Appeal from the Order of the Superior Court entered on February 5, 2009 at No. 285 EDA 2008 affirming the Judgment of Sentence entered on January 3, 2008 in the Court of Common Pleas, Delaware County, Criminal Division, at No. 3057- 2006
The opinion of the court was delivered by: Madame Justice Todd
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
In this appeal, we consider whether the mere offer of an automobile ride to a child constitutes an attempt to "lure" the child under Section 2910 of Pennsylvania's Criminal Code, entitled "Luring a child into a motor vehicle or structure."*fn1 After careful review, we conclude that an attempt to "lure" does not include the action of simply extending an offer of an automobile ride to a child, when it is unaccompanied by any other enticement or inducement for the child to enter the motor vehicle. Consequently, we reverse the conviction of Appellant, Walter J. Hart III, for attempted luring.
The following facts were adduced at Appellant's trial. In early 2006, Appellant, then 35-years-of-age, was residing in a residential neighborhood in Haverford Township, Delaware County, where he had lived his entire life. Appellant was taking college classes at this time and working part time for a security firm. N.T. Trial, 9/26/2007, at 108, 128. On the morning of February 28, 2006, a cold and overcast day, two boys - ages 13 and 12 - who lived on an adjoining street to the one on which Appellant's house was located, were walking from their homes, via the nearby thoroughfare of Manoa Road, to the middle school they attended. Both testified that, as they walked along this street, Appellant drove up beside them and offered them both a ride to school or to the local "WAWA" grocery store. N.T. Trial, 9/27/07, at 16, 37-39. This grocery store, the Haverford Township police station, public library, and middle school all were located nearby within a short distance of each other along Darby Road which intersects with Manoa Road. Id. at 37, 115-117. The boys declined the offer, and Appellant drove off without any further conversation with them.*fn2
N.T. Trial, 9/26/2007, at 18, 38.
Two days later, on the morning of March 2, 2006, a light rain was falling in the Haverford area, and the same two boys were again walking to school. Id. at 39. Appellant testified that between 7:30 and 8:00 a.m. that morning, he left home in his truck with the intention of getting coffee and breakfast at the WAWA grocery store before beginning a research project for his college public speaking class at the library. Id. at 108-109, 115. As Appellant approached the heavily congested intersection of Naylor's Run Road and Manoa Road, he recalled observing the two boys standing near the intersection, and, according to Appellant, because of their age and the fact they were carrying backpacks, he believed they were from his neighborhood and on their way to school. Appellant related that, because it had been raining, he offered them a ride to school, or, alternatively, at least as far as the grocery store at which he intended to stop. Id. at 112-113. In Appellant's view, since he was going in the direction of the school anyway, he thought he was merely doing a "kind thing" by making the offer, and, since they all lived in the same neighborhood, he did not believe the boys' parents would have objected. Id. at 127.*fn3
Both boys recounted that they turned down Appellant's offer of a ride - after which Appellant asked if they were sure. Id. at 20. The boys declined for a second time, and Appellant drove off without any further communication with them. Id. at 20, 38. Appellant proceeded to the grocery store, then to the library, and finally returned home, at which point he began working on other school assignments. Id. at 115-117.
Following their latest interaction with Appellant, one of the boys obtained the license plate number of Appellant's truck; whereupon they both walked to the police station, which was located less than a block from where they had spoken with Appellant, and reported the conversation to police. Id. at 40, 43, 59. Later that same morning, after determining Appellant's address from the license plate information, a Haverford Township police officer, Thomas Long, drove to Appellant's house, and spoke with Appellant. Id. at 52. According to Officer Long, Appellant did not appear to have any knowledge of why the officer was questioning him. Id. at 60. Appellant admitted to Officer Long that he offered the two boys a ride, and Appellant voluntarily agreed to Officer Long's request to accompany him to the police station to speak further with another investigator. Id. at 56.
Once at the Haverford Township police station, Appellant spoke with Officer Goodman and repeated what he told Officer Long. Appellant agreed to memorialize this statement in writing, and he handwrote the following: "Two boys walking to school, and I asked if wanted [sic] a ride part of the way, Wawa. Boys said no. I said okay, and left." Id. at 70. Officer Goodman testified that Appellant looked surprised whenever the officer informed him that he had potentially violated a statute by his actions. Id. at 81. After driving him back to his home, the police asked Appellant if they could search his truck, and he consented. The search yielded nothing of a criminal or suspicious nature. N.T. at 77, 82.
Appellant subsequently was charged with four counts of harassment, stalking, and attempted luring of a child into a motor vehicle. After receiving a telephone call informing him of the charges, Appellant turned himself in. He proceeded to a bench trial before the Honorable Ann A. Osborne on September 26, 2007. At the conclusion of the trial, Judge Osborne acquitted Appellant of the offenses of stalking and harassment. With respect to the offenses of attempted luring of a child into a motor vehicle, Judge Osborne expressly stated she found no evidence that Appellant had any intent to harm the children, and that she believed "the circumstances show no reason to believe that this defendant had any evil or improper intent in doing what he did." N.T. Trial, 10/2/07, at 4-5. However, on the sole basis of Appellant's offer of the rides, she convicted him on all four counts of attempted luring. The trial court found that "[Appellant's] offer of a ride to the victims is sufficient to constitute an attempt to 'lure.'" Trial Court Opinion, 6/26/08, at 6. The trial court subsequently sentenced Appellant to 18 months' probation. As an automatic result of his convictions, Appellant is now statutorily mandated to register for ten years as a sex offender under Megan's Law, 42 Pa.C.S.A. § 9795.1(a)(1).
Appellant filed a counseled 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, but, rather, was merely acting as a "disabled Good Samaritan." Id.
A three judge panel of the Superior Court affirmed Appellant's conviction in an unpublished memorandum opinion. Commonwealth v. Hart, 285 EDA 2008 (Pa. Super. filed February 5, 2009). In its disposition, the Superior Court relied on its earlier published decision in Commonwealth v. Figueroa, 648 A.2d 555 (Pa. Super. 1994), discussed at greater length infra, which held that a mere invitation to a child for a ride to school or to a bus stop constituted the crime of luring of a child into a motor vehicle under the meaning of Section 2910. Thus, the court found the evidence of Appellant's offers of rides to be sufficient to sustain his convictions. In rendering its decision, the court did not discuss its prior decision in Commonwealth v. Adamo, 637 A.2d 302 (Pa. Super. 1994), which held that some additional enticement for the entry of the child into the vehicle, beyond the offer of the ride itself, was necessary in order for the offeror's conduct to constitute a "lure."
Appellant, proceeding pro se, sought allowance of appeal from our Court, challenging the sufficiency of the evidence to sustain his conviction. We granted allowance of appeal to consider the following question:
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?
Commonwealth v. Hart, 605 Pa. 406, 990 A.2d 724 (2010).*fn4
In our order granting allowance of appeal, we additionally directed the parties to address the applicability of the Superior Court decisions of Adamo and Figueroa to the resolution of this question, and, also, directed the appointment of appellate counsel for Appellant , if he so desired. Id. Counsel was appointed who filed a brief and made oral argument on Appellant's behalf.
We preface our analysis of this issue with a recitation of Section 2910, as well as a discussion of the Superior Court panel decisions of Adamo and Figueroa, as a full examination of the court's respective interpretation of the term "lure" in each decision is necessary to place the parties' arguments presently before us in their proper context.
The text of Section 2910 provides: § 2910. Luring a child into a motor vehicle or structure
(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 ...