J-A17004-19
                                2019 PA Super 256


 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 H.D.                                      :
                                           :
                    Appellant              :   No. 3538 EDA 2018

        Appeal from the Judgment of Sentence Entered June 19, 2017
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0005878-2016


BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY PANELLA, P.J.:                           FILED AUGUST 21, 2019

      Appellant, H.D., appeals from the judgment of sentence entered on June

19, 2017, in the Court of Common Pleas of Bucks County. This followed her

conviction of Interfering with the Custody of a Child, 18 Pa.C.S.A. § 2904. Our

review of this appeal was delayed because there was originally no direct

appeal; however, Appellant’s direct appeal rights were reinstated nunc pro

tunc following a Petition for Post-Conviction Collateral Relief filed on June 19,

2018. After review, we are constrained to reverse and remand for a new trial.

      The primary factual dispute at trial was whether Appellant believed her

child was in danger while in husband’s custody. Thus, the trial court’s

summary of facts is undisputed for purposes of this appeal:

      Appellant and her husband had a child in 2010. Appellant’s
      husband began divorce proceedings in June, 2015, and on July 8,
      2015, Appellant and her husband entered a custody agreement in
      which custody of the child was exchanged every 48 hours. They
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     both abided by the custody agreement until October, 2015, when
     Appellant first withheld custody of the child from her husband for
     fifteen days.

     Appellant again withheld custody of the child starting in June,
     2016, for forty-seven days. Upon belief that her husband was
     sexually, verbally, and physically abusing the child, Appellant left
     Bucks County with the child and did not tell the child’s father, her
     family, or her friends where she was going.                Appellant
     subsequently traveled from Wilkes Barre to Philadelphia to
     Pittsburgh to Miami with the child.

     Meanwhile, when Appellant’s husband had not heard from
     Appellant or received custody of the child pursuant to the custody
     agreement, he called his attorney and the police, and he filed a
     missing person’s report. During the forty-seven days while
     Appellant and the child were unaccounted for, Appellant’s husband
     also hired several private investigators, contacted the National
     Center for Missing and Exploited Children, submitted the case to
     Bring Our Missing Home, and went to the police department and
     his congressman’s office in an effort to have the child listed as
     missing.

     Detective Peter Lange of the Lower Makefield Township Police
     Department got involved in the case on June 27, 2016. On July
     2, 2016, Detective Lange filed charges against Appellant for
     interference with custody of children and issued a warrant for
     Appellant’s arrest. On August 2, 2016, the United States Marshal
     Service located Appellant in North Philadelphia, but Appellant did
     not tell officers where the child was. Using Appellant’s phone
     records, Detective Lange identified a number that Appellant called
     often in Miami during her forty-seven-day absence. The United
     States Marshall Service located the child at Appellant’s friend’s
     sister’s house in Miami, Florida on August 2, 2016. Appellant had
     decided to leave the child with friends in Miami for two weeks so
     that she could return to Pennsylvania to “figure out what to do.”
     The United States Marshals contacted Appellant’s husband to let
     him know that Appellant had been arrested and that the child was
     safe in Miami. Appellant’s husband retrieved the child in Miami
     the next day.

     The day before she was arrested in Philadelphia, Appellant
     composed, but never mailed, an eight-page letter addressed to
     the Director of Bucks County Children and Youth, the Director of


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      Bucks County Human Services, the Director of the Pennsylvania
      Office of Children and Families, an assistant district attorney at
      the Bucks County District Attorney’s Office, a sergeant at the
      Pennsylvania State Police, the Attorney General of the
      Commonwealth of Pennsylvania, and the Director of the Center
      for Missing and Exploited Children, in which she wrote: “I’m
      refusing to turn my daughter over to [the child’s father] because
      I’m protecting her from danger. [The child’s] father is the danger.
      He has sexually, physically, and verbally abused my daughter.
      Numerous reports of abuse have been made to the Bucks County
      Children and Youth Services to no avail. There [are] individuals,
      including a police officer, a psychologist, her nanny and other
      individuals who . . . have filed reports of abuse on . . . behalf of
      my daughter against [the child’s father]. I filed a report the day
      that my daughter personally confided in me that her father had
      sexually abused her. It was filed many months after the first
      round of sexual assault reports were filed and an investigation
      ensued. My decision to refuse to turn my daughter over to her
      father . . . in contravention of a Court Order was not made hastily.
      To the contrary, I made the decision after failing at every single
      effort I made to obtain help for my daughter. After a lengthy and
      unsuccessful search for justice for [the child] I was left with no
      other viable option.”

