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COMMONWEALTH PENNSYLVANIA v. JAMES R. STEWART (06/01/88)

filed: June 1, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES R. STEWART, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County at No. 85-10,052.

COUNSEL

Dean N. Livermore, Jersey Shore, for appellant.

Kenneth Osokow, Assistant District Attorney, Williamsport, for Com., appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.*fn* Tamilia, J., files a dissenting opinion.

Author: Rowley

[ 374 Pa. Super. Page 481]

This case presents the question of whether a custodial parent's mere knowledge of an impending custody hearing and an order entered thereat, in the absence of valid service of process on the parent, is sufficient to bring the parent within the "jurisdiction" of the trial court so as to deprive the parent of the defense provided in section 2904(b)(3) of the Crimes Code to the offense of Interfering with Custody of Children, 18 Pa.C.S. § 2904(a). We hold that it does not.

Appellant was convicted by a jury of violating 18 Pa.C.S. § 2904(a), "Interference with Custody of Children." He appeals the judgment of sentence. Because we hold that the trial court that issued the custody order in question never obtained personal jurisdiction over appellant and hence, the defense under § 2904(b)(3) is a bar to the prosecution, we vacate the judgment of sentence.

The relevant facts are as follows. Bonnie Stewart and appellant were married on September 1, 1977. They had two children: Bugsy, born in 1978 and B.J., born in 1980. During late 1980 and early 1981 the couple experienced marital problems. Bonnie Stewart testified that on January 5, 1981 she left the marital residence to move back with her mother. As she was leaving, appellant asked her if he could take Bugsy on a trip to Maryland. She agreed, so long as appellant would deliver Bugsy to the home of Bonnie Stewart's mother as soon as he returned.

Appellant offered contradictory testimony, insisting that he did not say he was taking a trip, and asserting, rather, that he and Bonnie Stewart agreed at separation that appellant would keep Bugsy. Whichever witness the jury believed, Bugsy was not delivered to his mother.

[ 374 Pa. Super. Page 482]

When appellant failed to return Bugsy after the trip to Maryland, Bonnie Stewart called the home of appellant's parents. After some difficulty in reaching appellant, she finally was able to speak to him by telephone. She testified that during this conversation, appellant told her she would never see Bugsy again. After this conversation, Bonnie Stewart consulted an attorney.

Bonnie Stewart's counsel filed a Petition for Primary Custody alleging that on or about January 5, 1981 appellant took Bugsy and refused to return him to her. On January 20, 1981, the trial court issued an Order directing appellant to show cause "why primary custody rights should not be established for [Bonnie Stewart] regarding the minor children." The last line of the Order stated: "Pending further Order of Court, the status quo, as alleged herein, shall be maintained."*fn1 A preliminary conference before a hearing officer was set for February 6, 1981. It is undisputed that appellant was never served with the Petition or the Order.

Bonnie Stewart testified that between January 5th and February 6th she called the home of appellant's parents "often" and that "[a] lot of times I would talk to Bugs." Early in the evening the night before the preliminary conference she called appellant again at his parents' home. When appellant would not allow her to speak with Bugsy, she replied: "[T]hat is all right, because I am getting him tomorrow, tomorrow is the custody hearing."

Appellant did not attend the custody hearing. Rather, he left the Commonwealth, taking Bugsy with him. Appellant's failure to appear at the February 6th hearing resulted in the entry of an order by the hearing officer, placing primary custody of the two Stewart children with their mother, Bonnie Stewart, pending a "hearing on the merits

[ 374 Pa. Super. Page 483]

    by the Court."*fn2 On February 17, no exceptions having been filed, the trial court "Approved" the order. Thereafter, for four years appellant and Bugsy lived under assumed names in various locations until appellant was arrested in Texas on December 12, 1984.

Following his return to Pennsylvania, appellant was charged with violating 18 Pa.C.S. § 2904(a) which prohibits interference with custody of children. Appellant was convicted and sentenced to nine to twenty-four months imprisonment. On this, his direct appeal from the judgment of sentence, he raises nine issues. We address only the issue of whether the trial court had jurisdiction to enter the custody order of February 6, 1981.

The statute creating the offense of interfering with the custody of a child provides, in relevant part:

(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; or

(2) the child, being at the time not less than 14 years old, was taken away at its own instigation without enticement and without purpose to commit a criminal offense with or against the child; or

(3) the actor is the child's parent or guardian or other lawful custodian and is not acting contrary to an order entered by a court of competent jurisdiction.

18 Pa.C.S. § 2904 (emphasis added). Appellant argues, inter alia, that he is entitled to have the judgment of

[ 374 Pa. Super. Page 484]

    sentence imposed on him arrested because the order of February 6, 1981, granting custody of Bugsy to Bonnie Stewart was not "an order entered by a court of competent jurisdiction." Therefore, he contends, as Bugsy's father he is entitled to the ...


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