Com. v. Parsons, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BURT PARSONS :
:
Appellant : No. 559 WDA 2019
Appeal from the Judgment of Sentence Entered February 12, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000658-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 4, 2019
Appellant, Burt Parsons, appeals from the judgment of sentence of 66
to 144 months of confinement after his jury trial convictions for aggravated
indecent assault of a child, corruption of minors – defendant age of 18 years
and upwards, indecent assault – complainant is less than 13 years of age, and
endangering welfare of children (“EWOC”) -- parent, guardian or other person
commits offense.1 We affirm.
The facts underlying this appeal are as follows. “The case was based on
an investigation by Children and Youth Services[ (“CYS”)]. [Appellant] is the
great-uncle of [L.T. (“the Child”)] and picked the [Child] up from the school
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3125(b), 6301(a)(1)(ii), 3126(a)(7), and 4304(a)(1),
respectively.
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bus on December 15, 2017. He took her to his apartment where the crimes
are alleged to have occurred.” Order, 4/4/2019, at 1. The Child “stated that
[Appellant] put [two] fingers into her vagina during the assault. . . . The
[C]hild was age [five] at the time of the crime. [Appellant]’s date of birth is
2/21/1962.” Statement in Lieu of Opinion, 5/24/2019, at 2.
At trial, the Child, who was then six-years-old and in kindergarten, N.T.
Trial at 34, testified that her “uncle . . . took his two fingers and he did
something very bad to me.” Id. at 35-36. Her testimony continued:
Q. Where did he put his two fingers?
A. In my donut.
Q. What do you use your donut for?
A. To go pee. . . .
Q. Okay. And Burt did that?
A. Yes, and he touched my privates.
Id. at 37.
A CYS caseworker testified that, after the initial report, she spoke with
Appellant, who confirmed that he had babysat the Child twice, including that
he had picked her up from the bus stop on the second occasion. Id. at 52.
The Child “was examined by Dr. Jennifer Clark on December 21, 2017.”
Order, 4/4/2019, at 1. Dr. Clark testified that, “in [the Child’s] genital area
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of her posterior [f]ourchette,[2] she had a laceration with no active bleeding
at the time.” N.T. Trial at 71; see also id. at 75 (“There was a single
laceration to the [f]ourchette.”). The laceration was “wider and deeper than
. . . a scratch” and that what she “would expect from . . . self-inflicted
scratching.” Id. at 75. When asked if she could “estimate how old the
laceration was[,]” Dr. Clark answered: “There was, it wasn’t bleeding so it
wasn’t, you know, probably within the last 24 to 48 hours.” Id.
Dr. Clark concluded that the Child “was a victim of child sexual abuse.”
Id. at 72. She rendered this opinion with “medical certainty[.]” Id. at 73.
After his aforementioned convictions and sentencing, on February 22,
2019, Appellant filed a post-sentence motion for a new trial challenging the
weight of the evidence, which the trial court denied on April 3, 2019. On
April 16, 2019, Appellant filed this timely direct appeal.3
Appellant’s concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) and his appellate brief’s statement of questions
involved pursuant to Pa.R.A.P. 2116 were identical and presented the
following issues for review:
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2 Dr. Clark explained that the “posterior [f]ourchette is the area where the
labia majora or the larger lips meets together at the bottom. So there is a
perineal area between your front private area and your anus. . . [A]t the top
of the perineal area towards your genital area is the posterior [f]ourchette.”
N.T. Trial at 71.
3 The trial court entered a statement in lieu of opinion on May 24, 2019.
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ISSUE NO. 1: Whether the evidence was legally and factually
sufficient to prove that [Appellant] had committed an act to
constitute the crime of aggravated indecent assault of a child.
ISSUE NO. 2: Whether the evidence was legally and factually
sufficient to prove that [Appellant] had committed an act to
constitute the crime of corruption of minors.
ISSUE NO. 3: Whether the evidence was legally and factually
sufficient to prove that [Appellant] had indecent contact with the
victim to constitute the crime of indecent assault.
ISSUE NO. 4: Whether the evidence was legally and factually
sufficient to prove that [Appellant] had violated any duty of care
to the victim to constitute [EWOC].
ISSUE NO. 5: Whether the trial court abused its discretion by
denying the post sentence motions of [Appellant] when the jury’s
verdicts were against the weight of the evidence.
Concise Issues, 5/20/2019; Appellant’s Brief at 4-5 (suggested answers and
unnecessary capitalization omitted).
