Com. v. Hayward, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AYEOLA HAYWARD :
:
Appellant : No. 1048 EDA 2020
Appeal from the Judgment of Sentence Entered March 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002394-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 4, 2022
Ayeola Hayward appeals from the judgment of sentence entered
following her conviction for unlawful contact with a minor, indecent assault,
rape of a child, and involuntary deviate sexual intercourse with a child.
Hayward was found guilty of these crimes following a four-day jury trial and
was thereafter sentenced to an aggregate fifteen to thirty years’ incarceration.
At trial, the complainant testified he was eleven years old. See N.T.
11/6/2019 at 44. He further testified that Hayward lived in the complainant’s
home for a time and then moved to the complainant’s grandmother’s home
where they would see each other when the complainant spent days there
during the summer. See id. at 47-48.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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He stated he was six or seven years old the first time Hayward victimized
him. See id. at 55. He was downstairs at his grandmother’s house and
Hayward called for him to come upstairs and he saw her in the bathroom,
where she showed him her chest and asked him to comment on her
nakedness. See id. at 54. This behavior repeated many times, making the
complainant uncomfortable. See id. at 56-57. He recalled a specific incident
in the bathroom where Hayward made him put his penis in her mouth. See
id. at 74.
The complainant testified to other incidents as well. Some time after the
incidents in the bathroom, Hayward called the complainant from downstairs
to come upstairs into his aunt’s bedroom. See id. at 58. When the complainant
entered the room, Hayward was laying down on the bed and pulled her pants
down and told him to have sexual intercourse with her. See id. at 60. This
same situation happened multiple times when the complainant was between
the ages of six and seven. See id. at 63. Each time Hayward asked him to
choose whether to insert his penis into her anus or vagina. See id. at 61-63.
Eventually, the complainant stopped going to his grandmother’s house as
frequently and the abuse stopped. See id. at 67.
One day, years later, the complainant was watching the news with his
mother and heard a story of sexual abuse. See id. at 69. His mother asked
him if he was ever abused and he became emotional and told her about
Hayward’s attacks. See id. He later attempted to tell people about the abuse
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at his grandmother’s house but Hayward heard and stopped him, calling the
accusations a lie and pushing him to the ground. See id. at 68. Despite the
complainant’s disclosure, his mother chose not to report the abuse to the
police. See id. at 108-109. Later, the complainant was being evaluated by a
doctor for his yearly physical when the doctor noticed he had an emotional
response to the evaluation and asked the complainant if anything was wrong,
to which the complainant responded by again disclosing the abuse, which the
doctor reported. See id. at 110-111.
On appeal, Hayward claims that the evidence at trial was insufficient to
support a verdict on all charges and that her sentences for indecent assault
and unlawful contact are illegal.
We address Hayward’s sufficiency claim first. When reviewing a claim
that the evidence presented at trial was not sufficient to sustain the verdict,
we must view the evidence and all reasonable inferences we can draw from it
in the light most favorable to the Commonwealth. See Commonwealth v.
Steele, 234 A.3d 840, 845 (Pa. Super. 2020). We must determine whether
the evidence, when viewed in this light, was sufficient to prove each element
of the offense in question beyond a reasonable doubt. See id. It is not
necessary that the evidence presented by the Commonwealth eliminates all
possible theories of innocence. See id. The Commonwealth’s burden may be
reached by presenting only circumstantial evidence. See id. The jury holds
the responsibility to weigh the evidence and as an appellate court we do not
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re-weigh the evidence or substitute our judgment of the testimony for the
jury’s. See id.Here, Hayward does not challenge any specific element of any of her
convictions. Instead, her argument is that the complainant’s testimony was
so unreliable and contradictory that the jury could only speculate about her
guilt. Generally speaking, this challenge is best classified as a challenge to the
weight of the evidence. However, as Hayward notes, our jurisprudence has
recognized this claim as a challenge to the sufficiency of the evidence in
extreme cases where a witness provides inherently contradictory testimony or
where the basis of the witness’s testimony is clearly speculation. See, e.g.,
Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super. 1973) (finding
inconsistent testimony by Commonwealth’s main witness created situation
where jury could do nothing but speculate about the defendant’s guilt).
