HomeMy WebLinkAboutCP-21-CR-2105-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
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LAWRENCE PLACIDO : CP-21-CR-2105-2007
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, J., November 5, 2008 –
STATEMENT OF FACTS
On August 6, 2007, Defendant was charged with 2 Counts of Luring a Child into a Motor
Vehicle. Initially the information filed against the Defendant recited the language of the charge
of Luring a Child into a Motor Vehicle which had been enacted in 1990. The statute was
amended on November 10, 2005, and became effective on January 9, 2006. At the beginning of
the trial, the Commonwealth moved to amend the information so as to recite the current version
of the statute “which is to lure or attempt to lure a child into a motor vehicle without the consent,
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express or implied, of the child’s parent or guardian”
On January 29, 2008, the Defendant was found guilty after jury trial of both counts.
Commonwealth requested the Defendant be assessed by the Sexual Offenders Assessment Board
(SOAB) in order to determine whether or not he was a sexually violent predator. This request
was pursuant to Megan’s Law, which requires a person convicted of the crime of Luring a Child
into a Motor Vehicle or Structure to register with the Pennsylvania State Police for a minimum
period of 10 years. 42 Pa.C.S.A. § 9795.1 (a) (1).
On April 10, 2008, the Commonwealth received a letter from the SOAB indicating that
the Defendant met the criteria of a sexually violent predator. On July 3, 2008, the Defendant
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Notes of Testimony taken January 28, 29, 2008 at jury trial, p. 4-5 (Hereinafter N.T. Jan. 28-29, 2008 __).
filed an objection to the applicability of 42 Pa.C.S.A. § 9791 et. seq., Registration Of Sexual
Offenders to his case. On July 9, 2008, a hearing was held in order to determine whether or not
the Defendant should be classified as a sexually violent predator.
On July 29, 2008, the Court denied the Defendant’s objection to applicability of Megan’s
Law to the Defendant’s case. It also found by clear and convincing evidence that the Defendant
was a sexually violent predator. Additionally, on July 29, 2008, the Defendant was sentenced at
Count 1 on the charge of Luring a Child into a Motor Vehicle, to submit to lifetime Megan’s
Law registration, and to undergo incarceration in a state correctional institute for a period of not
less than 2 ½ nor more than 5 years. This was a standard range sentence. At Count 2, on the
charge of Luring a Child into a Motor Vehicle, the Defendant was again sentenced to submit to
lifetime Megan’s Law registration, and undergo a period of 3 years state probation to run
consecutive to the sentence at Count 1. This was a mitigated range sentence. The aggregate
sentence for the Defendant was therefore 2 ½ - 8 years.
Defendant filed a notice of appeal of this sentence on August 25, 2008. On September
15, 2008, the Defendant filed a Statement of Errors Complained of on Appeal. The statement
alleges the following errors:
1.The Commonwealth engaged in prosecutorial misconduct in this case which seriously
impaired the defendant’s right to a fair trial. Specifically, the Commonwealth spoke
to the news media about the defendant’s prior criminal conviction for rape in 1981
which was published in the midst of the trial. Additionally, the Commonwealth
during the course of their closing argument improperly argued that the
Commonwealth does not have to prove “bad intent” with regard to the crime and
raises the specter of kidnapping and rape.
2.The Commonwealth failed to present sufficient evidence for a jury to conclude
beyond a reasonable doubt that the defendant was guilty of the crimes charged.
Specifically, the Commonwealth presented evidence at the time of trial from the two
girls that the defendant tried to get them to enter his vehicle. Prior statements by the
two girls to the police, both orally and written, indicated that the defendant tried to
get the girls to go over to his van to pet his dog. Contradictory evidence proves
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nothing. And whether the defendant intended for the girls to go near his van to pet his
dog or to enter his van and pet his dog is the difference between a totally innocent act
and a criminal act.
3.The court erred during its charge by rendering the instruction on consciousness of
guilt/flight.
4.The applicability of Megan’s Law is unconstitutional as applied in this case.
Specifically, there is no rational basis for the application of Megan’s Law to a
to
specific crime which requires evidence of intent to harm another, either physically
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or sexually. (emphasis added)
DISCUSSION
A. ALLEGED PROSECUTORIAL MISCONDUCT
1. Statements Made to Media
Defendant’s first issue on appeal is that the Commonwealth engaged in prosecutorial
misconduct which impaired Defendant’s right to a fair trial. An article appeared about the
Defendant’s trial in the January 29, 2008 edition of the Harrisburg Patriot News which included:
Placido was convicted in
1981 of raping a 17-year-old
girl in Harrisburg and served
a 4- to 10-year state prison
term, according to Senior As-
sistant District Attorney
Christylee Peck.
