J-A06040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MARIA EVELIA CABRERA-GUTIERREZ          :
                                         :
                    Appellant            :   No. 1315 MDA 2018

        Appeal from the Judgment of Sentence Entered July 17, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0005262-2017


BEFORE:     OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                        FILED APRIL 16, 2019

      This is an appeal from a judgement of sentence entered by the Court of

Common Pleas of Berks County (trial court) imposing a sentence on Maria

Evelia Cabrera-Gutierrez (Cabrera–Gutierrez) for one count of Interference

with Custody of Children, 18 Pa.C.S. § 2904(a), and one count of Concealment

of Whereabouts of a Child, 18 Pa.C.S. § 2909(6). The issue in this case is

whether the trial court abused its discretion by precluding evidence regarding

abuse or deficient parenting by the child’s biological father, Guy Markus

(Markus).   Finding no abuse of discretion in precluding such evidence, we

affirm.

      The underlying facts are not in dispute. Cabrera-Gutierrez and Markus

have a child in common who was born in 2012. In 2014, Markus filed a petition

in the trial court seeking shared custody of the child. A temporary custody


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06040-19


order granted Markus custody of the child overnight every Wednesday and on

alternating weekends. Later, Markus filed a petition seeking partial custody,

specifically seeking more overnights.    A hearing was held on November 3,

2014, but the custody judge did not immediately issue an order and the

existing order remained in place.

      In accordance with the existing custody order, Markus had the child on

Wednesday, November 12, 2014, and returned him the next morning.

However, when Markus arrived at Cabrera-Gutierrez's apartment on Friday,

November 14, 2014, to take the child for his scheduled weekend, neither

Cabrera-Gutierrez nor the child were present. Instead, Cabrera-Gutierrez left

a note which read, “As soon as I get legal help, I will be in contact with you.

Thanks, Maria.” (J.T. at p. 53). Markus immediately contacted police and his

attorney. The following Monday, Markus appeared before the custody judge

and obtained an order giving him full custody of the child. The judge also

issued a warrant for Cabrera-Gutierrez’s arrest.

      On November 13, 2014, Cabrera-Gutierrez purchased bus tickets: one

for herself, one for her child from a previous relationship and one for the child

in common with Markus to travel from Reading, Pennsylvania to San Antonio,

Texas. Approximately three years later, on September 17, 2017, Cabrera-

Gutierrez was featured on the television show “The Hunt,” which resulted in

several tips from the area of Raymond, Washington leading to her




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apprehension. The child was also located and Markus flew to Washington the

next day to retrieve the child.

      Cabrera-Gutierrez was extradited to Pennsylvania and charged with one

count of Interference with Custody of Children, 18 Pa.C.S. § 2904(a), and one

count of Concealment of Whereabouts of a Child, 18 Pa.C.S. § 2909(6). Both

provisions contain defenses to each offense.      Regarding Interference with

Custody of Children, a defense is available where “the actor believed that his

action was necessary to preserve the child from danger to its welfare.” 18

Pa.C.S. § 2904(b)(1). The charge of Concealing the Whereabouts of a Child

contains a similar defense, providing the language, “unless concealment is ...

a reasonable response to domestic violence or child abuse.” 18 Pa. C.S. §

2909(a).

      Prior to trial, the Commonwealth filed a motion in limine seeking to bar

allegations of abuse or deficient parenting by the child's biological father that

allegedly occurred prior to the custody trial of November 3, 2014.          This

included photographic evidence purportedly showing the child’s injuries after

being in Mr. Markus’ care and Cabrera-Gutierrez’s testimony regarding two

years of alleged physical abuse of the child. She also was prepared to testify

that Markus sexually forced himself on her multiple times, he threatened to

cause a miscarriage by physical force, and he once broke her ribs; and about

her Protection from Abuse Order (hereinafter “PFA”) and how she endured an

abusive relationship with Markus for over five years.


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       The trial court granted the Commonwealth’s motion, finding that

Cabrera-Gutierrez’s proposed testimony was not relevant because those

matters had been previously raised in the custody proceedings and the

custody judge found that she had been manipulating the system and the issue

of child abuse has been litigated to its fullest. In her 1925(a) opinion, the trial

court, citing to Commonwealth v. Couch, 731 A.2d 136 (Pa. Super. 1999),

found when she fled, the child was not in immediate danger, especially when

there was a hearing that week on the custody matter and that no immediate

danger was found.