Preliminarily, we note that, “[i]n order to preserve a challenge to the
sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.” In re J.G., 145 A.3d 1179, 1189
(Pa. Super. 2016) (citation omitted). Appellant has not specified the element
or elements of either aggravated indecent assault of a child or corruption of
minors upon which he alleges the evidence was insufficient in his Rule 1925(b)
statement or even in his subsequent Rule 2116 statement. See J.G., 145
A.3d at 1189. “[A]n act” is not an element of either aggravated indecent
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assault of a child4 or corruption of minors.5 Concise Issues, 5/20/2019;
Appellant’s Brief at 4. Appellant has therefore failed to preserve his challenge
____________________________________________
4 Appellant was convicted of aggravated indecent assault of a child pursuant
to 18 Pa.C.S. § 3125(b): “A person commits aggravated indecent assault of
a child when the person violates [18 Pa.C.S. § 3125](a)(1), (2), (3), (4), (5)
or (6) and the complainant is less than 13 years of age.” Section 3125(a)(1)-
(6) states:
Except as provided in sections 3121 (relating to rape), 3122.1
(relating to statutory sexual assault), 3123 (relating to
involuntary deviate sexual intercourse) and 3124.1 (relating to
sexual assault), a person who engages in penetration, however
slight, of the genitals or anus of a complainant with a part of the
person’s body for any purpose other than good faith medical,
hygienic or law enforcement procedures commits aggravated
indecent assault if:
(1) the person does so without the complainant’s consent;
(2) the person does so by forcible compulsion;
(3) the person does so by threat of forcible compulsion that
would prevent resistance by a person of reasonable
resolution;
(4) the complainant is unconscious or the person knows that
the complainant is unaware that the penetration is
occurring;
(5) the person has substantially impaired the complainant’s
power to appraise or control his or her conduct by
administering or employing, without the knowledge of the
complainant, drugs, intoxicants or other means for the
purpose of preventing resistance;
(6) the complainant suffers from a mental disability which
renders him or her incapable of consent[.]
Id. § 3125(a)(1)-(6).
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to the sufficiency of the evidence for these two charges. See J.G., 145 A.3d
at 1189.
Nevertheless, Appellant preserved his challenges to the sufficiency of
the evidence to establish indecent assault6 and EWOC,7 because “indecent
contact” and a “duty of care” are elements of these convictions, respectively.
Concise Issues, 5/20/2019; Appellant’s Brief at 4; see also J.G., 145 A.3d at
1189. Consequently, we will consider the merits of those claims.
This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
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5 Appellant was convicted of corruption of minors pursuant to 18 Pa.C.S.
§ 6301(a)(1)(ii):
Whoever, being of the age of 18 years and upwards, by any course
of conduct in violation of Chapter 31 (relating to sexual offenses)
corrupts or tends to corrupt the morals of any minor less than 18
years of age, or who aids, abets, entices or encourages any such
minor in the commission of an offense under Chapter 31 commits
a felony of the third degree.
6 Appellant was convicted of indecent assault pursuant to 18 Pa.C.S.
§ 3126(a)(7):
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
for the purpose of arousing sexual desire in the person or the
complainant and . . . the complainant is less than 13 years of
age[.]
7 Appellant was convicted of EWOC pursuant to 18 Pa.C.S. § 4304(a)(1):
“A parent, guardian or other person supervising the welfare of a child under
18 years of age, or a person that employs or supervises such a person,
commits an offense if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support.”
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We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and 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.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
(Pa.Super. 2012)).
Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal
brackets omitted).
Appellant challenges the sufficiency of the evidence to establish indecent
assault on the basis that “[t]he Commonwealth did not show that Appellant
had ‘indecent contact’ with the victim. In fact, the Commonwealth did not
show that Appellant had any contact at all with the victim.” Appellant’s Brief
at 11.
18 Pa.C.S. § 3101 defines “indecent contact” as: “Any touching of the
sexual or other intimate parts of the person for the purpose of arousing or
gratifying sexual desire, in any person.” See also Commonwealth v.
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Fisher, 47 A.3d 155, 158 (Pa. Super. 2012) (“The language of the statutory
section defining indecent contact includes both ‘sexual’ and ‘other intimate
parts’ as possible erogenous zones for purposes of prosecution.”).
