Com. v. Rivera

• Decision Date: 20 June 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert RIVERA, Appellant.
• Court: Pennsylvania Superior Court

828 A.2d 1094

COMMONWEALTH of Pennsylvania, Appellee, v. Robert RIVERA, Appellant.

Superior Court of Pennsylvania.

Argued February 5, 2003.

Filed June 20, 2003.

Revised August 18, 2003.

G. Guy Smith, Media, for appellant.

Michelle P. Hutton, Asst. Dist. Atty., Media, for Com., appellee.

BEFORE: ORIE MELVIN, BOWES and BECK, JJ.

OPINION BY BECK, J.:

¶ 1 In this appeal from the judgment of sentence for second degree murder, we consider the kidnapping statute¹ in the context of a parent/defendant and in light of the law prohibiting interference with child custody.² After careful consideration of these facts and the applicable law, we conclude that a parent may be convicted of kidnapping his own child under 18 Pa. C.S.A. § 2901(a)(3). We also consider appellant's other challenges on appeal, including his claim that the Commonwealth failed to establish the corpus delicti. We affirm.

FACTS

¶ 2 Robert Rivera and Jennifer Helton began dating in 1996 and soon became engaged. The couple's relationship was a stormy one and in 1998, shortly before their daughter Katelyn was born, Rivera began beating Helton. The couple lived with their child in Upper Chichester, but Helton sought refuge at her parents' home in Boothwyn when Rivera became abusive.

¶ 3 In July 1999, Rivera destroyed the couple's apartment, beat Helton severely and would not let her leave. Helton ultimately escaped and filed charges against Rivera. She also obtained a Protection From Abuse (PFA) Order, which granted her sole custody of Katelyn and provided that Rivera was to have no contact with Helton or Katelyn with the exception of brief visitation supervised by Helton's mother.

¶ 4 On August 10, 1999, Helton went to a Delaware County district court in Linwood in connection with the assault charges she filed against Rivera. After the hearing, at which Rivera was bound over for court, Rivera confronted Helton at a local convenience store. In the parking lot, he beat her and dragged her by her hair and throat. A passer-by intervened and Rivera fled in a car that he had borrowed that morning. Helton went to the hospital for treatment of her injuries.

¶ 5 From the convenience store, Rivera drove directly to Katelyn's daycare residence that was located nearby. The caregiver saw Rivera approaching and locked her doors.³ Rivera broke into the house and forcibly removed the child, despite the caregiver's protests and her attempts to prevent him from doing so.

¶ 6 For the next several hours, Rivera kept the child in his car and attempted to make contact with Helton. In a series of telephone calls to Helton and others, Rivera repeated his demand to meet with Helton and threatened her that if she refused she would never see the child again. Throughout the afternoon and evening, Rivera drove around with Katelyn and stopped to make telephone calls. During that time, he spoke to Helton, police officers and a public assistance employee. He also met with Michelle Lupi, the woman whose car he was driving.⁴ Rivera abandoned several of his attempts at meeting Helton when he saw that she was accompanied by police. Each time, Rivera became angrier and his calls to Helton became more desperate. Even though police were present at some of the arranged meetings, Rivera drove off before he could be apprehended.

¶ 7 Despite the efforts of Helton and police, Rivera never returned Katelyn to her mother. The last known sighting of Rivera and the little girl together occurred at a gas station in Chadds Ford shortly after 7:00 PM. An employee at the station, John McCabe, saw Rivera in Lupi's car when Rivera stopped and bought two dollars worth of gas. Katelyn was sitting in the front seat of the car.

¶ 8 Two hours later, Rivera returned to the same gas station and used the bathroom. This time, Katelyn was not in the car. Rivera told McCabe that he had no money, but was willing to give McCabe his watch in exchange for gasoline. Rivera identified himself as Rob and told McCabe he would be back to return the money and retrieve his watch.

¶ 9 Less than two hours later, Rivera arrived at the rural Maryland home of a previous neighbor, Thomas Whittaker. The two men drank together in Whittaker's boathouse, where Whittaker kept his tools. Rivera asked Whittaker if he could spend the night and Whittaker agreed. After Rivera spent the night on the couch, he left abruptly in the morning without saying goodbye. Later, Whittaker noticed that the door to his boathouse was open and a spade shovel that had been inside was missing.

