J-S01026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL ORTIZ                              :
                                               :
                       Appellant               :   No. 1301 MDA 2018

        Appeal from the Judgment of Sentence Entered February 2, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005837-2016


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                      FILED: JANUARY 28, 2019

        Michael Ortiz (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of two counts of kidnapping1 and related

offenses. Appellant challenges the sufficiency of the evidence. Upon review,

we affirm.

        The trial court summarized the evidence adduced at trial as follows.2 On


____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2901(a)(3).

2 While the certified record includes the transcripts for the suppression and
sentencing hearings, it does not contain the trial transcript. Nevertheless, our
review of Appellant’s sufficiency issue is not impeded, as he does not contest
the trial court’s recitation of the facts, and indeed, his statement of the facts
is consistent with that of the trial court. Compare Trial Court Opinion, 9/7/18,
at 2-4, 6-7 with Appellant’s Brief at 6-9. As we discuss infra, Appellant
J-S01026-19


the morning of September 30, 2016, Appellant was in a Walmart store. Trial

Court Opinion, 9/7/18, at 2. A loss prevention employee, Stephen Zivanovich,

       noticed Appellant attempting to steal a large amount of clothing
       and exhibiting furtive movements. As . . . Appellant was leaving
       the store, Zivanovich confronted him. Appellant immediately fled
       the scene. Zivanovich went back to the camera center and was
       able to track . . . Appellant through the parking lot.

Id. at 2-3 (citations to notes of testimony omitted).

       At the same time, Lismari Vazquez and her sister-in-law, Karitza

Gonzalez, a retired police officer, were in the Walmart parking lot. Id. at 3.

The two women got into Vazquez’s car and immediately thereafter, Appellant

entered the car. Id. “Vazquez and Gonzalez tried to get out of the vehicle,”

but Appellant told them that he was armed, “ma[de] it look like he had a

weapon and indicated that he would kill them both if they did not do as he

wanted.” Id. at 3, 6. Appellant “demanded that they take him to Derry Street

(a local street nearby).”       Id. at 6.      Accordingly, “the victims had to drive

behind the Walmart.” Id. at 6 (emphasis in original).

       When they were stopped at the next light, Gonzalez, who [legally]
       had a weapon, ordered . . . Appellant out of the vehicle. At some
       point, . . . Appellant [got] out of the car and [struggled] with
       Gonzalez’ weapon. Gonzalez fire[d] a shot and . . . Appellant [ran]
       from the scene.

Id. at 3. Vazquez and Gonzalez then returned to Walmart and waited for the



____________________________________________


challenges whether the evidence — which is undisputed — established the
“substantial distance” element specified in the kidnapping statute. See 18
Pa.C.S.A. § 2901(a)(3).

                                            -2-
J-S01026-19


police. At trial, “Gonzalez testified that she wanted ‘God to give [her] strength

so that [Appellant] wouldn’t be able to take the [fire]arm away from [her],

because if he . . . took the weapon[, he] was going to kill” her. Id. at 6.

        The Defense, upon stipulation, entered a timeline of the event. At
        11:41 a.m., . . . Appellant arrived at Walmart. At 11:44 a.m.,
        Appellant gets into the victim’s vehicle. At 11:45 a.m., the car is
        seen leaving the parking lot. Finally, at 11:49 a.m., a call is made
        to 911.

Id. at 4.

        Appellant was charged with, inter alia, two counts each of kidnapping,

terroristic threats, and unlawful restraint,3 and one count each of robbery and

retail theft.4 The case proceeded to a jury trial, and on January 9, 2018, the

jury found Appellant guilty of all charges.

        On February 2, 2018, the trial court imposed the following terms of

imprisonment, all to run concurrently: (1) two terms of 10 to 20 years for the

two kidnapping counts; (2) two terms of 15 to 60 months for the two unlawful

restraint counts; (3) 30 to 60 months for robbery; and (4) 12 to 24 months

for retail theft.    The trial court also imposed two concurrent terms of 60

months of probation for Appellant’s two terroristic threats convictions.

Appellant’s aggregate sentence was thus 10 to 20 years of imprisonment,

followed by 5 years of probation.


____________________________________________


3   18 Pa.C.S.A. §§ 2706(a)(1), 2902(a)(1).

4   18 Pa.C.S.A. §§ 3701(a)(1)(iv), 3929(a)(1).


                                           -3-
J-S01026-19


        Appellant filed a timely post-sentence motion, arguing that the weight

of the evidence did not support his kidnapping convictions. The trial court

denied the motion on February 15, 2018. On July 12, 2018, Appellant filed a

petition pursuant to the Post-Conviction Relief Act,5 in which he sought to

reinstate his direct appeal rights nunc pro tunc. The trial court granted relief,

and Appellant filed this timely appeal. The trial court ordered Appellant to file

a Pa.R.A.P. 1925(b) statement, and he complied, raising a single issue

challenging the sufficiency of the evidence.6 The trial court filed its opinion on

September 7, 2018.

        On appeal, Appellant presents one issue for our review:

        WAS NOT THE EVIDENCE INSUFFICIENT TO SUSTAIN
        [APPELLANT’S] CONVICTION FOR KIDNAPPING, 18 PA.C.S.
        § 29[0]1, WHEN [APPELLANT] DID NOT MOVE ANOTHER “A
        SUBSTANTIAL DISTANCE” AS REQUIRED BY THE STATUTE AND
        WHEN THE COURT DID NOT INSTRUCT THE JURY THAT IT COULD
        CONVICT [APPELLANT] OF ATTEMPT TO COMMIT KIDNAPPING?

Appellant’s Brief at 5.

