J-S41011-16

                                     2016 PA Super 214



COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KEVIN GREEN,

                            Appellant                    No. 2672 EDA 2014


            Appeal from the Judgment Entered September 12, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011053-2013


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

DISSENTING OPINION BY BENDER, P.J.E.:             FILED SEPTEMBER 16, 2016

        Based on the evidence presented at Appellant’s trial, I disagree with

the Majority that Appellant confined the two victims in a place of isolation.

Accordingly, I respectfully dissent.

        Appellant primarily relies on two cases in challenging his kidnapping

conviction, Commonwealth v. Hook, 512 A.2d 718 (Pa. Super. 1986), and

Commonwealth v. Rushing, 99 A.3d 416 (Pa. 2014). Appellant maintains

that his case is analogous to Hook and distinguishable from Rushing. After

review of those cases, and for the reasons that follow, I would agree.

        First, in Hook, the appellant forced his way into Doris Pyle’s second-

floor apartment, but, after a brief struggle, she was able to escape into an
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*
    Former Justice specially assigned to the Superior Court.
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elderly neighbor’s apartment.    Hook, 512 A.2d at 719.        The appellant

followed, threw both women onto a bed, and sexually assaulted Pyle before

passing out due to his intoxication.    Id.   The elderly neighbor, Thelma

Maust, ran to a clothing store on the first floor of the building, which was

open at the time of the incident, and called police. Id. Police arrived a few

minutes later and arrested the appellant, who was still passed out in Maust’s

apartment. Id.

     Ultimately, the appellant was convicted of two counts of kidnapping,

but on appeal, this Court reversed those convictions, reasoning that the

evidence failed to demonstrate that the appellant had confined his victims

“in a place of isolation.” Id. at 720. We stressed that Pyle’s apartment was

accessible to the public, as demonstrated by the appellant’s presence at her

door. We also relied on the fact that Pyle was expecting an employee of a

dry cleaning company to arrive at any moment for a pick up, and that

Maust’s family had visited her apartment earlier that day.   Id. Additionally,

the police arrived on scene within minutes of receiving Maust’s call made

from the clothing store, to which Maust had run for help after the appellant

passed out. Id. In sum, we concluded that these facts did not prove that

Pyle and Maust were “confined in a manner that made discovery or rescue

unlikely[,]” and it appeared that “any confinement [the] appellant imposed

on the victims was incidental to his attempt to rape at least one of the

victims.” Id.




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      Appellant contends that, as in Hook, the confinement of the victims in

this case was not in a place of isolation, and was merely incidental to the

robbery.   He stresses that during the entire incident, “the home was

unlocked and open to persons coming and going[,] including [Elizabeth]

Varela herself, her neighbor Ronald Martin and her husband José Torres.”

Appellant’s Brief at 21 (citation to the record omitted). Appellant points out

that Mr. Martin, Mr. Torres, and the police arrived at the home shortly after

Appellant and his cohort fled, thus demonstrating that the circumstances

were not such as to make the discovery or rescue of the victims unlikely. He

further claims that once he and his cohort left the home, “the victims were

able to move about, because … it was only their hands which were bound.”

Id. at 25. In sum, Appellant concludes that, “[t]hese circumstances simply

[do] not rise to the level of a confinement for a substantial period in a place

of isolation as required by the statute.” Id. at 22.

      I agree with Appellant. Notably, in this case, the victims’ home was

located in close proximity to other houses, including Mr. Martin’s neighboring

residence. Moreover, as in Hook, the victims’ home was also accessible to

the public, at least to the extent that Appellant and his female companion

were able to approach the victims’ door and knock at approximately 12:30 in

the afternoon without hindrance. Additionally, Ms. Varela testified that when

Appellant and his female cohort returned to her house without Mr. Torres,

the door to her home was unlocked, allowing Appellant and his companion to

walk right in. N.T. Trial, 7/9/14, at 62-63.

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      I also find it significant that Ms. Varela and her son, Joshua, were only

bound at the hands when Appellant fled, and there was no evidence

demonstrating that they could not have been heard had they screamed for

help, or that they could not have gotten themselves outside or to a window

to yell for assistance. It was simply that the victims had no need to do so,

as Mr. Martin was able to enter their home and immediately come to their

aid after he witnessed Appellant and his female companion fleeing.

Additionally, while the facts of Hook suggest that the victims in that case

lived alone, here, Mr. Torres resided in the home with the victims, and left

only to show Appellant and his female companion a rental apartment. No

evidence produced at trial suggested that Mr. Torres would not be returning

to the home at some point that day. Indeed, Mr. Torres did arrive home just

minutes after Appellant fled the scene, and only shortly after Mr. Martin

entered the home and found the victims.       In my view, the fact that help

arrived to rescue the victims just minutes after Appellant left the scene

weighs strongly in favor of an inference that the home was not ‘a place of

isolation.’

      Secondly, I agree with Appellant that the facts of his case are in stark

contrast to the evidence found sufficient to demonstrate ‘a place of isolation’

in Rushing.    There, Rushing held multiple victims (many of whom were

family members) together inside a home for at least two hours, during which

“the victims were handcuffed and bound, threatened repeatedly to be quiet,




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one was sexually assaulted, and all were placed in great fear.” Rushing, 99

A.3d at 426.

