J-A28009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 RICHARD SCOTT CARVER                    :   No. 377 MDA 2018

             Appeal from the Order Entered January 30, 2018
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0001646-2017


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED FEBRUARY 04, 2019

      The Commonwealth filed this interlocutory appeal from the order,

entered in the Court of Common Pleas of Schuylkill County, granting Richard

Scott Carver’s writ of habeas corpus, dismissing the charges against him, and

directing his release from prison. After our review, we affirm in part, and

reverse in part.

      We adopt the trial court’s recitation of the procedural and factual

history:

      On August 13, 2017, charges were filed against the Defendant
      based on an incident that allegedly occurred on Saturday, August
      12, 2017. The charges included Lur[ing] Child into Motor Vehicle,
      Criminal Attempt, pursuant to 18 Pa.C.S. § 2910(a)(2),
      Interference with Custody of Children, Criminal Attempt, pursuant
      to 18 Pa. C.S. § 2904(a), and Indecent Exposure pursuant to 18
      Pa.C.S. § 3127(a). The Defendant was arrested and placed in jail,
      unable to post bail. At the preliminary hearing, the charges were
      bound over for Court. The Defendant was then able to post bail
      on September 18, 2017. However, his bail was revoked on
J-A28009-18


     October 27, 2017, because the Defendant provided the address of
     a condemned building as his permanent residence, and because
     the Defendant was seen at the child’s bus stop attempting to make
     contact with the child.

     On October 26, 2017, counsel for the Defendant filed a Petition
     for Writ of Habeas Corpus, alleging that the Commonwealth’s
     evidence was insufficient as a matter of law to establish a prima
     facie case to support each of the charges. We held a hearing on
     the Petition on November 21, 2017. [T]he preliminary hearing
     was not stenographically recorded[;] the parties presented
     evidence as follows. The alleged victim, Z.K. ("child"), age 12,
     testified first. We conducted a colloquy and determined that the
     child was competent to testify. The child testified that on August
     12, 2017, he was involved in an incident with the Defendant,
     whom he identified in Court. It was the day of the annual block
     party in Girardville, Pennsylvania, and the child was riding his
     bicycle along the sidewalk with his friend, M.C. M.C. was about a
     half block ahead of the child, and the child was walking his bike
     up a hill, when the Defendant pulled up alongside the child in a
     gold/tan motor vehicle, after having made a U-turn from the other
     direction. The child testified that he did not know the Defendant
     personally before this day. The Defendant rolled down the driver's
     side window of his car, less than halfway, and said "Sup, nigga"
     to the child. The child was surprised and said "hi" to the
     Defendant. The Defendant asked the child if he was excited for
     school, and the child replied, "Not really." The Defendant then
     rolled his car window down completely, moved his hand slightly
     out of the window, and said "high five" to the child. The hand was
     extended with the palm facing upward, in an underhand fashion
     like a "low five," with his elbow bent. The child shook his head
     negatively. The Defendant then said, "Come on," and a few
     seconds later asked the child to "take my hand," to which the child
     said "no.” At this point, the Defendant had extended his hand
     farther out of the car window. The child turned his bike around.
     The Defendant then asked the child, "How many years have you
     known me?" The child replied, "Zero," and got on his bike and
     rode off to tell his friend M.C. what happened. The Defendant did
     not follow the child in his car. The child testified that the car turned
     right and then looked like it then stopped at a house, about a block
     away from their encounter, in the opposite direction from the
     direction the child was heading.

     The child testified that the Defendant did not tell him or ask him
     to get in the car, nor did the Defendant try to grab him. The child

