Appeals court overturns kidnapping conviction of Wilkinsburg man
April 21, 2017 12:00 AM
Tex Ortiz in January 2015.
By Paula Reed Ward / Pittsburgh Post-Gazette
The Pennsylvania Superior Court on Thursday reversed the kidnapping conviction of a Wilkinsburg man who was found guilty two years ago of taking his own daughter.
Tex Ortiz, 34, appealed, arguing that he should never have been charged with kidnapping, because his actions did not meet the elements of that statute.
A three-judge panel of the Superior Court agreed, issuing its 21-page opinion on the matter less than two months after oral argument in the case.
The panel struck down the kidnapping conviction, as well as a related requirement that Ortiz register for the rest of his life as a sex offender. There were never allegations of any sexual offense.
Superior Court Judges John T. Bender, Susan Peikes Gantman and H. Geoffrey Moulton Jr.upheld Ortiz’s conviction for interference with custody of children.
Mike Manko, a spokesman with the Allegheny County District Attorney’s office, said prosecutors were reviewing the opinion to determine whether they should appeal.
“We are looking at this opinion as a case of first impression and as a case of statutory interpretation,” he said.
Ortiz had been raising his 2-year-old daughter after her mother died in October 2014. Although the girl’s maternal grandparents helped care for her, he had retained custody. But within two months, the grandparents sought custody and filed an emergency petition in family court.
According to testimony at his kidnapping trial, the grandparents were responsible for providing Ortiz notice of an upcoming hearing, something they claimed they did. He testified, however, that he was not made aware and therefore did not attend the hearing Dec. 19, 2014.
The court awarded interim custody to the grandparents, and a few days later, after Ortiz received messages from someone purporting to be a Penn Hills police officer, he took the girl and fled. They were found in Altoona two weeks later, and the child was unharmed.
In his appeal, Ortiz, who was ordered to serve a total of 8 to 22 years in prison, argued that his actions did not amount to kidnapping, and instead only met the elements of interference with custody.
But the Allegheny County District Attorney’s office argued that Ortiz met the requirements of one section of the kidnapping statute -— that he took the minor to facilitate the commission of another felony — interference with custody.
But the court disagreed, writing that allowing the two crimes to be used in that way “would eviscerate the purpose and effect of the [interference] statue, rendering those provisions irreconcilable.”
During the Feb. 21 oral argument in the case, the Superior Court panel raised questions about the trial judge, Allegheny County Common Pleas Judge Donna Jo McDaniel, and the possibility that she was showing a pattern of meting out overly harsh sentences in cases before her.
But in the opinion, the appellate panel didn’t address that concern. It did remand the interference charge, for which Ortiz received a prison term of 2 to 4 years, for resentencing by Judge McDaniel, but only because vacating the kidnapping conviction may have disrupted the rest of her sentencing scheme.
Paula Reed Ward: firstname.lastname@example.org, 412-263-2620 or on Twitter: @PaulaReedWard.