                                    [J-25-2018]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT



COMMONWEALTH OF PENNSYLVANIA,                 :   No. 45 WAP 2017
                                              :
                                              :   Appeal from the Order of the Superior
                      Appellant               :   Court entered on 4/20/17 at No. 253
                                              :   WDA 2016, reversing and vacating the
                                              :   order of the Court of Common Pleas of
                                              :   Allegheny County entered on 9/14/15 at
                 v.                           :   No. CP-02-CR-0000547-2015 and
                                              :   remanding
TEX XAVIER ORTIZ,                             :
                                              :
                      Appellee                :   ARGUED: April 11, 2018




                                        OPINION


CHIEF JUSTICE SAYLOR                              DECIDED: NOVEMBER 21, 2018


       The question presented in this appeal concerns whether the criminal offense of

interference with custody of children, committed by a biological parent, can serve as a

predicate felony giving rise to the crime of kidnapping of a minor.

       In the relevant time period, Appellee was the single father of a two-and-one-half-

year-old daughter, J.O., with whom he resided in Allegheny County. In December 2015,

the child’s maternal grandmother secured interim primary legal and physical custody of

J.O. in a judicial proceeding at which Appellee failed to appear. The grandmother and

others made various attempts to implement the custody order, but initially neither

Appellee nor J.O. could be located. Appellee apparently took various measures to
conceal his and J.O’s whereabouts, and he was eventually located in Blair County,

where he surrendered the child to authorities and was arrested.

       Appellee was charged with various offenses including interference with custody

of children (“ICC”) as a felony of the third degree, which occurs when a defendant has

knowingly or recklessly taken any child from the custody of a lawful custodian without

any privilege to do so. See 18 Pa.C.S. §2904(a), (c).1 The charges also included

kidnapping of a minor under Section 2901(a.1)(2) of the Crimes Code, which entails a

defendant unlawfully removing a child a substantial distance from the place where the

child is found, or unlawfully confining the child for a substantial period in a place of

isolation, with a specific intention “[t]o facilitate commission of any felony or flight

thereafter.” 18 Pa.C.S. §2901(a.1)(2).2 Appellee was convicted of those offenses.3

       Throughout the proceedings, Appellee maintained that ICC, committed by a

biological parent, could not serve as a predicate felony for purposes of kidnapping of a

minor under Section 2901(a.1)(2). Appellee relied substantially upon Commonwealth v.

Barfield, 768 A.2d 343, 347 (Pa. Super. 2001) (indicating that, in fashioning the crime of

ICC, the General Assembly “removed from the general crimes of kidnapping the special

case of custodial interference”).

1ICC may also be a felony of the second degree or a misdemeanor of the second
degree in certain circumstances that are not relevant here. See 18 Pa.C.S. §2904(c).

2Kidnapping of a minor may also be premised upon three other specified “intentions,”
which are: to hold a child for ransom or reward, or as a shield or hostage; to inflict
bodily injury on or to terrorize a child or another; and to interfere with the performance
by any public official of any governmental or political function. See 18 Pa.C.S.
§2901(a.1)(1), (3) & (4). Per the Commonwealth’s charging documents, and consistent
with its present argumentation, only Section 2901(a.1)(2) is presently in issue. Accord
Commonwealth v. Ortiz, 160 A.3d 230, 234-35 (Pa. Super. 2017).

3A more extensive factual and procedural recitation appears in the Superior Court’s
opinion. See Ortiz, 160 A.3d at 231-32.



                                     [J-25-2018] - 2
       The trial court, however, rejected that position.            Unfortunately, the court

intermixed into its explanation a classification of kidnapping with which Appellee was not

charged. See Commonwealth v. Ortiz, No. CC 201500547, slip op. at 5 (C.P. Allegheny

Sep. 8, 2016) (discussing the application of Section 2901(a.1)(4)). 4

       On appeal, the Superior Court reversed, relying substantially upon the Barfield

decision. See Ortiz, 160 A.3d at 238-41. The court recognized that intermediate-court

decisions subsequent to Barfield had determined that a parent could be validly

convicted of kidnapping of a minor. See, e.g., Commonwealth v. Rivera, 828 A.2d

1094, 1100-01 (Pa. Super. 2003) (upholding the conviction of a parent for kidnapping of

a minor under the classification that he intended to inflict bodily injury on or to terrorize

his child, see supra note 2, based on evidence of record bearing out this fact).

