J-S38023-18

                                   2018 PA Super 238

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KASEY ROSE DISCHMAN                        :   No. 1615 WDA 2017

                Appeal from the Order Entered October 19, 2017
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0001495-2017


BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

OPINION BY NICHOLS, J.:                                FILED AUGUST 29, 2018

        The Commonwealth appeals from the order dismissing one count of

aggravated assault of an unborn child under 18 Pa.C.S. § 2606(a) against

Appellee Kasey Rose Dischman. The Commonwealth claims that the trial court

erred in holding that the nonliability provision in 18 Pa.C.S. § 2608(a)(3)

barred the Commonwealth’s prosecution of Appellee for the crime against her

unborn child.1 We affirm.

        On June 23, 2017, Appellee was transported to the hospital due to a

drug-related overdose. N.T., 7/11/17, at 3. Further testing at the hospital

revealed that the overdose was due to opioids in Appellee’s system. Id. at 4,

6. At the time, Appellee was approximately thirty weeks’ pregnant. Id. at 4.

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*   Retired Senior Judge assigned to the Superior Court.

1Section 2608(a)(3) states: “Nothing in [Chapter 26 of the Crimes Code] shall
impose criminal liability . . . [u]pon the pregnant woman in regard to crimes
against her unborn child.” 18 Pa.C.S. § 2608(a)(3).
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Appellee went into cardiac arrest and an emergency Cesarean section had to

be performed on June 24, 2017 “because of [her] condition of being on a

ventilator and the risk to the child.” Id.

       Appellee was initially charged with one count of aggravated assault of

an unborn child. The magisterial district court held a preliminary hearing on

July 11, 2017. The court denied Appellee’s motion to dismiss and held the

matter over for trial in the court of common pleas. See N.T., 7/11/17, at 12.

       On July 17, 2017, Appellee filed a combined petition for a writ of habeas

corpus and motion to prohibit the Commonwealth’s criminal prosecution. On

July 21, 2017, the trial court dismissed Appellee’s petition without prejudice

for failure to comply with Rule 578 of the Pennsylvania Rules of Criminal

Procedure, which governs the filing of omnibus pretrial motions.

       On August 2, 2017, the Commonwealth filed a motion to amend the

information to include charges of endangering the welfare of children,

corruption of minors, and possession of drug paraphernalia.2 On August 23,

2017, the trial court granted the Commonwealth’s motion.

       On August 29, 2017, Appellee filed an omnibus pre-trial motion,

seeking, in relevant part, dismissal of the count of aggravated assault of an

unborn child. Appellee claimed that section 2608(a)(3) expressly prohibits

the prosecution of a pregnant woman for crimes against her own unborn child.


____________________________________________


218 Pa.C.S. § 4304(a)(1), 18 Pa.C.S. § 6301(a)(1)(i), and 35 P.S. § 780-
113(a)(32), respectively.

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Appellee also challenged the propriety of the count of possession of drug

paraphernalia.

       On October 19, 2017, following the hearing, the trial court granted in

part and denied in part Appellee’s omnibus pre-trial motion. The court found

that although Appellee “is alleged to have done a senseless, selfish, and

heinous act that, allegedly, resulted in devastating and permanent injuries to

her unborn child,” it was

       constrained by the clear, plain, and unambiguous language of 18
       Pa.C.S.[] § 2608(a)(3), and the Pennsylvania Supreme Court’s
       decision in [Commonwealth v. Bullock, 913 A.2d 207 (Pa.
       2006)], to find that our legislature intended for prosecution under
       the Crimes Against the Unborn Child Act to be barred as to
       [Appellee], a pregnant woman, for crimes committed against her
       then unborn child.

Order, 10/19/17 at 3 (unpaginated). The court thus dismissed the one count

of aggravated assault of an unborn child and held the remaining charges for

trial. Id.

       On October 30, 2017, the Commonwealth filed a timely appeal3 and a

court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed an opinion

relying on the reasoning set forth in its October 19, 2017 order.

