The opinion
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2026 PA Super 96
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHALILH JAFAR EVANS :
:
Appellant : No. 36 EDA 2025
:
Appeal from the Judgment of Sentence Entered July 10, 2024
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004819-2023
BEFORE: DUBOW, J., KUNSELMAN, J., and STEVENS, P.J.E. *
OPINION BY STEVENS, P.J.E.: FILED MAY 12, 2026
Appellant, Khalilh Jafar Evans, appeals from the judgment of sentence
entered in the Court of Common Pleas of Montgomery County after a jury
convicted him of false imprisonment of a minor. 1 Sentenced to serve a three-
and-one-half to ten years’ incarceration and to register as a Tier I sex offender
pursuant to the Sexual Offender Registration and Notification Act (“SORNA”), 2
he raises challenges to the trial court’s jury instructions, ex parte questioning
of a juror and eventual replacement of the juror, and to the sufficiency of the
evidence offered to prove the charge of false imprisonment. We affirm.
At Appellant’s criminal trial, the Commonwealth presented the
testimony of the 14 year-old girl who encountered 45-year-old Appellant at
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2903(b).
2 42 Pa.C.S.A. § 9799.15.
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the Willow Grove Mall, and it supported her testimony with both the shopping
mall’s security video and the girl’s contemporaneous cell phone recording via
a Snapchat app. Specifically, on July 12, 2023, at approximately 7:00 p.m.,
the girl was shopping with three of her friends on the second floor of the Willow
Grove Mall when she became “a little upset” with one of them and decided to
walk alone to a jewelry store located on the first floor. N.T. (trial), 4/17/24,
at 51-52. She boarded the down escalator while listening to music on her
earphones and looking at her phone, when she happened to notice an
unfamiliar adult man about ten steps ahead of her was talking to her and
waving for her to come to him. N.T. at 53; See Commonwealth’s Ex. 5 at
00:20.
The man summoning her was Appellant, and he was accompanied by
another man. The girl did not move toward Appellant. The two men
dismounted the escalator, but only Appellant waited for her, while the other
man walked slowly ahead. See Commonwealth Ex. 5 at 00:38. When the girl
reached the bottom of the escalator, Appellant offered his arm and told her to
walk with him. N.T. at 54.
The mall security video shows the girl walking around him and looking
back. See Commonwealth’s Ex. 5 at 00:46. The jewelry store she was
interested in was behind her, but she continued to walk straight ahead and
Appellant stayed alongside her. See Commonwealth’s Ex. 6 at 00:25-31.
When asked why she walked that way rather than turning towards the jewelry
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store, she answered, “because I couldn’t get away from him, and that’s where
he was walking.” N.T. at 67.
In her testimony, the girl denied voluntarily taking his arm, N.T. at 55,
asserting instead that Appellant “grabbed my wrist, and he put it inside his
arm” and “pressed down” to prevent her from withdrawing it. N.T. at 55. See
Commonwealth’s Ex. 6 at 00:32-33. She testified that she asked why she
needed to walk with him, and Appellant replied during the walk that she
needed to know who he was, that his name was Alex, and he was 25 years
old. N.T. at 55-56. She told him she was 13 years old, one year younger
than her actual age, to emphasize to him that she was a minor. N.T. at 56.
She testified that she was fearful during this walk, which prompted her
to record secretly the event on her cell phone, which, she explained, “was
already on Snapchat, so I just had my phone, like, by my leg, and I was just
recording him.” N.T. at 56. The Commonwealth introduced the video into
evidence and played it for the jury. N.T. at 57-58, 65. Three photographs,
or “still shots,” were taken from the video and admitted into evidence after
the girl authenticated these, as well. N.T. at 58-59. She stopped recording
when Appellant suggested he put his phone number in her phone and she put
her number in his. N.T. at 66. She testified, however, that phone numbers
were not exchanged. N.T. at 66.
She asserted that Appellant’s grip was so tight that she either could not
remove herself from it or, when she tried to pull free, he would resecure it.
N.T. at 67-68. He loosened his grip after he said he was 25. N.T. at 68. She
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pulled away as fast as she could and said she was 13 years old. N.T. at 68.
This did not dissuade Appellant, according to the girl, as she testified Appellant
“asked if he was too old for [her],” and he “kept coming towards me and kept
trying to get me to go with him. . . . He kept, like, putting his arm towards
me and kind of trying to get me to, like, hold his arm again.” N.T. at 68; See
Commonwealth’s Ex. 7 at 00:49.
She took several steps back, yelled at him, and began to walk away.