                                      -2-
J-A28009-18


     testified that during the encounter, the child and Defendant
     remained approximately 8 feet apart. The child testified that he
     became very upset by the encounter. He and M.C. went to the
     block party and told his grandmother about it, and then his
     grandmother told Joe Catizone ("Mayor"), the Mayor of Girardville.
     The Mayor then contacted the police, and Patrolman Jody Long
     ("Officer Long") of the Girardville Police interviewed the child.
     After the interview, Officer Long, the child, the child's mother (who
     by then had arrived at the block party) and the Mayor then drove
     around Girardville in Officer Long’s police car looking for the
     Defendant. The child testified that they were able to locate the
     Defendant in a trailer on Ogden Street, where the Defendant’s car
     was parked, and that the child was able to identify the Defendant
     after hearing his voice. Next, M.C., age 16, testified. We
     conducted a colloquy and determined that he was competent to
     testify. M.C. was 15 years old at the time of the incident. M.C.
     does not know the Defendant. However, M.C. had seen the
     Defendant "around town" prior to August 12, 2017, riding a mini
     bike, which M.C. admired. That day, M.C. observed the Defendant
     and the child having a conversation along North Williams Street in
     Girardville. M.C. observed a gold Buick pull up alongside the child
     and a voice say, "Come on, give me your hand" or "take my hand"
     to the child. M.C. heard the child say "no." M.C. did not hear any
     other part of the conversation. M.C. testified that he knew it was
     the Defendant because M.C. had seen the Defendant's face when
     the car pulled up, but M.C. kept going. M.C. said that he next saw
     the child at the block party because they had gone different ways
     after the incident. He said the child was upset.

     Next, Mayor Catizone testified. He first met the Defendant a few
     years ago, but did not know his name. The Mayor was at the block
     party when the child came up to him and told him that a stranger
     had approached the child and tried to talk with him, and the child
     felt he was potentially in danger. The Mayor called the police. The
     child appeared shaken. The Mayor and the child went with Officer
     Long in the patrol car to look for the Defendant. The child was able
     to describe the color of the car and also believed it was a Buick.
     They found the vehicle and Officer Long located the Defendant and
     brought him over to the car. The child was able to identify the
     Defendant’s voice. The Mayor walked back to the block party and
     later went to the police station to give his statement to the police.

     At the police station, the Defendant was yelling that he was having
     a heart attack and acting extremely agitated. EMTs arrived,
     checked the Defendant and concluded that he was not having a

                                     -3-
J-A28009-18


     heart attack. After the Defendant was cleared by the EMTS, the
     Defendant remained combative and yelled insults at the Mayor
     and Officer Long.

     Finally, Officer Long testified. He was dispatched to the block
     party to investigate a possible abduction. The child told Officer
     Long that a guy in a goldish[-]colored car tried grabbing him. The
     child described the man as having long dirty blond hair and
     sunglasses. Officer Long and the Mayor contacted the child’s
     mother; and the five of them drove around town, looking for the
     suspect. Long also spoke with M.C., who knew that the man’s first
     name was Richard. M.C. told Long that Richard lived on Ogden
     Street in a trailer. As they arrived at the Ogden Street location,
     the Defendant came out of the trailer and greeted Officer Long.
     Officer Long told the Defendant that he was investigating a
     possible child abduction, and asked the Defendant to submit to an
     identification. The child identified the Defendant as the man, and
     asked to hear his voice, so Officer Long brought the Defendant
     over to the car while the child, who was upset, remained in the
     back seat with the window slightly lowered. As Officer Long and
     the Defendant had a verbal discussion, the child got even more
     upset and said that was "absolutely" the man. Officer Long then
     arrested the Defendant, handcuffed him in the front, gave him his
     Miranda warnings and took him to the police station. The
     Defendant became very combative and uncooperative, and
     intentionally shoved his body into Officer Long as Officer Long was
     removing the Defendant from the police car. The Defendant was
     placed on a bench, still in handcuffs, and Officer Long sat at a desk
     across from the bench. As Long was typing up the charges, the
     Defendant continued to be combative and began breathing heavily
     and spitting on the floor, as if he were hyperventilating. Officer
     Long kept asking the Defendant to remain seated and to stop
     spitting in the floor. The Defendant then fell over onto the floor,
     and after being lifted upright by the officer, stated that he was
     having a heart attack, and accordingly Officer Long called EMS,
     and he was medically cleared. The Defendant was then shackled
     and taken to Mahanoy City to be placed in a holding cell because
     of his uncooperative conduct. Officer Long then recalled that
     sometime prior to the claimed heart attack, he had observed that
     the Defendant had pulled his cotton shorts aside, exposing his
     genitals. When Officer Long asked what he was doing, the
     Defendant stated, "I’m going to piss on your floor." Officer Long
     told the Defendant that he was not going to do that and expressed
     incredulity at the Defendant, who had not asked to use the


                                     -4-
J-A28009-18


       restroom. The Defendant then pulled his shorts back. The
       Defendant then went on to complain about his health and that he
       was having a heart attack.