This Court has previously described the co-defendant's testimony in
Bennett that this Court found to be insufficient due to its inherent
contradictions:
several wholly different, conflicting and inconsistent versions of
when and how he had told [the defendant] that the car had been
in fact stolen by him. On a previous occasion Jones had denied he
had ever conveyed to defendant knowledge of the car's theft. With
each new version Jones would recant the previous one and protest
that the newest version was in fact the true one.
Com. v. Bibbs, 970 A.2d 440, 446 (Pa. Super. 2009). Therefore, for
testimony to be so inherently contradictory, it must display more than just
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inconsistencies, it must involve wholly incompatible stories that the witness
claims to be the absolute truth. As such we turn to analyze the crimes at issue
and the challenged testimony of the complainant. A person is guilty of indecent
assault of a person less than thirteen years of age under 18 Pa.C.S.A. § 3126
(a)(7) when, 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.” Indecent contact is defined
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.” 18 Pa.C.S.A.
§ 3101.
A person is guilty of rape of a child under 18 Pa.C.S.A. § 3121 (c) when,
“The person engages in sexual intercourse with a complainant who is less than
13 years of age.” Sexual intercourse is defined as, “In addition to its ordinary
meaning, includes intercourse per os or per anus, with some penetration
however slight; emission is not required.” 18 Pa.C.S.A. § 3101.
A person is guilty of involuntary deviate sexual intercourse with a child
under 18 Pa.C.S.A. § 3123 (b) when, “The person engages in deviate sexual
intercourse with a complainant who is less than 13 years of age.” Deviate
sexual intercourse is defined as, “Sexual intercourse per os or per anus
between human beings and any form of sexual intercourse with an animal.
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The term also includes penetration, however slight, of the genitals or anus of
another person with a foreign object for any purpose other than good faith
medical, hygienic or law enforcement procedures.” 18 Pa.C.S.A. § 3101.
A person is guilty of unlawful contact with a minor under 18 Pa.C.S.A. §
6318 (a)(1) if they are, “Intentionally in contact with a minor … for the purpose
of engaging in an activity prohibited under … any of the offenses enumerated
in Chapter 31 (relating to sexual offenses)”.
Here, there was testimony from the complainant establishing multiple
occasions of sexual contact, including penetration orally, anally, and vaginally
between the complainant and Hayward. See N.T. 11/6/2019 at 54-64. The
complainant testified that he was six and seven years old when the sexual
abuse occurred. See id. at 53. He testified that Hayward specifically called
him to come upstairs when he was downstairs at his grandmother’s house so
that she could execute the abuse. See id. at 54 and 56. The complainant’s
testimony was corroborated by the testimony of the medical expert who
examined the complainant for physical signs of the abuse he suffered. See id.
at 14. The doctor also recounted an interview with the complainant where he
disclosed the nature of the physical sexual abuse he suffered, including, “Oral
genital contact, breast to oral contact, and genital to anal contact.” Id. at 17.
The forensic interviewer who spoke to the complainant testified that he
recounted the sexual abuse and described Hayward forcing him to touch her
genitalia as well as putting her mouth on his genitalia. See id. at 140.
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On appeal, Hayward argues that the evidence presented at trial was
insufficient to sustain all the charges against her. See Appellant’s Brief at 14.
As noted previously, Hayward’s sufficiency argument fails to call attention to
any specific element which the Commonwealth has failed to prove, simply
raising claims of inconsistent testimony. See id. at 15-16. Further, Hayward
cites a discrepancy between the complainant’s story of how he disclosed the
abuse and his mother’s testimony of the disclosure. See id. at 16-17.
This discrepancy is far from the wholly incompatible stories told by the
co-defendant in Bennett. The complainant’s testimony referenced repeated
instances of criminal conduct by Hayward that occurred when the complainant
was a mere seven years old. That some of the instances were different from
the others, and that the complainant is not entirely clear about the
circumstances of each criminal episode is not the same as the co-defendant's
testimony in Bennett.
We agree with the Commonwealth’s assertion that Hayward’s challenges
to the consistency and credibility of the testimony do not properly invoke a
sufficiency claim but would be better suited to a weight of the evidence claim.
See Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000).
However, there is no weight claim before us for review.