She was barred by law,
however, from telling the
jury abut that conviction.
This issue was raised on the second day of trial, and this Court immediately conducted
individual voir dire of each juror in the presence of counsel and confirmed that none of the jurors
had read, seen or heard anything in the media concerning anything relating to the Defendant’s
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This is Defendant’s Statement of Errors Complained of on Appeal as submitted; however, we assume that it was
intended to state “Specifically, there is no rational basis for the application of Megan’s Law to a specific crime
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which requires evidence of intent to harm another, either physically or sexually.”
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case. This Court was satisfied that the published statements attributed to the Assistant District
Attorney in the newspaper had in no way affected the jury’s ability to impartially assess the
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evidence, and subsequently dismissed Defendant’s motion for mistrial.
Defense counsel maintained that the Assistant District Attorney had in fact committed
prosecutorial misconduct by violating Rule 3.6 (a)( b)(1) of the Rules of Professional Conduct
relating to trial publicity by disclosing the Defendant’s prior criminal record. Defendant’s
requested remedy, a mistrial, obviously would have punished both the victims and the citizens of
Pennsylvania for an action allegedly committed by the Assistant District Attorney. Undoubtedly,
the matter may be referred to the Disciplinary Board of the Pennsylvania Supreme Court.
However, the Preamble and Scope of the Rules reveal that the Rules of Professional Conduct are
meant to “define proper conduct for purposes of professional discipline.” Later in the same
section we take specific note that, “the purpose of the Rules can be subverted when they are
invoked by opposing parties as procedural weapons.” Rules of Prof. Conduct, Scope [19], 42
P.S.C.A. Here, having conducted individual voir dire of each juror, and having found that no
juror had read, seen or heard anything about the article, the procedural remedy of granting a
mistrial was unwarranted.
2. Statements Made in Closing Argument
Defense Counsel also maintains that the District Attorney improperly argued that it did
not have to prove “bad intent” with regard to the crime, and “raised the specter of kidnapping
and rape.” Obviously, criminal intent or guilty knowledge is an essential element of almost all
criminal offenses. The current language of Luring a Child into a Motor Vehicle, which became
effective on January 9, 2006, and is therefore controlling in this case, provides that “…a person
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N.T. Jan. 28-29, 2008, p. 40.
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N.T. Jan. 28-29, 2008, 40.
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who lures or attempts to lure a child into a motor vehicle or structure without consent, express or
implied, of the child’s parent or guardian commits a misdemeanor of the first degree.” 18
Pa.C.S.A. § 2910. Thus, attempting to lure a child into a motor vehicle is defined as taking a
substantial step toward luring the child into a motor vehicle without consent. Commonwealth v.
Strouse, 909 A.2d 368 (Pa. Super. 2006). The gravamen of the present crime is attempting to
lure a child into a motor vehicle. The fact that there may have been no intent to harm the
children further is not relevant since this is not a requirement of the act.
In this case, during defense counsel’s closing she attempted to argue that the Defendant
was not attempting to lure the children into the vehicle but merely inviting them over to pet the
Defendant’s dog. In response, the Assistant District Attorney correctly responded that the
Commonwealth was not required to prove that the Defendant wanted to harm the children in
some serious manner. The only intent which had to be proved was that the Defendant
intentionally took a substantial step toward luring the children into the motor vehicle without
consent of their parents.
Viewing both counsel’s closing arguments in context, there was no error or prosecutorial
misconduct. The Assistant District Attorney never indicated that the Defendant was going to
kidnap or rape the girls but rather that he had engaged in conduct which was a substantial step
toward getting the girls into his motor vehicle.
B. SUFFICIENCY OF THE EVIDENCE
The Defendant maintains that the Commonwealth failed to present sufficient evidence for
the jury to conclude beyond a reasonable doubt that he was guilty of the two counts of Luring a
Child into a Motor Vehicle. “The standard of reviewing the sufficiency of the evidence is
whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when
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viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to
support all the elements of the offense beyond a reasonable doubt.” Commonwealth v. Strouse,
909 A.2d 368, 369 (Pa. Super. 2006). The Commonwealth need not preclude every possibility of
innocence or establish Defendant’s guilt to a mathematical certainty. The jury, as the trier of
fact, while passing upon the credibility of the witnesses and weight of the evidence produced, is
free to believe all, part, or none of the evidence. Commonwealth v. Brotherson, 888 A.2d 901
(Pa. Super. 2005).