N.T. at 68-69; Commonwealth Ex. 7 at 00:50-55. She testified that at that
moment, “after I yelled, I kind of just started walking away in, like, shock,
and then I started, like, running. N.T. at 69; Commonwealth Ex. 7 at 1:07-
17. She acknowledged there were other people around, including a woman
who “came up to me and asked if I needed help, [but] I just kind of ran.” N.T.
at 69.
The girl phoned a friend and regrouped with her and the others, who
advised her to report her encounter to mall security. N.T. at 69-73. She
spoke with both a security guard and a supervisor and showed them her video,
but they did not contact police. N.T. at 73. The security guard escorted the
girl and her friends to the mall exit, and they walked across the street to
Panera Bread and waited there for about one hour until the girl’s father picked
them up. She returned home, where a uniformed police officer from the
Abington Police Department visited her home and conducted an interview of
her and watched the video recording on her phone. N.T. at 78-79. A second
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officer with the Abington Police Department drove them down to the Abington
police station, where the girl provided a statement. N.T. at 79.
Police arrested Appellant and charged him with False Imprisonment of
a Minor and two counts of Harassment. The trial court provides an apt
recitation of the ensuing relevant procedural history, as follows:
From April 17 through April 18, 2024, the [trial court] held a jury
trial. During the course of deliberations, the court discharged a
jurorfn after it determined that the juror was refusing to perform
her duties with respect to deliberations. Following the
replacement of the discharged juror with one of the alternate
jurors, the jury found Appellant guilty of the charge referenced
above.
Fn. This specific juror was designated as Juror
Number 8 following voir dire.
On July 7, 2024, Appellant filed a Motion for Arrest of Judgment
asserting that the [trial] court’s discharge of the juror on the
grounds she was refusing to deliberate constituted an abuse of
discretion. On July 10, 2024, the court denied Appellant’s motion.
On that same date, the [trial] court imposed an aggravated range
sentence of forty-two (42) to one-hundred twenty (120) months
of imprisonment (three and one-half (3 ½) to ten (10) years). The
court also ordered Appellant to register as a Tier I offender under
42 Pa.C.S.A. § 9799.14 of Subchapter H of the Sex Offender
Registration and Notification Act (“SORNA”). Pursuant to 42
Pa.C.S.A. § 9799.15 of SORNA, Appellant’s classification as a Tier
I offender required him to register as a sex offender for fifteen
(15) years and to comply with all of the requirements associated
with this registration. On July 18, 2024, Appellant filed timely
post-sentence motions.
On December 3, 2024, Appellant filed a timely notice of appeal.
On December 4, 2024, the [trial] court issued an Order directing
Appellant to file a concise statement of matters complained of on
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appeal pursuant to Pa.R.A.P. 1925(b) (the “Concise Statement”)
within twenty-one days (21) days. On December 19, 2024,
Appellant filed a timely Concise Statement. In his Concise
Statement he raises the following four issues:
1. Did the [trial] lower court err in removing Juror No.8 where the
court’s colloquy of the juror failed to establish whether the
juror’s wish to, “no longer discuss the aspects of the case” was
indicative of the juror’s refusal to surrender an honest belief as
to the weight or effect of the evidence as opposed to an
outright refusal to deliberate?
2. Did the trial court err in questioning Juror No.8, regarding her
desire to, “no longer discuss the aspects of the case” without
defendant or defense counsel present?
3. Did the [trial] court err in defining [in its jury instruction],
“interfere substantially with [the complainant’s]
liberty/freedom” as follows,
“In determining the magnitude of restraint necessary
for false imprisonment, the appellate court has
recognized that false imprisonment covers restraints
which are less serious than those necessary for the
offenses of kidnapping and unlawful restraint.
In determining whether the restraint at issue
interfered with another individual’s liberty
‘substantially’ the appellate court directs the jury to
give the word “substantially” it’s plain meaning.
Thus, false imprisonment covers restraints where an
individual’s liberty is interfered with in an ample or
considerable manner.”
(N.T. 4/18/24, pp. 29-30), when the aforesaid definition failed
to provide a definition of the offenses of “kidnapping” or
“unlawful restraint”[?]
4. Was the evidence insufficient to establish the offense of false
imprisonment where the evidence failed to demonstrate that
Appellant’s actions interfered substantially with the
complainant’s liberty?
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Trial Court Opinion, at 2-4. The Brief of Appellant raises and develops the
same four issues for this Court’s consideration.