      Specifically, [one victim,] Cynthia Collier, while attempting to
      telephone for help, was handcuffed behind her back, forced onto
      the floor of her son's bedroom, threatened at gunpoint with
      death if she did not shut up, endured hearing [another] son[,]
      Dustin[,] being murdered by blows from a hammer, was
      frequently checked on, and was threatened to be silent if she
      wanted to live, especially upon [her daughter’s] arrival to the
      home. Both Cynthia and her son Matthew, who was also bound,
      remained restrained while [Rushing] stole their bank cards and a
      ring from Cynthia's finger. Repeatedly returning to check on
      Cynthia and Matthew, [Rushing] only later in the ordeal
      indicated that Wes Collier would be the next person in the home,
      and that they could yell for assistance at that time, and then,
      after considering the time, informed them that they could do
      what they wanted if [Rushing] was not back by 6:30 a.m.
      Similarly, [Rushing] confined Matthew, even though handicapped
      and using a wheelchair, to a bed by tying his hands and legs,
      rendering him unable to seek assistance by escape or telephone.
      Again, Matthew was checked on multiple times to prevent his
      escape or calls for assistance during the early morning events.

      Finally, with respect to [another victim,] Samantha, upon her
      arrival at the home, she was directed into her bedroom, shown
      the dead body of her son's father [(Justin Berrios, whom Rushing
      had murdered earlier in the night)], forced onto her stomach at
      gunpoint while her hands were tied behind her back and her feet
      bound with a cable. She was forced to remain on her bed under
      threat of rape, indecently assaulted, was checked on multiple
      times, and her cell phone was removed, and then thrown on
      Justin's dead body. Samantha's car keys were taken, and
      [Rushing] indicated that he had already killed, and would kill
      more individuals if the police did not find him. Samantha was
      bound such that she could not free herself and was only able to
      call for assistance after retrieving her phone from Justin's dead
      body and dialing with her toe, reaching the police only after
      numerous attempts.

Id.




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     In concluding that these egregious facts were sufficient to demonstrate

that the victims were confined in ‘a place of isolation,’ our Supreme Court

stated:

     In short, while confined in their own home, the victims were
     nevertheless tightly bound and unable to seek discovery or
     rescue. Indeed, the victims were threatened with death if they
     attempted to obtain help from neighbors or the police. There is
     no evidence that others had access to the home, other than
     Wes, whose return was expected, but the time of his arrival was
     uncertain and not imminent. Rather than being incidental to the
     other crimes, [Rushing’s] confinement of the victims was with
     the intent to commit those other crimes, and to facilitate [his]
     escape. Thus, based upon these facts, we believe the
     Commonwealth established that the victims were confined in a
     place of isolation which rendered them separated from the
     normal protections of society in a fashion that made their
     discovery or rescue unlikely, thus satisfying the requirements of
     the kidnapping statute.

Id. at 426-27.

     While here, Appellant certainly placed his victims in significant fear by

his conduct, he did not physically assault, threaten, or force them to endure

mental anguish comparable to that imposed by Rushing on his victims. Also,

in contrast to Rushing’s early morning attack, here Appellant’s confinement

of the victims occurred in the middle of the afternoon, and in a place where

other homes, such as Mr. Martin’s, were in close proximity.      Despite this

broad-daylight confinement, and close proximity of other people, Appellant

did not threaten the victims to discourage them from seeking rescue.       He

also did not tape their mouths to prevent them from screaming for help, or

bind their feet to inhibit them from moving outside or to a window to seek



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rescue.    See Commonwealth v. Markman, 916 A.2d 586 (Pa. 2007)

(concluding the victim was confined in a place of isolation where Markman

brought the victim to the living room of a trailer in a trailer park, and then

“bound [the victim’s] hands and feet, placed a cloth rag into her mouth, and

gagged her so that she could not cry out”).

       Moreover, I again stress that Mr. Torres lived in the victims’ home,

thus ensuring that he would at some point return.              Unlike the returning

family member in Rushing, the evidence indicated that Mr. Torres’ return

was imminent. Namely, Mr. Torres left his home on 5th Street in order to

show Appellant and his female companion a nearby apartment on 6 th Street.

N.T. Trial, 7/9/14, at 116-117.1 Mr. Torres testified that he told Appellant

that he would wait in the 6th Street apartment for “about an hour[]” while

Appellant went to get rent money.              Id. at 120.   There was no evidence

suggesting that Mr. Torres planned to travel to any location after his visit to

the 6th Street apartment and before returning to the home he shared with

the victims.      Additionally, not only was Mr. Torres’ arrival assured and

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1
  Mr. Torres stated that the 6th Street apartment was “about 5, 10, 15”
minutes away from his home by foot, and “maybe two minutes … [or] three
minutes” by car. N.T. Trial, 7/9/14, at 117. Mr. Torres also testified that he
“took” Appellant to the 6th Street apartment, but he did not state whether
they walked or drove. Thus, the evidence demonstrated that Mr. Torres was
no more than 15 minutes away from the home where the victims were
confined during the course of the robbery. I also note that Ms. Varela
testified that her husband arrived at the house about “five minutes” after
Appellant and his cohort fled. Id. at 73.



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imminent, Mr. Martin was also able to access the victims’ home and rescue

them immediately after seeing Appellant and his female cohort flee. Nothing

in the record suggests that Mr. Martin struggled to gain entry to the home,

or had difficulty locating the victims inside.

       In sum, I agree with Appellant that the facts of this case are

distinguishable from Rushing, and are closely aligned with Hook. So much

so, in fact, that I believe the Majority’s decision is effectively overruling

Hook, which is beyond this panel’s authority to do. See Commonwealth

v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (concluding that a three-judge

panel of this Court may not overrule a previously published opinion by this

Court). In my view, Appellant did not separate the victims from the normal

protections of society in a manner that made their discovery or rescue

unlikely.     Thus, I would hold that the evidence was insufficient to

demonstrate that Appellant confined the victims in a ‘place of isolation,’ a

required element of the offense of kidnapping.        Consequently, I would

reverse Appellant’s two kidnapping convictions.2




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2
  I note that I agree with the Majority’s well-reasoned analysis of Appellant’s
other two issues.




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