Com. v. Kovack, T. ( 2023 )

J-S17038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS R. KOVACK :
:
Appellant : No. 1127 WDA 2022
Appeal from the Judgment of Sentence Entered June 8, 2022
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001084-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS R. KOVACK :
:
Appellant : No. 1128 WDA 2022
Appeal from the Judgment of Sentence Entered June 8, 2022
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001085-2020
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: July 28, 2023
Appellant, Thomas R. Kovack, appeals from the judgments of sentence
entered in the Beaver County Court of Common Pleas, following his jury trial
conviction at Case No. 1084-2020 for three counts of indecent assault—person
less than 13 years of age, one count of unlawful contact with a minor—sexual
offenses, three counts of corruption of minors, and two counts of indecent
J-S17038-23
assault without consent;1 and at Case No. 1085-2020 for one count each of
unlawful contact with a minor—sexual offenses, indecent assault—person less
than 13 years of age, corruption of minors, and indecent assault without
consent. We affirm.
The relevant facts and procedural history of these cases are as follows.
On May 11, 2020, Midland Borough Police received a child line report
concerning the sexual assault of an eight-year-old minor, J.M., which occurred
at J.M.’s house. Police arrested Appellant as the perpetrator of the assault.
During their investigation, detectives also learned about Appellant’s assault of
a five-year-old minor, A.L., which occurred in A.L.’s home. Detectives further
learned that a third individual, T.T., reported that Appellant had previously
assaulted her when she was a child. The families of the minor victims knew
each other and would participate in family outings together; both families had
longstanding relationships with Appellant.
[At trial,] J.M. identified Appellant as someone that she
knew. She described the incident that occurred in the fort
that was made of blankets and pillows. In her words, she
stated that Appellant touched her “on [her] private part and
[her] bum,” and the contact occurred underneath her
clothes. She stated that she was just “playing in the tent”
and Appellant pulled her over to him and began touching
her in the manner that she described. She testified that she
tried to “scoot” away from him as he was touching her but
that she thought that Appellant pulled her closer to [him].
J.M. testified that the touching that occurred through the
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1 18 Pa.C.S.A. §§ 3126(a)(7), 6318(a)(1), 6301(a)(1)(i), and 3126(a)(1),
respectively.
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open area of the tent while J.M. unsuccessfully tried to scoot
away from Appellant made J.M. feel uncomfortable.
The incident that occurred on April 9, 2020, was also
detailed during the testimony of J.M. J.M. testified she was
in her father’s bedroom, at that time the television was on,
but her back was turned to the television because she was
coloring on her father’s notebook. Appellant came over to
J.M. and started touching her. J.M. testified that Appellant
was touching her on her “bum,” that Appellant was touching
her underneath her clothes and that his hands were
touching her skin. She confirmed that her father came into
the room and saw what Appellant was doing to J.M.
J.M. also testified that there was another incident involving
Appellant. The third incident occurred at a close family
friend’s house. At that time, Appellant told J.M. to take off
her clothes and lay on him. J.M. did not give in to his
demands on that day. Appellant did not object to this
testimony, did not request a cautionary instruction and did
not request a cautionary instruction to be included in the
final instructions of the court.
* * *
During the testimony of the minor, A.L, she acknowledged
that she knew Appellant and that she became aware of
Appellant when he lived at [her] grandmother’s house. The
child testified that, as of the date of her testimony, she was
7 years old. On the date that the incident occurred, A.L.
was dropped off at Appellant’s home by the child’s
grandmother. The grandmother did not remain on the
premises. Shortly after the child arrived at Appellant’s
residence, Appellant took A.L. upstairs in the apartment.
The child was then taken into one of the bedrooms located
on the second floor of the apartment. The child was then
instructed by Appellant to remove her clothes. She went in
the bathroom where her clothes were removed. Appellant
told the now unclothed child to come out of the bathroom.
When she came out of the bathroom Appellant was now on
the bed with no clothes on and a brown towel covering his
“private parts.”
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Once the child was on the bed and Appellant was on the bed
with the brown towel draped over his middle area Appellant
then told the child “to get on top of him.” The child did as
instructed by Appellant[. W]hen the child complied with the
demands of Appellant, Appellant then made the child “go up
and down” on Appellant in the area where the towel was
located. While the child was doing as instructed by
Appellant, Appellant was rubbing the child’s “butt” with his
hands. Eventually, Appellant instructed the child to get off
of Appellant and the child, once again, complied with his
request. The child was then laying on the bed face up.
Appellant then removed the brown towel from his person
and placed it on the child. Appellant then got on top of the
child and, in the child’s words, “he went up and down” on
the child as she lay on the bed. Eventually Appellant got off
of the child; the child and Appellant put their clothes back
on and then went downstairs in Appellant’s apartment.
Appellant and the child awaited the arrival of J.M. and her
mother, as A.L. was scheduled to spend some time with []
J.M. that day. When J.M. and her mother arrived at
Appellant’s home, A.L., [J.M.] and her mother were
transported to their home by Appellant. A.L. spent the early
part of the evening at that home before she returned to her
own home shortly after 9:00 p.m.