       At the conclusion of the evidence, the Court offered both parties
       the opportunity to file post-hearing briefs. Counsel for the
       Defendant filed a brief on December 5, 2017. In that brief, the
       Defendant argued that his conduct did not rise to a "luring" [or]
       attempt to commit interference with the custody of a child, that
       both charges must be dismissed. We agreed, dismissed the
       charges and the Commonwealth has appealed.

Trial Court Opinion, 5/10/18, at 1-7.

       On appeal, the Commonwealth raises two issues:1

              1. Whether the trial court erred by granting Carver’s
                 petition for writ of habeas corpus because the
                 evidence, viewed in the light most favorable to the
                 Commonwealth, established a prima facie case that
                 Carver attempted to lure a child into his vehicle
                 through enticing words and/or hand gestures and/or
                 commanding the child to take his hand?

              2. Whether the trial court erred by granting Carver’s
                 petition for writ of habeas corpus because the
                 evidence, viewed in the light most favorable to the
                 Commonwealth, established a prima facie case that
                 Carver indecently exposed himself by exposing his
                 genitals at a police station where a police officer was
                 nearby?

Commonwealth’s Brief, at 3.

       We review a decision to grant a pre-trial petition for a writ of habeas

corpus by examining the evidence and reasonable inferences derived


____________________________________________


1 In its Pa.R.A.P 1925(b) statement of errors complained of on appeal, the
Commonwealth challenged the dismissal of the attempted interference with
child custody charge. The Commonwealth has not brought that issue forward
on appeal.

                                           -5-
J-A28009-18



therefrom in a light most favorable to the Commonwealth. Commonwealth

v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004) (en banc). In

Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005), our Supreme Court

found that this Court erred in applying an abuse of discretion standard in

considering a pre-trial habeas corpus matter to determine whether the

Commonwealth had provided prima facie evidence.             The Commonwealth’s

prima facie case for a charged crime is a question of law as to which an

appellate court’s review is plenary. Id. at 505. “[I]ndeed, the trial court is

afforded no discretion in ascertaining whether, as a matter of law and in light

of the facts presented to it, the Commonwealth has carried its pre-trial, prima

facie burden to make out the elements of a charged crime.”              Id.      See

Commonwealth v. Dantzler, 135 A.3d 1109, 1111–12 (Pa. Super. 2016).

      To demonstrate a prima facie case exists, the Commonwealth must

produce evidence of every material element of the charged offense(s) as well

as the defendant’s complicity therein. Commonwealth v. Fowlin, 676 A.2d

665, 673 (Pa. Super. 1996). Proof beyond a reasonable doubt is not required

at the habeas stage, but the Commonwealth’s evidence must be such that, if

accepted as true, it would justify a trial court in submitting the case to a jury.

Id. Additionally, in deciding a habeas petition, a court must view the evidence

and   its   reasonable   inferences   in   the   light   most   favorable   to   the

Commonwealth. Id. Suspicion and conjecture, however, are unacceptable.

Id.




                                      -6-
J-A28009-18



      The offense of luring a child into a motor vehicle or structure provides

as follows:

      § 2910. Luring a child into a motor vehicle or structure

      A person who lures a child into a motor vehicle without the
      consent, express or implied, of the child’s parent or guardian,
      unless the circumstances reasonably indicate that the child is in
      need of assistance, commits a misdemeanor of the first degree.

18 Pa.C.S.A. § 2910. A “lure,” for purposes of the offense of attempted luring

of a child into a motor vehicle, 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[.]” Commonwealth v. Hart, 28 A.3d 898, 909 (Pa.

2011).

      After our review, we conclude that the trial court properly dismissed the

charge of attempt to lure a child. We agree with the trial court that, even

viewing the evidence in the light most favorable to the Commonwealth, there

was no evidence of enticement or temptation to induce the child to enter the

vehicle. We rely on the court’s opinion to dispose of this claim. See Trial

Court Opinion, supra at 9-11 (Carver did not offer any enticement to child,

did not attempt to force child to touch his hand, did not get out of his car,

child was 8 feet away during entire encounter; evidence does not rise to level

needed to establish prima facie case).

      With respect to the indecent exposure charge, however, we reverse the

court’s order. Section 3127 provides:


                                     -7-
J-A28009-18



      § 3127. Indecent exposure

      (a)   Offense defined.--A person commits indecent exposure if
            that person exposes his or her genitals in any public place
            or in any place where there are present other persons under
            circumstances in which he or she knows or should know that
            this conduct is likely to offend, affront or alarm.

