Com. v. Howard, W.

J-A18034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYLYNN MARIE HOWARD :
:
Appellant : No. 1281 WDA 2018
Appeal from the Judgment of Sentence Entered August 1, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008615-2017
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
CONCURRING/DISSENTING STATEMENT BY NICHOLS, J.:
FILED NOVEMBER 19, 2019
I agree with the majority’s conclusion that Appellant Waylynn Marie
Howard’s REAP conviction must be reversed. However, although the evidence
arguably supports her EWOC conviction, I write separately to express my
belief that, as a matter of public policy, the Crimes Code is not the appropriate
tool for punishing Appellant’s conduct in the instant case.
Importantly, the failure to use a car seat for a child under the age of
four is a matter governed by the Motor Vehicle Code (MVC). Specifically, “any
person who is operating a passenger car . . . and who transports a child under
four years of age . . . shall fasten such child securely in a child passenger
restraint system. . . .” 75 Pa.C.S. § 4581(a)(1)(i). “Anyone who fails to
comply with the provisions of subsection (a)(1) . . . commits a summary
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offense and shall, upon conviction, be sentenced to pay a fine of $75.” 75
Pa.C.S. § 4581(b).1
Here, Section 4581 did not apply to Appellant, because she was not the
operator of the vehicle at the time of the incident. Nevertheless, the
Commonwealth decided to charge Appellant with EWOC, graded as a first-
degree misdemeanor, for conduct that the MVC equates to a summary
offense. In my opinion, the Commonwealth overreached in its decision to
charge Appellant under the Crimes Code where she could have received a
lesser punishment, if any, as a driver under the MVC.
Although our research did not uncover any reported Pennsylvania
decisions that directly address the precise facts at issue, the increasing
popularity of ride sharing services makes it likely that more parents travelling
with young children will have to take a hard look at whether to accept a ride
from a driver whose vehicle does not contain an appropriate car seat. 2 I
appreciate the trial court’s well-intended concern for child safety. However,
____________________________________________
1 Moreover, “[i]f a person receives a citation issued by the proper authority
for violation of subsection (a)(1) . . ., a magisterial district judge, magistrate
or judge shall dismiss the charges if the person prior to or at the person’s
hearing displays evidence of acquisition of a child passenger restraint system
or child booster seat to such magisterial district judge, magistrate or judge.”
75 Pa.C.S. § 4581(c).
2 To emphasize the changing legal landscape in this context, Appellant cites
an article highlighting the fact that state laws vary regarding whether taxicabs
and ride sharing services are exempt from requiring young children to travel
in a car seat. See Appellant’s Brief at 21 (citing Does Your Child Need a Car
Seat in a Cab, Uber or Lyft Car?, CBS New York, Nov. 7, 2018,
https://cbsloc.al/2Vqeydt (last visited Feb. 28, 2019)).
-2-
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under the instant circumstances, I believe that it is exceedingly harsh for the
Commonwealth to utilize the EWOC statute to punish parents with criminal
sanctions that potentially carry life-altering collateral consequences for
conduct that should be governed under the MVC.
Accordingly, I respectfully concur in part and dissent in part.
-3-