In Appellant’s first two issues, he challenges both the trial court’s
decision to discharge Juror No. 8 during deliberations and the propriety of the
court’s ex parte interview of the juror that culminated with her discharge. In
his first issue, he maintains that the brief exchange between the trial court
and the juror did not clarify if she had defied the court’s charge to consult with
fellow jurors and deliberate with a view toward reaching agreement or if,
instead, she had obeyed the charge by deliberating for some time before
reaching her individual judgment and concluding, only then, that further
deliberation would do violence to her decision.
This Court has observed,
“The decision to discharge a juror is within the sound discretion of
the trial court and will not be disturbed absent an abuse of that
discretion. This discretion exists even after the jury has been
impaneled and the juror sworn.” Commonwealth v. Marrero,
217 A.3d 888, 890 (Pa. Super. 2019) (citation omitted). Further,
“the trial judge, in his sound discretion, may remove a juror and
replace him with an alternate juror whenever facts are presented
which convince the trial judge that the juror's ability to perform
his duty as a juror is impaired.” Id. (citation omitted).
Commonwealth v. Ransom, 328 A.3d 1127, 1139 (Pa. Super. 2024).
Important to the present issue is that the trial court had issued to the
jury a Spencer charge, also referred to as a “dynamite charge,” which is an
instruction designed to “blast loose” a deadlocked jury by directing the jury
members “to continue to deliberate, with an open mind to reconsideration of
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views, without giving up firmly held convictions.” Commonwealth v. Greer,
951 A.2d 346, 348 (Pa. 2008) (citing Commonwealth v. Spencer, 275 A.2d
299 (Pa. 1971)). This Court in Spencer recognized that, “[d]eadlocked juries
are a matter of concern to both the bench and the bar.” [Spencer,] 275 A.2d
at 304. Yet, Spencer also emphasized that a conviction will be reversed if it
was coerced by the court's charge. Greer, 951 A.2d at 354-55 (some citations
& quotation marks omitted).
The record shows that 76 minutes after beginning its deliberations, the
jury returned to the courtroom [at 10:43 a.m.] asking to rewatch the video
and view the photos so it could clarify when Appellant took the girl’s arm and
held it. N.T. at 25-28. The videos were replayed, and the photos were shown
again to the jury. N.T. at 27-28. The jury returned to deliberate at 10:53.
a.m.
At around noon, the jury asked the court to define “interfere
substantially with [one’s] liberty/freedom with a focus on substantially.” N.T.
at 28. The trial court gave the requested instruction 3 and returned the jury to
its deliberations.
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3 For the edification of both the prosecutor and defense counsel, the trial court
previewed its proposed answer, which would instruct the jury, first, that the
appellate courts direct juries to give the word “substantially” its plain meaning
and, second, that false imprisonment includes restraints that are less serious
than those necessary for the events of kidnapping and unlawful restraint.
Defense counsel, however, objected to the proposed comparison to
kidnapping and unlawful restraint, as he did not want “the jury to be thinking
(Footnote Continued Next Page)
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At 1:09 p.m., the jury notified the trial court that it was “unable to
unanimously come to a verdict.” N.T. at 30. The trial court summoned the
jury to the courtroom and issued a Spencer charge, which included the
following:
Trial Court: All right. The jury foreperson has informed me
you are deadlocked. I remind you in order to
return a verdict on any charge, you must agree
unanimously on that specific charge.
Each of you has a duty to consult one another
and to deliberate with a view to reaching an
agreement if it can be done without violence to
your individual judgment. However, each of you
must decide the case for yourself after an
impartial consideration of the evidence with your
fellow jurors.
While you should not hesitate to reexamine your
own views and change your opinion if you are
convinced your opinion is erroneous, do not feel
compelled to surrender your honest belief as to
the weight or effect of the evidence solely
because of the opinion of your fellow jurors and
for the mere purpose of returning a verdict.
If after further deliberations you are still
deadlocked, do not – I’m going to give you a
clean verdict sheet. Do not fill out the verdict
sheet. Just send me a note.
That’s all right. You’re fine.
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about kidnapping or unlawful restraint, two charges that [Appellant] is not
facing.” N.T. at 29-30. The trial court opined that the instruction would not
unduly influence the jury, overruled the defense objection, and eventually
gave the instruction as proposed.
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If you do reach a verdict, then fill out the verdict
sheet. If you can’t reach a verdict, then send me
a note.
So, keeping this in mind, I’m going to send you
back to make one last effort to see if you can
reach a unanimous verdict. All right?
N.T. at 31-32.