18 Pa.C.S.A. § 3127(a).

      Officer Long’s testimony would enable a jury to conclude that Carver

exposed his genitals at the police station only a few feet from Officer Long.

Further, the trial court acknowledged that Officer Long “expressed incredulity

at [Carver.]” Trial Court Opinion, at 6. A jury could reasonably infer from

Officer Long’s testimony that the station did not have a holding cell, and, thus,

the area where Carver was being held was a public place. A jury could also

reasonably infer that Carver knew his actions would “offend, affront or alarm.”

18 Pa.C.S.A. § 3127(a). Viewing the evidence in the light most favorable to

the Commonwealth, we conclude the Commonwealth presented sufficient

evidence to establish a prima facie case of indecent exposure.

      Order affirmed in part, reversed in part and remanded for further

proceedings. Jurisdiction relinquished.

      Judge Musmanno joins this Memorandum.

      Judge Olson files a Concurring and Dissenting Memorandum.




                                      -8-
J-A28009-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2019




                          -9-
                                                                                                 Circulated 01/02/2019 01:19 PM




               COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY
                            CRIMINAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA                        No. CP-54-CR-1646-2017

                  vs.

RICHARD SCOTT CARVER,
                   Defendant

       Christopher J. Schmidt, Deputy Attorney General - for the Commonwealth
          Karen A. Dornalakes, Esquire, Public Defender - for the Defendant

                                 OPINION OF COURT

DOLBIN, J.

       This Opinion is written pursuant to Pa.R.A.P. 1925(b).

       This appeal by the Commonwealth filed February 27, 2018 is taken from our

Order of January 30, 2018, granting Defendant Richard Scott Carver's ("Defendant's")

Writ of Habeas Corpus, dismissing the charges against him, and directing hisrelease

from prison.

       On August 13, 201 7, charges were filed against the Defendant based on an ' '

incident that allegedly occurred on Saturday, August 12, 2017. The charges included
                                                                                     \   I
                                                                                     r. !    '
Lure Child into Motor Vehicle, Criminal Attempt, pursuant to 18 Pa. C.S. § 291 O(a)(2), 1'

Interference with Custody of Children, Criminal Attempt, pursuant to 18 Pa. C.S. §

2904(a), and Indecent Exposure pursuant to 18 Pa. C.S. § 3127(a). The Defendant was

arrested and placed in jail, unable to post bail. At the preliminary hearing, the charges

were bound over for Court. The Defendant was then able to post bail on September 18,

2017. However, his bail was revoked on October 27, 2017, because the Defendant
                                     (                                        (


    provided the address of a condemned building as his permanent residence, and also

    because the Defendant was seen at the child's bus stop attempting to make contact with

    the child.1

            On October 26, 201 7, counsel for the Defendant filed a Petition for Writ of Habeas

    Corpus, alleging that the Commonwealth's evidence was insufficient as a matter of law to

    establish a prima facie case to support each of the charges.

            We held a hearing on the Petition on November 21, 2017. Because the

preliminary hearing was not stenographically recorded, the parties presented evidence as

    follows.

           The alleged victim, Z.K. ("child"), age 12, testified first. We conducted a

colloquy and determined that the child was competent to testify. The child testified that

on August 12, 2017, he was involved in an incident with the Defendant, whom he

identified in Court, It was the day of the annual block party in Girardville, Pennsylvania,

and the child was riding his bicycle along the sidewalk with his friend, M.C. M.C. was

about a half block ahead of the child, and the child was walking his bike up a hill, when

the Defendant pulled up alongside the child in a gold/tan motor vehicle, after having

made a u-turn from the other direction. The child testified that he did not know the

Defendant personally before this day. The Defendant rolled down the driver's side

window of his car, less than halfway, and said "Ssup, nigga'' to the child. The child was

surprised and said "hi" to the Defendant. The Defendant asked the child if he was

excited for school, and the child replied, "not really." The Defendant then rolled his car

I
    No further charges were lodged against the Defendant for that incident.


                                                            2
                                                                    (i


window down completely and moved his hand slightly out of the window and said "high

five" to the child. The hand was extended with the palm facing upward, in an underhand

fashion like a "low five," with his elbow bent. The child shook his head negatively. The

Defendant then said "come on," and a few seconds later asked the child to "take my

hand," to which the child said "no." At this point the Defendant had extended his hand

farther out of the car window. The child turned his bike around. The Defendant then

asked the child, "How many years have you known me?" The child replied, "Zero," and

got on his bike and rode off to tell his friend M.C. what happened.

