’s actions were justified is a question to

be resolved by the fact-finder at trial.

Regarding the charge of EWOC, the Commonwealth challenges the

court’s finding that the Commonwealth failed to establish that Appellee

knowingly did anything to endanger M.G.B.’s welfare based on Appellee’s

statement that she duct taped M.G.B. for his own safety. The Commonwealth

insists that the video contradicts Appellee’s statement. The Commonwealth

points out that M.G.B. was not trying to leave his seat or harm himself or

others. The Commonwealth proclaims that, viewed in the light most favorable

to the Commonwealth and with all inferences in its favor, the evidence showed

that Appellee endangered M.G.B.’s welfare by knowingly violating a duty of

care. The Commonwealth emphasizes that Appellee was a special needs bus

driver, and a fact-finder could reasonably infer by Appellee’s actions and her

relationship to M.G.B., that Appellee threatened or endangered M.G.B.’s

welfare. The Commonwealth reiterates that any claim of justification is a

question properly left for trial.

With respect to the PIC charge, the Commonwealth argues that the

court improperly decided that Appellee did not use the duct tape in a criminal

manner based on the court’s conclusions that the Commonwealth failed to

present sufficient evidence of false imprisonment or EWOC. For the reasons

set forth above regarding false imprisonment and EWOC, the Commonwealth

- 10 - J-A24024-24

contends that it presented a prima facie case to establish that Appellee used

the duct tape for a purpose not manifestly appropriate for its otherwise lawful

use. Further, the Commonwealth maintains that using duct tape to restrain a

ten-year-old, nonverbal, special needs child is not merely “ill behavior” as the

trial court suggests. The Commonwealth concludes that the trial court erred

by granting Appellee’s motion for writ of habeas corpus and dismissing the

charges of false imprisonment, EWOC, and PIC, and this Court must reverse.

We agree.

“In reviewing a trial court’s order granting a defendant’s petition for writ

of habeas corpus, we must generally consider whether the record supports

the trial court’s findings, and whether the inferences and legal conclusions

drawn from those findings are free from error.” Commonwealth v. Hilliard,

172 A.3d 5, 10 (Pa.Super. 2017) (internal citations and quotation marks

omitted). Further, “the evidentiary sufficiency, or lack thereof, of the

Commonwealth’s prima facie case for a charged crime is a question of law,”

and the appellate court’s review is plenary. Commonwealth v. Karetny,

583 Pa. 514, 528, 880 A.2d 505, 513 (2005).

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. Therefore, we are not bound by the legal determinations of the trial court.

Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa.Super. 2018) (internal

citations, quotations, and brackets omitted).

- 11 - J-A24024-24

The purpose of a preliminary hearing is

to determine whether the Commonwealth has made out a prima facie case for the offenses charged. A prima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime….

The Commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. 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. Moreover, the weight and credibility of the evidence are not factors at this stage, and the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case.

Id. (internal citations, quotations, and indentation omitted) (emphasis in

original). See also Pa.R.Crim.P. 542(D) (stating: “At the preliminary hearing,

the issuing authority shall determine from the evidence presented whether

there is a prima facie case that (1) an offense has been committed and (2)

the defendant has committed it”).

Further:

The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established. The “more-likely-than-not” test, must be applied to assess the reasonableness of inferences relied upon in establishing a prima facie case of criminal culpability.

- 12 - J-A24024-24

The more-likely-than-not test is the minimum standard— anything less rises no higher than suspicion or conjecture.

Commonwealth v. Perez, 666 Pa. 29, 48, 249 A.3d 1092, 1102-03 (2021)

(internal citations and quotation marks omitted).

Following a preliminary hearing,

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. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en

banc) (internal citations and quotation marks omitted). See also

Commonwealth v. Predmore, 199 A.3d 925 (Pa.Super. 2018) (en banc),

appeal denied, 652 Pa. 301, 208 A.3d 459 (2019) (reiterating that pretrial

motion for writ of habeas corpus is appropriate method for defendant to test

whether Commonwealth has established prima facie case; Commonwealth is

entitled to rely on evidence presented at preliminary hearing when responding

to pretrial motion for writ of habeas corpus).