Viewing all the evidence admitted at trial in the light most favorable to
the Commonwealth as verdict winner, see Izurieta, 171 A.3d at 806, the
evidence is clearly sufficient to establish indecent contact. Dr. Clark testified
that the Child had been touched on her posterior fourchette, which is the area
where the labia majora meet, N.T. Trial at 71, 75, which is unambiguously a
“sexual or other intimate part[]” of the Child. 18 Pa.C.S. § 3101. Dr. Clark
also testified that there was no other possible explanation for the Child’s
injury, besides sexual abuse, as it would not have occurred from an everyday
activity, such as the Child scratching herself, N.T. Trial at 72, 75, thereby
establishing that the Child had been touched “for the purpose of arousing or
gratifying sexual desire[.]” 18 Pa.C.S. § 3101. To the extent that Appellant
is alleging that he is not the “person” who had this contact with the Child,
Appellant’s Brief at 11; 18 Pa.C.S. § 3101, this assertion is contradicted by
the Child’s unequivocal identification of Appellant as the “person” who “took
his two fingers” and “touched [her] privates.” N.T. Trial at 37-38. Ergo, the
evidence admitted at trial was sufficient to establish the element of “indecent
contact” as an element of indecent assault.
Next, Appellant challenges the sufficiency of the evidence to establish
EWOC, maintaining that the Commonwealth failed to establish that he “had
violated any duty of care to the victim.” Appellant’s Brief at 11. However,
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Appellant fails to provide any law or to articulate any reason why he would
not have a duty of care towards the Child, beyond his bald assertion. Id. at
11-12. For this reason alone, we could find this claim waived. See, e.g.,
Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (without a
“developed, reasoned, supported, or even intelligible argument[, t]he matter
is waived for lack of development”); In re Estate of Whitley, 50 A.3d 203,
209 (Pa. Super. 2012) (“The argument portion of an appellate brief must
include a pertinent discussion of the particular point raised along with
discussion and citation of pertinent authorities[; t]his Court will not consider
the merits of an argument which fails to cite relevant case or statutory
authority” (internal citations and quotation marks omitted));
Commonwealth v. Sullivan, 864 A.2d 1246, 1248-49 (Pa. Super. 2004)
(citing Commonwealth v. Mercado, 649 A.2d 946, 954 (Pa. Super. 1994)
(failure to provide support for an issue may result in waiver of the claim)).
Assuming this claim were not waived, we would find that Appellant had
a duty of care towards the Child, because Appellant is the Child’s relative, had
picked up the Child from the bus stop, and was babysitting her at his home
on the day of the incident. N.T. Trial at 52; Order, 4/4/2019, at 1. Thus, the
evidence was sufficient to find that Appellant, who was supervising the Child,
had a duty of care towards her at the time of the incident and that, by violating
this duty, Appellant committed EWOC.
Finally, Appellant challenges the weight of the evidence. Appellant’s
Brief at 12.
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When reviewing a challenge to the weight of the evidence, we
review the trial court’s exercise of discretion. A reversal of a
verdict is not necessary unless it is so contrary to the evidence as
to shock one’s sense of justice. The weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none
or some of the evidence and to determine the credibility of the
witnesses. The fact-finder also has the responsibility of resolving
contradictory testimony and questions of credibility. We give
great deference to the trial court’s decision regarding a weight of
the evidence claim because it had the opportunity to hear and see
the evidence presented.
Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (internal
citations and quotation marks omitted).
Appellant contends that “Dr. Clark testified that the injuries the victim
sustained were no more than 48 hours old” and that “the Commonwealth
presented no evidence that Appellant was near the victim within the time
frame Dr. Clark testified to.” Appellant’s Brief at 12-13.
This argument is belied by the record. The injury occurred on
December 15, 2017. Order, 4/4/2019, at 1. When Dr. Clark examined the
Child six days later, she found that the laceration had “no active bleeding at
the time.” N.T. Trial at 71. In her expert medical opinion, id. at 73, the fact
that the laceration “wasn’t bleeding” was evidence that the Child’s injury
“wasn’t . . . within the last 24 to 48 hours.” Id. at 75. Accordingly, Dr. Clark’s
unambiguous testimony established the opposite of what Appellant is
maintaining – i.e., Dr. Clark concluded that the injury had occurred greater
than 48 hours before the examination, not within the last 48 hours, as
Appellant claims. Compare id. at 71, 75, with Appellant’s Brief at 10. For
this reason, we conclude that the trial court did not abuse its discretion when
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it denied Appellant’s post-sentence motion for a new trial based upon the
weight of the evidence. Roane, 204 A.3d at 1001.
Based on the foregoing, Appellant is not entitled to relief on any of his
claims. Hence, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2019
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