       The Defendant did not follow the child in his car. The child testified that the car

turned right and then looked like it then stopped at a house, about a block away from their

encounter, in the opposite direction from the direction the child was heading. The child

testified that the Defendant did not tell him or ask him to get in the car, nor did the

Defendant try to grab him. The child testified that during the encounter, the child and

Defendant remained approximately 8 feet apart.

       The child testified that he became very upset by the encounter. He and M.C went

to the block party and told his grandmother about it, and then the child and his

grandmother told Joe Catizone CMayor"), the Mayor of Girardville. The Mayor then

contacted the police, and Patrolman Jody Long ("Officer Long") of the Girardville Police

interviewed the child.

       After the interview, Officer Long, the child, the child's mother (who by then had

arrived at the block party) and the Mayor then drove around Girardville in Officer Long's

police car looking for the Defendant. The child testified that they were able to locate the


                                               3
                          .   {                                   (


Defendant in a trailer on Ogden Street, where the Defendant's car was parked, and that

the child was able to identify the Defendant after hearing his voice.

       Next, M.C., age 16, testified. We conducted a colloquy and determined that he

was competent to testify. M.C. was 15 years old at the time of the incident. M.C. does

not know the Defendant. However, M.C. had seen the Defendant "around town" prior to

August 12, 2017, riding a mini bike, which M.C. admired. That day, M.C. observed the

Defendant and the child having a conversation along N01ih Williams Street in

Girardville. M.C. observed a gold Buick pull up alongside the child and a voice say,

"Come on, give me your hand" or "take my hand" to the child. M.C. heard the child say

"no." M.C. did not hear any other part of the conversation. M.C. testified that he knew it

was the Defendant because M.C. had seen the Defendant's face when the car pulled up,

but M.C. kept going. M.C. said that he next saw the child at the block party because they

had gone different ways after the incident. He said the child was upset.

       Next, Mayor Catizone testified. He first met the Defendant a few years ago, but

did not know his name. The Mayor was at the block party when the child came up to him

and told him that a stranger had approached the child and tried to talk with him, and the

child felt he was potentially in danger. The Mayor called the police. The child appeared

shaken. The Mayor and the child went with Officer Long in the patrol car to look for the

Defendant. The child was able to describe the color of the car and also believed it was a

Buick. They found the vehicle and Officer Long located the Defendant and brought him

over to the car. The child was able to identify the Defendant's voice.




                                             4
                                                                  .:
       The Mayor walked back to the block party and later went to the police station to

give his statement to the police. At the police station, the Defendant was yelling that he

was having a heart attack and acting extremely agitated. EMTs arrived, checked the

Defendant concluded that he was not having a heart attack. After the Defendant was

cleared by the EMTS, the Defendant remained combative and yelled insults at the Mayor

and Officer Long.

       Finally, Officer Long testified. He was dispatched to the block party to investigate

a possible abduction. The child told Officer Long that a guy in a goldish colored car tried

grabbing him. The child described the man as having long dirty blond hair and

sunglasses. Officer Long and the Mayor contacted the child's mother, and the five of

them drove around town, looking for the suspect. Long also spoke with M.C., who knew

that the man's first name was Richard. M.C. told Long that Richard lived on Ogden

Street in a trailer.

       As they arrived at the Ogden Street location, the Defendant came out of the trailer

and greeted Officer Long. Officer Long told the Defendant that he was investigating a

possible child abduction, and asked the Defendant to submit to an identification. The

child identified the Defendant as the man, and asked to hear his voice, so Officer Long

brought the Defendant over to the car while the child, who was upset, remained in the

back seat with the window slightly lowered. As Officer Long and the Defendant had a

verbal discussion, the child got even more upset and said that was "absolutely" the man.

        Officer Long then arrested the Defendant, handcuffed him in the front, gave him

his Miranda warnings and took him to the police station. The Defendant became very


                                             5
                                                                   (.   \




combative and uncooperative, and intentionally shoved his body into Officer Long as

Officer Long was removing the Defendant from the police car. The Defendant was

placed on a bench, still in handcuffs, and Officer Long sat at a desk across from the

bench. As Long was typing up the charges, the Defendant continued to be combative and

began breathing heavily and spitting on the floor, as if he were hyperventilating. Officer

Long kept asking the Defendant to remain seated and to stop spitting in the floor. The

Defendant then fell over onto the floor, and after being lifted upright by the officer, stated

that he was having a heart attack, and accordingly Officer Long called EMS, and he was

medically cleared. The Defendant was then shackled and taken to Mahanoy City to be

placed in a holding cell because of his uncooperative conduct.