At 1:11 p.m., the jury retired for further deliberations. At an unrecorded
time of day, but prior to 2:00 p.m. based on subsequent time notations, the
trial court reconvened the parties and announced that it received a note from
the jury stating, “We are unable to reach a verdict. One juror respectfully but
forcefully no longer wishes to discuss the aspects of this case.” N.T. at 32-
33.
The trial court initially announced, “So, I’m going to declare a mistrial
for manifest necessity[,]” and it asked for the Commonwealth’s position. N.T
at 33. The Commonwealth recommended that if the juror is refusing to
deliberate then they should “be struck for cause, and we replace that juror
with an alternate, or at least bring that juror in here. If they’re not
deliberating, they’re not doing their job.” N.T. at 33.
Defense counsel, however, asked the trial court to declare a mistrial.
“Based on the wording as I understand it[, the juror’s] refusal to discuss is
based on their own conscientious consideration of the evidence. Their
conscience cannot be changed based on their position on the case.” N.T. at
33. The trial court took a brief recess and returned with a decision to “bring
back the one juror—I don’t know who it is—and I’ll speak with the juror on
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the record but without anyone else there, and if she’s refusing to – well, let
me see. I’ll report back and see. All right? The Commonwealth agreed to
the trial court’s recommendation, but defense counsel noted his objection.
N.T. at 34.
The notes of testimony record the ex parte meeting in the robing room
between the trial court and the holdout juror, Juror No. 8.
Juror No. 8: Hi. I feel like I’m in the principal’s office.
Trial Court: I’m sorry. No, you’re not. You’re not.
All right. The note came back, “We are unable
to reach a verdict. One juror respectfully but
forcefully no longer wishes to discuss the
aspects of the case.”
Are you that juror?
Juror No. 8: Um-hmm.
Trial Court: I need you to say yes.
Juror No. 8: Yes. Sorry.
Trial Court: All right. Thank you.
Juror No. 8: You’re welcome. That’s it?
Trial Court: That’s it.
N.T. at 35.
The trial court reconvened proceedings in open court and informed the
parties as follows:
Trial Court: I asked – we asked the jury foreperson to
identify the juror who forcefully no longer
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wishes to discuss the aspects of the case. It
was Juror No. 8.
I met with her and I asked if that was correct,
and she said yes, so she’s going to be
dismissed, and I’m going to replace her with I
guess Alternate No. 2 which is Alternate No. 1.
I’ll bring the jury back and I’ll tell them to start
their deliberations again.
N.T. at 35.
Defense counsel objected and cited authority holding that a jury’s stated
inability to reach a unanimous decision after careful consideration must be
resolved in favor of the defendant, but the trial court distinguished that
holding on the facts, noting in the instant matter the juror in question is
“refusing to discuss the case. That’s different. She’s not sticking to her
position. She’s refusing to deliberate anymore.” N.T. at 36. Defense counsel
responded by stating his understanding but noting, also, that he was not privy
to the conversation. The trial court recognized the defense objection. N.T. at
36.
At 2:06 p.m., the trial court summoned the jury to the courtroom and
announced that Juror No. 8 had confirmed “she would not discuss the case.”
N.T. at 37. Consequently, the trial court advised it had replaced Juror No. 8
with an alternate juror. The newly-composed jury retired for further
deliberations briefly before requesting and being granted another view of the
video evidence to allow the alternate juror to view it with them. N.T. at 37-
38. Before the end of the day, the jury returned with a verdict of guilty on
the count of false imprisonment. N.T. at 41.
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After excusing the jury and setting bail conditions, the trial court allowed
defense counsel to supplement his earlier objection to the dismissal of Juror
No. 8 by reciting an excerpt from the Pennsylvania Supreme Court decision in
Spencer, reaffirming the principle that a trial court shall not lead a juror with
a minority perspective, whether for guilty or not guilty, “to reexamine their
position despite the existence of or the lack of a reasonable doubt, whether
they’re the minority or the majority during deliberations[.]” N.T. at 46. The
trial court replied by indicating that Spencer is distinguishable because
present Juror No. 8 was “not a juror who just doesn’t want to change their
mind, which that’s their right. This is a juror who refused to continue with
deliberations. You’ve preserved your objection.” N.T. at 46.
The trial judge was in a unique position to assess Juror No. 8 before
removing her for a refusal to follow jury instructions to remain open to
deliberations. The record establishes that the jury received the case
approximately four hours prior to the in camera interview, and Juror No. 8 had
settled on her decision for some time before that. When learning that the jury
remained deadlocked after receiving additional instructions to deliberate, the
trial court first stated it would declare a mistrial but reconsidered after the
prosecutor suggested the holdout juror was “not doing her job” if she was
disregarding the court’s most recent, supplemental instructions to continue to
discuss aspects of the case with an open mind to viewpoints before forming a
final and unreviewable decision.