The Defendant argues that the evidence the Commonwealth presented at trial was
contradictory to prior statements of the victims. The Defendant maintains that statements the
victims gave to the police indicated that the Defendant asked the girls to come over to his van.
At trial, the girls stated the Defendant asked them to get into his van to pet his puppy. From an
objective standpoint, these statements are not contradictory. In essence they are compatible and
could both be true. In reviewing the transcript of the testimony, Defense counsel vigorously
attempted to point out these discrepancies to the jury during cross examination. Even if the jury
would have found them to be contradictory, a jury always has the duty to reconcile the testimony
and decide which testimony to believe and which to reject as untrue or inaccurate.
Defendant argues that the difference between asking the victims to come over to his van
or come into his van is of great significance, and in essence required a verdict of not guilty based
on insufficient evidence. However, such reasoning does not comport with the case law
interpreting this crime. Again, “the gravamen of present crime is luring a child into a motor
vehicle.” Commonwealth v. Strouse, 909 A.2d 368, 369 (Pa. Super. 2006). Regardless of the
phrasing of the request, the evidence of his persistence, his increasingly aggressive tone, and his
body motions can be considered to be a substantial step toward Luring a Child into a Motor
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Vehicle. It was up to the jury to determine Defendant’s intent and to determine if the victims’
prior statements to the police and their testimony at trial could be reconciled.
The key issue for the jury’s determination was what the intent of the Defendant was when
he initially approached and talked to the girls. When one reviews the instructions given to the
jury concerning the four elements of Attempting to Lure a Child into a Motor Vehicle, Pa. SSJI
(Crim) 15.2910, there was no real factual question about three of the four elements of the
offense. (1) The two girls were under the age of 18, (2) the Defendant did not have the express
or implied consent of the children’s parents, (3) if he in fact asked them to come over to or into
his van such conduct could constitute a substantial step toward the completion of the crime of
Luring a Child into a Motor Vehicle. Thus, the only element really at issue was the fourth
element; was the Defendant’s conduct intentional, in other words was it his conscious object or
purpose to lure the child into the automobile.
As in all cases, criminal intent can be proved by circumstantial evidence, and the jury
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was so instructed. Pa. SSJI (Crim) 7.02(B). In the light most favorable to the Commonwealth
the testimony at trial established the following circumstances: (1) the Defendant watched the
girls go into the bathroom at the Denny’s, (2) Defendant watched them come out, (3) Defendant
immediately exited Denny’s after the girls did, (4) Defendant approached the 2 young girls, (5)
the girls were absolute strangers to the Defendant, (6) Defendant asked them to come to his van,
(7) when confronted by the girls’ father, about his contact with the girls, rather than explaining a
benign purpose, the Defendant stated “its none of your fucking business what I’m doing,” (8) the
Defendant exited the parking lot in a hurried manner “screeching” his tires after being told by the
Father that he was calling the police. Given these circumstances, there was sufficient evidence
in the record to support the jury’s verdict.
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N.T. 165
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C. JURY INSTRUCTION REGARDING FLIGHT/CONCIOUSNESS OF GUILT
Defendant also appeals on the basis that the court erred during its charge by giving the
instruction on consciousness of guilt/flight. A trial court has broad discretion in phrasing its
charge and can choose its own wording so long as the law is clearly, adequately, and accurately
presented to the jury for its consideration. Com. v. Hawkins, 701 A.2d 492, 511 (Pa.,1997)
(citing Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (1990)). Only where there is an
abuse of discretion or an inaccurate statement of the law is there reversible error. Id. This Court
provided the jury both possible factual interpretations regarding Defendant’s conduct in leaving
the crime scene. The Commonwealth maintained that the Defendant drove away quickly and
used a circuitous route through a residential neighborhood after his confrontation with the
children’s father in order to avoid being followed and detained. The Defendant stated that he
chose this route simply to facilitate easier entrance onto the Carlisle Pike at a traffic light. The
Court utilized Pa.SSJI (Crim) 3.14, to provide guidance on how the jury should consider this
evidence. It was up to the jury to decide whether or not Defendant’s conduct was circumstantial
evidence which tended to prove guilt. There was no abuse of discretion and no inaccurate
statement of law given.
