J-S49044-18

                                   2018 PA Super 288

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELIUD MONTANEZ-CASTRO                      :
                                               :
                       Appellant               :   No. 462 MDA 2018

           Appeal from the Judgment of Sentence December 28, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0003013-2016


BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                            FILED OCTOBER 22, 2018

        Appellant, Eliud Montanez-Castro, appeals from the judgment of

sentence entered in the Court of Common Pleas of Dauphin County, which,

sitting as finder of fact in his non-jury trial, found him guilty of luring a child

into a motor vehicle, disorderly conduct, and harassment.1          Sentenced to

serve an eleven-and-one-half to 23-month sentence of incarceration, to be

followed by one year of probation, Appellant challenges the sufficiency of the

evidence with respect to his conviction for luring a child into a motor vehicle.

We affirm.

        The trial court sets forth the pertinent facts and procedural history, as

follows:

        On April 15, 2016, the two minors (T.G. and M.R.) were walking
        to school. Neither recalled inclement weather or any sort of
        natural disaster that would prompt anyone to offer a ride. As they

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1   18 Pa.C.S. §§ 2910(a), 5503(a)(4), and 2709(3), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     were walking along South Harrisburg Street, a white car sharply
     turned left from Walnut Street onto South Harrisburg Street. It
     pulled up to the curb beside them, with the driver’s side window
     closest. The window was open and the driver, Appellant, asked
     them to pick a number. The minors stopped walking and after
     being confused, each picked a number. After T.G. picked a
     number, Appellant said “Mommy, you were right” and that she
     won a prize. T.G. thought this was all odd.

     Appellant held out a soda can and water bottle with no label and
     told her to pick on[e]. T.G. refused. Both girls recalled that
     [Appellant] held the drinks out with bent elbows, not arms
     extended, and was fairly close [just several feet away]. T.G. and
     M.R. recognized that T.G. would have had to approach the car,
     though, to take one of the drinks. T.G. and M.R. were nervous
     and scared after this interaction and walked quickly to school.
     Appellant never asked her to enter the car or go anywhere with
     him.    He never asked them to approach closer, he never
     threatened them, he never commanded or directed them to do
     anything, and he never opened the door. Appellant did not follow
     them. Upon arriving at school, T.G. told the principal what had
     happened.

     Sometime later, T.G. viewed a photo array with Detective
     Robbins.   He showed her pictures one at a time and she
     immediately identified picture six as the man who had approached
     her. M.R. also viewed a photo array complied [sic] by Detective
     Morris. He used the same technique as [Detective] Robbins and
     showed M.R. pictures one by one until she identified one as the
     man she had seen in the car.

     M.R. recalled that some days later, she and T.G. were on the porch
     when T.G. pointed out a man to her. M.R. looked and recognized
     Appellant on the sidewalk. He looked up at them and they went
     inside because they were scared.

     Counsel presented a stipulation that Appellant did not have the
     expressed or implied permission of any parent or guardian of the
     victims in this case to give them a ride anywhere.

     ***

     Following a trial by judge on [October 18, 2017], Appellant was
     found guilty [of all charges and sentenced as indicated, supra].

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      On March 6, 2018, [the trial court] received a timely Notice of
      Appeal filed with the Superior Court of Pennsylvania. [The trial
      court] ordered Appellant on March 7, 2018, to file a concise
      statement of matters complained of on appeal pursuant to
      Pa.R.A.P. 1925(b). Appellant complied with said Order on March
      26, 2018.

Trial Court Opinion, 8/6/18, at 1-3.

      Appellant presents one question for our consideration:

      I.    [WAS] THE EVIDENCE PRESENTED AT TRIAL [ ]
            INSUFFICIENT TO CONVICT APPELLANT OF THE
            CRIME OF LURING A CHILD INTO A MOTOR VEHICLE
            AND DISORDERLY CONDUCT WHEN THE APPELLANT
            MERELY OFFERED A SODA TO A GIRL(S) [SIC]
            THROUGH A PASSENGER WINDOW OF HIS VEHICLE
            BUT NEVER OFFERED A RIDE TO THE GIRL(S) OR
            PULLED THEM CLOSER TO HIS VEHICLE[?]

Appellant’s brief, at 4.

      Our standard of review for challenges to the sufficiency of the evidence

is well-settled:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying [the above] test, we may not
      weigh the evidence and substitute our judgment for the fact-
      finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the [finder] of fact while passing upon the



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       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (citation

omitted).