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Agreeing that a refusal to deliberate would contravene instructions and
serve as grounds for dismissal, the trial court announced it would meet with
the holdout juror. The trial court interviewed Juror No. 8 in camera, where
the juror acknowledged that she was respectfully, but forcefully, refusing to
discuss or consider the case any further. The trial court deemed her response
disqualifying because, in its view, she revealed she had not been amenable to
the court’s two sets of jury instructions issued in the early hours of deliberation
charging the jurors to keep an open mind and consult with their fellow jurors
during the deadlock.
Rather than viewing the impasse as a genuine inability to reach verdict
that necessitated a mistrial—a position it initially held—the trial court
determined Juror No. 8 had disregarded jury instructions to consult her fellow
jurors and remain open to deliberating before settling on a decision.
Therefore, it replaced her with an alternate juror who would follow
instructions. In this respect, the trial court aptly includes in its Pa.R.A.P.
1925(a) opinion citation to caselaw recognizing that a trial judge is in a unique
position to make demeanor and credibility determinations about a juror when
assessing a juror’s fitness for the task at hand, see trial court opinion at 5,
and it provides a cogent explanation of why its face-to-face interview with
Juror No. 8 led it to conclude that replacement of the juror, rather than a
declaration of mistrial, represented the appropriate judicial response. Given
the record and the trial court’s explanation offered in its Rule 1925(a) opinion,
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we conclude the trial court acted within its sound discretion, such that we deny
Appellant relief on his first claim.
In Appellant’s second issue, he contends that the trial court’s ex parte
communication with Juror No. 8 violated his rights to have counsel present at
a critical stage where substantive rights are implicated. See Commonwealth
v. Johnson, 828 A.2d 1009 (Pa. 2003) (recognizing constitutional right to
counsel’s presence during critical stage of instructing a jury). He argues,
specifically, that because the ex parte questioning prevented defense counsel
from demanding more probing and extensive questioning of the juror to
determine her exact position, Appellant was prejudiced. Brief of Appellant at
29.
The trial court responds by reference to the record, which, it opines,
shows that defense counsel failed to offer a specific objection that the trial
court’s proposed ex parte interview of Juror No. 8 would violate Appellant’s
right to have counsel present. Instead, the trial court understood defense
counsel’s generic statement, “Judge, just note my objection[,]” as a
concluding response made for the record after the trial court had considered,
in open court, both defense counsel’s request for mistrial-by-juror-impasse
and the prosecutor’s recommendation of replacing the juror if she were not
deliberating as instructed and chose to explore the latter option. N.T. at 34.
Reinforcing the trial court’s understanding of the defense counsel’s
objection as one responding only to the denial of his motion for mistrial was
defense counsel’s subsequent, post-interview objection that was limited,
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again, to the issue of mistrial, as counsel cited decisional law holding that any
doubts as to the necessity of a mistrial when confronted by a jury’s statement
that it cannot reach a conclusion after careful consideration must be resolved
in favor of the defendant. N.T. at 35-36. Nowhere did counsel raise in his
objection the specific argument that the trial court’s chosen course of
addressing the issue of a deadlocked jury had violated Appellant’s rights to
have counsel present at a critical stage of the proceedings. 4
Pennsylvania Rule of Appellate Procedure 302(a) provides that “[i]ssues
not raised in the trial court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). This Court has expounded on the obligation to
make a timely and specific objection to preserve the matter for appeal:
we have long held that claims not raised before the trial court are
waived. “It is well established that trial judges must be given an
opportunity to correct errors at the time they are made. [A] party
may not remain silent and afterwards complain of matters which,
if erroneous, the court would have corrected.” Commonwealth
v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (citations
omitted). See also Commonwealth v. Lopata, 754 A.2d 685,
689 (Pa. Super. 2000) (“A claim which has not been raised before
the trial court cannot be raised for the first time on appeal.”
(citation omitted)). “Even issues of constitutional dimension
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4 During this exchange between defense counsel and the trial court, the court
distinguished the present facts from those at issue in the cited mistrial case,
by stating, “But this juror is saying she’s refusing to discuss the case. That’s
different. She’s not sticking to her position. She’s refusing to deliberate
anymore.” N.T. at 36. Only then did defense counsel acknowledge the ex
parte nature of the trial court’s interview of Juror No. 8, as he stated, “I
understand, Judge. I’m obviously not privy to that conversation.” N.T. at 36.