       Officer Long then recalled that sometime prior to the claimed heart attack, he had

observed that the Defendant had pulled his cotton shorts aside, exposing his genitals.

When Officer Long asked what he was doing, the Defendant stated "I'm going to piss on

your floor." Officer Long told the Defendant that he was not going to do that and

expressed incredulity at the Defendant, who had not asked to use the restroom. The

Defendant then pulled his shorts back. The Defendant then went on to complain about

his health and that he was having a heart attack.

       At the conclusion of the evidence, the Court offered both parties the opportunity to

file post-hearing briefs. Counsel for the Defendant filed a brief on December 15, 2017.

In that brief, the Defendant argued that his conduct did not rise to a "luring" and that

since the same alleged conduct was used to support both the luring charge and the




                                              6
                                   (
                                                                                    r
attempt to commit interference with the custody of a child, that both charges must be

dismissed.

        We agreed, dismissed the charges and the Commonwealth has appealed. The

Commonwealth' raises the following issues on appeal:

         1)      Whether this Court abused its discretion by granting the Defendant's
                 Petition for Writ of Habeas Corpus and dismissing the charges against him
                 because the Commonwealth presented a prima facie case that the
                 Defendant attempted to lure the child into his vehicle through enticing
                 words and/or hand gestures and or commanding the child to take his hand.

        2)       Whether this Court abused its discretion in that the same evidence
                 established a prima facie case that the Defendant attempted to interfere with
                 the custody of a child.

        3)       Whether this Court abused its discretion in dismissing the charge of
                 indecent exposure lodged against the Defendant.

Commonwealth's Concise Statement of Errors Complained of on Appeal.

        In his motion, the Defendant contended that the Commonwealth was unable to

sustain its burden of showing prima facie evidence that he was properly charged with the

crimes. A petition for writ of habeas corpus is a proper way to test the sufficiency of the

Commonwealth's evidence pre-trial. Commonwealth v. Hock, 556 Pa. 409, 414 n.2, 728

A.2d 943, 945 n.2 (1999). "In evaluating an accused's entitlement to pre-trial relief, a

trial court must determine whether there is sufficient evidence to make out a pritna facie

case that the defendant committed the crime with which he or she is charged." Id., 556

Pa. at 414-15, 728 A.2d at 945.




2 The Pennsylvania Attorney General entered his appearance in the case due to a conflict of interest arising from the
recent election of Attorney Michael O'Pake as the Schuylkill County District Attorney.


                                                          7
       At this stage of the proceedings, the Commonwealth need only demonstrate

sufficient probable cause to believe the person charged has committed the crime. "As a

result of the Commonwealth's bearing the minor burden of establishing a prima facie

case, a witness's credibility is not an issue at a preliminary hearing. Neither is it for the

court ruling on the motion for writ of habeas corpus to assess the credibility of the

witnesses presented at the preliminary hearing." Commonwealth v. Lyons, 13 Pa.

D.&C.51h 33, 40-41 (Lawrence Cty. 2010)(citing Commonwealth v. Carmody, 799 A.2d

143 (Pa. Super. 2002)). The evidence is to be viewed in the light most favorable to the

Commonwealth, and we must consider all reasonable inferences based on that evidence

which could support a guilty verdict. Commonwealth v. James, 863 A.2d 1179, 1182

(Pa. Super. 2004 )(en bane).

       We first address whether the evidence established e prima faoie case of luring a

child. Title 18, Pa. C.S. § 2910(a) 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 without
               the consent, express or implied, of the child's parent or
               guardian commits an offense.

18 Pa. C.S. 2910(a). If the offense involves a child less than 13 years of age, it is a

felony. 18 Pa. C.S. § 2910(a.1)(2).

       The Pennsylvania Legislature has not provided us with a definition of "luring."

Therefore, it has been left to the Courts to define.