      All the reports of abuse by Appellant’s husband were determined
      to be unfounded by Bucks County Children and Youth and the
      Middletown Township Police Department.

Trial Court Opinion, 1/18/19, at 1-3 (citations to record omitted).

      After being charged, Appellant was found guilty of Interfering with the

Custody of a Child by a jury on March 20, 2017.

      At trial, the Commonwealth presented testimony and other evidence

consistent with the facts as summarized by the trial court. Furthermore, the

Commonwealth      presented   testimony    demonstrating    that   there   were

thorough and substantial independent investigations into the alleged abuse,

all of which concluded that the reports of abuse were either unfounded or



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invalid. The defense relied upon the Appellant’s unwavering belief that her

daughter was being abused by the child’s father to justify Appellant’s refusal

to hand over the child in accordance with the custody order.

      On June 19, 2017, the trial court sentenced Appellant to a sentence of

time served to twenty-three months with immediate parole, followed by a

consecutive five-year term of probation.

      Before we address the issue presented by the Appellant, which deals

with the jury instructions, we must comment on the actions of Appellant in

this case. Although this is clearly not an appeal in a custody matter, we are

mindful of our cautionary words from Commonwealth ex rel. E.H.T. v.

R.E.T., 427 A.2d 1370 (1981):

      Although one's violation of a court order is certainly not
      controlling in resolving a custody dispute, there is absolutely
      nothing improper about considering such a violation in the
      evaluation of each party's parental attributes.

         When a party, in bad faith, removes a child from another
         jurisdiction in order to circumvent an adverse custody
         order of a court in that jurisdiction, our courts have held
         that such evasion of the law, if proven, should be an
         important factor when Pennsylvania courts consider the
         custody dispute. Commonwealth ex rel. Rogers v.
         Daven, 298 Pa. 416, 148 A. 524 (1930); Irizarry Appeal,
         195 Pa.Super. 104, 169 A.2d 307 (1961). The instant case
         raises the same troublesome issue. In resorting to self-help
         remedies, [appellant] acted in a manner inconsistent with
         the orderly and impartial resolution of disputes concerning
         the custody of minors. In ascertaining who would best
         serve the welfare of the children, the lower court should
         consider [appellant's] disrespect for the legal process and
         evaluate how it bears on [her] fitness to be awarded
         custody of the children.



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      In re Leskovich, 253 Pa. Super. [349] at 359, 385 A.2d [373] at
      378 (emphasis added) (citations omitted).

427 A.2d at 1376 (brackets in original). See also, Com. ex rel Newcomer

v. King, 447 A.2d 630 (Pa. Super. 1982) (holding that stability for the child

does not automatically outweigh the fact that a parent has kidnapped the

child); Commonwealth ex rel. Snapir v. Snapir, 173 A.2d 694 (Pa. Super.

1961) (holding that father's contempt of court order by taking minor child out

of state and secreting him from family and relatives could have bearing upon

father's fitness for custody).

      With that observation, we now address the issues that Appellant

presents for our review. However, all relate to the jury instruction given by

the trial court regarding the defense as provided in 18 Pa.C.S.A. § 2904(b)(1),

so that a single discussion is appropriate.

      Chapter 29 of the Pennsylvania Crimes Code, in Section 2904, states

the elements of the crime of Interference with Custody of Children as well as

the statutorily defined defenses. Relevant to the facts of this case are the

following:

      § 2904. Interference with custody of children

      (a)    Offense defined.--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.

      (b)    Defenses.--It is a defense that:
             (1) the actor believed that his action was necessary to
                  preserve the child from danger to its welfare.
             ....


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18 Pa.C.S.A. § 2904.

      Appellant argues     that   the   trial court erred when it added a

reasonableness standard to the actions of an “actor” as defined in Section

2904(b)(1). Appellant asserts that this alleged error, which inserted the

standard “reasonably believed” into the state of mind of the “actor,” did not

comport with the elements of the offense and the complete defense as

afforded in the statute.

      It is well established in our jurisprudence that “an accused in a criminal

case is entitled to [the] presumption of innocence; the Commonwealth is the

party that must come forward with the evidence to establish guilt. An accused

is not required to disprove [her] alleged guilt of an element of an offense.”

Commonwealth v. Gearhart, 384 A.2d 1321, 1323 (Pa. Super. 1978)

(citations omitted). The prosecution must disprove the defense afforded in §

2904(b)(1) once it is raised by the defense; it is never the defendant’s burden

to disprove the elements of an offense. As a result, the Commonwealth

concedes that it was required to prove, beyond a reasonable doubt, that this

defense did not apply. See Appellee’s Brief, at 16.