This statement of fact did not amount to a direct and specific objection that
the absence of defense counsel at the interview had denied Appellant of his
rights to counsel.
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cannot be raised for the first time on appeal.” Strunk, 953 at 579
(citation omitted).
Commonwealth v. Spone, 305 A.3d 602, 608–09 (Pa. Super. 2023).
It is clear from the record that defense counsel understood the trial
court’s interview of Juror No. 8 could result in the juror’s removal if she were
found to have disregarded jury instructions The discussion between the trial
court and respective counsel made clear that possibility. Yet defense counsel
neither lodged a specific objection to an ex parte communication nor indicated
his concern that the ex parte communication could deprive his client the right
to counsel at a critical phase of the proceedings. Accordingly, we find this
issue waived.
In Appellant’s third issue, he contends that the trial court erroneously
charged the jury, over defense objection, when it defined “interfere
substantially with [the complainant’s] liberty/freedom” as follows:
In determining the magnitude of restraint necessary for false
imprisonment, the appellate court has recognized that false
imprisonment covers restraints which are less serious than those
necessary for the offenses of kidnapping and unlawful restraint.
In determining whether the restraint at issue interfered with
another individual’s liberty “substantially” the appellate court
directs the jury to give the word “Substantially” its plain meaning.
Thus, false imprisonment covers restraints where an individual’s
liberty is interfered with in an ample or considerable manner.”
N.T. 4/18/24, pp. 29-30.
Appellant argues that the aforesaid instruction confused the jury
because it described the present offense of false imprisonment as involving
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less serious restraints than those involved in the offenses of “kidnapping” or
“unlawful restraint.” In support of his argument, he references decisions
reversing convictions in which a trial judge failed to instruct the jury on the
elements of the crime charged. See, e.g., Commonwealth v. Ford-Bey,
472 A.2d 1062 (Pa. 1984) (observing that without instructing jury on elements
of murder, the jury had “no way of knowing the legal basis upon which a
conviction for attempted murder must rest).
The governing standard of review applied to a trial court’s jury
instruction is well-settled:
A trial court has broad discretion in formulating and delivering
instructions to a jury. When reviewing the exercise of that
discretion, an appellate court must evaluate the trial court's
instruction “as a whole to determine if it was fair or prejudicial.” 20
A trial court may use such language as it chooses, “so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration.”
“We will not rigidly inspect a jury charge, finding reversible error
for every technical inaccuracy, but rather evaluate whether the
charge sufficiently and accurately apprises a lay jury of the law it
must consider in rendering its decision.” “Error cannot be
predicated on isolated excerpts of the charge, but it is the general
effect of the charge that controls.”
Commonwealth v. Drummond, 285 A.3d 625, 634–35 (Pa. 2022)
Initially, we note that the trial court’s proposed and eventually
administered charge in question tracked, nearly verbatim, this Court’s
published opinion, In re M.G., 916 A.2d 1179 (Pa. Super. 2007), which
discussed how this Court has determined whether the magnitude of restraint
imposed by a defendant is sufficient to establish the crime of false
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imprisonment.5 In so doing, the trial court delivered an instruction that
satisfied the above-referenced standard of review governing jury charges.
In addition, we distinguish the cases upon which Appellant relies, as
each one involved a jury instruction that failed to define or explain the very
elements of the crime charged, whereas, in the case sub judice, the trial
court’s instruction defined the elements themselves clearly and appropriately.
Specifically, the charge explained that for a jury to determine whether
Appellant interfered “substantially” with one’s freedom, it was to give the word
“substantially” it’s plain meaning, and consider that the charge of false
imprisonment concerns acts involving “ample or considerable” restraints.
Indeed, while the comparative remark may be unnecessary, we discern
neither confusion nor prejudice resulting from it, as it was a passing reference
couched in a larger and appropriate instruction on the elements of false
imprisonment. As such, we reject Appellant’s argument that the trial court
misstated or delivered a confusing and prejudicial jury instruction on the
charge of false imprisonment. No relief is due on this issue.
In Appellant’s fourth and final issue, he argues that the evidence was
insufficient to establish the offense of false imprisonment because it failed to
demonstrate that his actions interfered substantially with the complainant’s
liberty. We disagree, as the victim’s testimony described, and video evidence
____________________________________________
5 See infra, for a discussion of In re M.G..
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clearly depicted, how 45 year-old Appellant used his considerable size and
strength advantage over a 14-year-old girl to surreptitiously clutch her to his
side without consent and walk her against her will for 36 seconds towards a
corner of the mall where a nearby exit provided access to his parked car.