When viewed in the light most favorable to the Commonwealth the
evidence presented at trial is sufficient to support Hayward’s convictions. The
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complainant’s testimony established all elements of the charges, as outlined
above and the jury weighed that evidence, as is their duty. Further, we note
that inconsistency between witness’ testimony does not equate to insufficient
evidence. See Commonwealth v. Montini, 712 A.2d 761, 767 (Pa. Super.
1998). We have repeatedly held that even uncorroborated testimony of a
sexual assault complainant is sufficient for conviction. See Commonwealth
v. Cramer, 195 A.3d 594, 602 (Pa. Super. 2018). Here, the complainant’s
corroborated testimony established all the elements of the charges and was
sufficient to sustain the verdict.
Hayward next argues that her sentences for indecent assault and
unlawful contact exceed the sentencing court’s authority and are illegal.
Hayward was sentenced to fifteen to thirty years’ incarceration for her
conviction of indecent assault of a person less than 13 years of age under 18
Pa. C.S.A. § 3126 (a)(7) and fifteen to thirty years’ incarceration for her
conviction of unlawful contact with a minor under 18 Pa. C.S.A. § 6318 (a)(1).
See Order of Sentence, 3/6/2020.
Hayward claims that her conviction for indecent assault, as a third-
degree felony, carries a maximum penalty of seven years’ incarceration under
18 Pa.C.S.A. § 1103 (3). The trial court concedes that resentencing is
appropriate on this charge. See Trial Court Opinion, 12/2/2020, at 22. We
agree.
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For her sentence for unlawful contact with a minor, Hayward argues that
because the charge is graded as a first-degree felony, the maximum penalty
under 18 Pa.C.S.A. § 1103 (1) is twenty years’ incarceration. The gradation
for unlawful contact with a minor follows the most serious underlying offense
which caused the contact. 18 Pa.C.S.A. § 6318 (b)(1). In this case, Hayward
was convicted of two first-degree felonies and one third-degree felony, so the
unlawful contact charge was properly graded as a first-degree felony. Hayward
argues that just because the underlying offenses of rape of a child and IDSI
allow maximum sentences of forty years’ incarceration, this does not extend
the maximum legal sentence for unlawful contact above the statutory
maximum of twenty years’ incarceration for a first-degree felony. See
Appellant’s Brief at 21. The trial court reasoned that it correctly increased the
sentence for unlawful contact in relation to the statutes for rape of a child and
IDSI. See Trial Court Opinion, 12/2/2020, at 21-22.
We find no authority to support the trial court’s reasoning that it properly
increased the sentence for unlawful contact beyond that of a typical first-
degree felony under 18 Pa.C.S.A. § 1103 (1). Indeed, § 6318 (b)(1) states
merely that the crime of unlawful contact with a minor is to be “graded” as
the same grade of the most serious underlying offense. It does not provide
that the sentence is to be the same as the underlying offense. We do not see
any ambiguity in this language, but even if we did, we must construe the
language in favor of Hayward. See Commonwealth v. Reed, 9 A.3d 1138,
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1142 (Pa. 2010). As a result, the statutory maximum sentence for unlawful
contact with a minor in this case was twenty years. See 18 Pa.C.S.A. § 1103.
However, we need not remand for re-sentencing. We note that the trial
court chose to impose Hayward’s sentences concurrently to her fifteen-to-
thirty-year sentence for rape of a child. Hayward does not challenge that
sentence, and its term is equal to the sentences illegally imposed by the trial
court. Further, the Commonwealth concedes that vacating these two
sentences will not impact Hayward’s overall penalty. See Commonwealth’s
Brief, at 14-5. As a result, we may directly amend the sentences for unlawful
contact and indecent assault to their statutory maximums because these
amendments will not alter the sentencing scheme and clearly reflect the trial
court’s intent. See Commonwealth v. Eberts, 422 A.2d 1154, 1156
(Pa.Super. 1980) (per curiam) (“Where a case requires a correction of
sentence, this [C]ourt has the option of either remanding for resentencing, or
amending the sentence directly”).
We therefore amend the judgment of sentence for Hayward’s unlawful
contact with a minor conviction to ten to twenty years’ incarceration. Similarly,
we amend her conviction for indecent assault to three and one half to seven
years’ incarceration. In all other respects, the sentence is affirmed.
Convictions affirmed. Judgment of sentence amended in part and
affirmed in part. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2022
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