J-A18034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WAYLYNN MARIE HOWARD                      :
                                           :
                    Appellant              :   No. 1281 WDA 2018

       Appeal from the Judgment of Sentence Entered August 1, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0008615-2017


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

CONCURRING/DISSENTING STATEMENT BY NICHOLS, J.:

                                                 FILED NOVEMBER 19, 2019

      I agree with the majority’s conclusion that Appellant Waylynn Marie

Howard’s REAP conviction must be reversed. However, although the evidence

arguably supports her EWOC conviction, I write separately to express my

belief that, as a matter of public policy, the Crimes Code is not the appropriate

tool for punishing Appellant’s conduct in the instant case.

      Importantly, the failure to use a car seat for a child under the age of

four is a matter governed by the Motor Vehicle Code (MVC). Specifically, “any

person who is operating a passenger car . . . and who transports a child under

four years of age . . . shall fasten such child securely in a child passenger

restraint system. . . .”   75 Pa.C.S. § 4581(a)(1)(i).    “Anyone who fails to

comply with the provisions of subsection (a)(1) . . . commits a summary
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offense and shall, upon conviction, be sentenced to pay a fine of $75.” 75

Pa.C.S. § 4581(b).1

       Here, Section 4581 did not apply to Appellant, because she was not the

operator of the vehicle at the time of the incident.          Nevertheless, the

Commonwealth decided to charge Appellant with EWOC, graded as a first-

degree misdemeanor, for conduct that the MVC equates to a summary

offense. In my opinion, the Commonwealth overreached in its decision to

charge Appellant under the Crimes Code where she could have received a

lesser punishment, if any, as a driver under the MVC.

       Although our research did not uncover any reported Pennsylvania

decisions that directly address the precise facts at issue, the increasing

popularity of ride sharing services makes it likely that more parents travelling

with young children will have to take a hard look at whether to accept a ride

from a driver whose vehicle does not contain an appropriate car seat. 2          I

appreciate the trial court’s well-intended concern for child safety. However,

____________________________________________


1 Moreover, “[i]f a person receives a citation issued by the proper authority
for violation of subsection (a)(1) . . ., a magisterial district judge, magistrate
or judge shall dismiss the charges if the person prior to or at the person’s
hearing displays evidence of acquisition of a child passenger restraint system
or child booster seat to such magisterial district judge, magistrate or judge.”
75 Pa.C.S. § 4581(c).

2 To emphasize the changing legal landscape in this context, Appellant cites
an article highlighting the fact that state laws vary regarding whether taxicabs
and ride sharing services are exempt from requiring young children to travel
in a car seat. See Appellant’s Brief at 21 (citing Does Your Child Need a Car
Seat in a Cab, Uber or Lyft Car?, CBS New York, Nov. 7, 2018,
https://cbsloc.al/2Vqeydt (last visited Feb. 28, 2019)).

                                           -2-
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under the instant circumstances, I believe that it is exceedingly harsh for the

Commonwealth to utilize the EWOC statute to punish parents with criminal

sanctions that potentially carry life-altering collateral consequences for

conduct that should be governed under the MVC.

      Accordingly, I respectfully concur in part and dissent in part.




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