The Crimes Code defines the offense of false imprisonment, 3 in relevant

3 When defining the elements of the crimes at issue in this case, both parties

and the trial court at times cite to definitions used in the Pennsylvania Suggested Standard Jury Instructions (“SSJI”). Nevertheless, courts are not (Footnote Continued Next Page)

- 13 - J-A24024-24

part, as follows:

§ 2903. False imprisonment

* * *

(b) False imprisonment of a minor where offender is not victim’s parent.—If the victim is a person under 18 years of age, a person who is not the victim’s parent commits a felony of the second degree if [she] knowingly restrains another unlawfully so as to interfere substantially with his liberty.

18 Pa.C.S.A. § 2903(b).4 “In determining the magnitude of restraint

necessary for false imprisonment, this Court has recognized that false

imprisonment covers restraints which are less serious than those necessary

for the offenses of kidnapping and unlawful restraint.” In re M.G., 916 A.2d

1179, 1181-82 (Pa.Super. 2007) (internal footnotes omitted). 5 “In

determining whether the restraint at issue interfered with [the minor’s] liberty

‘substantially,’ we give the word ‘substantially’ its plain meaning. Thus, we

bound to the terms of the SSJI’s unless the language used therein is made mandatory in a precedential judicial decision. Commonwealth v. H.D., 665 Pa. 216, 220 n.1, 247 A.3d 1062, 1064 n.1 (2021).

4 The Editors’ Note to the statute explains that Section 2903 is derived from

Section 212.3 of the Model Penal Code. 18 Pa.C.S.A. § 2903, Editors’ Note. The Model Penal Code provides: “A person commits a misdemeanor if [she] knowingly restrains another unlawfully so as to interfere substantially with his liberty.” Model Penal Code § 212.3.

5 The Crimes Code defines unlawful restraint, in relevant part, as follows: “If

the victim is a person under 18 years of age, a person who is not the victim’s parent commits a felony of the second degree if [she] knowingly: (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury[.]” 18 Pa.C.S.A. § 2902(b)(1).

- 14 - J-A24024-24

determine the Legislature intended false imprisonment to cover restraints

where an individual’s liberty is interfered with in an ample or considerable

manner.” Id. at 1182 (internal citations omitted). Further, we note that

Section 2903 does not provide a definition of “unlawful” as used in the statute.

See 18 Pa.C.S.A. § 2903. Black’s Law Dictionary, however, defines “unlawful”

as, inter alia, “[n]ot authorized by law; illegal”; “[c]riminally punishable[.]”

Black’s Law Dictionary, UNLAWFUL (12 th ed. 2024).6

6 Relying on the SSJI’s, both the Commonwealth and the trial court state that

“unlawfully” as used in Section 2903 means the restraint is “by force or threat without justification or excuse.” (The Commonwealth’s Brief at 20; Trial Court Opinion at ¶ 68(b)(ii)). We note that Appellee does not utilize this definition in her appellate brief.

Specifically, the SSJI for false imprisonment states:

15. 2903 False Imprisonment

1. The defendant has been charged with false imprisonment. To find the defendant guilty of this offense, you must find that each of the following … elements has been proven beyond a reasonable doubt:

First, that the defendant restrained [name of individual] unlawfully so as to interfere substantially with [his] [her] liberty; and

Second, that the defendant did so knowingly. In other words, the defendant was aware that [he] [she] was restraining [name of individual] and that the restraint was unlawful and interfered substantially with [name of individual’s] liberty.

[Where greater offense is charged:]

(Footnote Continued Next Page)

- 15 - J-A24024-24

The Crimes Code defines the offense of EWOC, in relevant part, as

follows:

§ 4304. Endangering welfare of children

(a) Offense defined.—

(1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if ____________________________________________

Third, that [name of individual] was under 18 years of age at the time of the offense.

[2. I’ll explain some of these requirements:

[An individual is restrained if [he or she is deprived of his or her freedom to leave a particular place] [give other conditions].]

[The restraint is unlawful if it is [by force or threats without justification or excuse] [give other conditions].]

Pa. SSJI (Crim) 15.2903 (2024) (italics and brackets in original).

The Subcommittee Note also states that “[t]he terms ‘unlawfully’ and ‘knowingly’ have the same meaning in false imprisonment under section 2903 as in unlawful restraint under section 2902(a)(1).” See id., Subcommittee Note. Interestingly, the SSJI for unlawful restraint instructs that a “restraint is ‘unlawful’ if it is [by force or threats without legal justification or excuse].” Pa. SSJI (Crim) 15.2902A (2024) (emphasis added) (brackets in original). Thus, although the Subcommittee Note for false imprisonment indicates that the term “unlawfully” has the same meaning for false imprisonment as it does for unlawful restraint, the SSJI provides different instructions for those crimes where it adds the word “legal” to the instruction for unlawful restraint. See id.