       In Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898(2011), the Pennsylvania

Supreme Court had the occasion to define the word "lure" in light of past case law, the


                                                8
                                                                        ..,
                           (     i.                                (,-- ..,


dictionary and the Statutory Construction Act, 1 Pa. C.S. §§ 1922, 1928. With the

admonition that "where doubt exists concerning the proper scope of a penal statute, it is

the accused who would receive the benefit of such doubt," the Court held that the mere

invitation to give a child a ride, without any further enticement, was not a "lure." Hart,

611 Pa. at 548, 550, 28 A.3d at 908, 909-10. Specifically:

              Consistent with the plain and unambiguous meaning of the
              term "lure," we therefore hold that an attempt to lure under
              Section 2910 does not occur upon the mere offer of a ride
              in a motor vehicle to a child, but, rather, involves only situations
              where a child is provided a further enticement or inducement to
              enter the vehicle, in addition to the offer of the ride, particularly
              under such circumstances which suggest the child is being led into
              a potentially harmful situation. As the Superior Court recognized in
              [Commonwealth v. Adamo, 431 Pa. Super. 529, 637 A.2d 302(1994)],
              this enticement or inducement may be the promise of a pleasurable
              reward for entry into the vehicle such as receiving money or a treat
              such as candy or ice cream. Likewise, a similar attractive
              temptation could be created with the promise of the opportunity for
              the child to view an object of interest like a toy, a game, or a puppy.
              The enticement or inducement is evidence from the circumstances
              accompanying the making of the offer.

              Conversely, as the Superior Court has recognized, an enticement or
              inducement may take the form of a directive or a command to a
              child to enter a car, which suggests deleterious consequences to the
              child if he or she does not obey.

Id. at 550-51, 28 A.3d at 910.

       The evidence in this case did not even rise to the level of an offer of a ride. Here

there is no evidence that the Defendant offered the child a ride, nor is there any evidence

that the Defendant ordered or directed the child to get into his car. Rather, the Defendant

talked to the child and asked the child to touch his hand. Based on this evidence, the

Commonwealth chose to charge the Defendant with trying to lure the child into his car.


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       There is also no evidence that the Defendant offered any enticement to the child.

Rather, the evidence shows that the Defendant engaged the child in a conversation and

tried to get the child to touch his hand. The Defendant did not attempt to force the child

to touch his hand; the Defendant did not get out of his car, the child was approximately 8

feet away when the request was made, and when the child said no and left, the Defendant

likewise left. Based on the child's testimony that the Defendant asked the child how long

the child had known the Defendant, it is possible that the Defendant stopped and engaged

the child because the Defendant thought he was someone else. This evidence simply

does not rise to the level of evidence necessary to establish a prima facie case of attempt

to lure a child into a motor vehicle.

       We have considered the case of Commonwealth v. McClintock, 433 Pa. Super. 83,

639 A.2d 1222 (1994), in which the defendant was convicted for attempting to lure three

children into his car (onetime successfully) by waiving or motioning three or four times

for each child to "come here." The Defendant would drive around the area of an

elementary school slowly, and then pull over near a child and motion for them to come

closer. Two children ran away; the third approached the car, upon which the Defendant

asked the boy for directions to a local store. The defendant then insisted that the boy get

into the defendant's car and show him where the store was located, which the boy did.

Fortunately, a nearby grandmother recognized the defendant's car as a suspicious vehicle

which she had seen repeatedly over the prior two weeks driving around the streets

surrounding the local elementary school. The grandmother blew her own car horn

relentlessly until the defendant reached over and opened his passenger door so that the


                                             10
child could get out. The Pennsylvania Superior Court agreed that this evidence was

sufficient to support a conviction for luring a child. We find the case distinguishable,

because in this instance, the defendant was driving down the street, turned around and

pulled over alongside the sidewalk to speak to the child. He did not ask the child to get in

the car, and he did not wave for the child to come closer. He was not observed cruising

around the area repeatedly, nor was he driving near an elementary school or other area

such as a playground which children frequent. He did not specifically motion the child

over to him, although he did reach his hand out and ask for a fist bump or high five. In

fact, he asked the child how many years the child knew the Defendant, which gives rise

to the possibility that the Defendant pulled over to speak to the child because he thought

he knew the child, not because the Defendant intended to lure the child into his vehicle.

Considering McClintock, we do not find that the evidence of luring in this case rises to

that of the conduct in Mcclintock.

       The second issue raised on appeal is whether the evidence introduced by the

Commonwealth established a prima facie case of interfering with the custody of children.