      Prior to trial, the Commonwealth had presented a motion in limine to

the trial court, requesting that the trial court add the reasonableness standard

to jury instruction. Notes of Testimony, 3-13-17 at 1-8. Defense counsel

objected, arguing that the statute was clear on its face, without any mention

of reasonableness.



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      The trial court later decided to include the suggested language. The

relevant portions of the trial court’s instructions were:

      Circumstances may exist in a case that provide the defendant a
      complete defense to this charge. The Commonwealth must prove
      beyond a reasonable doubt that such circumstances did not exist.
      The circumstance in this case is that the defendant believed that
      her action was necessary to preserve the child from danger to her
      welfare. So it is the Commonwealth that has the burden of
      disproving this defense.

      The Commonwealth has the burden of proving beyond a
      reasonable doubt that this circumstance did not exist at the time
      the defendant took the child. If it fails to do so, you should find
      the defendant not guilty. If the Commonwealth carries its burden
      and otherwise proves the elements of the offense as I’ve
      previously explained to you, you should find the defendant guilty.

      If you find the defendant reasonably believed that [the child’s]
      welfare was in imminent danger, you must find the defendant not
      guilty. The consideration of long-term psychological damage or
      the like does not entitle the defendant to this defense.

      So the four elements are first that the defendant took or enticed
      [the child] from the lawful custody of her parent. Second, that
      [the child] was a child under the age of 18. Third, that the
      defendant did not have the legal privilege to take the child. And,
      fourth, that the defendant either knew she was doing these things
      or acted recklessly in doing them.

      In addition, the Commonwealth must disprove the defense, and
      the defense here is that the defendant believed that her action
      was necessary to preserve the child from danger to her welfare.

Notes of Testimony, 3-20-17 at 103-105 (emphasis added).

      After the jury was excused to deliberate its verdict, the jury sent a

communication to the trial judge.     The following colloquy occurred on the

record:

      The Court: I received a communication from the jury.


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J-A17004-19



      No. 1, what does the actual statute say in terms of the defense
      clause and how we should interpret the statute with respect to the
      judge’s instruction.

      Second, what constitutes reasonable belief of the defendant to
      justify the defendant’s withholding of the custody of the minor.

Id. at 112. The result was that the trial court re-read the instruction from the

original jury charge, with no elaboration on the term “reasonable belief.” Id.

at 113-117.

      In reviewing a challenged jury instruction, we must review the charge

as a whole and not simply isolated portions.        This way we can ascertain

whether the charge fairly conveyed the required legal principles that were at

issue. See Commonwealth v. Batty, 169 A.3d 70, 78 (Pa. Super. 2017). “A

jury instruction will be upheld if it ‘clearly, adequately, and accurately reflects

the law.’” Commonwealth v. Smith, 956 A.2d 1029, 1034–35 (Pa. Super.

2008) (citation omitted).

      The concise issue in this case is whether the Commonwealth was

required to prove, beyond a reasonable doubt, that Appellant did not

subjectively believe she was protecting the safety of the child. Appellant

argues that the Commonwealth was. Conversely, the Commonwealth argues,

and the trial court instructed the jury, that the Commonwealth was merely

required to prove, beyond a reasonable doubt, that Appellant’s subjective

belief was unreasonable.




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       As explained by the Pennsylvania Supreme Court, “[t]o determine

 whether a jury instruction faithfully characterized the statute upon which it

 is based, we first must determine the scope and meaning of the provision

 in question, thus furnishing a rubric for our inquiry. Statutory interpretation

 presents a question of law, which we resolve de novo.” Commonwealth v.

 Veon, 150 A.3d 435, 444 (Pa. 2016) (citation omitted).

       Once the Court has established the meaning and scope of the statute,

 we must determine whether the trial court, which enjoys “broad discretion”

 in fashioning its jury charge, clearly, adequately, and accurately related the

 law to the jury. Id. Only when the trial court commits an abuse of discretion

 or provides the jury with an inaccurate statement of law, which must be

 prejudicial to the appellant, is there a reason to find reversible error and

 remand for a new trial. See id.

      As always, we must first abide by the Statutory Construction Act,

including the primary maxim that the object of statutory construction is to

“ascertain and effectuate” the legislative intent in enacting the provision. 1

Pa.C.S.A. § 1921(a); see also, Commonwealth v. MacPherson, 752 A.2d

384, 391 (Pa. 2000). In pursuing that end, “[w]hen 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.” 1 Pa.C.S. § 1921(b). Our courts have

repeatedly held that as a general rule,

      the best indication of legislative intent is the plain language of a
      statute. In construing the language of a statute, “words and


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       phrases are to be construed according to rules of grammar and
       according to their common and approved usage.” 1 Pa.C.S. §
       1903(a). Words and phrases that have acquired a “peculiar and
       appropriate meaning,” however, must be construed according to
       that peculiar and appropriate meaning. Id.