Nevertheless, we have uncovered no Pennsylvania cases that define “unlawfully” for purposes of Section 2903 as “by force or threats without justification or excuse” as stated in the SSJI. See H.D., supra. We further note that the Crimes Code does not define the term “unlawful” in its general Definitions section. See 18 Pa.C.S.A. § 103.

- 16 - J-A24024-24

[she] knowingly endangers the welfare of a child by violating a duty of care, protection or support.

18 Pa.C.S.A. § 4304(a)(1). “As used in this subsection, the term ‘person

supervising the welfare of a child’ means a person other than a parent or

guardian that provides care, education, training or control of a child.” 18

Pa.C.S.A. § 4304(a)(3) (emphasis omitted). Although EWOC generally is

graded as a misdemeanor of the first degree, “[i]f the actor engaged in a

course of conduct of endangering the welfare of a child, the offense constitutes

a felony of the third degree.” 18 Pa.C.S.A. § 4304(b)(1)(i-ii).

This Court has developed a three-part test for the Commonwealth to

prove an EWOC conviction:

(1) the accused was aware of his/her duty to protect the child;

(2) the accused was aware that the child was in circumstances that could threaten the child’s physical or psychological welfare; and

(3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.

Commonwealth v. Delamarter, 302 A.3d 1195, 1201 (Pa.Super. 2023).

“[I]n determining what conduct violates the EWOC statute, the common sense

of the community, as well as the sense of decency, propriety and the morality

which most people entertain is sufficient to apply the statute to each particular

case, and to individuate what particular conduct is rendered criminal by it.”

Id. at 1206 (internal citations and quotation marks omitted). Further, “[t]he

- 17 - J-A24024-24

absence of the infliction of a physical injury to the child … or the uncertainty

as to that potential outcome … is immaterial for purposes of our review.” Id.

at 1207 (noting EWOC statute’s stated concern for psychological welfare of

child and that EWOC statute is intended to cover broad range of conduct to

safeguard welfare and security of children).

The Crimes Code defines the offense of PIC, in relevant part, as follows:

§ 907. Possessing instruments of crime

(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if [she] possesses any instrument of crime with intent to employ it criminally.

18 Pa.C.S.A. § 907(a). “Instrument of crime” includes “[a]nything used for

criminal purposes and possessed by the actor under circumstances not

manifestly appropriate for lawful uses it may have.” 18 Pa.C.S.A. § 907(d).

Further, the Crimes Code defines an “intentionally” and a “knowingly”

mens rea as follows:

§ 302. General requirements of culpability

(b) Kinds of culpability defined.—

(1) A person acts intentionally with respect to a material element of an offense when:

(i) if the element involves the nature of [her] conduct or a result thereof, it is [her] conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, [she] is aware of the existence of such circumstances or [she] believes or hopes that they exist.

- 18 - J-A24024-24

(2) A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of [her] conduct or the attendant circumstances, [she] is aware that [her] conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of [her] conduct, [she] is aware that it is practically certain that [her] conduct will cause such a result.

18 Pa.C.S.A. § 302(b)(1-2).

Instantly, our review of the ten video clips taken from the bus on the

morning of March 8, 2023 shows the following series of events, in relevant

part: At approximately 7:15:24 a.m., an adult male escorts M.G.B. onto the

bus. The adult male then leaves and Appellee escorts M.G.B. through the aisle

to a seat. Between approximately 7:15:50 a.m. to 7:16:20 a.m., Appellee

appears to assist M.G.B. with his car seat shoulder straps and safety belts in

the third row bench seat behind the driver seat. (See Commonwealth’s

Exhibit “B”; Clip 1). At approximately 7:25:52 a.m., M.G.B.’s leg and foot are

extended into the aisle for a moment. M.G.B. is not seen kicking any other

passenger or blocking any passenger’s ability to sit on the bus. At

approximately 7:26:42 a.m., M.G.B.’s leg and foot are again extended into

the aisle briefly. At approximately 7:28:58 a.m., Appellee appears to see

M.G.B.’s leg and foot and tells him, “keep your feet in.” (See Commonwealth’s

Exhibit “B”; Clip 3).