       The Commonwealth raises the following issues on appeal:

       1. Whether the trial court erred in applying [Bullock] as
          precedent in the case at bar as it is inapplicable to the case at

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3The Commonwealth certified that the trial court’s ruling would terminate or
substantially handicap the prosecution.           See Pa.R.A.P. 311(d);
Commonwealth v. Karetny, 880 A.2d 505, 512-13 (Pa. 2005).

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           bar and serves no purpose to determine legislative intent for
           18 Pa.C.S.[] § 2608(a)(3) as well as 18 Pa.C.S.[] § 2606(a)[.]

        2. Whether the trial court erred in ruling that the language of 18
           Pa.C.S.[] § 2608(a)(3) is clear and free of ambiguity[.]

        3. In the alternative, if this Court were to determine that the
           language of 18 Pa.C.S.[] § 2608(a)(3) is clear and free of
           ambiguity, whether the trial court erred in determining that it
           was the intent of the legislature to prohibit prosecution under
           the facts of this particular case[.]

Commonwealth’s Brief at 1 (full capitalization omitted).

        The Commonwealth claims that the trial court erred in its interpretation

and application of the nonliability provision in section 2608(a)(3). 4 According

to the Commonwealth, section 2608 does not limit the prosecution of a

pregnant woman who inflicts harm upon her unborn child “through the

intentional and reckless use of an illegal substance known to cause death.”

Id. at 7. In support, the Commonwealth advances three arguments, which

we address jointly.5

        First, the Commonwealth begins with the premise that the General

Assembly enacted Chapter 26 of the Crimes Code to protect unborn children.

Id. at 10. The Commonwealth asserts that before the enactment of Chapter

26, the term “child” or “person” did not extend to a fetus. Id. Thus, the

enactment of Chapter 26 recognized “the rights of an unborn child within the

criminal realm to receive justice as a victim” of certain crimes. Id.

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4   The Commonwealth notes that this is a case of first impression.

5We have reordered the Commonwealth’s arguments for the purposes of this
appeal.

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       Second, the Commonwealth argues that section 2608 is ambiguous

when read in isolation. Id. at 9. The Commonwealth asserts that section

2608 contains two additional subsections that prohibit prosecutions under

Chapter 26 in instances of abortion and other legally protected medical

procedures. Id. at 8-9. The Commonwealth thus contends that section 2608,

when read as a whole, protects “a pregnant woman from prosecution for

engaging in otherwise legal activities such as abortion and medical

procedures.” Id. The Commonwealth concludes that it would be absurd and

contrary to the intent of Chapter 26 to interpret section 2608(a)(3) in a carte

blanche manner to prevent prosecution of a pregnant woman engaged in

illegal and reckless behavior such as drug use.6 Id. at 8-9, 11-12.

       Third, the Commonwealth asserts that the trial court erred in relying on

Bullock.     Id. at 5.    The Commonwealth notes that the discussion of the

potential nonliability of a pregnant woman in Bullock was dicta. Id. at 6.

The Commonwealth instead suggests that the decision of In the Interest of

L.B., a Minor, 177 A.3d 308 (Pa. Super. 2017), appeal granted, 183 A.3d 971

(Pa. 2018), is more instructive because it addresses “the illegal opiate drug
____________________________________________


6 In further support of its argument that the trial court’s interpretation of
section 2608(a)(3) could result in an absurd result, the Commonwealth poses
a hypothetical. See Commonwealth’s Brief at 12. It suggests that if another
person injected a pregnant woman with an illegal substance that harmed her
child, that person could be charged under Chapter 26, even if the pregnant
woman consented to the injection. Id. However, under the trial court’s
interpretation of section 2608(a)(3), the pregnant woman could not be
charged for a Chapter 26 offense. Id.



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use by a pregnant mother that results in harm to her unborn child.” Id. at

7.

