Commonwealth v. TateCommonwealth v. Tate
- Reporters:
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- Before:
- Cavanaugh
¶ 1 Kenneth Tate was convicted and given a modest sentence for the crime of luring a child into a motor vehicle (luring a child). The statute proscribes luring a child into a vehicle unless there is at least implied consent of the parent or if the child is in need of assistance.
¶ 2 I.B. stated that she was walking home from school on October 6, 1999, when a person driving a distinctive black Lexus vehicle asked her to get in the car. She refused and went home and told her grandmother. The police were called but *230were delayed in responding. In the meantime, I.B. went into her yard and again saw the person driving the vehicle on the highway. On October 7, while on the way to school, I.B. yet again saw him driving the vehicle. There is no report of any communication on these latter two times 1.B. saw the vehicle. I.B. was able to identify the driver and did so in court. V.S., also 14 years old, was walking home from school on October 6, where she encountered a man driving a black Lexus. He spoke to her but she could not recall what was said. The police were called but V.S. could not identify anyone from a photo array. There was no attempt to have her identify Tate in court.
¶ 3 Mr. Tate gave testimony that he was not in the area where the alleged conduct took place and offered detailed information which tended to support his claim that he had a full schedule of work and activities which occupied him elsewhere.
¶ 4 Appellant first argues that the court erred in charging the jury that the statute prohibited “offering rides to children under any invitational pretext.” Rather it is argued that the statute requires that the victim be lured “into” the vehicle, and that, instantly, it is undisputed that the child never entered the vehicle. It is further argued that the court’s charge is tantamount to an instruction that appellant could be found guilty on the basis of the crime of attempt where, in fact, a criminal attempt was neither charged nor properly before the jury. Finally, it is argued that the charge is at odds with the Pennsylvania Standard Jury Instructions (Criminal) 15.2910 which would require that the accused “took the child into the vehicle.”2
¶ 5 Our review of the decisional authorities in this Commonwealth lead to the conclusion that the court did not err in its charge and that appellant’s arguments are without merit.
¶ 6 In Com. v. Adamo, 431 Pa.Super. 529, 637 A.2d 302 (1994), appeal denied 538 Pa. 631, 647 A.2d 507 (1994), certiorari denied 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994), we held that
¶ 7 In Com. v. McClintock, 433 Pa.Super. 83, 639 A.2d 1222 (1994) appellant was convicted of one count of luring a child as well as two counts of attempting to lure a child in a case involving multiple incidents. On appeal, appellant challenged the sufficiency of the criminal attempt convictions where they were based on wordless motions or beckoning to “come here” into appellant’s vehicle. The conduct was determined to be within the contemplation of the luring statute which is not unconstitutionally vague.
¶ 8 In Com. v. Figueroa, 436 Pa.Super. 569, 648 A.2d 555 (1994), appeal denied 540 Pa. 578, 655 A.2d 510 (1995), the conviction, again, was for criminal attempt to lure but appellant’s argument went to the intent aspect of the predicate statute. We held that luring did not require a bad purpose intent but that culpability under the act could be found from offering rides to children “under any invitational pretext.” We further opined that the aim of the statute was to provide a threshold prophylaxis for the avoidance of kidnapping.3
*231¶ 9 More recently in Com. v. Nanorta, 742 A.2d 176 (Pa.Super.1999), appeal denied 563 Pa. 613, 757 A.2d 930 (2000), we again reviewed an attempt conviction which was based on a motorist’s demand “get into my car” to a child. We, again, confirmed the “any invitational pretext” standard of Figueroa and also rejected the notion that the luring must be an enticement of a benefit to the child and concluded that luring could also include threats, or commands, or implied threats.
¶ 10 We are in agreement with appellant that the decided cases interpreting
¶ 11 Our review of the luring a child statute and the decided cases lead to the conclusion that the court did not err in its charge to the jury. While the cases described above all involved convictions for criminal attempt to commit the completed crime of luring a child,
¶ 12 So considered, the statutory usage of the phrase luring a child “into” a motor vehicle may be understood to recite the prohibited object of the crime rather than describe an element of the crime. It recognizes the danger that, in our society a motor vehicle represents a universally common and singularly mobile enclosure which may be wrongfully employed to confine a child not in need and without parental permission. Support for this interpretation of
¶ 13 Appellant also argues that the evidence is insufficient to convict him of the crime of luring a child into a motor vehicle.
¶ 14 While reviewing the evidence in a light most favorable to the verdict winning Commonwealth, we must determine whether the evidence and its reasonable inferences support the jury verdict. Commonwealth v. Natividad, 565 Pa. 348, 773 A.2d 167 (2001). We have already concluded that it is not necessary that the child be lured “into” a motor vehicle. As this is the sole argument of appellant and as we find the other elements of the offense were met in the case of I.B., we find *232the evidence sufficient to support the verdict.
¶ 15 Judgment of sentence affirmed.
Notes
. The joinder of these cases for trial is not an issue on this appeal.
. The Standard Jury Instructions are not binding on the trial courts of Pennsylvania. Mackowick v. Westinghouse Electric Corp., 373 Pa.Super. 434, 541 A.2d 749 (1988), aff‘d. 525 Pa. 52, 575 A.2d 100 (1990).
. Luring child into a motor vehicle
. See also Com. v. Figueroa, supra.