At approximately 7:29:01 a.m., M.G.B. again extends his leg and foot

- 19 - J-A24024-24

into the aisle. M.G.B. is not seen kicking any other passenger or directly

blocking any passenger’s ability to sit on the bus. Appellee assists another

passenger with finding a seat and then moves M.G.B.’s leg and foot into his

seat area and yells “keep your feet in.” At approximately 7:29:20 a.m.,

Appellee moves M.G.B. to the first row bench seat across the aisle, to the right

of the driver seat. Appellee appears to assist M.G.B. with his car seat shoulder

straps and safety belts. At approximately 7:30:33 a.m., Appellee appears to

resecure M.G.B. with his car seat shoulder straps and safety belts. At

approximately 7:32:25 a.m., there is a thud and Appellee yells to M.G.B. “stop

kicking (inaudible) I’m telling your teacher.” At approximately 7:32:32 a.m.,

there is another thud and Appellee yells “stop kicking.” At approximately

7:32:44 a.m., Appellee says “I will have to strap your feet down if you keep

kicking.” At approximately 7:32:47 a.m., there are more audible thuds. At

approximately 7:32:48 a.m., Appellee says, “What’s that? One more time.”

At approximately 7:32:54 a.m., there is audible laughing. Appellee says, “Go

ahead do it. I will strap your feet together again.” (See Commonwealth’s

Exhibit “B”; Clip 4).

Between approximately 7:34:07 a.m. and 7:34:58 a.m., there are more

audible thuds. At approximately 7:35:04 a.m., Appellee appears to be

interacting with M.G.B. using tape near M.G.B.’s feet. At approximately

7:37:30 a.m., there is another audible thud. At approximately 7:37:43 a.m.,

Appellee asks M.G.B., “Did you think this is funny?” and yells, “Stop it.” At

- 20 - J-A24024-24

approximately 7:38:44 a.m., Appellee appears to be interacting with M.G.B.

and resecuring M.G.B.’s car seat shoulder straps. Appellee is holding a roll of

duct tape. (See Commonwealth’s Exhibit “B”; Clip 5). Between

approximately 7:39:32 a.m. to 7:40:12 a.m., Appellee appears to be using

the tape on the upper safety belt area of M.G.B.’s car seat shoulder straps.

At approximately 7:40:06 a.m., Appellee states, “I’m not making (inaudible).

I’m not doing it” after Appellee appears to have used tape on M.G.B.’s shoulder

straps. At approximately 7:41:23, Appellee states, “I don’t know why you

think this is funny, I don’t know.” (See Commonwealth’s Exhibit “B”; Clip 6).

At approximately 7:54:00 a.m., five child passengers exit the bus.

M.G.B. and other passengers remain on the bus. At approximately 7:55:01

a.m., Appellee states, “Hey guess (inaudible) then. Now put them back….

This is ridiculous. Amazing. Every time.” At approximately 7:58:04 a.m.,

the bus appears to arrive at its final destination. (See Commonwealth’s

Exhibit “B”; Clip 9). At approximately 8:02:35 a.m., after some other children

exited the bus, an adult enters the bus. Appellee engages in conversation

with the adult and appears to remove the duct tape from M.G.B. in the

presence of the adult. At approximately 8:02:41 a.m., Appellee says to the

other adult, “Kicking. I put him over here. He gets out of his seat. He’s

kicking the bus. I taped his feet together. I don’t understand why. …” At

approximately 8:03:58 a.m., Appellee appears to throw the duct tape into a

trash bin located on the bus. (See Commonwealth’s Exhibit “B”; Clip 10).

- 21 - J-A24024-24

In her recorded video interview with Detective Knapp, Appellee

explained that she drove M.G.B. on the bus the year before. Appellee stated

that M.G.B. is “spinning, kicking, kicks the bus.” (Transcript of Recorded

Interview, 3/8/23, at 6). Appellee stated that she previously used toys to

distract M.G.B. on the bus and keep him occupied for the ride, but another

autistic child passenger did not like the noise so Appellee could no longer use

the toys. Appellee stated that she moved M.G.B.’s seat on the morning of the

incident because M.G.B. was sticking his foot in the center aisle. Previously,

he would kick other passengers while they were getting on the bus. Appellee

explained that while she was assisting another child passenger, M.G.B. had

his foot in the aisle. Appellee then moved M.G.B. to his original seat in the

front of the bus. Appellee said she had moved M.G.B. from that original seat

on the morning of the incident so that M.G.B. would not kick the wheel well.