Commonwealth v. Bradley, 834 A.2d 1127, 1132 (Pa. 2003) (citations

omitted).

       The language of Section 2904(b)(1) is straightforward. There is no

mention of a reasonable person standard. Guidance from our Supreme Court

dictates, “while statutes generally should be construed liberally, penal statutes

are always to be construed strictly, 1 Pa.C.S.A. § 1928(b)(1), and any

ambiguity in a penal statute should be interpreted in favor of the defendant.”

Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005).

       A “reasonable person” standard is an objective standard and is applied

when a fact-finder must determine whether a person’s conduct conformed

with   community    standards.     It    is   not   a   subjective   standard.   See

Commonwealth v Knox, 190 A.3d 1146, 1155 (Pa. 2018); Petri v. Smith,

453 A.2d 342, 347 (Pa. Super. 1982). For example, under a “reasonable

diligence” standard, a person’s “actions must be evaluated to determine

whether he exhibited ‘those qualities of attention, knowledge, intelligence and

judgment which society requires of its members for the protection of their own

interests and the interests of others.’” Cochran v GAF Corp., 666 A.2d 245,

249 (Pa. 1995).




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      The defense provided in Section 2904(b)(1) is a purely subjective test:

whether the defendant “believed that his action was necessary to preserve the

child from danger to its welfare.” This is strictly a credibility decision to be

made by the jury as to the belief of the defendant. This statute does not

provide an opportunity for the jury to compare the actions of the defendant

with a “reasonable person” under similar circumstances. If the Legislature

intended to provide otherwise, it is within the discretion of the Legislature to

amend the statute.

      Our analysis is consistent with the Suggested Criminal Jury Instructions

published by the Pennsylvania Bar Institute:

      3. Circumstances may exist in a case that provide the defendant
      a complete defense to this charge. The Commonwealth must
      prove beyond a reasonable doubt that such circumstances did not
      exist. [Those circumstances are] [That circumstance is] [give all
      that may be applicable under the facts of record]:
      [a. that the defendant believed that [his] [her] action was
      necessary to preserve the child from danger to [his] [her] welfare.
      ....

Pa. SSJI (Crim), §15.2904 (2016). The Subcommittee Notes following the

instruction   state   the   subcommittee’s    rationale   for   not   including   the

reasonableness standard:

      Interfering With Custody of a Child--Defenses

      This instruction is appropriate when one of the defenses under
      Crimes Code section 2904(b)(1) is raised.

      Regarding the bracketed defense under subdivision 3(a), there is
      debate about whether the defendant's belief that his or her actions
      were necessary to preserve the welfare of the child must be
      reasonable. Some say that this requirement is implied in the


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J-A17004-19


      statute, but the Model Penal Code rejects the standard, as it may
      implicate a parent who honestly thought he or she was protecting
      his or her child from danger, even if the belief may have been
      objectively    unreasonable.    ALI, Model     Penal    Code   and
      Commentaries, comment 3 at 259-61 (1980). The “reasonable”
      language has been omitted from this instruction because it
      is     not    mentioned      expressly       in    the     statute.
      However, Commonwealth v. Chubb, 3 Pa.D.&C.3d 676, 680
      (C.P. Cumberland, 1977), held that it must be shown that the
      child's welfare was in danger or at least that the actor reasonably
      believed that it was. Furthermore, the belief of the actor must
      relate to imminent danger. The consideration of long-term
      psychological damage or the like does not entitle the defendant to
      this defense.

Id., Subcommittee Note (emphasis added). Obviously, we have decided not

to follow the Chubb decision. Moreover, in Commonwealth v. McNemar,

2015 WL 6457903 (Pa. Super. 2015), a non-precedential decision mentioned

in the Appellee’s brief, the issue of the inclusion of the reasonableness

standard in the jury charge was not an issue on appeal.          Therefore, the

McNemar memorandum provides us no guidance on the issue herein.

      Clearly, based upon the question presented to the trial court, the jury

was confused as to the standard it was supposed to utilize in reviewing the

actions of the Appellant. Because the jury was directed to evaluate the criteria

of the defense provided in 18 Pa.C.S.A. § 290(b)(1) with an incorrect

standard, prejudice has been established and a new trial is necessary.

      Judgment of sentence reversed. Case remanded to the trial court for

further proceedings consistent with this Opinion. Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins the opinion.

      Judge Olson concurs in the result.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2019




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