         Appellee and the amici curiae7 assert that the trial court properly

construed the nonliability provision of section 2608(a)(3) as clear and

unambiguous. Appellee’s Brief at 14-15; ACLU’s Amicus Brief at 2; Women’s

Law Project’s Amicus Brief at 5-6.             They assert that the statutory text of

section 2608(a)(3) precludes the Commonwealth’s suggested distinction

between a pregnant woman’s legal acts and illegal acts that harm her unborn

child.    Appellee’s Brief at 14-15; ACLU’s Amicus Brief at 2; Women’s Law

Project’s Amicus Brief at 5-6.        Moreover, they assert that because section

2608(a)(3) is unambiguous, there is no need to examine the policy

considerations underlying Chapter 26 as a whole. Appellee’s Brief at 14-15;

ACLU’s Amicus Brief at 2; Women’s Law Project’s Amicus Brief at 5-6. The

ACLU further asserts that the Commonwealth’s suggested construction of

section 2608(a)(3) raises serious constitutional concerns. See ACLU’s Amicus

Brief.

         The Commonwealth’s claim requires us to interpret the statutory

language in section 2608(a)(3), which raises a question of law.                  See

Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014).                      Thus, our

standard of review is de novo and our scope of review is plenary. See id.
____________________________________________


7 The American Civil Liberties Union of Pennsylvania (ACLU) and the Women’s
Law Project have filed amicus briefs in this appeal. Additionally, the Women’s
Law Project has filed an application to admit Christine Castro, Esq., pro hac
vice. We grant that application.

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        Our Supreme Court has stated that in construing a statute, we rely on

the Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991. The Court further

explained:

        The objective of all interpretation and construction of statutes is
        to ascertain and effectuate the intention of the General Assembly.
        [1 Pa.C.S.] § 1921(a). The best indication of the legislature’s
        intent is the plain language of the statute. When considering
        statutory language, “[w]ords and phrases shall be construed
        according to rules of grammar and according to their common and
        approved usage.” Id. § 1903(a). Further, when the words of a
        statute are clear and unambiguous, there is no need to go beyond
        the plain meaning of the language of the statute “under the
        pretext of pursuing its spirit.” Id. § 1921(b). Thus, only when
        the words of a statute are ambiguous, should a reviewing court
        seek to ascertain the intent of the General Assembly through
        considerations of the various factors found in Section 1921(c).[8]
____________________________________________


8   Section 1921(c) states:

        (c) When the words of the statute are not explicit, the intention of
        the General Assembly may be ascertained by considering, among
        other matters:

           (1) The occasion and necessity for the statute.

           (2) The circumstances under which it was enacted.

           (3) The mischief to be remedied.

           (4) The object to be attained.

           (5) The former law, if any, including other statutes upon the
           same or similar subjects.

           (6) The consequences of a particular interpretation.

           (7) The contemporaneous legislative history.

           (8) Legislative and administrative interpretations of such
           statute.



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        Id. § 1921(c); see generally Bayada Nurses Inc. v. Com.
        Dept. Labor and Indus., [8 A.3d 866, 880–81 (Pa. 2010)].

Rushing, 99 A.3d at 423. When reviewing a statute, “we may not render

language     superfluous     or   assume       language   to   be   mere   surplusage.”

Commonwealth v. Durso, 86 A.3d 865, 867 (Pa. Super. 2013) (citation

omitted).

        Chapter 26 of the Crimes Code,9 also referred as the Crimes Against the

Unborn Child Act (Act), defines several crimes against unborn children,10

including murder, voluntary manslaughter, and aggravated assault. See 18

Pa.C.S. §§ 2604-2606.         Section 2606(a) provides that a “person commits

aggravated assault of an unborn child if he attempts to cause serious bodily

injury to the unborn child or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the life of

the unborn child.” 18 Pa.C.S. § 2606(a).

        Section 2608, in turn, enumerates “nonliability” and “defenses” under

Chapter 26. Specifically, section 2608(a) states as follows:

        (a) Nonliability.—Nothing in this chapter shall impose criminal
        liability:


____________________________________________


1 Pa.C.S. § 1921(c).

9   18 Pa.C.S. §§ 2601-2609.

10Chapter 26 adopts the Abortion Control Act’s definition of unborn child as
meaning “an individual organism of the species homo sapiens from fertilization
until live birth.” See 18 Pa.C.S. §§ 2602, 3203.


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          (1) For acts committed during any abortion or attempted
          abortion, whether lawful or unlawful, in which the pregnant
          woman cooperated or consented.