Appellee said that she “told other drivers, [and] talk[ed] to other drivers

and other aides. And they all said do what you have to do[.]” (See id. at 8).

Appellee explained that M.G.B.’s mother was in the process of completing

paperwork to have an aide present on the bus to assist M.G.B., but the aide

had not yet been assigned for the bus that morning. Appellee admitted that

she should not have driven M.G.B. without an aide present. Appellee admitted

that she had taped M.G.B.’s ankles together one other time when he was

throwing his shoes. Appellee also conceded that, “I mean now that I’m

thinking about it, you know—it’s like I said. It’s not—you know, it’s not for

- 22 - J-A24024-24

me to do that [meaning using tape on M.G.B.]” (Id. at 13). Appellee then

stated, “I don’t know what else—I don’t—I don’t know what else I could do at

this point as the driver.” (Id.) Appellee continued, “And like I’m more

frustrated because I don’t know what to do and I don’t know how to have a

safe atmosphere for all—all the kids, not just him.” (Id. at 14). Appellee

explained that she taped M.G.B.’s ankles together so that he would stop

kicking. Appellee stated, “I mean I will never, ever use duct tape again.” (Id.

at 21). Appellee said she had a seatbelt cutter to cut the tape in the event of

an emergency. Appellee stated, “this was past the point of like a last resort.”

(Id. at 23).

In evaluating the evidence presented, regarding the charge of false

imprisonment, the trial court stated: “Based upon the foregoing facts and

given the age, mental and physical conditions of M.G.B., this [c]ourt cannot

infer M.G.B. was able to exercise his own liberty.” (Findings of

Fact/Conclusions of Law at ¶ 82). The court went on to state: “In addition,

this [c]ourt is unable to infer M.G.B. was able to exercise his own liberty where

his family consented to his transportation on the school bus equipped with

shoulder straps and a seat belt harness, his mother knew someone needed to

escort him on the bus, and the school district determined that a person it

selected would be on the bus to assist and supervise M.G.B. during his

transport.” (Id. at ¶ 83). Additionally, the court concluded “duct tape was

used by [Appellee] to secure M.G.B.’s ankles to prevent injury due to kicking,

- 23 - J-A24024-24

and across the seat belt harness release mechanism to secure the seat

harness and to prevent M.G.B.’s manipulation of the release mechanism.”

(Id. at ¶ 91). Thus, the trial court found a “lack of prima facie evidence in

this case, where M.G.B. possessed no individual agency based upon his age

and special needs, and, for this reason, was not deprived of his freedom to

leave the school bus.” (Id. at ¶ 93).

The court reiterated that “M.G.B. as a special needs minor lacked the

capacity to exercise his own agency, required additional supervision while

transported on the bus, and required a special needs car seat with shoulder

straps and a seat belt harness to safely secure and transport him on the school

bus.” (Id. at ¶ 94). “Most significantly, [the court found] a lack of prima facie

evidence in support of the Commonwealth assertion that the restraint of

M.G.B. was unlawful where there is no evidence, direct or circumstantial,

presented in this record by the Commonwealth to find or infer the restraint

was by force or threat, and was without justification of excuse.” (Id. at ¶ 95).

Specifically, the court found that the Commonwealth failed to establish that

“the restraint of M.G.B. was unlawful because the Commonwealth did not

establish [Appellee’s] actions were without justification or excuse.” (Id. at ¶

101). The court further concluded there was no evidence of Appellee’s

criminal mens rea. (Id. at ¶ 104).

We cannot agree with the trial court’s conclusions. Here, it is undisputed

that M.G.B. is under 18 years of age. Regarding whether Appellee interfered

- 24 - J-A24024-24

substantially with M.G.B.’s liberty, we initially disagree with the trial court’s

statements that M.G.B. lacked individual liberty or agency merely because he

is non-verbal and/or has special needs. 7 The fact that M.G.B.’s mother agreed

for an aide to be present on the bus does not change our conclusion. 8 M.G.B.’s

mother did not consent for her son to be restrained with duct tape on the bus.

