A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose
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The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Walter J. HART, III, Appellant, 2011 WL 4469985, No. 9 MAP 2010 (Sept. 28, 2011). This was an appeal from the Order of the Superior Court entered on February 5, 2009 at No. 285 EDA 2008, 970 A.2d 468, affirming a Judgment of Sentence of the Court of Common Pleas, Delaware County, Criminal Division, at No. 3057–2006. The case was before Justices CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and ORIE MELVIN. Justice Todd wrote the Opinion.

The Court considered the question as to whether a person who offers a child a ride without previously obtaining the permission of a parent of the child, but who otherwise lacks criminal intent to harm the child, may be convicted of luring a child into a motor vehicle under 18 Pa.C.S.A. § 2910. Appellant sought review from the Court for his claim that the evidence was insufficient to sustain his conviction for violating Section 2910 based on his contention that he did not engage in conduct that constituted “luring.”

Section 2910, Luring a child into a motor vehicle or structure, provides in pertinent part:

(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 without the consent, express or implied, of the child’s parent or guardian commits a misdemeanor of the first degree.

(b) Affirmative defense.—It shall be an affirmative defense to a prosecution under this section that the person lured or attempted to lure the child into the structure for a lawful purpose.

Thus 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 that the individual attempted to lure a child into a motor vehicle, without the express or implied consent of the child’s parent or guardian and under circumstances which did not reasonably indicate the child is in need of assistance.

With respect to the offenses of attempted luring of a child into a motor vehicle, the nonjury trial judge, Judge Ann Osborne, expressly stated she found no evidence that Appellant had any intent to harm the children, and that she believed the circumstances showed no reason to believe that the defendant had any evil or improper intent. However, the trial court found that Appellant’s offer of a ride to the victims was sufficient to constitute an attempt to lure. The trial court subsequently sentenced Appellant to 18 months’ probation. As an automatic result of his convictions, Appellant was statutorily mandated to register for ten years as a sex offender under Megan’s Law.

The Appellant filed an appeal to the Superior Court, arguing that the evidence was insufficient as a matter of law to sustain his conviction, because his offer of a ride to the children, by itself, did not constitute a “lure” or an attempt to “lure,” given that he did not offer the children any enticement to get into his car, nor did he command or otherwise threaten them. Appellant also argued that he had no ill intent in offering the children a ride. A three judge panel of the Superior Court affirmed Appellant’s conviction.

The Supreme Court held that an attempt to lure under Section 2910 does not occur upon the mere offer of a ride in a motor vehicle to a child, but, rather, involves only situations where a child is provided a further enticement or inducement to enter the vehicle, in addition to the offer of the ride, particularly under such circumstances which suggest the child is being led into a potentially harmful situation. This enticement or inducement may be the promise of a pleasurable reward for entry into the vehicle such as receiving money or a treat such as candy or ice cream. Likewise, a similar attractive temptation could be created with the promise of the opportunity for the child to view an object of interest like a toy, a game, or a puppy.

An enticement or inducement may also take the form of a directive or a command to a child to enter a car, which suggests deleterious consequences to the child if he or she does not obey. The prospect of relief from a prospective adverse outcome can be a sufficient inducement for the child to go along with the command, and, hence, bring it within the ambit of an attempted lure. A brazen order to a child to enter a vehicle made by a stranger creates a strong fear-based incentive for the child to follow that particular course of action, as he or she subjectively may believe that is the only way to avoid harm. This conduct is also proscribed by Section 2910.

Justice Todd noted that there is no express requirement for a conviction under Section 2910 that the Commonwealth also separately prove that a person who attempts to lure a child into an automobile do so with the purpose of harming the child. Nevertheless, an innocent offer of a ride to a child out of a sincere desire to be helpful to the child, where was no opportunity to secure the child’s parent’s permission, nor clear proof that their consent could be implied, is not a crime under this law.

In this case, the Appellant offered two boys from his neighborhood a ride to school. He extended no other enticement, nor did he offer any other inducement to the boys for them to enter his car. Likewise, he did not direct or command them to enter his vehicle, nor did he threaten them with harm if they failed to accept his offers of a ride. Consequently, the mere act of offering the ride, standing alone, did not fall within the common, ordinary, and accepted meaning of a “lure.” The evidence, therefore, was insufficient as a matter of law to support the Appellant’s conviction for attempted luring.

Accordingly, the order of the Superior Court was reversed and Appellant was discharged.

Media attorney Mary Elizabeth Welch represented the Appellant.

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