* * *
At the end of the day…A.L. was still at the home of [J.M. and
her mother] and she was visibly upset. A.L.’s mother had
to pick up A.L. and take her home because of her emotional
state. The child did not immediately disclose what Appellant
did to her on that date, but she eventually disclosed the
incident to her mother and her grandmother.
* * *
T.T., age 29 at the time of the trial, provided testimony
regarding her experience with Appellant that occurred when
she was a child. This evidence was introduced pursuant to
an agreement between the parties…[where] Appellant
consented to the introduction of this [Pa.R.E.] 404(b)(2)
evidence in consideration of the Commonwealth’s
agreement to dismiss a third set of charges arising out of
the alleged assault of T.T. that were filed against Appellant.
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T.T. testified that when she was between three and five
years old that Appellant would take her to a bedroom at her
grandmother’s house and engage in inappropriate sexual
conduct with her. That conduct consisted of multiple times
where he removed her bathing suit and masturbated over
her.
(Trial Court Opinion (Case No. 1084), 11/28/22, at 7-15) (footnotes omitted).
The trial court consolidated Cases 1084 and 1085 for trial.2 At the
conclusion of trial, the jury convicted Appellant of the aforementioned
charges. On June 8, 2022, the trial court sentenced Appellant to an aggregate
term of 30 to 70 months of incarceration at Case 1084. The court imposed a
concurrent sentence of 9 to 20 months’ incarceration plus a two-year term of
probation at Case 1085.3 On June 10, 2022, Appellant filed a timely post-
sentence motion and a motion for appointment of appellate counsel. The trial
court granted the motion for appointment of appellate counsel on June 8,
2022, and denied the post-sentence motions on September 16, 2022.
Appellant filed timely notices of appeal at each case on September 26, 2022.4
Appellant further complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and he filed a
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2 The charges at Case 1084 related to Appellant’s assault on J.M. The charges
at Case 1085 related to Appellant’s assault on A.L.
3 The trial court subsequently issued an amended sentencing order, which
corrected a patent, clerical error.
4 This Court consolidated the appeals sua sponte.
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timely concise statement on October 18, 2022.
Appellant raises the following issues on appeal:
Whether Appellant’s conviction should be reversed because
the Commonwealth failed to present sufficient evidence to
prove Appellant’s guilt beyond a reasonable doubt as to the
element of contacting or communicating with a minor?
Whether Appellant’s conviction should be reversed because
trial coun[s]el’s failure to request a limiting instruction
regarding uncharged conduct so undermined the tru[t]h
determining process that no reliable adjudicat[io]n of guilt
or innocen[c]e could have taken place?
Whether Appellant’s conviction should be reversed because
the trial court’s failure to give a limiting instruction
regarding uncharged conduct so undermined the tru[t]h
determining process that no reliable adjudicat[io]n of guilt
or innocen[c]e could have taken place?
(Appellant’s Brief at 8) (unnecessary capitalization omitted).
In his first issue, Appellant argues that the evidence underlying his
unlawful contact with a minor conviction was insufficient because the
Commonwealth failed to prove that Appellant communicated with J.M. for the
purpose of engaging in a sexual offense.5 Specifically, Appellant claims that
the evidence established that in the first incident, in the fort, Appellant sat
down next to J.M. and touched her, but that no verbal communication took
____________________________________________
5 In his questions presented, Appellant does not specify whether he is
challenging the sufficiency of the evidence for his conviction of unlawful
contact at Case 1084 (related to his assault on J.M.) or at Case 1085 (related
to his assault on A.L.). Nevertheless, Appellant’s argument section pertains
only to J.M. Thus, we limit our review to the sufficiency of the evidence
regarding Appellant’s unlawful contact conviction at Case 1084 related to J.M.
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place. In the second incident, on the bed, Appellant contends that J.M. was
already sitting in the bed and he lifted her nightgown and touched her; but
Appellant maintains there was no evidence of verbal or nonverbal
communication. Finally, Appellant insists that J.M.’s testimony about the third
incident—where he directed her to lie on top of him with her clothes off—was
not charged and should not be used to establish his guilt of unlawful conduct
with a minor. Appellant concludes the evidence was insufficient to sustain his
conviction for unlawful contact with a minor, and this Court must reverse. We
disagree.
Our well-settled standard and scope of review for a challenge to the
sufficiency of the evidence underlying a conviction are as follows:
When examining a challenge to the sufficiency of the
evidence:
The standard we apply…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 fact-finder. 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
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must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all,
part or none of the evidence.
This standard is equally applicable in cases where the
evidence is circumstantial, rather than direct, provided that
the combination of evidence links the accused to the crime
beyond a reasonable doubt.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),
appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations, quotation
marks, and emphasis omitted).
