Commonwealth v. Montanez-Castro , 198 A.3d 377 ( 2018 )

J-S49044-18
2018 PA Super 288COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIUD MONTANEZ-CASTRO :
:
Appellant : No. 462 MDA 2018
Appeal from the Judgment of Sentence December 28, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003013-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 22, 2018
Appellant, Eliud Montanez-Castro, appeals from the judgment of
sentence entered in the Court of Common Pleas of Dauphin County, which,
sitting as finder of fact in his non-jury trial, found him guilty of luring a child
into a motor vehicle, disorderly conduct, and harassment.1 Sentenced to
serve an eleven-and-one-half to 23-month sentence of incarceration, to be
followed by one year of probation, Appellant challenges the sufficiency of the
evidence with respect to his conviction for luring a child into a motor vehicle.
We affirm.
The trial court sets forth the pertinent facts and procedural history, as
follows:
On April 15, 2016, the two minors (T.G. and M.R.) were walking
to school. Neither recalled inclement weather or any sort of
natural disaster that would prompt anyone to offer a ride. As they
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1 18 Pa.C.S. §§ 2910(a), 5503(a)(4), and 2709(3), respectively.
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* Former Justice specially assigned to the Superior Court.
J-S49044-18
were walking along South Harrisburg Street, a white car sharply
turned left from Walnut Street onto South Harrisburg Street. It
pulled up to the curb beside them, with the driver’s side window
closest. The window was open and the driver, Appellant, asked
them to pick a number. The minors stopped walking and after
being confused, each picked a number. After T.G. picked a
number, Appellant said “Mommy, you were right” and that she
won a prize. T.G. thought this was all odd.
Appellant held out a soda can and water bottle with no label and
told her to pick on[e]. T.G. refused. Both girls recalled that
[Appellant] held the drinks out with bent elbows, not arms
extended, and was fairly close [just several feet away]. T.G. and
M.R. recognized that T.G. would have had to approach the car,
though, to take one of the drinks. T.G. and M.R. were nervous
and scared after this interaction and walked quickly to school.
Appellant never asked her to enter the car or go anywhere with
him. He never asked them to approach closer, he never
threatened them, he never commanded or directed them to do
anything, and he never opened the door. Appellant did not follow
them. Upon arriving at school, T.G. told the principal what had
happened.
Sometime later, T.G. viewed a photo array with Detective
Robbins. He showed her pictures one at a time and she
immediately identified picture six as the man who had approached
her. M.R. also viewed a photo array complied [sic] by Detective
Morris. He used the same technique as [Detective] Robbins and
showed M.R. pictures one by one until she identified one as the
man she had seen in the car.
M.R. recalled that some days later, she and T.G. were on the porch
when T.G. pointed out a man to her. M.R. looked and recognized
Appellant on the sidewalk. He looked up at them and they went
inside because they were scared.
Counsel presented a stipulation that Appellant did not have the
expressed or implied permission of any parent or guardian of the
victims in this case to give them a ride anywhere.
***
Following a trial by judge on [October 18, 2017], Appellant was
found guilty [of all charges and sentenced as indicated, supra].
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On March 6, 2018, [the trial court] received a timely Notice of
Appeal filed with the Superior Court of Pennsylvania. [The trial
court] ordered Appellant on March 7, 2018, to file a concise
statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied with said Order on March
26, 2018.
Trial Court Opinion, 8/6/18, at 1-3.
Appellant presents one question for our consideration:
I. [WAS] THE EVIDENCE PRESENTED AT TRIAL [ ]
INSUFFICIENT TO CONVICT APPELLANT OF THE
CRIME OF LURING A CHILD INTO A MOTOR VEHICLE
AND DISORDERLY CONDUCT WHEN THE APPELLANT
MERELY OFFERED A SODA TO A GIRL(S) [SIC]
THROUGH A PASSENGER WINDOW OF HIS VEHICLE
BUT NEVER OFFERED A RIDE TO THE GIRL(S) OR
PULLED THEM CLOSER TO HIS VEHICLE[?]
Appellant’s brief, at 4.