D. APPLICABILITY OF MEGAN’S LAW
Defendant also appeals on the basis that the applicability of Megan’s Law is
unconstitutional as applied in this case. Defendant argues that there is no rational basis for the
application of Megan’s Law to a specific crime which requires no evidence of intent to harm
another, either physically or sexually. This claim is without merit. When courts are called upon
to examine the constitutionality of a statute, all doubts in the statute are to be resolved in favor of
sustaining the legislation. Commonwealth v. Adamo, 637 A.2d 302, 306 (Pa. Super. 1994). “A
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statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly,
palpably, and plainly violates the constitution.” Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.
Super. 2004). In addition, “in construing a statute to determine its meaning, courts must first
determine whether the issue may be resolved by reference to the express language of the statute,
which is to be read according to the plain meaning of the words.” Commonwealth v. Leonberger,
A.2d 218, 222 (Pa. Super. 2007) (citing Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super.
1995). The legislative policy behind Megan’s Law is specified in 42 Pa. C.S.A. § 9791:
If the public is provided adequate notice and information about sexually violent predators
and certain other offenders, the community can develop constructive plans to prepare themselves
and their children for the offender’s release. (emphasis added).
42 Pa. C.S.A. § 9791 (a)(1).
Furthermore, Luring a Child into a Motor Vehicle, 18 Pa. C.S.A. § 2910 specifically
requires registration under §9795.1 (a)(1). The relevant part states:
§ 9795.1. Registration
(a) Ten-year registration.--The following individuals shall be required to register with the
Pennsylvania State Police for a period of ten years:
(1) Individuals convicted of any of the following offenses:
18 Pa.C.S. § 2901 (relating to kidnapping) where the victim is a minor.
18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle).
42 Pa. C.S.A. § 9795.1(a)(1).
It will be noted that the crime of Luring a Child into a Motor Vehicle, 18 Pa.C.S.A. §
2910 is part of Chapter 29 of the Crimes Code entitled “Kidnapping.” An examination of this
crime and case law interpreting it since it was initially enacted in 1990 and amended in 2005,
shows that the legislature was attempting to take preemptive action against potential perpetrators
in order to prevent more horrific crimes like kidnapping and rape of children. By criminalizing
the initial approach to a child prior to allowing a perpetrator to isolate them and speed them away
from their surroundings to a location where more horrific crimes can be completed in secret, the
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legislature sought to put persons on notice that approaching strange children and offering them
rides poses an unjustifiable risk to the public safety which must be prohibited. Applicability of
Megan’s Law to this case is appropriate and proper, and does not present any constitutional
issues. There is clearly a rational basis for its application in this case, and the legislature
specifically intended it to be used in conjunction with this crime.
CONCLUSION
Defendant’s trial in this case was not impaired by Commonwealth’s statements to the
news media. This Court was satisfied after voir dire of each individual juror that no juror was
exposed to any media coverage, and therefore no statements by the Commonwealth to the media
had any bearing on this trial. Further, the Commonwealth’s explanation of the “bad intent”
necessary to prove this crime was a legitimate response to the Defendant’s closing argument.
Second, Defendant’s claim that the victims provided testimony at trial that contradicted earlier
statements that undermined the Commonwealth’s evidence is irrelevant since the jury alone
determines the credibility of witnesses and what weight their testimony should be given. Third,
this Court did not err in giving a jury instruction on the consciousness of guilt/flight because it
provided the jury with a balanced account of the two possible explanations for the Defendant’s
movement from the scene. The trial court did not abuse its discretion in using this jury
instruction. Finally, the application of Megan’s Law to this case is constitutional. There is a
rational relationship between identifying the type of person who would lure a strange child into a
motor vehicle and the public policy that citizens should be provided adequate notice and
information about sexually violent predators and certain other offenders so that they can develop
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constructive plans to prepare themselves and their children for the offender’s release. It is an
appropriate application of the law, and Defendant in this case is properly subject to registration.
By the Court,
M. L. Ebert, Jr., J.
Linda S. Hollinger, Esq.
Attorney for Defendant
Christylee L. Peck
Senior Assistant District Attorney
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