The Crimes Code defines unlawful contact with a minor as follows:
§ 6318. Unlawful contact with minor
(a) Offense defined.−A person commits an offense if he
is intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has
assumed the identity of a minor, for the purpose of engaging
in an activity prohibited under any of the following, and
either the person initiating the contact or the person being
contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating
to sexual offenses).
* * *
(c) Definitions.−As used in this section, the following
words and phrases shall have the meanings given to them
in this subsection:
* * *
“Contacts.” Direct or indirect contact or communication by
any means, method or device, including contact or
communication in person or through an agent or agency,
through any print medium, the mails, a common carrier or
communication common carrier, any electronic
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communication system and any telecommunications, wire,
computer or radio communications device or system.
18 Pa.C.S.A. § 6318(a)(1), (c). “Even though the statute is entitled ‘unlawful
contact with a minor,’ it is best understood as ‘unlawful communication with
a minor.’ By its plain terms, the statute prohibits the act of communicating
with a minor for enumerated sexual purposes.” Commonwealth v. Rose,
960 A.2d 149, 152-53 (Pa.Super. 2008), appeal denied, 602 Pa. 657, 980
A.2d 110 (2009). Additionally, “the uncorroborated testimony of a single
witness is sufficient to sustain a conviction for a criminal offense, so long as
that testimony can address and, in fact, addresses, every element of the
charged crime.” Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.Super.
2018), appeal denied, 651 Pa. 431, 205 A.3d 315 (2019).
In Commonwealth v. Velez, 51 A.3d 260 (Pa.Super. 2012), this Court
affirmed the conviction of the defendant for unlawful contact with a minor
after the victim’s mother found the defendant molesting her daughter who
was nude from the waist down with her knees up and legs apart. This Court
explained that “[t]he victim would not have had her pants removed and her
legs in that position absent previous contact by [the defendant], either verbal
or physical.” Id. at 266. Therefore, this Court concluded it was “reasonable
to infer that [the defendant] directed the victim, either verbally or nonverbally,
to unclothe below the waist and to assume that pose.” Id.In Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015), this
Court distinguished Velez and held that evidence that the defendant touched
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the victim’s chest and buttocks while the victim was sleeping did not establish
the communication necessary for unlawful contact with a minor. This Court
explained that the defendant did not say anything or communicate to the
victim to assume any certain position or to submit to any given act. Id. at
80.
Instantly, in addressing Appellant’s sufficiency challenge, the trial court
explained that Appellant intruded the space that J.M. had created for herself
in the fort she built and communicated to her by his actions that he was going
to touch her buttocks and genitalia. She then attempted to scoot away from
him, but Appellant pulled her closer to him as she tried to scoot away. In
doing so, Appellant communicated that the assault was going to continue, and
J.M. needed to position herself closer to him. (See Trial Court Opinion (Case
No. 1084) at 18-19). With respect to the second incident, the trial court
explained:
The incident with J.M. that occurred on April 9, 2020 was
also ripe with communications as that term has developed
in Pennsylvania law. Appellant invaded the space where
J.M. chose to be alone. He entered the bedroom quietly in
a manner from which it can be inferred was done so as not
to provide J.M. with the chance to exit that bedroom before
the adult intruder could begin his assault. He entered that
room to assault an eight-year old child who was in the habit
of putting something in front of doors of rooms that she was
trying to block him from coming into those rooms because
she did not want him to touch her anymore. ([N.T. Trial,
3/10/22,] at 103). Once he began his assault of J.M., he
inserted his hands under the clothing being worn by J.M.
Now his bare skinned hands were in contact with J.M.’s
buttocks. (Id. at 127). The communication to be inferred
from that nonverbal communication was that you will
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remain here but the touching will involve me manipulating
you so that my hands can go under your clothing and up
your leg. Finally, when J.M.’s father entered the room and
observed that assault occurring on J.M. and observed J.M.
in the position with Appellant holding up her clothing with a
rod, it was reasonable to infer that Appellant communicated
with the victim, either nonverbally or verbally, to assume
the position in which her father found her. …
(Id. at 19-20).
We agree with the trial court’s analysis that the evidence was sufficient
to establish that Appellant was in contact with J.M. for a sexual purpose. See
Johnson, supra; Rose, supra. This case is distinguishable from Leatherby,
because here J.M. was awake and there is evidence that Appellant nonverbally
communicated to her that she must submit to his unwanted touching of her
private parts. Viewed in the light most favorable to the Commonwealth as
verdict-winner, the evidence was sufficient to sustain Appellant’s conviction.
See Orr, supra. Appellant’s first issue is meritless.
Regarding Appellant’s second and third issues on appeal, we observe
that Appellant failed to include any argument concerning these issues in the
discussion portion of his brief. Therefore, those issues are waived. See
Pa.R.A.P. 2119(a); Commonwealth v. Hakala, 900 A.2d 404 (Pa.Super.
2006), appeal denied, 589 Pa. 737, 909 A.2d 1288 (2006) (stating failure to
develop argument on appeal results in waiver). Accordingly, Appellant’s final
two issues are waived, and we affirm the judgments of sentence.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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