Com. v. Malliard, J.

J-A29032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY ALLEN MALLIARD :
:
Appellant : No. 1322 WDA 2021
Appeal from the Judgment of Sentence Entered October 19, 2021,
in the Court of Common Pleas of Venango County,
Criminal Division at No(s): CP-61-CR-0000549-2018,
CP-61-CR-0000551-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY A. MALLIARD :
:
Appellant : No. 1379 WDA 2021
Appeal from the Judgment of Sentence Entered October 19, 2021,
in the Court of Common Pleas of Venango County,
Criminal Division at No(s): CP-61-CR-0000551-2018.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 26, 2023
Jeffrey Allen Malliard appeals from the judgment of sentence entered
following his convictions for criminal attempt to commit aggravated indecent
assault, criminal attempt to commit aggravated indecent assault of a child,
J-A29032-22
and other offenses.1 He argues that the evidence was insufficient to prove
that he had the specific intent to penetrate the genitals or anus of the
complainants. We affirm.
The Commonwealth charged Malliard with offenses against two girls at
two dockets. One case involved M.A., who was thirteen at the time of the
charged offenses and was in Malliard’s extended family.2 The other case
involved A.C., who was seven to twelve at the time of the charged offenses
and who lived next door to Malliard.3 Both girls knew each other and were in
youth groups led by Malliard’s wife. The cases proceeded to trial starting May
17, 2021.
M.A. testified that on June 15, 2018, Malliard tried to hug and kiss her,
squeezed her buttocks, and grabbed her breasts. N.T., Trial Vol. I, 5/17/21,
at 49–51. She then described how Malliard put one hand inside her leggings
far enough to touch her underwear, only stopping when she told him she
“didn’t want him to do that.” Id. at 52.
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1Malliard’s brief erroneously states that he is appealing from both the verdict
and the judgment of sentence. The appeals lie only from the latter, which
Malliard correctly indicated in his notices of appeal.
2 The charges were (1) criminal attempt to commit aggravated indecent
assault, (2) corruption of minors, and (3) indecent assault. 18 Pa.C.S.A.
§§ 901(a) and 3125(a)(8), 6301(a)(1)(i), and 3126(a)(8), respectively.
3 The charges were (1)–(8) unlawful contact with a minor, (9)–(11) criminal
attempt to commit aggravated indecent assault of a child, (12)–(19) indecent
assault, and (20) corruption of minors. 18 Pa.C.S.A. §§ 6318(a)(1), 901(a)
and 3125(b), 3126(a)(7), and 6301(a)(1)(ii), respectively.
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A.C. testified that when she was about seven years old, Malliard put her
hand on his penis (over his clothes). N.T., Trial Vol. II, 5/20/21, at 7–9. She
said that a few weeks later, he put her hand on his penis and rubbed it back
and forth. Id. at 9–10. A.C. testified that when she was about ten, Malliard
pushed and held her on his bed as part of a game. Id. at 11–13. While she
was on the bed, he put his hand on her waist and tried to take off her pants
in a “nonchalant” way. Id. at 13. At that point, A.C. testified that she felt
Malliard put his fingers in her pants past her waistband. Id. She described
that Malliard was “humping” her—“thrusting” his body into hers. Id. at 14.
A.C. also testified to incidents when Malliard would sexually abuse her
while they were playing computer games. She described how he would
sometimes sit in a recliner playing computer games and pull her from the arm
of the recliner onto his lap. Id. at 19. In this position, Malliard would rub
A.C.’s stomach and try to stick his hand down her pants. Id. She explained
that he never got his hand all the way down because she grabbed his hand
and pulled it away. Id. at 19–20. A.C. recalled this happening on at least
two occasions, when she was eight or nine. Id. at 20.
Ultimately, the jury found Malliard guilty of all offenses. On October 19,
2021, the court sentenced Malliard in both cases to an aggregate term of 14
to 29 years of imprisonment, followed by 3 years of probation.
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Malliard timely appealed.4 Malliard and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Malliard raises two issues for our review:
1. Did the [trial c]ourt err in holding there was sufficient evidence
to establish the mens rea element of Aggravated Indecent
Assault – Criminal Attempt: to wit, did the Commonwealth fail
to introduce sufficient evidence that [Malliard] acted with the
intent to penetrate the genitals or anus of the complaining
witness?
2. Whether there was insufficient evidence to establish that Mr.
Malliard committed the crime of Aggravated Indecent Assault
– Criminal Attempt.
Malliard’s Brief at 4.
As Malliard’s issues are interrelated, we will address them together. The
following principles frame our review of Malliard’s sufficiency challenge:
When reviewing a challenge to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the
Commonwealth as verdict winner, giving it the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
“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.”
Commonwealth v. Lynch, 72 A.3d 706, 708 (Pa. Super. 2013)
(en banc). 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. See Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001). Additionally,
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4 Malliard first filed one notice of appeal at both docket numbers, in violation
of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). However, he then
filed another notice of appeal listing one docket number, correcting the error.
See Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021).
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the Commonwealth may sustain its burden solely by means of
circumstantial evidence. Lynch, 72 A.3d at 708.
Commonwealth v. Lake, 281 A.3d 341, 345–46 (Pa. Super. 2022) (citation
formatting altered). Further, “even the uncorroborated testimony of a single
witness may alone be sufficient to convict a defendant.” Commonwealth v.
Gilliam, 249 A.3d 257, 268 (Pa. Super. 2021) (citing Commonwealth v.
