J-S49044-18

2018 PA Super 288

____________________________________

* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

ELIUD MONTANEZ-CASTRO 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 462 MDA 2018

Appeal from the Judgment of Sentence December 28, 2017

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0003013-2016

BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED OCTOBER 22, 2018

Appellant, Eliud Montanez-Castro, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Dauphin County, which, 

sitting as finder of fact in his non-jury trial, found him guilty of luring a child 

into a motor vehicle, disorderly conduct, and harassment.1 Sentenced to 

serve an eleven-and-one-half to 23-month sentence of incarceration, to be 

followed by one year of probation, Appellant challenges the sufficiency of the 

evidence with respect to his conviction for luring a child into a motor vehicle. 

We affirm.

The trial court sets forth the pertinent facts and procedural history, as 

follows:

On April 15, 2016, the two minors (T.G. and M.R.) were walking 

to school. Neither recalled inclement weather or any sort of 

natural disaster that would prompt anyone to offer a ride. As they 

____________________________________________

1 18 Pa.C.S. §§ 2910(a), 5503(a)(4), and 2709(3), respectively. 
J-S49044-18

- 2 -

were walking along South Harrisburg Street, a white car sharply 

turned left from Walnut Street onto South Harrisburg Street. It 

pulled up to the curb beside them, with the driver’s side window 

closest. The window was open and the driver, Appellant, asked 

them to pick a number. The minors stopped walking and after 

being confused, each picked a number. After T.G. picked a 

number, Appellant said “Mommy, you were right” and that she 

won a prize. T.G. thought this was all odd.

Appellant held out a soda can and water bottle with no label and 

told her to pick on[e]. T.G. refused. Both girls recalled that 

[Appellant] held the drinks out with bent elbows, not arms 

extended, and was fairly close [just several feet away]. T.G. and 

M.R. recognized that T.G. would have had to approach the car, 

though, to take one of the drinks. T.G. and M.R. were nervous 

and scared after this interaction and walked quickly to school. 

Appellant never asked her to enter the car or go anywhere with 

him. He never asked them to approach closer, he never 

threatened them, he never commanded or directed them to do 

anything, and he never opened the door. Appellant did not follow 

them. Upon arriving at school, T.G. told the principal what had 

happened.

Sometime later, T.G. viewed a photo array with Detective 

Robbins. He showed her pictures one at a time and she 

immediately identified picture six as the man who had approached 

her. M.R. also viewed a photo array complied [sic] by Detective 

Morris. He used the same technique as [Detective] Robbins and 

showed M.R. pictures one by one until she identified one as the 

man she had seen in the car.

M.R. recalled that some days later, she and T.G. were on the porch 

when T.G. pointed out a man to her. M.R. looked and recognized 

Appellant on the sidewalk. He looked up at them and they went 

inside because they were scared.

Counsel presented a stipulation that Appellant did not have the 

expressed or implied permission of any parent or guardian of the 

victims in this case to give them a ride anywhere.

***

Following a trial by judge on [October 18, 2017], Appellant was 

found guilty [of all charges and sentenced as indicated, supra]. 
J-S49044-18

- 3 -

On March 6, 2018, [the trial court] received a timely Notice of 

Appeal filed with the Superior Court of Pennsylvania. [The trial 

court] ordered Appellant on March 7, 2018, to file a concise 

statement of matters complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Appellant complied with said Order on March 

26, 2018. 

Trial Court Opinion, 8/6/18, at 1-3.

Appellant presents one question for our consideration:

I. [WAS] THE EVIDENCE PRESENTED AT TRIAL [ ] 

INSUFFICIENT TO CONVICT APPELLANT OF THE 

CRIME OF LURING A CHILD INTO A MOTOR VEHICLE 

AND DISORDERLY CONDUCT WHEN THE APPELLANT 

MERELY OFFERED A SODA TO A GIRL(S) [SIC] 

THROUGH A PASSENGER WINDOW OF HIS VEHICLE 

BUT NEVER OFFERED A RIDE TO THE GIRL(S) OR 

PULLED THEM CLOSER TO HIS VEHICLE[?]

Appellant’s brief, at 4.

Our standard of review for challenges to the sufficiency of the evidence 

is well-settled:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying [the above] test, we may not 

weigh the evidence and substitute our judgment for the factfinder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant's guilt 

may be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of fact may 

be drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the [finder] of fact while passing upon the 
J-S49044-18

- 4 -

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (citation 

omitted).

