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Commonwealth v. H.D.

Superior Court of Pennsylvania

August 21, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
H.D. Appellant

          Appeal from the Judgment of Sentence Entered June 19, 2017 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005878-2016

          BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

          OPINION

          PANELLA, P.J.

         Appellant, H.D., appeals from the judgment of sentence entered on June 19, 2017, in the Court of Common Pleas of Bucks County. This followed her conviction of Interfering with the Custody of a Child, 18 Pa.C.S.A. § 2904. Our review of this appeal was delayed because there was originally no direct appeal; however, Appellant's direct appeal rights were reinstated nunc pro tunc following a Petition for Post-Conviction Collateral Relief filed on June 19, 2018. After review, we are constrained to reverse and remand for a new trial.

         The primary factual dispute at trial was whether Appellant believed her child was in danger while in husband's custody. Thus, the trial court's summary of facts is undisputed for purposes of this appeal:

Appellant and her husband had a child in 2010. Appellant's husband began divorce proceedings in June, 2015, and on July 8, 2015, Appellant and her husband entered a custody agreement in which custody of the child was exchanged every 48 hours. They both abided by the custody agreement until October, 2015, when Appellant first withheld custody of the child from her husband for fifteen days.
Appellant again withheld custody of the child starting in June, 2016, for forty-seven days. Upon belief that her husband was sexually, verbally, and physically abusing the child, Appellant left Bucks County with the child and did not tell the child's father, her family, or her friends where she was going. Appellant subsequently traveled from Wilkes Barre to Philadelphia to Pittsburgh to Miami with the child.
Meanwhile, when Appellant's husband had not heard from Appellant or received custody of the child pursuant to the custody agreement, he called his attorney and the police, and he filed a missing person's report. During the forty-seven days while Appellant and the child were unaccounted for, Appellant's husband also hired several private investigators, contacted the National Center for Missing and Exploited Children, submitted the case to Bring Our Missing Home, and went to the police department and his congressman's office in an effort to have the child listed as missing.
Detective Peter Lange of the Lower Makefield Township Police Department got involved in the case on June 27, 2016. On July 2, 2016, Detective Lange filed charges against Appellant for interference with custody of children and issued a warrant for Appellant's arrest. On August 2, 2016, the United States Marshal Service located Appellant in North Philadelphia, but Appellant did not tell officers where the child was. Using Appellant's phone records, Detective Lange identified a number that Appellant called often in Miami during her forty-seven-day absence. The United States Marshall Service located the child at Appellant's friend's sister's house in Miami, Florida on August 2, 2016. Appellant had decided to leave the child with friends in Miami for two weeks so that she could return to Pennsylvania to "figure out what to do." The United States Marshals contacted Appellant's husband to let him know that Appellant had been arrested and that the child was safe in Miami. Appellant's husband retrieved the child in Miami the next day.
The day before she was arrested in Philadelphia, Appellant composed, but never mailed, an eight-page letter addressed to the Director of Bucks County Children and Youth, the Director of Bucks County Human Services, the Director of the Pennsylvania Office of Children and Families, an assistant district attorney at the Bucks County District Attorney's Office, a sergeant at the Pennsylvania State Police, the Attorney General of the Commonwealth of Pennsylvania, and the Director of the Center for Missing and Exploited Children, in which she wrote: "I'm refusing to turn my daughter over to [the child's father] because I'm protecting her from danger. [The child's] father is the danger. He has sexually, physically, and verbally abused my daughter. Numerous reports of abuse have been made to the Bucks County Children and Youth Services to no avail. There [are] individuals, including a police officer, a psychologist, her nanny and other individuals who . . . have filed reports of abuse on . . . behalf of my daughter against [the child's father]. I filed a report the day that my daughter personally confided in me that her father had sexually abused her. It was filed many months after the first round of sexual assault reports were filed and an investigation ensued. My decision to refuse to turn my daughter over to her father . . . in contravention of a Court Order was not made hastily. To the contrary, I made the decision after failing at every single effort I made to obtain help for my daughter. After a lengthy and unsuccessful search for justice for [the child] I was left with no other viable option."
All the reports of abuse by Appellant's husband were determined to be unfounded by Bucks County Children and Youth and the Middletown Township Police Department.

Trial Court Opinion, 1/18/19, at 1-3 (citations to record omitted).

         After being charged, Appellant was found guilty of Interfering with the Custody of a Child by a jury on March 20, 2017.

         At trial, the Commonwealth presented testimony and other evidence consistent with the facts as summarized by the trial court. Furthermore, the Commonwealth presented testimony demonstrating that there were thorough and substantial independent investigations into the alleged abuse, all of which concluded that the reports of abuse were either unfounded or invalid. The defense relied upon the Appellant's unwavering belief that her daughter was being abused by the child's father to justify Appellant's refusal to hand over the child in accordance with the custody order.

         On June 19, 2017, the trial court sentenced Appellant to a sentence of time served to twenty-three months with immediate parole, followed by a consecutive five-year term of probation.

         Before we address the issue presented by the Appellant, which deals with the jury instructions, we must comment on the actions of Appellant in this case. Although this is clearly not an appeal in a custody matter, we are mindful of our cautionary words from Commonwealth ex rel. E.H.T. v. R.E.T., 427 A.2d 1370 (1981):

Although one's violation of a court order is certainly not controlling in resolving a custody dispute, there is absolutely nothing improper about considering such a violation in the evaluation of each party's parental attributes.
When a party, in bad faith, removes a child from another jurisdiction in order to circumvent an adverse custody order of a court in that jurisdiction, our courts have held that such evasion of the law, if proven, should be an important factor when Pennsylvania courts consider the custody dispute. Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524 (1930); Irizarry Appeal, 195 Pa.Super. 104, 169 A.2d 307 (1961). The instant case raises the same troublesome issue. In resorting to self-help remedies, [appellant] acted in a manner inconsistent with the orderly and impartial resolution of disputes concerning the custody of minors. In ascertaining who would best serve the welfare of the ...

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