Com. v. Baker-Myers, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA :
: IN THE SUPERIOR COURT OF
v. : PENNSYLVANIA
:
:
JAMES DUANE BAKER-MYERS :
:
Appellant :
: No. 1398 WDA 2016
Appeal from the Judgment of Sentence August 19, 2016
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001303-2015
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 29, 2017
Appellant, James Duane Baker-Myers, appeals from the judgment of
sentence entered in the Mercer County Court of Common Pleas after a jury
found him guilty of corruption of minors graded as a felony of the third degree1
(“felony-three COM”), but acquitted of him rape, sexual assault, aggravated
indecent assault, and indecent assault2 (collectively, “the sexual offenses”).
Appellant claims that the evidence was insufficient to convict him of felony-
three COM because he was acquitted of the sexual offenses and his acts did
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 6301(a)(1)(ii).
2 18 Pa.C.S. §§ 3121, 3124.1, 3125, 3126, respectively.
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not constitute a course of conduct. For the reasons that follow, we affirm in
part, vacate in part, and remand for resentencing for COM graded as a
misdemeanor of the first degree3 (“misdemeanor-one COM”).
The trial evidence, when read in a light most favorable to the
Commonwealth, establishes the following. On July 19, 2015, Appellant, a
twenty-year old male, attempted to contact S.C., a seventeen-year-old
female, by phone and over text message multiple times. N.T. Jury Trial, 4/12-
13/16, at 15, 18-19, 22-23. Appellant informed S.C. that he needed to talk
to her about a problem and would only discuss the issue in person. Id. at 23-
24.
At 9 p.m., Appellant arrived at S.C.’s home and called S.C. to come
outside so the two could talk. Id. at 25. S.C. went outside and got on the
back of Appellant’s dirt bike to go for a ride. Id. Appellant drove S.C. to a
nearby baseball field and convinced S.C. to leave her phone there so the two
could talk in private. Id. at 26, 31. Appellant then drove S.C. to a secluded
area that they previously visited on numerous occasions. Id. at 33-35.
Once there, Appellant and S.C. discussed some of Appellant’s personal
issues. Id. at 36. Appellant began to touch S.C.’s breasts from behind. Id.
at 40. S.C. informed Appellant that she “didn’t feel that way about him[,]”
but Appellant stated that he felt as if she did like him. Id. at 39-40. Appellant
began to try to take off S.C.’s top, although S.C. resisted. Id. at 40-41. Once
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3 18 Pa.C.S. § 6301(a)(1)(i).
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Appellant took S.C.’s top off, he tossed it into the bushes, and he picked S.C.
up, and placed her on the grass. Id. at 42-43.
Appellant and S.C. began to talk about other matters. Id. at 43.
Thereafter, Appellant got on top of S.C., sat on S.C.’s legs, and put his weight
down on S.C. so that her arms were pinned behind her back. Id. at 43-44.
S.C. stated that she “did not want to do this.” Id. at 45. Nonetheless,
Appellant took off S.C.’s shorts and undergarments and threw them in the
bushes. Id. at 45-46. Appellant then digitally penetrated S.C.’s vagina. Id.
at 46.
Thereafter, while Appellant stood up to disrobe, S.C. attempted to
retrieve her clothes and leave, but Appellant stopped S.C. and placed her back
on the ground. Id. at 47. S.C. again stated that she “did not want to do
this[.]” Id. at 48. Appellant then inserted his penis into S.C.’s vagina. Id.
Although S.C. protested and asked Appellant to stop, Appellant continued, and
stated to S.C., “[Y]ou probably like [me].” Id. at 49.
Appellant was charged with felony-three COM and the sexual offenses
assault. On April 13, 2016, a jury found him guilty of felony-three COM. On
August 19, 2016, the trial court sentenced Appellant to one to two years’
imprisonment4 and a consecutive three years’ probation. Appellant did not
file post-sentence motions.
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4As discussed below, the trial court’s sentence was at the top of the suggested
standard range minimum sentence for felony-three COM.