The statute sets forth the following:

              (a) Offense defined.-A person commits an offense ifhe
              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(a). The statute does not include the words "or attempts to", which is

what the Defendant was charged with. This statute was "enacted with a focus toward

parental kidnapping, ... [but may] extend ... to protect children from unlawful taking by



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individuals who are not necessarily their parents, custodians or guardians." McClintock,

433 Pa. Super. at 89, 639 A.2d at 1225 (citation omitted).

       There was no evidence that the Defendant actually took the child into his custody.

At most, the evidence shows that the Defendant had a conversation with the child and

tried to get the child to touch his hand. In McClintock, the defendant was only charged

with this offense in connection with the child who entered into the defendant's car, where

he remained for one to five minutes, until the defendant released him. Id. In that case,

the defendant was not charged in regard to the two other children, who ran away and

never got into the defendant's car. We do not believe that this offense applies to

situations such as the one at hand where the Defendant never actually took the child into

his custody.

       Rather, the evidence at most shows that the Defendant stopped his vehicle and

conducted a conversation with the child, which scared the child. The child did the right

thing which was to end the conversation and walk away from this stranger to him. In

today's society, children are being taught from a very early age to beware of strangers.

"Stranger Danger" is a program taught in our local elementary schools. However, not all

interaction between a child and a stranger, no matter how odd, unusual, upsetting or

frightening, rises to the level of criminality. While the Defendant's actions may have

scared the child, and may have been unwise and inappropriate actions on the part of the

Defendant, we concluded that those actions do not rise to the level of criminal conduct

contemplated by the Pennsylvania Legislature in this statute.




                                            12
        Finally, the Commonwealth states that we abused our discretion in dismissing the

misdemeanor charge of indecent exposure:

               (a) Offense defiued.--A person commits indecent exposure if that
               person exposes his or her genitals in any public place or in any place
               where there are present other persons under circumstances in which
               he or she knows or should know that this conduct is likely to offend,
               affront or alarm.

 18 Pa. Stat. and Cons. Stat. Ann. § 3127(a).

        The evidence demonstrated that the Defendant exposed his genitals to the police

officer while stating that he intended to pee on the floor. When the officer told him not to

do that, he replaced his clothing over his genitals. At the time, the Defendant was sitting

on a bench in the police station, handcuffed, and he had been told by the arresting officer

to remain seated on the bench. The mayor testified that the Defendant was seated on a

bench yelling at the officers for at least 35 to 40 minutes while the mayor was writing out

his statement. There is no evidence that the Defendant exposed his penis for the purpose

of sexual gratification, evidence of which has been required by our courts in analyzing

the crime of indecent exposure. See Commonwealth v. Rodriguez, 296 Pa. Super. 349,

442 A.2d 803 (1982); Commonwealth v. Sayko, 14 Pa. D. & C.3d 411, 414

(Montgomery Cty. 1978); compare Commonwealth v. Andrulewicz, 911 A.2d 162

(2006); Commonwealth v. Brettman, 7 Pa. D. & C.51h 143, 150�51 (Berks Cty. 2009).

There was no evidence that the Defendant exposed himself for the purpose of sexual

gratification, or that in addition to opening his underwear, he touched or pleasured

himself in front of the officer.




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       Moreover, while the police station is undoubtedly a building open to the public,

there was no evidence that the alleged act took place in a public area of the police station,

or in an area where the Defendant should have known that his conduct was likely to

offend, affront or alarm other persons. There was no evidence regarding whether the

particular area where the Defendant was seated was actually open to the public, or, rather,

was a secured area inside the police station. See Commonwealth v DeWalt, 752 A.2d

915, 917 (Pa. Super. 2000). The only person who observed the Defendant's genitals was

Officer Long, who was seated at a desk across from the Defendant typing up his police

report. The Defendant stated that he was going to urinate on the floor as he exposed his

genitals; the officer told him not to, and the Defendant complied and replaced his

clothing. There was also no evidence that Officer Long was offended, affronted or

alarmed by the Defendant's actions; from the testimony we observed, Officer Long

appeared to have become annoyed by the Defendant's proposed action as inappropriate

and not rational, and a further moment during the continuum of the Defendant's

obstreperous conduct that began from the moment he was being taken out of the police

car and concluded when Officer Long took him to a different police station which

contained a holding cell. The Commonwealth's evidence failed to show that the

Defendant knew or should have known that his conduct was likely to offend, affront or

alarm another person, or that it was done for the purpose of sexual gratification.

       For these reasons, we entered our Order dated January 30, 2018.




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