          (2) For the consensual or good faith performance of medical
          practice, including medical procedures, diagnostic testing or
          therapeutic treatment, the use of an intrauterine device or
          birth control pill to inhibit or prevent ovulation, fertilization
          or the implantation of a fertilized ovum within the uterus.

          (3) Upon the pregnant woman in regard to crimes against
          her unborn child.

18 Pa.C.S. § 2608(a).11

       There is no dispute that the purposes of Chapter 26 include the

recognition of unborn children as victims of certain crimes, including

aggravated assault.       Nevertheless, the text of the nonliability provision in

section 2608(a)(3) is clear and unambiguous.12 The General Assembly chose

not to hold a pregnant woman culpable for “crimes” against her unborn child

under Chapter 26. See 18 Pa.C.S. § 2608(a)(3).

       Thus, we discern no textual support for the Commonwealth’s argument

that a pregnant woman’s illegal action resulting in harm to the unborn child

may give rise to liability under Chapter 26. See Rushing, 99 A.3d at 423;

Durso, 86 A.3d at 867.               Moreover, the Commonwealth’s suggested


____________________________________________


11 Section 2608(b) enumerates defenses based on justification. 18 Pa.C.S. §
2608. Section 2609 states: “The provisions of this chapter shall not be
construed to prohibit the prosecution of an offender under any other provision
of law.” 18 Pa.C.S. § 2609.

12 Indeed, the Commonwealth does not contend that a word or phrase in
section 2608(a)(3) is ambiguous or open to multiple interpretations.


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construction of section 2608(a)(3) asks that we depart from the plain meaning

of the text to pursue the broader policy goals of Chapter 26 and to find

ambiguity where none actually exists. This we cannot do under the guise of

statutory interpretation. See Rushing, 99 A.3d at 423.

     Accordingly, we agree with the trial court and hold that the unambiguous

language of section 2608(a)(3) dictates that a pregnant woman cannot be

held liable under Chapter 26 for crimes against her unborn child.

     Although the plain language of section 2608(a)(3) is dispositive, a

review of the legislative history of Chapter 26 further establishes that the

result reached here is neither unintended nor absurd.       As noted by the

Women’s Law Project, Representative Dennis O’Brien was one of the principal

drafters of the statute. Women’s Law Project’s Amicus Brief at 9-11. During

an exchange between Representative O’Brien and Representative Babette

Joseph, the following occurred:

     Ms. JOSEPHS. Thank you, Mr. Speaker. For instance, a woman
     named Pamela Rae Stewart was prosecuted in California for not
     getting to her doctor fast enough when she went into labor and
     for having intercourse too late in her pregnancy. A woman in
     Wisconsin named Deborah Zimmerman was prosecuted for
     attempted homicide because she drank alcohol shortly before
     giving birth. In Florida, a woman named Kawana Ashley was
     prosecuted for manslaughter felony murder because she shot
     herself in the stomach when she was 25 to 26 weeks pregnant.
     In almost every case of this nature, the courts have thrown out
     the prosecutions. Sometimes after the woman has already spent
     time in prison, the courts usually base their conclusion on an
     interpretation that the State legislature could not possibly have
     meant to criminalize pregnant women’s prenatal conduct. I am
     worried, in passing SB 45, Pennsylvania will be encouraging the
     prosecution of pregnant women who engage in arguably


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       unhealthy behavior during their pregnancies. Is it the intention of
       the Senate language to this bill or the bill that it should be used
       against pregnant women in any way? That is my question.

       Mr. O’BRIEN. The answer to that question is, nothing in this
       chapter shall impose criminal liability upon the pregnant woman
       in regard to crimes against her unborn child.

       Ms. JOSEPHS. That is criminal liability. What about civil liability?
       Is there any possibility we are going to have somebody step in,
       say they are representing the fetus, and getting an injunction
       against certain kinds of behavior that the pregnant woman might
       engage in?

       Mr. O’BRIEN. Not by virtue of this specific legislation.

SB 45, 181st Gen. Assemb. Reg. Sess. 1997-98 (Sept. 22, 1997), at 1540-

41. Thus, in response to the query of Representative Josephs, Representative

O’Brien answered by essentially quoting the language of section 2608(a)(3)

to suggest that a pregnant woman would not be held liable under Chapter 26

for her prenatal conduct.