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Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925(b).
Appellant presents the following questions for appeal:
Whether the jury’s verdict on the charge of [felony-three
COM] was not supported by sufficient evidence since a
material element of the offense was the commission of a
Chapter 31 offense and Appellant was found not guilty of all
four of the [sexual offenses] charged[?]
Whether the jury’s guilty verdict on the charge of [felony-
three COM] was not supported by sufficient evidence since
the evidence failed to establish Appellant’s acts constituted
a “course of conduct[?”]
Appellant’s Brief at 5.
We address Appellant’s arguments together. Appellant first contends
that
the jury’s guilty verdict on [felony-three COM] is irreconcilably
inconsistent with its not guilty verdicts on the only four . . . sexual
offenses. Since the guilty verdict of the [felony-three COM]
charge required proof that Appellant committed a Chapter 31
offense against the victim, . . . Appellant was found not guilty of
all charged [sexual] offenses and the jury was not instructed
regarding the elements of any other Chapter 31 offenses, the
[felony-three COM] conviction should be vacated.
Id. at 14. Appellant acknowledges that “existing law does not require absolute
consistency in jury verdicts on separate offenses” but asserts that “the present
case offers the perfect example why this law should be reversed and the jury’s
guilty verdict on [felony-three COM] charge set aside.” Id. at 11. Appellant
further argues that the Commonwealth failed to establish a course of conduct
necessary to convict him of felony-three COM because he “engaged in one
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sexual encounter with the victim.” Id. at 17. We agree with Appellant to the
extent that there was insufficient evidence to sustain a conviction for felony-
three COM based on the jury’s verdicts.
The standards governing our review of the sufficiency of the evidence
are well settled.
A claim challenging the sufficiency of the evidence is a
question of law. 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. Where the
evidence offered to support the verdict is in contradiction to
the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as
a matter of law. When reviewing a sufficiency claim[,] the
court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Kelly, 102 A.3d 1025, 1028 (Pa. Super. 2014) (citation
omitted).
Additionally,
A challenge to the legality of a sentence may be raised as a
matter of right, is not subject to waiver, and may be
entertained as long as the reviewing court has jurisdiction.
“If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.
An illegal sentence must be vacated. We can raise and
review an illegal sentence sua sponte.” When we address
the legality of a sentence, our standard of review is plenary
and is limited to determining whether the trial court erred
as a matter of law.
Commonwealth v. Graeff, 13 A.3d 516, 517-18 (Pa. Super. 2011) (citations
omitted).
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Generally, inconsistent verdicts do not afford a defendant relief.
Federal and Pennsylvania courts alike have long recognized
that jury acquittals may not be interpreted as specific
factual findings with regard to the evidence, as an acquittal
does not definitively establish that the jury was not
convinced of a defendant’s guilt. Rather, it has been the
understanding of federal courts as well as the courts of this
Commonwealth that an acquittal may merely show lenity on
the jury’s behalf, or that “the verdict may have been the
result of compromise, or of a mistake on the part of the
jury.” Accordingly, the United States Supreme Court has
instructed that courts may not make factual findings
regarding jury acquittals and, thus, cannot “upset” verdicts
by “speculation or inquiry into such matters.”
Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014) (citations
omitted)
However, the Pennsylvania Supreme Court has recognized special cases
involving “largely idiosyncratic sufficiency or grading challenges.” Id. at 1247.
For example, in Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005),
the defendant was acquitted of terroristic threats, but convicted of ethnic
intimidation, which was defined as:
(a) Offense defined.--A person commits the offense of
ethnic intimidation if, with malicious intention toward the
race, color, religion or national origin of another individual
or group of individuals, he commits an offense under any
other provision of this article or under Chapter 33
(relating to arson, criminal mischief and other property
destruction) exclusive of section 3307 (relating to
institutional vandalism) or under section 3503 (relating to
criminal trespass) with respect to such individual or his or
her property or with respect to one or more members of
such group or to their property.
