                            [J-25-2018] [MO: Saylor, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 45 WAP 2017
                                                :
                      Appellant                 :   Appeal from the Order of the Superior
                                                :   Court entered April 20, 2017 at No.
                                                :   253 WDA 2016, reversing and
               v.                               :   vacating the Order of the Court of
                                                :   Common Pleas of Allegheny County
                                                :   entered September 14, 2015 at No.
 TEX XAVIER ORTIZ,                              :   CP-02-CR-0000547-2015 and
                                                :   remanding.
                      Appellee                  :
                                                :   ARGUED: April 11, 2018


                                  DISSENTING OPINION


JUSTICE MUNDY                                       DECIDED: NOVEMBER 21, 2018
       Proof a defendant removed a child a substantial distance, to facilitate the taking of

the child from the custody of its lawful guardian without privilege to do so, will support a

conviction for kidnapping of a minor pursuant to 18 Pa.C.S. § 2901(a.1)(2), with

interference with custody of children (ICC) being the predicate felony. In my view, the

Superior Court erred when it held that ICC could not be a predicate felony for the purpose

of Section 2901(a.1)(2), “in the narrow and specific circumstance where a defendant is

the biological parent of the child addressed by the custody order in question.”

Commonwealth v. Ortiz, 160 A.3d 230, 241 (Pa. Super.), appeal granted, 173 A.3d 1284

(Pa. 2017).

       Despite the fact that the ICC and kidnapping of a minor statutes do not create any

exception for biological parents, the Majority affirms the Superior Court’s holding carving

out this exception. Pursuant to the ICC statute enacted in 1972 and amended in 1984,
“[a] person commits an offense if he knowingly or recklessly takes or entices any child

under the age of 18 years from the custody of its parent, guardian or other lawful

custodian, when he has no privilege to do so.” 18 Pa.C.S. § 2904. In 2012, the General

Assembly enacted 18 Pa.C.S. § 2901(a.1), kidnapping of a minor, which provides:

               A person is guilty of kidnapping of a minor if he unlawfully
               removes a person under 18 years of age a substantial
               distance under the circumstances from the place where he is
               found, or if he unlawfully confines a person under 18 years of
               age for a substantial period in a place of isolation, with any of
               the following intentions:

                      (1) To hold for ransom or reward, or as a shield or
                      hostage.

                      (2) To facilitate commission of any felony or flight
                      thereafter.

                      (3) To inflict bodily injury on or to terrorize the victim or
                      another.

                      (4) To interfere with the performance by public officials
                      of any governmental or political function.

Id. In accordance with subsection 2, the unlawful removal of a minor a substantial

distance with intent to “facilitate commission of any felony” constitutes the crime of

kidnapping of a minor. The language of the statute broadly embracing “any felony” is

unambiguous. Had the General Assembly intended to exclude ICC, or any other felony,

from qualifying as a predicate felony, it could have done so. Because the language of

the statute is unambiguous, we are precluded from resorting to the statutory interpretation

provisions employed by the Majority in its effort to ascertain the legislature’s supposed

intent ion enacting Section 2901(a.1).       See 1 Pa.C.S. § 1921 (“When the words of a

statute are clear and free from all ambiguity, the letter of it is not to be disregarded under

the pretext of pursuing its spirit.”)


                              [J-25-2018] [MO: Saylor, C.J.] - 2
       The Majority purports to detect an ambiguity in the concept of an act facilitating

itself. Although ICC and kidnapping of a minor both involve an act of taking, the statutory

language is not ambiguous. Further, kidnapping of a minor does not necessarily require

an act of “removing” or “taking.” Kidnapping of a minor can be based on conduct where

a person “unlawfully confines a person under 18 years of age for a substantial period in

a place of isolation.” 18 Pa.C.S. § 2901(a.1). In such a circumstance, the circular

language argument by the Majority would not apply because confining a child for a

substantial period in a place of isolation to take the child from the custody of a lawful

custodian does not implicate the duplicative “taking” language which the Majority has

deemed problematic.

       It is of no moment that ICC can be charged in instances that do not involve the

additional elements for kidnapping of a minor. In circumstances where the conduct of the

defendant includes those additional elements, the defendant may be convicted on both

charges. See 42 Pa.C.S. § 9303 (“[n]otwithstanding the provisions of 1 Pa.C.S. § 1933

(relating to particular controls general) or any other statute to the contrary, where the

same conduct of a defendant violates more than one criminal statute, the defendant may

be prosecuted under all available statutory criminal provisions without regard to the

generality or specificity of the statutes.”)

       Thus, the sole question before this Court is whether ICC can be the felony, the

facilitation of which, supports a conviction for kidnapping of a minor under 18 Pa.C.S.

§ 2901(a.1)(2).     The Majority dismisses the Commonwealth’s argument that the

substantial distance element has any bearing on our analysis. To the contrary, the

decision by Appellee to take J.O. a substantial distance from her home, for 15 days, to




                              [J-25-2018] [MO: Saylor, C.J.] - 3
evade multiple law enforcement agencies attempting to locate J.O., facilitated his

interference with a custody order.

      Because Appellee’s conduct was sufficient to support a conviction for ICC and

kidnapping of a minor, I would reverse the Superior Court’s decision and remand for

resentencing.   ICC is a separate and distinct crime for which Appellee can, and was

convicted, and because kidnapping of a minor unambiguously states a defendant can be

convicted if the defendant has removed the child a substantial distance to facilitate

commission of any felony, I dissent.



      Justices Dougherty and Wecht join this dissenting opinion.




                           [J-25-2018] [MO: Saylor, C.J.] - 4