Appellant argues that evidence failed to support his conviction on the 

charge of luring a child into a motor vehicle. Merely talking with the girls and 

offering them drinks from his car window, without ever inviting or 

commanding them to enter his vehicle, fails to satisfy the first evidentiary 

requirement of attempting to lure a child into a vehicle, he submits. On this 

point, he elaborates:

The Commonwealth failed to establish that Appellant lured or 

attempted to lure either lady into his motor vehicle. In this case, 

neither lady called 911. Neither lady testified that he said “get in 

the car” or offered them to get into the vehicle [sic] or that he 

pulled them into the car. He never opened the rear car door for 

them to get in. He did not even say “come here.” He did not 

beckon them. He did not threaten them. He did not command 

them to come closer or open the door. At no time did he even 

touch them.

Appellant’s brief, at 9.2

The pertinent statute provides: “(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 

____________________________________________

2 Throughout the “Brief for Appellant,” counsel repeatedly refers to the two 

minor girls in question as “ladies.” Assigning an adult title to minors subjected 

to an offense that frequently involves the actual or attempted sexual abuse of 

a child is unacceptable, particularly where clear sexual overtones attended 

Appellant’s conduct toward the girls. Therefore, we strongly admonish counsel 

for what was, at best, a careless description of the minor victims in this case.
J-S49044-18

- 5 -

without the consent, express or implied, of the child's parent or guardian 

commits an offense.” 18 Pa.C.S. § 2910(a). As stated by our Supreme Court:

Section 2910 ... sets forth three requirements the Commonwealth 

must establish beyond a reasonable doubt to convict an individual 

of the offense of attempted luring of a child into a motor vehicle: 

(1) the individual attempted to lure a child into a motor vehicle; 

(2) without the express or implied consent of the child's parent or 

guardian; and (3) under circumstances which did not reasonably 

indicate the child is in need of assistance.

Commonwealth v. Hart, 28 A.3d 898, 908–09 (Pa. 2011). The Court has 

explained further that “a ‘lure’ involves the making of a promise of pleasure 

or gain, the furnishing of a temptation or enticement, or the performance of 

some other affirmative act calculated to strongly induce another individual to 

take a particular action, usually and most often likely to result in his or her 

harm.” Id at 909. 

Here, two ninth-grade girls walking to school witnessed Appellant

abruptly turn his vehicle off the course he was traveling and drive onto the 

curb alongside where they were walking. He immediately stopped the girls 

and engaged them in conversation, invited each to “pick a number,” and 

offered to the girl whom he declared the winner a bottled drink as her prize. 

In order to claim her prize, however, the girl, whom Appellant was now 

calling “Mommy,” was required to walk up to Appellant’s car window. There 

Appellant awaited, holding the bottle with his arm bent inward toward himself 

so that the girl would have to come right to his side to retrieve it. The girls

were scared and nervous at this point, and they walked away.
J-S49044-18

- 6 -

When viewed in a light most favorable to the Commonwealth as verdict 

winner, the totality of circumstances allows for the reasonable inference that 

Appellant did not stop two random girls on their way to school to give them a 

drink and send them on their way. Appellant was, instead, attempting to 

entice at least one girl to come within his area of control as he waited in his 

car, and he used his apparent brand of charm and a bottled drink—kept closely 

to his side—as a lure to achieve this end.

Indeed, Appellant neither knew the girls nor had any reason to believe 

they were in need of assistance. Yet, he stopped them anyway. He

immediately focused on one girl, declared her a winner, gave her the 

suggestive pet name “Mommy,” and invited her to come to him where he sat 

in his car and claim her prize.

Therefore, it was reasonable for the finder of fact to conclude, beyond a 

reasonable doubt, that Appellant’s affirmative actions, manipulative and 

suggestive words, and enticements were designed to gain the minor girl’s 

entry into his car to her own detriment. Accordingly, evidence adduced at 

trial sufficed to establish that Appellant committed the offense of attempting 

to lure a child into his vehicle.3

Judgment of sentence affirmed.

____________________________________________

3 Although Appellant’s “Statement of the Question Presented” also raises a 

sufficiency challenge to his disorderly conduct conviction, he presents no 

argument to support this claim. Therefore, he has waived this claim. See

Pa.R.A.P. 2119(c); Commonwealth v. Plante, 914 A.2d 916 (Pa.Super. 

2006) (failure to develop an argument with citation to authority waives the 

issue on review).
J-S49044-18

- 7 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2018