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18 Pa.C.S. § 2710(a) (emphasis added). The defendant appealed his ethnic
intimidation conviction, and this Court reversed, concluding that “proof [of
ethnic intimidation] is dependent upon the establishment of a predicate
crime[, e.g., terroristic threats].” Commonwealth v. Magliocco, 806 A.2d
1280, 1285 (Pa. Super. 2002). The Commonwealth appealed to the
Pennsylvania Supreme Court. Magliocco, 883 A.2d at 490.
The Magliocco Court initially agreed with the Commonwealth that the
Commonwealth “was not required to secure a formal conviction for the
predicate crime of terroristic threats in order to secure a conviction for ethnic
intimidation based upon such terroristic threats.” Id. at 492. However, the
Court reversed the ethnic intimidation conviction, reasoning that:
[o]ur difficulty with the Commonwealth’s position arises
from the necessary effect of an actual acquittal of a crime
in the admittedly unusual circumstance presented here,
where that crime is both separately charged and prosecuted
and is also a specific statutory element of another charged
offense.
. . . But, the Commonwealth did not merely allege that, for
purposes of an ethnic intimidation prosecution, [the
defendant] committed terroristic threats with a malicious
racial animus. Instead, the predicate offense was actually
charged and actually prosecuted, and that prosecution
resulted in an acquittal—a finding that, for whatever reason,
the Commonwealth failed to prove beyond a reasonable
doubt that the defendant “committed” terroristic threats.
Given the special weight afforded acquittals, since the
factfinder in this case specifically found that [the defendant]
did not commit the offense of terroristic threats, the
conviction for ethnic intimidation, which requires as an
element the commission beyond a reasonable doubt of the
underlying offense, simply cannot stand.
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Id.at 492-93 (emphasis added). Thus, the Magliocco Court affirmed this
Court’s order reversing the defendant’s ethnic intimidation conviction. Id. at
493.
In sum, then, the general rule is that inconsistent verdicts do not equate
to a specific finding of fact and will not afford a defendant relief. Moore, 103
A.3d 1240, 1246. However, there remains a limited exception under
Magliocco where one offense specifically incorporates the commission of a
predicate offense as an element and the predicate offense is charged and
actually prosecuted. In such cases, the factfinder cannot logically convict the
defendant of an overarching offense (e.g., ethnic intimidation) while acquitting
him of the predicate offense (e.g., terroristic threats). Magliocco, 883 A.2d
at 492 n.11.
Turning to the present case, Section 6301 of the Crimes Code states:
(a) Offense defined.--
(1)(i) Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act
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 any
crime, or who knowingly assists or encourages such
minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree.
(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.
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18 Pa.C.S. § 6301(a)(1)(i)-(ii) (emphasis added).
In Kelly, this Court construed the phrase “any course of conduct in
violation of Chapter 31” as requiring multiple acts that constitute offenses
under Chapter 31. Kelly, 102 A.3d at 1031-32 & n.4. The Kelly Court further
found the evidence insufficient to prove felony-three corruption of minors
where the defendant was convicted of indecent assault based on a “single act”
that occurred when the defendant restrained the victim while bathing the
victim, covered the victim’s mouth, and grabbed the victim’s genitals. Id. at
1032. The Court reasoned:
Even viewing the evidence in a light most favorable to the
Commonwealth as the verdict winner, there was only one
prohibited act in violation of Chapter 31 that was alleged
and proven. That occurred when Appellant grabbed Z.K.'s
genitals. Although that single act violated three separate
provisions of the indecent assault statute, it did not
constitute a “course of conduct” within the plain and
universally accepted meaning of that phrase. Furthermore,
although Appellant restrained Z.K. while committing the
indecent assault, that action was not itself a violation of
Chapter 31. And, not inconsequentially, the restraining
actions and the indecent assault occurred simultaneously.
Accordingly, there was not sufficient evidence to support the
felony grading of the corruption of minors statute as set
forth in subsection (a)(1)(ii).
Id.