Viewed in the light most favorable to the Commonwealth and with all

reasonable inferences in its favor, the evidence demonstrates that Appellee

restrained M.G.B.’s liberty in an ample or considerable manner by duct taping

his ankles together and duct taping the chest clip of M.G.B.’s seatbelt. See

18 Pa.C.S.A. § 2903(b); In re M.G., supra. We reject Appellee’s assertion

that the duct tape merely constituted an “additional” restraint beyond what

the car seat employed such that it did not constitute a substantial interference

with M.G.B.’s liberty. Duct taping a child’s ankles together so that he cannot

move his legs freely and duct taping a chest clip so that it cannot be opened

without being cut off certainly goes beyond the level of restraint imposed by

the car seat mechanisms.9

7 By this logic, one could never commit a false imprisonment upon an infant

child.

8 We repeat that the school district agreed to provide an aide to help M.G.B.

on the bus, but no aide was present on the date of the incident.

9 We further reject Appellee’s contentions that the level of restraint used here

“is no different than had an Aide sat with the child and held their feet and arms still.” (Appellee’s Brief at 11). It is obvious that an aide could remove (Footnote Continued Next Page)

- 25 - J-A24024-24

The Commonwealth also produced evidence from which a jury could

reasonably infer that Appellee was “practically certain that [her] conduct

[would] cause” a substantial interference with M.G.B.’s liberty, sufficient to

establish evidence of the requisite mens rea. See 18 Pa.C.S.A. §§ 2903(b);

302(b). See also Ouch, supra. In other words, the Commonwealth adduced

evidence that Appellee was aware her actions would restrain M.G.B.’s liberty

in an ample or considerable manner. Obviously, Appellee’s purpose was to

prevent M.G.B. from kicking or otherwise causing a disturbance on the bus. 10

their hands from a child without the need of a cutting agent. In the event of an emergency, an aide could help the child; here, M.G.B. would remain helpless in that situation without intervention from Appellee. Likewise, we cannot agree with Appellee’s analogy to the limits imposed on a wheelchair on mass transit. (See id.) While the federal regulation Appellee cites to limits the movement of an occupied wheelchair or mobility aid, that regulation does not restrain the person’s movement. See 49 CFR 38.23(d)(5). We also disagree with Appellee’s claim that “[t]he twenty minutes of restricting movement of legs to prevent kicking and arms to prevent tape removal is no less of an impairment of movement than detaining a person suspected of shoplifting[.]” (Appellee’s Brief at 19) (internal brackets omitted). We acknowledge the Editors’ Note to the false imprisonment statute that states: “It is not intended by this section to penalize every detention which might be the basis of a civil suit for false imprisonment. For example, a short detention of a suspected thief by the victim for the purpose of questioning or recovering the stolen property would not constitute a crime under this section.” 18 Pa.C.S.A. § 2903, Editors’ Note. Nevertheless, we cannot agree that restraining a ten-year-old non-verbal child for twenty minutes such that the child cannot move his legs or exit a seat without use of a cutting agent is the same as briefly detaining a suspected shoplifter until police arrive.

10 To the extent Appellee insists that the Commonwealth also needed to produce evidence to show that Appellee knew her actions were unlawful, as suggested in the SSJI, we reiterate that the SSJI’s are not binding in the absence of judicial precedent stating same. See H.D., supra. We recognize (Footnote Continued Next Page)

- 26 - J-A24024-24

In reaching its decision, the trial court focused on whether Appellee was

that the SSJI utilizes this language based on the Explanatory Note for Sections 212.1-212.5 of the Model Penal Code. Therein, the Explanatory Note for Section 212.3 states that false imprisonment requires knowledge of the unlawful nature of the restraint. See Model Penal Code Pt. II, Art. 212, Explanatory Note for Section 212.1-212.5. Although not stated in the SSJI for false imprisonment, the Subcommittee Note for the SSJI for the related crime of unlawful restraint states:

With regard to the requirement of knowledge dealt with in the second element of subdivision 1, we provide that the defendant’s knowledge must extend to (1) the restraint, (2) the unlawfulness of the restraint, and (3) the risk of injury to the individual. We are following the approach taken by the drafters of the Model Penal Code. … Query whether the Pennsylvania appellate courts, if confronted with the issue, would construe Crimes code section 2902(a)(1) to require that the defendant’s awareness of the “unlawfulness” of his or her conduct extends to the relevant law and its application as well as to factual matters relevant to lawfulness.

Pa. SSJI (Crim) 15.2902A, Subcommittee Note. As we have uncovered no Pennsylvania cases that utilize this language when interpreting the false imprisonment statute, we decline to adopt that suggestion as a mandatory element of false imprisonment here. See id.