When examining a challenge to the sufficiency of evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt. Nevertheless,
the Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant's guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, the fact that the evidence
establishing a defendant's participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant's crimes beyond a reasonable doubt, the appellant's
convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super.
2013)).
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The facts pertinent to the sufficiency of the evidence inquiry were
entered into evidence through shopping mall surveillance video, the victim’s
cell phone video recording, and the victim’s testimony. Together, the evidence
established that Appellant, while descending on an escalator, looked back and
saw a young girl riding behind him. He waited for her to reach the bottom of
the escalator, where he imposed himself by walking right alongside her for
several seconds before grabbing her arm and trapping it tightly against his
torso. For the next 36 seconds, he capitalized on his hold of by walking her
towards a corner of the mall where an arcade exit provided access to his
parked car. Once they stopped, he released his hold but still suggested his
interest in her even after she told him she was 13 years old.
The totality of this evidence, coupled with the child’s emotional
aftermath that included her immediate reporting of this encounter to friends
and mall security, proved she endured a would-be sex offender’s frightening
restraint that substantially interfered with her liberty and, thus, supported the
jury’s verdict of guilty on the charge of false imprisonment. Section 2903(b)
of the Crimes Code defines the offense of false imprisonment, in relevant part,
as follows:
(b) False imprisonment of a minor where offender is not victim's
parent.—If the victim is a person under 18 years of age, a person
who is not the victim's parent commits a felony of the second
degree if he knowingly restrains another unlawfully so as to
interfere substantially with [her] liberty.
18 Pa.C.S.A. § 2903(b).
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“In determining the magnitude of restraint necessary for false
imprisonment, this Court has recognized that false imprisonment covers
restraints which are less serious than those necessary for the offenses of
kidnapping and unlawful restraint.” In re M.G., 916 A.2d at 1181-82 (internal
footnotes omitted). “In determining whether the restraint at issue interfered
with [the minor's] liberty ‘substantially,’ we give the word ‘substantially’ its
plain meaning. Thus, we determine the General Assembly intended false
imprisonment to cover restraints where an individual's liberty is interfered with
in an ample or considerable manner.” Id. at 1182 (internal citations omitted).
See also 32 Am. Jur. 2d False Imprisonment § 156 (false imprisonment
statutes that define qualifying restraints as those interfering substantially with
liberty require a ‘“real’ or ‘material’ interference with the liberty of another, as
contrasted to a petty annoyance, a slight inconvenience, or an imaginary
conflict.”
At trial, the defense focused on how the video evidence depicted not a
victim screaming and crying for help but, instead, a girl calmly walking with
Appellant, as if the restraint—if there was one at all—was minimal and
manageable for her. The victim testified, however, that she was in “shock”
from this stranger’s sudden, surprise restraint and redirection of her. N.T.
(Trial) at 69. The jury could reasonably discern from the depiction of her facial
expression during her detention not a sense of calm but a sense of shock,
bewilderment, and submission. Such a finding of fact would be consistent
with the commandeering she was experiencing, as she testified that she could
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not remove herself while Appellant continued to walk her where he wanted to
walk and away from her intended destination. N.T. at 67. She explained, “I
couldn’t get away from him, and that’s where he was walking.” Id. Hence,
her feelings of shock.
“Substantial” or “real” restraints or deprivations of liberty may be most
easily recognized when offenders assume and retain physical control over
victims who either overtly resist or are too young or too elderly to do so.
Indeed, appellate decisions affirming false imprisonment convictions occurring
outdoors or in public spaces often involve victims or intended victims who
fought back, who displayed defiance in the moment, or who were simply too
young and overmatched to do so. See infra. Nevertheless, a passive victim’s
acquiescence caused by shock, confusion, or resignment, which the victim in
the case sub judice articulated during her trial testimony, is not incompatible
with a detention contemplated and proscribed in the crime of false
imprisonment.
There is no manifest legislative intent in Section 2903 to exclude from
its protections those victims, often young victims, who silently retreat inward
in response to adults’ commandeering and restraints instead of lashing out in
defiance of such acts. Here, the involvement of an overwhelmed child victim
struck speechless upon Appellant’s restraint, and the paralyzing distress she
claims to have felt during the episode, must be factored against Appellant
when assessing the gravity of his restraint and its effect on his victim’s liberty.