Kelly makes clear that felony-three COM, like the ethnic intimidation
statute discussed in Magliocco, requires that the defendant commit predicate
crimes, that is, that a defendant’s multiple acts constitute violations of Chapter
31. See id.; Magliocco, 883 A.2d at 492-93. Thus, the same “unusual
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circumstance” presented in an ethnic intimidation conviction may arise in a
felony-three COM conviction when the “predicate crime[s are] both separately
charged and prosecuted” and the jury returns with acquittals on the predicate
offenses. See Magliocco, 883 A.2d at 492.
A review of the record here compels the conclusion that an unusual
circumstance arose in the instant case. Appellant was charged with numerous
sexual offenses including rape, sexual assault, aggravated indecent assault,
indecent assault, and corruption of minors graded as a felony of the first
degree. The Commonwealth filed an information reciting that all offenses
arose out of an “incident occurring along an abandoned railroad grade” on a
single day. Information, 11/2/15, Counts 1-5. The trial evidence conformed
to the Commonwealth’s initial allegations. The trial court initially instructed
the jury on all offenses. Following the initial charge by the court, the parties
requested a new instruction on felony-three COM. Appellant asserted that to
find him guilty of [felony-three COM], the jury was required to find him guilty
of “one or the other offenses as charged against him.” N.T. Jury Trial at 145-
46. The Commonwealth responded that “it would be necessary to make it
clear to the jury that the . . . sexual assault, rape, and indecent assault, and
aggravated indecent assault are all under chapter 31 of the crimes code.” Id.
at 145. The trial court thereafter issued the following instruction:
Whoever being of the age of 18 and upwards by any course
of conduct in violation of Chapter 31, relating to the other
sexual offenses being rape, sexual assault, indecent
assault, corrupts or tends to corrupt the morals of any
minor of less than 18 years of age or aids, abets, entices,
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or encourages such minor in the commission of an offense
under Chapter 31, again the sexual offenses commits a
felony of the third degree.
Id. at 147 (emphasis added). The trial court, in response to a question by
the jury, instructed the jury by reading the general definition of the offense
without reference to the sexual offenses charged. N.T., Jury Question &
Verdict, 4/13-14/16, at 3-4.
It bears reiteration that the Commonwealth was not required to charge
or obtain convictions for Chapter 31 crimes to convict Appellant of felony-
three COM. However, the predicate offense to felony-three COM were
“actually charged and actually prosecuted, and that prosecution resulted in
acquittal[s].” Magliocco, 883 A.2d at 492. Thus, the present case is
indistinguishable from Magliocco as the Commonwealth failed to prove the
“course of conduct in violation of Chapter 31.” See id. (noting “to secure a
conviction for any crime, the Commonwealth must prove all necessary
elements beyond a reasonable doubt” (citation omitted)). Therefore, there is
some merit to Appellant’s challenge to the sufficiency of the evidence.5
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5 Unlike Commonwealth v. Aikens, 168 A.3d 137 (Pa. 2017), the trial
court’s instructions in this case do not cure the inconsistent verdict issue
raised under the circumstances of this case.
In Aikens, the Pennsylvania Supreme Court discussed the interaction
between the grading provisions of unlawful contact with a minor (“unlawful
contact”) and the trial court’s jury instructions. See id. at 143-44. The
grading provisions for unlawful contact set a default grade of the offense as a
felony-three. If the defendant unlawfully contacted a minor for the purpose
of engaging in a felony-one or felony-two Chapter 31 sexual offense,
however, the unlawful contact would be graded the same as highest graded
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However, as to the relief due, Kelly made clear that subsection (a)(1)(i)
of the COM statute is a lesser-included offense of subsection (a)(1)(ii).
Specifically, the Court observed:
the first part of both subsections of 18 Pa.C.S. § 6301(a)(1)
require a defendant to do something that “corrupts or tends
to corrupt the morals of any minor less than 18 years of
age....” 18 Pa.C.S. § 6301(a)(1)(i), (ii). In the case of the
first part of subsection (a)(1)(i), that ‘something’ is “any act
. . . .” In the case of the first part of subsection (a)(1)(ii),
that ‘something’ is “any course of conduct in violation of
Chapter 31 . . . .” These are not different elements. Rather,
the first provision of subsection (a)(1)(ii) requires additional
elements not required by the first provision of subsection
(a)(1)(i). . . . Thus, the first provision of subsection (a)(1)(i)
is a lesser included ‘offense’ of the ‘offense’ defined by the
first part of subsection (a)(1)(ii).