       The matter then went to trial before a jury who found Cabrera-Gutierrez

guilty of both counts and, the same day, the trial court imposed an aggregate

sentence of 15 to 48 months’ imprisonment followed by 5 years of probation.

This appeal followed.1


____________________________________________


1
  “In evaluating the denial or grant of a motion in limine, our standard of
review is the same as that utilized to analyze an evidentiary challenge.
Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014). It is well
settled that ‘the admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed on appeal
only upon an abuse of that discretion.’ Commonwealth v. Woodard, 129
A.3d 480, 494 (PA. 2015) (citation omitted). ‘An abuse of discretion will not
be found based on a mere error of judgment, but rather occurs where the
court has reached a conclusion that overrides or misapplies the law, or where
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.’ Id. (citation omitted). ‘The court may exclude
relevant evidence if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.’ Pa.R.E. 403.” Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa.
Super. 2016), appeal denied, 168 A.3d 1287 (PA. 2017).

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       On appeal, Cabrera–Gutierrez contends that the trial court abused its

discretion by finding the testimony concerning domestic and child abuse not

relevant by improperly applying Couch to limit the evidence to only incidences

of such abuse occurring after November 3, 2014, the date of the child custody

hearing.

       In Couch, we held that a defendant who wishes to assert this defense

under 18 Pa.C.S. § 2904(b)(1) must show that the danger to the child was so

immediate that normal legal procedures would not suffice to protect the child,

stating that:

       Custody law provides for certain procedures to be followed in a
       civil action to challenge custody if a party believes that the best
       interests of the child are not being met by the primary custodian.
       Therefore, in order for the statutory justification defense to apply
       to a criminal offense of taking and concealing a child, there must
       be some instant danger present such that to follow the prescribed
       civil procedures would threaten the immediate welfare of the child.

Couch, 731 A.2d at 144.

       Our holding in Couch is based on the same reasoning that was used by

the Wisconsin Supreme Court when it addressed a similar issue in State v.

McCoy, 143 Wis.2d 274, 421 N.W.2d 107 (1988).2 The Wisconsin statute at

issue in that case provided a defense for custodial interference if the abduction


____________________________________________


2 We recognize that this Court is not bound by the decisions of other states’
courts; however, we may use them for guidance to the degree we find them
useful and not incompatible with Pennsylvania law. See Eckman v. Erie Ins.
Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011).



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is motivated by the intent to protect the child from “imminent physical harm.”

In McCoy, the Wisconsin court rejected the suggestion that “imminent” harm

should be interpreted to include any “continuing and projected harm.” The

court explained that if the statute were construed in the manner the defendant

suggested, this would prompt parents and relatives to disregard custody

decrees and to engage in self-help:

      Imbuing the term “imminent” with the broad meaning sought by
      the defendant would [dis]courage ... resort to legal remedies such
      as obtaining a restraining order. The manifest intent of this
      [defense] is that a reasonable removal [of a child] for purposes of
      safety [will] be permitted[,] but not to the exclusion of resort to
      the court system. Any other more extended concealment, though
      initially justified, would only victimize the child, wrongfully
      depriving the other parent of the opportunity to have contact with
      that child, and interfering in the child’s relationship with the other
      parent.

McCoy, 421 N.W.2d at 114.

      The Wisconsin court went on to explain the underlying rationale of its

interpretation of the statute:

      Children unfortunately are often the pawns in the domestic
      struggles between their parents. One parent may try ... to deprive
      [their] mate, whom they now see as their enemy, of one of life’s
      great treasures, ... the physical presence and company of one’s
      child by the concealment of that child.... The severity of the
      trauma of child snatching is one of the few points that behavioral
      scientists agree upon, almost without exception.”)....            The
      [Wisconsin] legislature has wisely provided that concealment of a
      child by one parent from the other parent is justified [only] if done
      “to protect the child from imminent physical harm.”

      When parents have reached an impasse in their relationship to
      each other and with their children, the resolution in a civilized
      society should be made by institutions established for such
      purpose. In our society we have given that duty to the court

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     system. It is in the courts that disputes such as presented here
     should be resolved except in those situations where action is
     required by one parent to protect a child from imminent physical
     danger.

McCoy, 421 N.W.2d at 114-15.

     In this case, the child custody hearing was held several days before in

which Cabrera–Gutierrez had the opportunity to raise any claims about

immediate danger or unfitness of Markus. As we stated in Couch, only when

the custody process is inadequate to protect against immediate harm and

absent some showing of immediate physical danger to the child, the statutory

defenses to the charges are not available.

     Order Affirmed.

     Judge Ott concurs in the result.

     Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




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