       Further, although we agree with the Commonwealth that Bullock is not

binding authority under the circumstances of this case, the discussion in that

case further defines the competing policy and constitutional concerns at

issue.13 The Bullock Court noted:

____________________________________________


13  In Bullock, our Supreme Court addressed a male appellant’s equal
protection challenge to Chapter 26 based on the nonliability provision in
section 2608(a)(3). In that case, the appellant was living with his pregnant
girlfriend. Id. at 210. On New Years’ Eve, they were both drinking and
ingesting cocaine. Id. The appellant asked her to stop ingesting cocaine for
the remainder of the night due to her pregnancy, which she did not do. Id.
They argued and the appellant “blacked out.” Id. When he awoke, he was
on top of her, strangling her. Id. When she was nearly unconscious, he



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       In our view, the General Assembly had a legitimate basis for
       distinguishing between the mother and everyone else. Simply
       put, the mother is not similarly situated to everyone else,
       as she alone is carrying the unborn child. Under prevailing
       jurisprudence of the United States Supreme Court, the fact
       of her pregnancy gives her (and only her) certain liberty
       interests in relation to the termination of that pregnancy
       that the Legislature could reasonably have sought to avoid
       infringing by exempting her from criminal liability under
       this particular statute. Although the Act contains a separate
       exemption for voluntary abortion, see 18 Pa.C.S. § 2608(a)(1),
       because of the mother’s unique connection to the fetus
       there are various situations even outside of the abortion
       context (such as those pertaining to drug addiction or
       attempted suicide) in which she alone might bear an
       increased risk of criminal prosecution were it not for the
       (a)(3) exception. The Legislature could rationally have taken
       this into account and sought to place the mother on a similar
       footing to all other persons as respects these types of situations.8
       While this does result in the mother being treated more leniently
       under the Act as regards crimes against her unborn child, such a
       result would only be constitutionally problematic if it stemmed
       from an arbitrary classification, which, as noted, it does not.
          8 This Court need not presently opine regarding the legal
          propriety of a hypothetical criminal prosecution of the
          mother in such circumstances.

Id. at 216 (some citations omitted and emphases added).

       Taken together, the legislative history of Chapter 26 and the dicta in

Bullock suggest that the General Assembly was aware of the unique

relationship between a pregnant woman and her unborn child, as well as the


____________________________________________


wrapped her feet, hands, and mouth with masking tape. Id. at 210-11. The
appellant then continued to strangle her until she was unconscious and then
dragged her body into the closet. Id. at 211. On January 6, 2003, the
appellant confessed to the police, who found her partially-decomposed body
in the closet. Id. The appellant was convicted of murder of his girlfriend and
with criminal homicide of her unborn child pursuant to the Chapter 26. Id.

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special constitutional issues surrounding the pregnant woman’s liberty

interests.   In crafting section 2608(a)(3), the General Assembly chose a

particular balance of its recognition of the unborn child as a victim of certain

crimes and the interests of the pregnant mother.      Given the unambiguous

language of section 2608(a)(3), as well as the persuasive authority of the

General Assembly’s intent, we reject the Commonwealth’s attempts to alter

that balance.14

       In sum, we discern no error of law with the trial court’s holding that

liability under Chapter 26 will not be imposed upon a pregnant woman in

regard to crimes against her unborn child. Absent ambiguity in the statutory

text, this Court cannot accept the Commonwealth’s argument. Accordingly,

we affirm the order dismissing the charge of aggravated assault against an

unborn child.

       Order affirmed. Application for admission pro hac vice granted.




____________________________________________


14Additionally, we find the Commonwealth’s reliance on L.B. unavailing. L.B.
was a dependency case that addressed section 6303 of the Child Protective
Services Law, in which this Court held that drug use while pregnant may
constitute child abuse. See generally In the Interest of L.B., a Minor,
177 A.3d 308 (Pa. Super. 2017). While L.B. stands for the proposition that a
pregnant mother’s use of illicit narcotics may result in consequences under
the Child Protective Services Law, L.B. provides no support for the
Commonwealth’s suggested interpretation of section 2608(a)(3).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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