                            [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 WECHT                                         DECIDED: NOVEMBER 21, 2018
       I join Justice Mundy’s fine dissent.

       In all cases implicating statutory construction, our first obligation is to find and apply

the statutory language chosen by the General Assembly.                  As the Chief Justice

acknowledges in his learned Majority Opinion, our obligation is to “adher[e] to terms of a

statute that are plain and clear. . . .” Maj. Op. at 5. At issue here are: (a) the statute

criminalizing kidnapping of a minor, a provision that requires proof only that the abduction

or removal of a child was done with the intent to “facilitate commission of any felony or

flight thereafter,” (18 Pa.C.S. § 2901(a.1)(2) (emphasis added); and (b) the statute

criminalizing interference with custody of children (“ICC”) (18 Pa.C.S. § 2904(a)). In this

case, the Commonwealth charged, and correctly graded, ICC as a felony. The question

is whether ICC, a felony, constitutes “any” felony for kidnapping purposes. Clearly it does,

as Justice Mundy ably explains.        The plain, unambiguous statutory text suffices to

mandate reversal of the Superior Court’s order in this case.
       I would go one step further. I would overrule Commonwealth v. Barfield, 768 A.2d

343 (Pa. Super. 2001), as it is that unsupportable Superior Court precedent upon which

that court relied in this case. Barfield was premised upon the same divergence from the

statutory text that afflicts both today’s Majority Opinion and the Superior Court’s opinion.

Permitting Barfield to remain as binding authority can only allow for unnecessary

perpetuation of error and expense.1       Rather than enable that case to sow further

confusion and litigation, we should overrule it.

       In Barfield, a judge assigned Antonia Barfield’s children to the custody of the

Lancaster County Children and Youth Agency (“LCCYA”). Barfield, 768 A.2d at 343.

LCCYA then placed the children in foster care. Barfield tried to regain custody, but was

unsuccessful. However, the court permitted Barfield to have unsupervised visits with the

children on the weekends. After the first weekend visit, Barfield failed to return the

children to their foster mother. Barfield informed LCCYA that:

       the children were fine and that they had been taken into the custody of
       Provident Embassy World Religions and that [LCCYA] would receive an
       order overruling its custody order. Once this occurred, [Barfield] indicated
       that she would return to Lancaster. [Barfield] left similar messages for the
       caseworker stating that [Barfield] had taken the children on her own, that
       [LCCYA] no longer had jurisdiction, and that eventually [Barfield] planned
       on coming back to Lancaster.

       The caseworker contacted the Lancaster City Police and a warrant was
       subsequently issued for [Barfield’s] arrest.


1       The Commonwealth, as appellant, has not asked us to overrule Barfield. As I have
explained in the past, both for the Court and individually, this should not be a categorical
impediment to overruling indefensible, unsustainable, or conflicting case law. See William
Penn Sch. Dist. v. Pennsylvania Dep't of Educ. 170 A.3d 414, 447 n.49 (2017) (“We would
encourage the perpetuation of poorly reasoned precedent were we to permit ourselves to
revisit the soundness of our case law only when expressly invited to do so based upon a
given party's tactical decision of whether to attack adverse case law frontally . . . or to
attempt more finely to distinguish the adverse decisions. The scope of our review is not
so circumscribed.”); accord, Cagey v. Commonwealth, 179 A.3d 458, 473 n. 7 (Pa. 2018)
(Wecht, J., concurring).


                            [J-25-2018] [MO: Saylor, C.J.] - 2
Id. at 344.

       Barfield was charged with two counts of ICC and two counts of kidnapping. The

specific subsection of the kidnapping statute invoked required the Commonwealth to

prove that Barfield unlawfully removed the children with the intent to “interfere with the

performance by public officials of any governmental or political function.” 18 Pa.C.S. §

2901(a)(4). A jury convicted Barfield on all counts, but the trial court later vacated the

kidnapping convictions. The Commonwealth appealed, inquiring of the Superior Court

“whether the trial court erred as a matter of law in determining that § 2901(a)(4) of the

kidnapping statute was not intended to address a situation where a non-custodial parent

removes her children from the custody of a social service agency in violation of a court

ordered placement plan?” Barfield, 768 A.2d at 344.

       The question before the Superior Court in Barfield is nearly identical to the one

that we must resolve in the case sub judice: Can a person be charged and convicted

under both the kidnapping and ICC statutes when that person unlawfully removes a child

in violation of a custody order? The Barfield Court said “no.” Today, the Majority says

“no” as well. Based upon the statutory language, this is manifest error. We should reject

Barfield, and we should say “yes.”

