Commonwealth v. Gallagher

874 A.2d 49, 2005 Pa. Super. 116, 2005 Pa. Super. LEXIS 433

• Court: Superior Court of Pennsylvania
• Decided: March 30, 2005
• Status: Published

Opinions

OPINION BY

MONTEMURO, J.:

¶ 1 This is an appeal from the judgment of sentence entered April 23, 2003, in the Montgomery County Court of Common Pleas following Appellant’s conviction of, inter alia, luring a child into a motor vehicle, 18 Pa.C.S.A. § 2910. For the reasons set forth below, we are compelled to vacate Appellant’s luring conviction.

¶ 2 At approximately 11:40 p.m. on the evening of August 3, 2002, seventeen year old Michael Neal was walking back to his family’s home in Hatfield, Montgomery County, after making a trip to a nearby 7 Eleven convenience store, when Appellant stopped his car and asked for directions to a gas station. After Neal directed him to two nearby stations, Appellant asked Neal where he was going. When Neal replied that he was on his way home, Appellant offered him a ride.¹ Neal agreed, got in the car, and Appellant turned around to head toward Neal’s home. Before reaching there, however, Appellant asked Neal if he liked to drink, which they both understood to mean alcohol. Neal replied that he did, and Appellant drove to a local bar. While Neal remained in the car, Appellant went inside the bar and purchased two 40-ounce bottles of beer.

¶ 3 Appellant drove around for a short time trying to find a place to drink, and then suggested that they go to his parked R.V. Neal agreed, accompanied Appellant into the R.V., and the two began drinking. A short time later, Appellant suggested they purchase more beer before he got too drunk to drive. Neal again waited in the car while Appellant went inside another bar to purchase more beer. After Appellant returned to the car, three women approached Neal, who was sitting in the passenger seat, and asked him his age, to which he replied “seventeen.” (N.T., 1/21/03, at 23). The women left, and Appellant and Neal drove back to the R.V. On the way, Appellant told Neal “that [he] had ruined the night because [he] told [the girls] that [he] was seventeen.” (Id. at 25). Back in the R.V., Appellant and Neal resumed drinking, and made one more trip to another bar for more beer. After they returned to the R.V. the third time, Appellant performed oral sex on Neal. Neal then told Appellant that he wanted to go home. However, Appellant, who was too drunk to drive, told Neal he would have to wait until morning. Neal eventually fell asleep. The next morning Appellant performed oral sex on him once again, and then drove Neal home, dropping him off a short distance from his house. Later that morning, after talking with his girlfriend’s mother, Neal reported the incident to the police.

¶ 4 Appellant was originally charged with false imprisonment, rape, interference with the custody of a child, luring a child into a motor vehicle, corruption of minors, and furnishing malt or brewed beverages to minors, however, the rape and interference with the custody of a child charges were withdrawn prior to trial. Following a one day bench trial, Appellant was convicted of luring a child into a motor vehicle and furnishing malt or brewed beverages to minors;² he was acquitted of the other charges. On April 23, 2003, he was sentenced to 2 to 4 years’ imprisonment on the luring charge, followed by one year probation for the furnishing alcohol charge. This timely appeal follows.

¶ 5 Appellant’s two interrelated issues, which in effect constitute one claim, focus solely on his conviction of luring a child into a motor vehicle. He argues first, that the trial court erred in imposing strict liability for the crime, and second, that the evidence supporting this conviction was insufficient. Although inartfully drafted, Appellant’s argument focuses on the mens rea required with respect to the complainant’s age. Here, the trial court acquitted Appellant of corruption of minors based specifically on Appellant’s defense that he reasonably believed the complainant to be over the age of 18. See N.T., 1/22/03, at 236. He contends that this factual finding precludes his conviction for luring a child into a motor vehicle, in that the Commonwealth failed to prove that he possessed the sufficient mens rea to lure a person under the age of 18 into his car. We agree.

¶ 6 When reviewing a challenge to the sufficiency of the evidence,

we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. It is the function of the fact-finder to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced at trial. The fact-finder is free to believe all, part, or none of the evidence introduced.

Commonwealth v. Adamo, 431 Pa.Super. 529, 637 A.2d 302, 304 (1994), appeal denied, 538 Pa. 631, 647 A.2d 507 (1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994) (citations and quotations omitted).

¶ 7 The crime of luring a child into a motor vehicle is succinctly defined in 18 Pa.C.S.A. § 2910 as follows:

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.

Found in the Kidnapping Chapter of the Crimes Code, this crime has been described as “a threshold prophylactic rule for the terrible crime of kidnapping[.]” Commonwealth v. Figueroa, 436 Pa.Super. 569, 648 A.2d 555, 558 (1994), appeal denied, 436 Pa.Super. 569, 648 A.2d 555 (1994). However, its broad language leaves open its application to persons other than purported pedophiles.

¶ 8 Most of the reported cases interpreting this statute have focused on the meaning of the terms “lure” or “child,” neither of which is defined in the statute. See Commonwealth v. Nanorta, 742 A.2d 176, 177 (Pa.Super.1999), appeal denied, 563 Pa. 613, 757 A.2d 930 (2000) (lure encompasses “inducement of any kind,” including threats); Figueroa, supra at 557 (lure defined as “inducement to gain;” offer “of ride to school on a day when snow and ice made passage by foot difficult, could be welcomed as a favorable enticement by the pedestrian children.”); Adamo, supra at (child defined as person under 18 years of age when read in pari materia with other sections of Kidnapping Chapter). What has not been clearly decided is the mens rea, if any, required for the crime with respect to the complainant’s age.