Our standard of review for challenges to the sufficiency of the evidence
is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the [finder] of fact while passing upon the
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credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (citation
omitted).
Appellant argues that evidence failed to support his conviction on the
charge of luring a child into a motor vehicle. Merely talking with the girls and
offering them drinks from his car window, without ever inviting or
commanding them to enter his vehicle, fails to satisfy the first evidentiary
requirement of attempting to lure a child into a vehicle, he submits. On this
point, he elaborates:
The Commonwealth failed to establish that Appellant lured or
attempted to lure either lady into his motor vehicle. In this case,
neither lady called 911. Neither lady testified that he said “get in
the car” or offered them to get into the vehicle [sic] or that he
pulled them into the car. He never opened the rear car door for
them to get in. He did not even say “come here.” He did not
beckon them. He did not threaten them. He did not command
them to come closer or open the door. At no time did he even
touch them.
Appellant’s brief, at 9.2
The pertinent statute 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
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2 Throughout the “Brief for Appellant,” counsel repeatedly refers to the two
minor girls in question as “ladies.” Assigning an adult title to minors subjected
to an offense that frequently involves the actual or attempted sexual abuse of
a child is unacceptable, particularly where clear sexual overtones attended
Appellant’s conduct toward the girls. Therefore, we strongly admonish counsel
for what was, at best, a careless description of the minor victims in this case.
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without the consent, express or implied, of the child's parent or guardian
commits an offense.” 18 Pa.C.S. § 2910(a). As stated by our Supreme Court:
Section 2910 ... sets forth three requirements the Commonwealth
must establish beyond a reasonable doubt to convict an individual
of the offense of attempted luring of a child into a motor vehicle:
(1) the individual attempted to lure a child into a motor vehicle;
(2) without the express or implied consent of the child's parent or
guardian; and (3) under circumstances which did not reasonably
indicate the child is in need of assistance.
Commonwealth v. Hart, 28 A.3d 898, 908–09 (Pa. 2011). The Court has
explained further that “a ‘lure’ 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, usually and most often likely to result in his or her
harm.” Id at 909.
Here, two ninth-grade girls walking to school witnessed Appellant
abruptly turn his vehicle off the course he was traveling and drive onto the
curb alongside where they were walking. He immediately stopped the girls
and engaged them in conversation, invited each to “pick a number,” and
offered to the girl whom he declared the winner a bottled drink as her prize.
In order to claim her prize, however, the girl, whom Appellant was now
calling “Mommy,” was required to walk up to Appellant’s car window. There
Appellant awaited, holding the bottle with his arm bent inward toward himself
so that the girl would have to come right to his side to retrieve it. The girls
were scared and nervous at this point, and they walked away.
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When viewed in a light most favorable to the Commonwealth as verdict
winner, the totality of circumstances allows for the reasonable inference that
Appellant did not stop two random girls on their way to school to give them a
drink and send them on their way. Appellant was, instead, attempting to
entice at least one girl to come within his area of control as he waited in his
car, and he used his apparent brand of charm and a bottled drink—kept closely
to his side—as a lure to achieve this end.
Indeed, Appellant neither knew the girls nor had any reason to believe
they were in need of assistance. Yet, he stopped them anyway. He
immediately focused on one girl, declared her a winner, gave her the
suggestive pet name “Mommy,” and invited her to come to him where he sat
in his car and claim her prize.
Therefore, it was reasonable for the finder of fact to conclude, beyond a
reasonable doubt, that Appellant’s affirmative actions, manipulative and
suggestive words, and enticements were designed to gain the minor girl’s
entry into his car to her own detriment. Accordingly, evidence adduced at
trial sufficed to establish that Appellant committed the offense of attempting
to lure a child into his vehicle.3
Judgment of sentence affirmed.
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3 Although Appellant’s “Statement of the Question Presented” also raises a
sufficiency challenge to his disorderly conduct conviction, he presents no
argument to support this claim. Therefore, he has waived this claim. See
Pa.R.A.P. 2119(c); Commonwealth v. Plante, 914 A.2d 916 (Pa.Super.
2006) (failure to develop an argument with citation to authority waives the
issue on review).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2018
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