According to the Superior Court, however, where the intention of a defendant-parent is

solely to retain custody and/or, correspondingly, reflects a desire to maintain an existing

bond with a child, kidnapping of a minor will not lie.          See Ortiz, 160 A.3d at 239.

Ultimately, the intermediate court determined that ICC cannot serve as a predicate

offense, under Section 2901(a.1)(2), where the defendant is the biological parent of the

child addressed by the relevant custody order. See id. at 241. As in Barfield, the court

drew support from the Model Penal Code, from which Section 2901(a.1) derives, as well

as the associated commentaries. See id. at 239-40.5



4 It is also highly problematic that the trial court’s oral instruction to the jury at Appellee’s
trial omitted any reference to any of the four categories of “intentions” required to
establish the offense of kidnapping of a minor. See Ortiz, 160 A.3d at 234 n.4 (alluding
to this gross irregularity). In light of our disposition, below, this lapse need not be
discussed further in this opinion.

5 The panel also discussed some discrete factual circumstances which it found
bolstered its ruling in the case. See, e.g., Ortiz, 160 A.3d at 240 (observing that
(continued…)

                                        [J-25-2018] - 3
        In the present appeal by allowance, the Commonwealth maintains that, “[i]n the

unique circumstances of this case,” ICC can validly serve as a predicate felony to

support kidnapping of a minor.          Brief for Appellant at 23.      According to the

Commonwealth, the uniqueness stems from the fact that Appellee’s purpose in fleeing

was to defy the primary custody awarded to J.O.’s grandmother.6 The Commonwealth

also emphasizes that kidnapping of a minor requires that the victim be removed a

substantial distance or confined for a substantial period in a place of isolation, whereas

ICC requires only the act of taking.

       The Commonwealth further distinguishes Barfield on the basis that the decision

was issued prior to the enactment of Section 9303 of the Judicial Code, which provides:

              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.
42 Pa.C.S. §9303. The Commonwealth stresses that Section 9303 permits convictions

under multiple criminal provisions, some specific and some general, for the same

conduct.

       The issue presented is one of law over which our review is plenary. See, e.g.,

Six L's Packing Co. v. WCAB (Williamson), 615 Pa. 615, 629, 44 A.3d 1148, 1157



(…continued)
Appellee did not take J.O. away from a lawful custodian, but rather, retained actual
custody that he already had in defiance of a change in legal status).

6 Although the Commonwealth stresses the unique facts of the case, we note that
vindication of its position would seem to bring a substantial range of ICC offenses by
parents into the purview of Section 2901(a.1)(2), since it is hardly unique that a parent
who has committed ICC did so with the intention to interfere with a custody order.



                                       [J-25-2018] - 4
(2012). We apply conventional principles of statutory construction, which are regularly

discussed throughout this Court’s decisions. See, e.g., Norfolk S. Ry. Co. v. PUC, 621

Pa. 312, 328, 77 A.3d 619, 629 (2013). The analysis encompasses close adherence to

terms of a statute that are plain and clear and resort to other approaches of discernment

only in the presence of ambiguity or inexplicitness. See id.          Where ambiguity or

inexplicitness exists, the Court may afford weight to other considerations, including the

object to be attained by the statute under consideration, the consequences of a

particular interpretation, and sources from which the law was derived. See id. See

generally 1 Pa.C.S. §§1921-1939.

       As reflected above, the kidnapping-of-a-minor statute contains two essential

pillars: there must be, first, an unlawful substantial-distance removal or substantial-

period confinement, as reflected in Section 2901(a.1); and second, a particular intended

purpose associated with the taking, prescribed in subparts (1) through (4). See 18

Pa.C.S. §2901(a.1)(1)-(4); see also supra note 2. As relevant here, the kidnapping

statute defines a removal or confinement as unlawful when, “in the case of a person

under 14 years of age, . . . it is accomplished without consent of a parent, guardian or

other person responsible for general supervision” of the child. Id. §2901(b)(2).7 This

closely tracks the taking that is described by the ICC statute.          See id. §2904(a)

(prohibiting the taking of a minor “from the custody of its parent, guardian or other lawful

custodian, when [the actor] has no privilege to do so”). Thus, Appellee’s act of taking

7 Parenthetically, the commentaries to the Model Penal Code indicate that its similar,
unconventional definition of the concept of “unlawful,” as applied to kidnapping, was
originally fashioned to assure that “the applicability of Section 212.1 to a case where the
abduction of a child is by a parent should not turn on the interference or noninterference
of the parent with formal custody arrangements.” MODEL PENAL CODE & COMMENTARIES,
pt. II, §212.1, at 254 n.13 (AM. LAW INST. 1980) (hereinafter, “MPC & Commentaries”).
We offer no further comment on this subject, since it is has not presently been put into
issue by the litigants.