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offense for which the defendant contacted the minor. Id. at 138-39
(discussing 18 Pa.C.S. § 6318(a)(1), (b)). The defendant in Aikens was
convicted of unlawful contact, acquitted for involuntary deviate sexual
intercourse (IDSI), a felony-one Chapter 31 offense, and was sentenced for
felony-one unlawful contact. Id. at 138.
The Aikens Court rejected the defendant’s argument that the unlawful contact
should have been graded as a felony-three. The trial court’s jury instruction
in Aikens made clear that the jury intended to find the defendant guilty for
unlawful contact for the purposes of engaging in IDSI. Id. at 143. The Court
further added that Magliocco did not apply to the unlawful contact charge
because there was no logical inconsistency between the conviction for unlawful
contact and the acquittal for IDSI. Id. at 144-45. The Court reasoned that
unlawful contact only required that the defendant unlawfully contacted the
minor victim for purposes of engaging in IDSI, and the defendant was not
required to complete a predicate Chapter 31 offense. See id.
Unlike the unlawful contact statute, felony-three COM is a distinct statutory
offense that requires proof of an element that the defendant commit sexual
offenses. See id. at 144-45; Kelly, 102 A.3d at 1031-32 & n.4. Therefore,
Aikens is not controlling.
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Kelly, 102 A.3d at 1032-33. Subsection(a)(1)(i) contains no reference to
predicate offenses. Moreover, this Court has consistently held that acquittals
for sexual offenses do not affect the integrity of a conviction for misdemeanor-
one COM under the former statute that is currently reorganized in
subsection(a)(1)(i). See Commonwealth v. Bricker, 580 A.2d 388 (Pa.
Super. 1990); Commonwealth v. Anderson, 550 A.2d 807 (Pa. Super.
1988). Therefore, we conclude that Appellant’s conviction for felony-three
COM must be vacated, but that a conviction for misdemeanor-one COM
remains valid as a lesser-included offense.6
Lastly, the trial court’s sentence in this case—one to two years’
imprisonment followed by three years’ probation—does not exceed the five-
year maximum penalty for a misdemeanor-one offense. See 18 Pa.C.S. §
1104(1). Nevertheless, because the offense gravity score is six for felony-
three COM and four for misdemeanor-one COM, this decision affects not only
the proper grading of Appellant’s conviction, but also the proper starting point
for sentencing.7 Therefore, resentencing is required.
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6 Because this decision rests upon the narrow exception set forth in
Magliocco, we need not consider Appellant’s arguments that the general rule
regarding inconsistent verdicts be reversed, or that his multiple offense over
a short period of time did not constitute a course of conduct. Cf. Graeff, 13
A.3d at 517-18.
7 Given Appellant’s prior record score of zero, the standard range minimum
sentence is three to twelve months for felony-three COM, while the standard
range minimum sentence is restorative sanctions to three months for
misdemeanor-one COM. See 204 Pa.Code. 303.16(a). Thus, the trial court’s
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Judgment of sentence affirmed in part and vacated in part. Case
remanded for resentencing on misdemeanor-one COM. Jurisdiction
relinquished.
Judge Solano joins the Memorandum.
Judge Stabile files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
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sentence of one to two year’s imprisonment fell at the top end of the standard
range for a felony-three COM, but the same sentence would represent an
outside the guideline sentence for a misdemeanor-one COM.
Additionally, our decision necessarily upsets the sexual offender registration
requirements imposed on Appellant. Although felony-three COM is a Tier I
offense, misdemeanor-one COM is not classified as a sexually violent offense.
See 42 Pa.C.S. § 9799.14(b)(8).
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