¶ 9 Relying on Figueroa, supra, the trial court labeled this a “strict liability offense.” (Trial Ct. Op. at 5). Further, the court concluded that the absence of any mistake of age provision in the statute precludes application of one in the present case. See Id. at 8-9. We find, however, that the trial court has misinterpreted the statute.

¶ 10 18 Pa.C.S.A § 302(c) clearly mandates that “[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.” In Figueroa, this Court imputed the culpability requirements of § 302 to the luring element of the crime. Specifically, we held that

[t]he gravamen of the present crime is luring a child into a motor vehicle. We have stated above that inviting the children into his car with a promise of a ride to school or the bus stop, which appellant here agrees he did, is sufficient to meet the prohibitions of the statute. This knowing conduct we believe meets the requirements of culpability. 18 Pa. C.S.A. § 302(b)(2). That there may have been no intent to harm is not relevant since this is not a requirement of the act.

Figueroa, supra at 557-58. Thus, contrary to the trial court’s interpretation, the Figueroa Court found strict liability in the luring statute only with respect to an intent to harm; the Court applied the culpability requirements of § 302 to the luring element of the crime. We find that these same culpability requirements must also be imputed to the age element.³

¶ 11 Although this issue has never been squarely addressed before, in all of the reported cases to date, save one which we shall discuss infra, the complainant has been a minor under the age of 15. See Commonwealth v. Tate, 572 Pa. 411, 816 A.2d 1097 (2003) (14 year old complainant); Nanorta, supra (10 year old complainant); Figueroa, supra (11 and 7 year old complainants); Commonwealth v. McClintock, 433 Pa.Super. 83, 639 A.2d 1222 (1994) (12 year old complainants). Unquestionably, the defendant in each of those cases clearly recognized that his victim was a child. In Adamo, supra, the only case in which a defense of reasonable mistake of age could be made (the complainant was one month shy of 17), the defendant stated to the complainant, “you can tell anybody I’m ... I’ll get in trouble. You’re a minor.” Id. at 306 (citation omitted). Therefore, the defendant clearly met the “knowing” requirement of the statute.

¶ 12 Moreover, most of the statutes intended to protect minor victims, even those dealing with sex crimes, provide some defense based on the actor’s reasonable belief that the victim is older than those protected by the statute. See 18 Pa.C.S.A. § 3102 (providing defense of reasonable mistake of age of victim with regard to sex crimes committed against victim “below a critical age older than 14 years”); Id. at § 6301(d)(2) (providing defense of reasonable mistake of age to corruption of minors charge when actual age of minor is over 16). But See 18 Pa.C.S.A. § 6312(e.l) (explicitly providing no mistake of age defense to a person who either photographs, videotapes or films child under 18 engaging in prohibited sexual act or simulation thereof, or causes or permits child to engage in such acts). As the trial court noted, the statute sub judice does not specifically provide a mistake of age defense. However, that omission does not absolve the Commonwealth of its burden to prove that Appellant possessed the requisite mens rea to commit the crime.

¶ 13 Applying § 302, we hold that the Commonwealth was required to prove, beyond a reasonable doubt, that Appellant either intentionally sought out the complainant because he was under the age of 18, knew the complainant was under the age of 18, or, at the very least, was reckless as to the complainant’s age. Although the trial court states in its Opinion that “[t]he evidence, in no uncertain terms, clearly establishes that [Appellant] was fully aware of the fact that his young companion was a minor,” (Trial Ct. Op. at 7), this finding is contradicted by the Appellant’s acquittal on the charge of corruption of minors based on his testimony that he reasonably believed Neal to be over the age of 18. Indeed, a photograph of the victim at the time of the incident included among the trial exhibits makes evident why the trial judge would credit Appellant’s mistake of age defense. This credibility determination makes ludicrous the court’s subsequent finding that Appellant “knew he was dealing with a minor.” (Id.). Moreover, the fact that Appellant may have learned later in the evening that Neal was only 17 years old is irrelevant. By that time, Neal had already entered Appellant’s R.V. with him and begun drinking.

¶ 14 Accordingly, we find that the Commonwealth has failed to satisfy its burden of proving beyond a reasonable doubt that Appellant either knew the complainant was under the age of 18, or, at the very least, was reckless as to his age when he offered Neal a ride home. Therefore, we reverse the judgment of sentence on the luring conviction.

¶ 15 Judgment of sentence reversed in part. Jurisdiction relinquished.

¶ 16 BENDER, J. files a Concurring Opinion.

¶ 17 STEVENS, J. files a Dissenting Opinion.

1 . Neal testified that the walk from the 7 Eleven to his house was approximately 400 feet. (N.T., 1/21/03, at 44).

2 . 18 Pa.C.S.A. § 6310.1.

3 . We note that "[a] criminal statute that imposes absolute liability typically involves regulation of traffic or liquor laws.” Commonwealth v. Pond, 846 A.2d 699, 706 (Pa.Super.2004) (quotation omitted). When a statute does not explicitly impose strict liability, we must examine “the severity of the punishment imposed by the statute, the effect of such punishment on the defendant's reputation, and the common law origin of the crime involved” to determine whether strict liability was intended. In Re B.A.M., 806 A.2d 893, 895 (Pa.Super.2002). Here, Appellant’s sentence of 2 to 4 years’ imprisonment and the obvious stigma attached to a conviction of luring a child into a car clearly indicate that strict liability was not intended.