Moreover, even if Appellee’s knowledge of her unlawful actions is an element of false imprisonment, the record here provides evidence of such knowledge. We emphasize that in her recorded interview, Appellee stated: “I mean now that I’m thinking about it, you know—it’s like I said. It’s not—you know, it’s not for me to do that [meaning taping M.G.B.]” (Transcript of Recorded Interview Transcript at 13). We repeat that Appellee also stated: “I mean I will never, ever use duct tape again.” (Id. at 21). This evidence, if admitted at trial, creates a reasonable inference from which a jury could infer that Appellee knew her actions were unlawful. To the extent the trial court credited other statements by Appellee that demonstrated a lack of consciousness of guilt, it would be up to the fact-finder to weigh those competing pieces of evidence. See Ouch, supra.

- 27 - J-A24024-24

justified in her actions, using the definition of unlawful as supplied in the SSJI.

We agree with the Commonwealth, however, that whether Appellee was

justified to act in this manner is a question of fact for trial. See 18 Pa.C.S.A.

§§ 502 (stating “[i]n any prosecution based on conduct which is justifiable

under this chapter, justification is a defense”) (emphasis added); 503(a)

(stating that conduct which actor believes to be necessary to avoid harm or

evil to herself or to another is justifiable if (1) harm or evil sought to be

avoided by such conduct is greater than that sought to be prevented by law

defining offense charged; (2) neither this title nor other law defining offense

provides exceptions or defenses dealing with specific situation involved; and

(3) legislative purpose to exclude justification claimed does not otherwise

plainly appear).11 At this juncture of the proceedings, the Commonwealth

adduced sufficient evidence to establish a prima facie case of false

imprisonment. See Ouch, supra.

With respect to the charge of EWOC, the court explained the video

11 Even if we accepted the definition of unlawful as stated by the SSJI, our result would remain the same. Although the court seems to credit Appellee’s assertion that her “justification” or “excuse” for duct taping M.G.B. was to protect M.G.B.’s safety and the safety of the other students, the Commonwealth also presented evidence that Appellee appeared frustrated and/or annoyed with M.G.B.’s actions, which may have provided an alternate basis for Appellee’s actions. Further, looking to the definition of “unlawful” in the SSJI for the related crime of unlawful restraint, we cannot say that Appellee had a legal justification for her actions, even if she believed she was justified in duct taping M.G.B. On this record, the Commonwealth presented sufficient evidence from which a jury could infer that Appellee’s actions lacked justification or excuse.

- 28 - J-A24024-24

shows “a justification for [Appellee’s] actions to restrain M.G.B. in order to

protect and secure him from unintentional self-harm which may have resulted

when he freed himself from the shoulder straps, seat belts, and car seat while

the bus was moving, and to protect the other child passengers from tripping

over M.G.B.’s legs while the other child passengers entered and exited the bus

through its aisle.” (Findings of Fact/Conclusions of Law at ¶ 117). The court

further stated that based on Appellee’s actions of duct taping M.G.B. in the

presence of thirteen other child passengers and removing the duct tape in the

presence of another adult individual who escorted M.G.B. off the bus, the court

could not infer consciousness of guilt on Appellee’s part. (Id. at ¶¶ 118-19).

Thus, the court found a lack of evidence of Appellee’s mens rea, i.e., “being

knowingly aware that M.G.B. was in circumstances that could threaten his

physical or psychological welfare, and knowingly failing to act or taking action

so lame or meager that such actions could not reasonably be expected to

protect M.G.B.’s welfare.” (Id. at ¶ 120).

Again, we cannot agree with the trial court’s conclusions. The trial court

again focused on whether Appellee was justified in her actions. As we have

explained, however, the question of justification is a defense properly left for

trial. See 18 Pa.C.S.A. §§ 502; 503. Additionally, the Commonwealth

adduced sufficient evidence to show Appellee was aware of her duty to protect

M.G.B. as his bus driver. Further, the Commonwealth presented sufficient

evidence that Appellee violated her duty of care owed to M.G.B. by duct taping

- 29 - J-A24024-24

him in a manner that could threaten his physical safety in the event of an

emergency12 and his psychological welfare by being unable to control his

freedom of movement. See 18 Pa.C.S.A. § 4304(a)(1); Delamarter, supra.