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Similarly, the relatively short duration of the detention at issue does not
remove it from Section 2903 and relegate it, instead, exclusively to the realm
of civil law false imprisonment. The Comment to Section 2903 illustrates a
distinction between a civil law false imprisonment and the crime of false
imprisonment, and it cautions that the statute is not intended to penalize
every detention—such as a short detention—which might serve as the basis
for only a civil suit for false imprisonment.
It is noteworthy, however, that the Comment’s example of such a
detention involves a theft victim subjecting the suspected thief to a brief
detention for purposes of relevant questioning only. In that example, there is
at least an element of ostensible good faith and an explanation offered to the
person detained.6 In contrast, the detention at issue here is one devoid of
either good faith or any acceptable explanation, as it stems from a middle-
aged man’s predation of a 14 year-old girl that quickly evolves into a forcible
transport of the girl and an insinuated proposition in which he lies considerably
about his age and asks if he’s too old for her after learning her age. 7
This Court has recognized that proof of a substantial interference with
one’s liberty under Section 2903(b) does not require satisfaction of a
prescribed minimum temporal threshold. In Commonwealth v. Salgado-
____________________________________________
6 Also, there is no suggestion in the Comment that the described detainee was
physically restrained, as is the case here.
7 There is no suggestion in the Comment that the detainee is a child who is at
a physical and life experience disadvantage, as was the case here.
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Ochoa, (non-precedential memorandum decision) 321 A.3d 979 (Pa. Super.
2024),8 a three-judge panel of this Court held that even without physically
restraining the child, the “mental trauma” resulting from a non-parent’s one
minute closing of child’s bedroom door, blocking the exit, and refusing to let
child leave the room “was a substantial interference with [the child’s] liberty,
even if only for one minute.” Id. at *3.
Similarly, in Commonwealth v. Lima, (non-precedential
memorandum decision) 256 A.3d 47 (Pa. Super. 2021), the defendant was
charged with criminal attempt false imprisonment on allegations that he had
approached a thirteen year-old girl while she was walking home from school
and grabbed her under her arms in a “bear hug” momentarily until the girl
unexpectedly cut short defendant’s hold by elbowing him and running away.
Evidence also included the prelude to the physical encounter, wherein the
defendant had driven his car alongside the curb where the girl was walking
and had asked her for her name.
In rejecting the defendant’s challenge to the sufficiency of the evidence
offered to prove criminal attempt at false imprisonment, a panel of this Court
adopted the trial court’s opinion, which observed in relevant part:
As previously discussed, Defendant did not accidentally
bump into the victim on the street. Rather, while Defendant was
____________________________________________
8 Under Pa.R.A.P. 126(b), we may cite and rely on non-precedential decisions
filed after May 1, 2019, for their persuasive value.
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still in his car, he asked the victim for her name, then drove
around the block a second time before parking, exiting the car,
and acting as if he was going into a house before approaching her
from behind and grabbing her under her arms. The
Commonwealth established that, in grabbing her under the arms,
Defendant was intentionally taking a substantial step toward
restraining L.Q. unlawfully so as to interfere substantially with her
liberty. It is clear that when he grabbed her under her arms,
Defendant attempted to interfere with L.Q.’s liberties in an “ample
or considerable manner.”
The record shows that Defendant's attempt to restrain L.Q.
was unexpectedly cut short when she elbowed him and she was
able to run away. The fact that the length of time he was able to
restrain her was stopped sooner than he may have intended does
not require a different result. See, In re M.G., supra. (Evidence
was sufficient to show that assailant interfered substantially with
the victim's liberty after locking her in her bedroom and touching
her in a sexual manner for less than two minutes before being
thwarted by the victim's sister banging on the door.)
Because the jury here could reasonably have determined
that all of the necessary elements of criminal attempt at false
imprisonment were established, Defendant's allegation of error
must fail.
Lima, 256 A.3d 47 at *1.
In the case sub judice, the victim testified that Appellant’s 36-second
forcible commandeering of her caused her great distress and “shock.” The
jury, sitting as finder of fact at her trial, considered both this testimony and
the corresponding video evidence and concluded reasonably that the victim
suffered real mental anguish from having endured a terrifying experience in
which Appellant substantially interfered with her personal liberty. Because we
deem the evidence legally sufficient to support the jury’s verdict, we affirm
judgment of sentence.
Judgment of sentence is AFFIRMED.
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Judge Dubow joins this Opinion.
Judge Kunselman files a Dissenting Opinion.
Date: 5/12/2026
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