Crosley, 180 A.3d 761, 768 (Pa. Super. 2018)); see also 18 Pa.C.S.A.
§ 3106 (providing that a complainant’s testimony need not be corroborated in
a prosecution for a Chapter 31 offense).
When the Commonwealth must prove that a defendant had a specific
mental state, we evaluate the totality of the circumstances to determine if the
jury could infer the requisite mens rea. Commonwealth v. Pond, 846 A.2d
699, 707 (Pa. Super. 2004) (citing Commonwealth v. Willetts, 419 A.2d
1280, 1281 (Pa. Super. 1980)). This entails an examination of “all record
evidence and reasonable inferences therefrom.” Id. (quoting In the Interest
of A.C., 763 A.2d 889, 890 (Pa. Super. 2000)).
The offenses at issue here are criminal attempt to commit aggravated
indecent assault (of M.A.) and criminal attempt to commit aggravated
indecent assault of a child (of A.C.). Section 901(a) of the Crimes Code
defines criminal attempt: “A person commits an attempt when, with intent to
commit a specific crime, he does any act which constitutes a substantial step
toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). This Court has
stated that the elements of criminal attempt are “(1) an intent to commit a
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specific crime and (2) any act constituting a substantial step toward the
commission of that crime.” Commonwealth v. Cooke, 492 A.2d 63, 66 (Pa.
Super. 1985) (citing Commonwealth v. Chance, 458 A.2d 1371, 1374 (Pa.
Super. 1983)). Therefore, for the first element of these offenses, the
Commonwealth had to prove that Malliard intended to “engage[] in
penetration, however slight, of the genitals or anus of [M.A. and A.C.] with a
part of [Malliard’s] body for any purpose other than good faith medical,
hygienic or law enforcement procedures.” 18 Pa.C.S.A. § 3125.5
Malliard argues that there was no evidence that he intended to move
his fingers further down the complainants’ underwear to penetrate their
genitals before he withdrew his hand. Malliard’s Brief at 7. He analogizes his
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5 Aggravated indecent assault under Section 3125(a)(8) requires that the
complainant be less than 16, the defendant be more than 4 years older, and
the defendant and complainant not be married to each other. Aggravated
indecent assault under Section 3125(a)(7) requires that the complainant be
less than 13. Aggravated indecent assault of a child, Section 3125(b),
requires the complainant to be less than 13 and the defendant to violate
subsection 3125(a)(1), (2), (3), (4), (5), or (6)—to penetrate without the
complainant’s consent, by forcible compulsion, et cetera. A Section 3125(b)
offense is graded as a felony of the first degree, while every Section 3125(a)
offense is graded as a felony of the second degree. 18 Pa.C.S.A. § 3125(c).
Here, Malliard was charged with attempts to violate Section 3125(a)(8)
(with M.A. as complainant) and Section 3125(b) (with A.C. as complainant).
Both required proof of the girls’ ages (but not Malliard’s knowledge of them,
see Commonwealth v. Helsel, 53 A.3d 906, 918–19 (Pa. Super. 2012)).
For the Section 3125(b) offenses, unlike the Section 3125(a)(7) offense not
charged, the Commonwealth also had to prove Malliard’s specific intent to
engage in conduct with A.C. that would violate subsection 3125(a)(1), (2),
(3), (4), (5), or (6). Because Malliard only challenges the sufficiency of the
evidence to prove that he intended to penetrate A.C.’s genitals, we need not
address further the evidence supporting this other aspect of Malliard’s intent.
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case to Commonwealth v. Wilamowski, 633 A.2d 141, 144 (Pa. 1993),
where our Supreme Court held that evidence that a defendant broke into and
then fled from a house was insufficient to prove that he had the specific intent
to commit a crime inside. We are not persuaded by this analogy.
We conclude that complainants’ testimony was sufficient for the jury to
infer that Malliard intended to penetrate their genitals when he reached into
their clothing. M.A. testified that Malliard withdrew his hand from her leggings
when she told him she “didn’t want him to do that.” A.C. described how when
Malliard reached into her pants, she grabbed his hand and pulled it away.
Both narratives establish that Malliard withdrew his hand based on a reaction
from the girls. It is reasonable for a jury to infer from Malliard’s response to
physical or verbal resistance that he had the specific intent to complete the
penetration otherwise. See Commonwealth v. King, 434 A.2d 1294, 1298
(Pa. Super. 1981) (holding evidence to be sufficient for attempted rape where
the victim forced the defendant away).
In sum, the totality of the circumstances surrounding the incidents at
issue were sufficient to infer Malliard’s intent to commit the sex offenses. See
Commonwealth v. Chance, 458 A.2d 1371, 1374 (Pa. Super. 1983)
(reiterating well-established law that an intent to commit rape “may be
inferred from the actions of the defendant in light of all attendant
circumstances”). See also Commonwealth v. Simpson, 462 A.2d 821, 824
(Pa. Super. 1983) (affirming attempted rape conviction where defendant went
inside victim’s bedroom, put an object to her throat and began loosening his
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jogging pants, but victim’s yells for help caused defendant to flee);
Commonwealth v. Owens, 462 A.2d 255, 257 (Pa. Super. 1983)
(concluding defendant took substantial step toward attempted rape when he
forcibly led child into garage and removed her clothing but stopped whenever
an adult entered the garage); Commonwealth v. Bullock, 393 A.2d 921,
923 (Pa. Super. 1978) (concluding defendant took a substantial step toward
attempted rape when he ripped victim’s shirt, pulled down her bra, and
attempted to remove her pants).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2023
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