       The Superior Court panel in Barfield acknowledged that a dependency custody

order, and its enforcement, necessarily implicates a judge and a caseworker, both of

whom are governmental officials performing governmental functions.            Id. at 346.

Nonetheless, even though the removal of the child seemingly fell squarely within the ambit

of the kidnapping statute (specifically, Section 2901(a)(4)), the court decided that the

General Assembly intended to classify such actions as a “separate and distinct” crime:

ICC. Barfield, 768 A.2d at 346. The Superior Court reasoned that, to hold that a person




                            [J-25-2018] [MO: Saylor, C.J.] - 3
could be convicted of both kidnapping and ICC would render the ICC statute superfluous,

in contravention of the General Assembly’s presumed intent. Id. at 346.

       To support its conclusion, the appellate panel ventured that Section 2901(a)(4) of

the kidnapping statute and the ICC statute aim to serve distinct interests. The kidnapping

statute, generally, protects a victim from the “physical danger or terrorization” that typically

accompanies an abduction. Barfield, 768 A.2d at 347 (citation and quotation marks

omitted). The ICC statute seeks, by contrast, to protect the continued “maintenance of

parental custody against all unlawful interruption.” Id. (citation and quotation marks

omitted). The panel further distinguished the two crimes by opining that, in ICC situations,

“the defendant is usually a parent or other relative who is favorably disposed toward the

child and does not think of his action as harmful to the child.” Id. at 347-48. The Superior

Court opined that the General Assembly intended to treat the two situations differently

and intended to impose a “less severe” sanction for less “harmful” conduct by enacting

the ICC statute. Id. The Barfield panel reasoned that the General Assembly created a

hierarchy of offenses based upon the “degrees of harm potentially involved with such

actions.” Id. at 348. The Superior Court summarized the crux of its holding by explaining

that, “[w]hile § 2901 does not explicitly exempt parents from criminal prosecutions for

abducting their own children[,] we are not persuaded the legislature intended a parent to

be prosecuted under subsection (4) and subject to its more severe penalty for the same

conduct proscribed by § 2904(a).” Id. at 346.

       The flaw in the Barfield approach is the one astutely identified by Justice Mundy in

the present case: the Superior Court overlooked the plain and unambiguous statutory

text in order to pursue and effectuate what it presumed to be the General Assembly’s

purported intent.     Today’s Majority makes the same interpretive misstep.                This

jurisprudential method, of course, is foreclosed expressly by the Statutory Construction




                             [J-25-2018] [MO: Saylor, C.J.] - 4
Act. See 1 Pa.C.S. § 1921(b) (“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.”).

The plain language of Section 2901(a)(4) permitted prosecution of Barfield for kidnapping

as a consequence of her actions.           No further inquiry was necessary, or, indeed,

permissible. That the General Assembly may (or should) have intended the two relevant

crimes to be separate and distinct (and I am not entirely persuaded that it did) does not

authorize us to disregard or overlook the actual language enacted by the lawmakers.

       Putting the inherent flaws in the Barfield court’s analysis to the side, the statutory

law in any event evolved away from that precedent in the intervening years. For instance,

in 2012, the General Assembly amended the kidnapping statute and added a specific

provision for kidnapping of a minor, including the language at issue in the case sub judice,

“[t]o facilitate commission of any felony or flight thereafter.”           See 18 Pa.C.S. §

2901(a.1)(2). More importantly, in December 2002, the General Assembly enacted 42

Pa.C.S. § 9303, which became effective on February 7, 2003. Section 9303 states:

       Notwithstanding 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.

Id. This provision specifically undoes the Barfield court’s implicit holding that similar

crimes are an either-or proposition—that offenses governing the same or similar conduct

cannot both be charged at the same time. Section 9303 restores the vast discretion that

prosecutors enjoy in charging decisions. See generally Commonwealth v. McNeal, 120

A.3d 313, 326 (Pa. Super. 1997) (citing United States v. Batchelder, 442 U.S. 114 (1979)).

       For all of these reasons, I join Justice Mundy’ dissent. However, rather than end

where Justice Mundy does, I also would ensure that Barfield no longer can cause

unjustified and unnecessary difficulties for our courts, litigants, or stakeholders.


                              [J-25-2018] [MO: Saylor, C.J.] - 5