       Appellant argues that evidence failed to support his conviction on the

charge of luring a child into a motor vehicle. Merely talking with the girls and

offering them drinks from his car window, without ever inviting or

commanding them to enter his vehicle, fails to satisfy the first evidentiary

requirement of attempting to lure a child into a vehicle, he submits. On this

point, he elaborates:

       The Commonwealth failed to establish that Appellant lured or
       attempted to lure either lady into his motor vehicle. In this case,
       neither lady called 911. Neither lady testified that he said “get in
       the car” or offered them to get into the vehicle [sic] or that he
       pulled them into the car. He never opened the rear car door for
       them to get in. He did not even say “come here.” He did not
       beckon them. He did not threaten them. He did not command
       them to come closer or open the door. At no time did he even
       touch them.

Appellant’s brief, at 9.2

       The    pertinent     statute    provides:   “(a)   Offense.—Unless     the

circumstances reasonably indicate that the child is in need of assistance, a

person who lures or attempts to lure a child into a motor vehicle or structure


____________________________________________


2 Throughout the “Brief for Appellant,” counsel repeatedly refers to the two
minor girls in question as “ladies.” Assigning an adult title to minors subjected
to an offense that frequently involves the actual or attempted sexual abuse of
a child is unacceptable, particularly where clear sexual overtones attended
Appellant’s conduct toward the girls. Therefore, we strongly admonish counsel
for what was, at best, a careless description of the minor victims in this case.

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without the consent, express or implied, of the child's parent or guardian

commits an offense.” 18 Pa.C.S. § 2910(a). As stated by our Supreme Court:

      Section 2910 ... sets forth three requirements the Commonwealth
      must establish beyond a reasonable doubt to convict an individual
      of the offense of attempted luring of a child into a motor vehicle:
      (1) the individual attempted to lure a child into a motor vehicle;
      (2) without the express or implied consent of the child's parent or
      guardian; and (3) under circumstances which did not reasonably
      indicate the child is in need of assistance.

Commonwealth v. Hart, 28 A.3d 898, 908–09 (Pa. 2011). The Court has

explained further that “a ‘lure’ involves the making of a promise of pleasure

or gain, the furnishing of a temptation or enticement, or the performance of

some other affirmative act calculated to strongly induce another individual to

take a particular action, usually and most often likely to result in his or her

harm.” Id at 909.

      Here, two ninth-grade girls walking to school witnessed Appellant

abruptly turn his vehicle off the course he was traveling and drive onto the

curb alongside where they were walking. He immediately stopped the girls

and engaged them in conversation, invited each to “pick a number,” and

offered to the girl whom he declared the winner a bottled drink as her prize.

      In order to claim her prize, however, the girl, whom Appellant was now

calling “Mommy,” was required to walk up to Appellant’s car window. There

Appellant awaited, holding the bottle with his arm bent inward toward himself

so that the girl would have to come right to his side to retrieve it. The girls

were scared and nervous at this point, and they walked away.



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       When viewed in a light most favorable to the Commonwealth as verdict

winner, the totality of circumstances allows for the reasonable inference that

Appellant did not stop two random girls on their way to school to give them a

drink and send them on their way.              Appellant was, instead, attempting to

entice at least one girl to come within his area of control as he waited in his

car, and he used his apparent brand of charm and a bottled drink—kept closely

to his side—as a lure to achieve this end.

       Indeed, Appellant neither knew the girls nor had any reason to believe

they were in need of assistance.               Yet, he stopped them anyway.      He

immediately focused on one girl, declared her a winner, gave her the

suggestive pet name “Mommy,” and invited her to come to him where he sat

in his car and claim her prize.

       Therefore, it was reasonable for the finder of fact to conclude, beyond a

reasonable doubt, that Appellant’s affirmative actions, manipulative and

suggestive words, and enticements were designed to gain the minor girl’s

entry into his car to her own detriment. Accordingly, evidence adduced at

trial sufficed to establish that Appellant committed the offense of attempting

to lure a child into his vehicle.3

       Judgment of sentence affirmed.
____________________________________________


3 Although Appellant’s “Statement of the Question Presented” also raises a
sufficiency challenge to his disorderly conduct conviction, he presents no
argument to support this claim. Therefore, he has waived this claim. See
Pa.R.A.P. 2119(c); Commonwealth v. Plante, 914 A.2d 916 (Pa.Super.
2006) (failure to develop an argument with citation to authority waives the
issue on review).

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J-S49044-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2018




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