Evaluating Appellee’s actions under a common sense standard, the

Commonwealth presented sufficient evidence that Appellee’s actions in duct

taping M.G.B. as a form of restraint violated the broad range of conduct the

statute seeks to prevent to safeguard the welfare of children. See id. The

fact that M.G.B. suffered no physical harm as a result of the restraint

employed is immaterial. Id. The Commonwealth also adduced evidence from

which a jury could reasonably infer that Appellee was “practically certain that

[her] conduct [would]” endanger M.G.B.’s physical or psychological welfare.

See 18 Pa.C.S.A. § 4304(a)(1). See also 18 Pa.C.S.A. § 302(b). In other

words, the Commonwealth adduced sufficient evidence that Appellee was

aware her actions in duct taping M.G.B. would cause physical harm to M.G.B.

in the event of an emergency or psychological harm to M.G.B., particularly

where M.G.B. was non-verbal and might be unable to articulate emotional

discomfort. At this stage of the proceedings, the Commonwealth established

a prima facie case of EWOC.13 See Ouch, supra.

12 We reiterate that Appellee needed a cutting instrument to free M.G.B. of

the restraints once at school.

13The Commonwealth charged Appellee with EWOC as an “F3.” Based on Appellee’s statements that she had previously used duct tape on M.G.B., the (Footnote Continued Next Page)

- 30 - J-A24024-24

As to the charge of PIC, the trial court concluded that “the

Commonwealth failed to establish prima facie evidence for the charge of [PIC]

where the Commonwealth has failed to establish prima facie evidence to

support the underlying offenses of False Imprisonment and [EWOC].”

(Findings of Fact/Conclusions of Law at ¶ 123). As we have already decided,

the trial court incorrectly determined that the Commonwealth failed to

establish a prima facie case for false imprisonment and EWOC. Further, we

note that the Commonwealth presented evidence that Appellee used the duct

tape under circumstances not manifestly appropriate for lawful use. See 18

Pa.C.S.A. § 907(d). The Commonwealth also presented evidence that

Appellee did so with the intent to employ the duct tape criminally in her

commission of the other charged offenses.14 See 18 Pa.C.S.A. § 907(a);

Commonwealth produced sufficient evidence at this stage of the proceedings for “course of conduct” grading. See 18 Pa.C.S.A. § 4304(b)(1)(ii).

14 Appellee’s reliance on Commonwealth v. Foster, 651 A.2d 163 (Pa.Super.

1994) is misplaced. In Foster, the appellant appealed from her judgment of sentence following her conviction for PIC, alleging that the evidence was insufficient to sustain that conviction where her acquittal on homicide charges negated the criminal intent required for PIC. Specifically, the appellant had stabbed her boyfriend but claimed she acted in self-defense. This Court noted that “appellant admittedly possessed a knife which is an instrument commonly used for criminal purposes. However, appellant did not possess the knife with the intent to employ it criminally because she acted in self-defense.” Id. at 165. This Court continued, “appellant relied on the justification of self-defense and was acquitted of the homicide charges as a result of this defense. Appellant having acted in self-defense did not commit a crime with the knife. A jury could not infer from the killing that appellant possessed the intent to employ the knife criminally.” Id. at 166. It is clear that Foster is procedurally (Footnote Continued Next Page)

- 31 - J-A24024-24

302(b)(1)(i). As the trial court’s findings as to this charge were based on its

erroneous findings regarding the other offenses, and as the record

demonstrates sufficient evidence at this stage of the proceedings that Appellee

committed PIC, we conclude the trial court erred in granting Appellee’s motion

for habeas corpus relief on this count as well.

In reaching this decision today, we are mindful that it is not an easy job

to be a bus driver of children, particularly of those with disabilities. Bus drivers

have an enormous responsibility to transport children to and from school

safely. It is not difficult to envision a situation wherein a child, with or without

any mental or physical disabilities, becomes so disruptive on a school bus that

it could potentially create a hazardous situation for the driver or other

students. Nevertheless, it is also not difficult to envision that a bus driver

might pull the bus over and call for assistance in that scenario rather than

duct tape a child in the name of protecting the other students from harm.

Based upon the foregoing, we reverse and remand for further

proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction is

relinquished.

distinguishable from the facts of this case where Foster involved a challenge to the sufficiency of the evidence post-trial rather than a challenge to the Commonwealth’s prima facie evidence to permit the charges to go forward to trial.

- 32 - J-A24024-24

Date: 4/8/2025

- 33 -