                                      [J-25-2018] - 5
the child in this case, which constituted an ICC violation, overlaps with the removal or

confinement element of the kidnapping statute.

        Turning to the associated kidnapping purposes, and in particular, subpart (2), it

requires that the unlawful removal or confinement be done with the intention to “facilitate

commission of any felony or flight thereafter.” Id. §2901(a.1)(2) (emphasis added). As

commonly understood, see 1 Pa.C.S. §1903(a), “facilitate” means to “make easy or

easier.” Facilitate, W EBSTER’S NEW W ORLD COLLEGE DICTIONARY (4th ed. 1999); see also

Facilitate, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Criminal law, To make the

commission of (a crime) easier.”). In this regard, it is logically problematic to assert that

Appellee unlawfully removed J.O. pursuant to the kidnapping statute with the intent to

make it easier to unlawfully remove the child as contemplated by the ICC statute.

Accord Brief for Appellee at 29 (arguing that employing ICC as the predicate felony for a

kidnapping charge reflects “circular logic”). Stated otherwise, the act of taking does not,

sensibly, facilitate the act of taking, since they are one and the same.

       This incongruity gives rise to sufficient ambiguity and/or inexplicitness to support

recourse to the tools of statutory construction, see 1 Pa.C.S. §1921(c), including

consideration of the derivation from the Model Penal Code. Accord Commonwealth v.

Rushing, 627 Pa. 59, 73-74, 99 A.3d 416, 424-25 (2014) (relying, in part, upon the

Model Penal Code in construing Section 2901(a)).8


8  The Joint State Government Commission Comment attending Section 2901 of the
Crimes Code indicates that the section was proposed “instead of” Section 212.1 of the
Model Penal Code.       18 Pa.C.S. §2901, Jt. St. Gov’t Comm’n Cmt -- 1967.
Nevertheless, placing the two sources side by side, the derivation is obvious, accord
Rushing, 627 Pa. at 73-74, 99 A.3d at 424-25, and the differences are immaterial to the
present discussion. Additionally, the 2011 amendment adding Section 2901(a.1) of the
Crimes Code closely tracks the preceding provision, Section 2901(a), in all material
respects and, concomitantly, mirrors Section 212.1 of the Model Penal Code as well.
See MPC & COMMENTARIES, pt. II, §212.1.



                                      [J-25-2018] - 6
      In this regard, the literature discussing the relevant Model Penal Code provisions,

from which Pennsylvania’s kidnapping and ICC statutes are derived, supports the

conclusion that ICC, committed by a biological parent, is not intended to serve as a

predicate felony pursuant to subpart (2). For example, the commentaries to the Model

Penal Code explain that ICC and kidnapping offenses address distinct concerns.

             Kidnapping protects against physical danger, extortion, and
             terrorization by abduction. [ICC], on the other hand, is
             designed to maintain . . . the parental custody of children . . .
             against all unlawful interference. This interest may be
             violated even if the actor does not have one of the purposes
             required by the kidnapping offense . . .. Interference with
             custody is further distinguished from kidnapping by the
             likelihood that the actor will be a parent or other person
             favorably disposed toward the child or committed person,
             thus justifying a different penalty structure and the
             consideration of special defenses.
MPC & COMMENTARIES, pt. II, §212.4, at 252 (footnotes omitted). In this respect, the

intended kidnapping purposes, as prescribed by subparts (a.1)(1)-(4), operate as

limiting provisions, so that decidedly wrongful acts may still be punished via other

charges, but not with the severity attendant to a kidnapping conviction. See id. §212.1,

at 220-21.    This understanding extends to the interplay between kidnapping and

interference charges. See id. §212.4, at 255 (“[ICC] operates . . . as a lesser included

offense to kidnapping. Thus, if the victim is under 18 . . ., sanctions would be available

for the actor who engages in an unlawful taking but who does not do so for any of the

purposes associated with the kidnapping offense. Again, the gravamen of the offense is

interference with custodial arrangements and can be punished as such.” (emphasis

added) (footnotes omitted)).