¶ 10 Rivera contacted Helton again that day and told her that he had given Katelyn to a woman who lost her baby. He claimed that Katelyn was "in a better place" and offered to take Helton to the child. Again, Rivera tried to meet with Helton; each time he grew angrier because Helton contacted police. Ultimately, police apprehended Rivera driving away from Helton's family home.

¶ 11 Following his arrest, Rivera told police that he had given Katelyn to a woman, but would not elaborate. Police allowed Rivera to meet with Helton for a brief period, but still Rivera would not explain what he had done with the child. He told Helton that she would never see Katelyn again and he told police that the child was in upstate New York. Later, in conversations with a county investigator and an FBI agent, Rivera confirmed his presence at the gas station with McCabe and claimed that he had given Katelyn to woman at nearby Longwood Gardens. He repeated this claim to his mother and another witness.

¶ 12 After Rivera was incarcerated, he told a fellow inmate, William Lively, a different version of events. First he said that the Longwood Gardens transfer did not occur and that he had given the child to someone he trusted. Later, Rivera told Lively that he killed his daughter by suffocating her. He stated that he removed Katelyn's clothes in order to make it difficult to identify her and to insure that her body decayed quicker. He said that he discarded the clothes on Route 202. Rivera also told Lively that he used Whittaker's shovel to dig the hole in which he buried Katelyn's body and he explained that he left the shovel at a construction site near Whittaker's property. Rivera also made a map for Lively in an effort to show the location of the body and he instructed Lively to tell his lawyer that Whittaker committed the crime. Lively reported all of this information to police.

¶ 13 Meanwhile, an extensive search for the child ensued. Contacts with Rivera's family in New York and Puerto Rico proved fruitless. Police and volunteers combed the area around the gas station, the area around Whittaker's property and the areas in between those two locations. Although police never recovered Katelyn's body, they did find some of her clothes on a highway median on Route 202. They also found Whittaker's shovel at a Maryland construction site not far from his home.

¶ 14 Rivera's comments to others did not stop with Lively. He spoke with police again and said that if he revealed Katelyn's whereabouts, he would spend the rest of his life in prison. He also wrote to the local newspaper, stating that he was the only person who knew where Katelyn was located. Finally, Rivera sent dozens of letters to Helton while he was incarcerated and awaiting trial. Along with birthday and holiday cards addressed to the child, Rivera sent Helton a clipping that advertised an episode of a television show, the subject of which was a murder without a body or any evidence.

¶ 15 At trial on murder charges, Rivera testified on his own behalf. He admitted taking the child and contacting Helton throughout the day. With respect to what happened next, Rivera simply stated "everybody else knows what happened." On cross-examination, when asked where Katelyn was, he responded "I did not kill her." Rivera admitted that he told Helton that Katelyn was going to heaven. He also admitted that his statements about giving the child to a woman at Longwood Gardens and a person in New York were untrue. He denied stealing Whittaker's shovel and said that the clothing found on the highway either did not belong to Katelyn or she was not wearing it on the date she disappeared.

¶ 16 The jury convicted Rivera of second degree (felony) murder, kidnapping, burglary and interference with custody. He was sentenced to life in prison. This appeal followed.

KIDNAPPING

¶ 17 On appeal, Rivera claims first that the felony underlying his murder charge, kidnapping, cannot be sustained because it is impossible for a parent to kidnap his own child. According to Rivera, both his kidnapping conviction and the second degree murder conviction upon which it is based must be reversed.

¶ 18 The kidnapping statute provides:

(a) Offense defined.—A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:

1) To hold for ransom, or as a shield or hostage.

2) To facilitate commission of any felony or flight thereafter.

3) To inflict bodily injury on or to terrorize the victim or another.

4) To interfere with the performance by public officials of any governmental or political function.

(b) Grading.—Kidnapping is a felony of the first degree. A removal or confinement is unlawful within the meaning of this section if it is accomplished by force, threat or deception, or, in the case of a person who is under the age of 14 years or an incapacitated person, if it is accomplished without the consent of a parent, guardian or other person responsible for general supervision of his welfare.

18 Pa.C.S.A § 2901.

¶ 19 Rivera was convicted of § 2901(a)(3), kidnapping with the intent to inflict bodily injury or terrorize the victim or another. He relies on two cases decided in the late 1800s that stand for the proposition that a parent cannot be...