        We consider Appellant’s sufficiency challenge mindful of the following:

        In reviewing the sufficiency of the evidence, the Court must
        determine whether the evidence admitted at trial, and all
        reasonable references derived therefrom, when viewed in the light
        most favorable to the Commonwealth as verdict winner, support
        the jury’s finding of all the elements of the offense beyond a
        reasonable doubt.
____________________________________________


5   42 Pa.C.S.A. §§ 9541-9545.

6 Although Appellant did not previously present a sufficiency challenge before
the trial court, this issue is not waived, as an appellant may raise such issue
for the first time on appeal. See Pa.R.Crim.P. 606(A)(7).

                                           -4-
J-S01026-19



Commonwealth v. Malloy, 856 A.2d 767, 773 (Pa. 2004) (citation omitted).

“In applying the above test, we may not weigh the evidence and substitute

our judgment for the fact-finder.” Appeal of T.G., 836 A.2d 1003, 1005 (Pa.

Super. 2003).

      The kidnapping statute under which Appellant was convicted provides:

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

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

18 Pa.C.S.A. § 2901(a)(3) (emphasis added).

      Appellant argues that the evidence was insufficient to sustain his

kidnapping convictions because he did not remove the victims “a substantial

distance.” He contends “the ‘substantial distance’ element must be analyzed

in terms of the distance between [the location of] the initial encounter and the

point of his actual departure from the [victims’] vehicle.” Appellant’s Brief at

17. Appellant emphasizes that he “was in the victims’ presence for a brief

period: no more than five minutes,” that the victims drove “only one block,”

and that “this was a daytime offense that began in a commercial parking lot [

and t]he victims were not taken to a[n] isolated area in an alien environment.”

Id. at 13, 23. Appellant concedes that the Pennsylvania Supreme Court has

held that the term “‘substantial distance’ cannot be quantified, but [instead]


                                      -5-
J-S01026-19


must be assessed ‘under the circumstances’ of the incident.” Id. at 18, citing

Malloy, 856 A.2d at 779.             Nonetheless, Appellant maintains that past

Pennsylvania decisions addressing the meaning of “substantial distance” are

distinguishable because they did not “involve the combination of short

distance and brevity of time[, which is] at issue in this matter.”7 Id. at 19.

Appellant thus requests that this Court to reverse his kidnapping convictions.

       As noted by Appellant, our Supreme Court has opined:

           For purposes of the kidnapping statute, a substantial distance
       is not limited to a defined linear distance or a certain time period.
       The determination of whether the victim was moved a substantial
       distance is evaluated “under the circumstances” of the incident.
       Further, “the guilt of an abductor cannot depend upon the fortuity
       of the distance he has transported his victim nor the length of time
       elapsed. . . .”

Malloy, 856 A.2d at 779 (citations omitted). Further,

       [t]his Court has acknowledged that “the incidental movement of
       a victim during the commission of a crime which does not
       substantially increase the risk of harm to the victim,” does not
       meet the statutory definition of kidnapping. However, where the
       movement of the victim places the victim “in a completely
       different environmental setting removed from the security of
       familiar surroundings,” the statutory definition of kidnapping is
       met. “The singular fact [that] removal compounds the risk of
       harm to the victim which was distinct from the risk inherent in the
       crimes which the movement accompanied” results in sufficient
       grounds for finding the victim was removed a “substantial
       distance.” Stated another way, “a sensible interpretation is one
       that views a substantial distance as one that isolates the victim
       and exposes him or her to increased risk of harm.”
____________________________________________


7 Appellant also posits that if the Commonwealth were to argue on appeal that
the evidence established the crime of attempted kidnapping, such claim
would be meritless. See Appellant’s Brief at 13-17. The Commonwealth
presents no such claim. See Commonwealth’s Brief at 6-9 (unpaginated).

                                           -6-
J-S01026-19



Appeal of T.G., 836 A.2d at 1006 (citations omitted).

      Instantly, the trial court, citing both Malloy and Appeal of T.G.,

rejected Appellant’s claim that the evidence was insufficient to establish the

requisite “substantial distance” element of kidnapping.       The trial court

emphasized that when ordered to drive to Derry Street, the victims “had to

drive behind the Walmart and leave the safety and security of the shopping

center,” such that “Appellant isolated the victims and exposed them to a

substantially increased risk of harm.”     Trial Court Opinion, 9/7/18, at 6

(emphasis in original).   The court stated that “the victims were put in a

situation where they thought their lives were in danger if they did not do what

the Appellant demanded.” Id.

      We discern no basis upon which to disturb the trial court’s conclusions.

As Appellant acknowledges, Malloy provides that “a substantial distance is

not limited to a defined linear distance or a certain time period” and a

defendant’s guilt does not “depend upon the fortuity of the distance he has

transported his victim nor the length of time elapsed.” Malloy, 856 A.2d at

779. While the car ride/kidnapping in Malloy lasted 10 to 15 minutes and

covered 10 to 12 blocks, there is no authority, in either Malloy or subsequent

Pennsylvania case law, to support Appellant’s assertion that a “substantial

distance” may not be established by a “short distance and brevity of time.”

See Appellant’s Brief at 19.     Moreover, Appellant neither addresses nor

disputes the fact that he forced the victims to “leave the safety and security

                                     -7-
J-S01026-19


of the shopping center.” Trial Court Opinion, 9/7/18, at 6; Appeal of T.G.,

836 A.2d at 1006. In sum, our review supports the trial court’s conclusion

that the “jury could find under these circumstances that Appellant isolated the

victims and exposed them to an increased risk of harm, thus moving the

victims a ‘substantial distance’ to prove the offense of kidnapping under the

statute.” Trial Court Opinion, 9/7/18, at 7.

      For these reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/28/2019




                                     -8-