      The editors’ notes to the Model Penal Code provide a similar explanation

regarding the relationship between kidnapping and ICC offenses:



                                     [J-25-2018] - 7
              [ICC] is both a lesser included offense to kidnapping in
              cases where the custodial relationship is infringed but the
              kidnapping purposes cannot be shown and an independent
              protection of the custodial relationship from unwarranted
              interference by persons who have no legal privilege to do so.
              It is designed in part to restrain the criminal law from undue
              intrusion into child custody disputes but at the same time to
              permit criminal intervention in appropriate cases.
MPC & COMMENTARIES, pt. II, Art. 212, Introductory Note, at 209 (emphasis added); see

also 5 SUMMARY      OF   PENNSYLVANIA JURISPRUDENCE 2D, CRIMINAL LAW §13.15 (2016)

(“Although [ICC] is somewhat similar to kidnapping, it is intended to protect parental

custody from unlawful interruption . . ..”).

       Accordingly, in light of the requirement that an unlawful taking be done with the

intent to facilitate commission of a felony, we are of the view that in instances, such as

here, where the “evidence demonstrated that [the biological parent’s] intent was to take

[the child] away from [the legal custodian] and prevent her from having custody,” Brief

for Appellant at 38, a conviction for ICC will not form the predicate felony for a

kidnapping charge pursuant to Section 2901(a.1)(2). Accord MPC & COMMENTARIES, pt.

II, §212.1, at 228 (“The list of purposes in [kidnapping] thus would exclude from

kidnapping cases where a parent out of affection takes his child away from another

parent or lawful custodian . . ..”). In this regard, it seems rather clear that the authors of

the Model Penal Code -- having assiduously explained that kidnapping requires more

than interference with the custody of a child by a parent -- did not intend for such

interference to be reintroduced into the calculus under the rubric of a predicate felony.9


9 We also reject the Commonwealth’s assertion that the substantial-distance element
has any bearing on the availability of ICC to serve as a predicate felony for purposes of
Section 2901(a.1)(2). In this regard, the substantial-distance factor has always been an
element of the Model Penal Code formulations, and, as related above, the attached
commentaries nevertheless effectively reject the Commonwealth’s position. Moreover,
the circularity concern is compelling, in that we simply do not believe that the
(continued…)

                                        [J-25-2018] - 8
      We turn to the Commonwealth’s reliance on Section 9303 of the Judicial Code,

which prescribes that, where the same conduct of a defendant violates more than one

criminal statute, the defendant may be prosecuted under all available provisions without

regard to generality or specificity. See 42 Pa.C.S. §9303. We have already concluded,

however, that the present matter is not one in which both statutes in issue cover the

same underlying conduct -- rather, we have determined, via recourse to relevant

principles of statutory construction, that Sections 2901(a.1)(2) and Section 2904 were

not intended to cover the same actions in the first instance. In other words, Section

9303 simply does not override the design of the kidnapping-of-a-minor and ICC

statutes, deriving from the Model Penal Code, or resolve the problems of redundancy

and circularity embedded in the Commonwealth’s alternative construction.         To the

degree that there remains uncertainty relative to any of the above analysis beyond our

finding of ambiguity and inexplicitness, we apply the rule of lenity.    See 1 Pa.C.S.

§1928(b)(1).




(…continued)
Legislature intended to premise a serial felony conviction on the fact that a biological
parent removed a child a substantial distance in order to remove or take the child in the
first instance.



                                     [J-25-2018] - 9
      We hold that ICC, committed by a biological parent, cannot serve as a predicate

felony to support a conviction for kidnapping of a minor under Section 2901(a.1)(2).10

      The order of the Superior Court is affirmed.



      Justices Baer, Todd and Donohue join the opinion.

      Justice Wecht files a dissenting opinion.

      Justice Mundy files a dissenting opinion, joined by Justices Dougherty and

Wecht.




10 We certainly do not discount that “a parent may be convicted of kidnapping his own
child,” Rivera, 828 A.2d at 1096, where unlawfulness is established and some additional
kidnapping purpose attends the removal of the child, as was the case in Rivera.



                                    [J-25-2018] - 10
