Com. v. Kane, S.

J-S25041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT LEE KANE, :
:
Appellant : No. 1485 MDA 2018
Appeal from the Judgment of Sentence Entered July 7, 2017
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000429-2016
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 05, 2019
Scott Lee Kane (“Kane”) appeals from the judgment of sentence entered
following his conviction of endangering the welfare of a child-course of conduct
(“EWOC”), and corruption of minors as a third-degree felony (“COM-Felony”).1
We vacate and remand for resentencing.
The trial court summarized the relevant procedural history underlying
the instant appeal as follows:
On April 7, 2017, after a jury convicted [Kane] of … EWOC
and [COM-Felony,] Kane was acquitted on a number of other
counts. On July 7, 2017, the [trial c]ourt imposed consecutive
sentences of not less than six (6) months to not more than eighty-
four (84) months on each count. [Kane] did not file a post-
sentence motion or direct appeal after sentencing.
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1 18 Pa.C.S.A. §§ 4304(a)(1), 6301(a)(1)(ii).
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[Kane], acting pro se, filed a Motion for Post Conviction
Collateral Relief[, pursuant to the Post Conviction Relief Act
(“PCRA”),2] on November 2, 2017. The [PCRA c]ourt appointed
[] counsel to represent [Kane] and directed [the filing of an]
amendment by counsel and a response from the Commonwealth.
On February 22, 2018, counsel filed an Amended Post Conviction
Relief Act Petition. … The Commonwealth filed its Answer on
March 19, 2018.
* * *
On [June 7, 2018,] the parties entered into a stipulation
restoring [Kane’s] post-sentence and direct appeal rights. By
Order of Court, dated June 7, 2018, the [trial c]ourt approved the
stipulation and directed that a post-sentence motion be filed
within ten (10) days. The instant Post-Sentence Motion was then
timely filed. Upon review of the claims raised in the Post-Sentence
Motion, the [trial c]ourt determined that [a] hearing and oral
argument were unnecessary. The [trial c]ourt directed [that] the
Commonwealth file a response …. The Commonwealth filed a
timely response ….
Trial Court Opinion, 8/6/18, at 1-2 (footnotes and emphasis omitted, one
footnote added). The trial court subsequently denied Kane’s Post-Sentence
Motion. Kane timely filed a Notice of Appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Kane presents the following issue for our review:
Whether the [t]rial [c]ourt erred in denying [Kane] relief in the
form [of] setting aside the guilty verdicts as being based upon
insufficient evidence of [COM-Felony] and [EWOC,] [where] the
witness was incredible and there was insufficient proof of contact
between [Kane] and the victim to support any conviction[?]
Brief for Appellant at 6.
____________________________________________
2 42 Pa.C.S.A. §§ 9541-9546.
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Kane challenges the sufficiency of the evidence underlying his
convictions. Id. at 13. We apply the following standard of review to Kane’s
claim:
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant’s guilt to a mathematical certainty. 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.
Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013).
Kane first asserts that the jury acquitted him of the most serious
charges, “including the Chapter 31 Sexual Offenses,[3] in which the jury would
have to find and believe the victim, that [Kane] actually had sexual contact
with her.” Brief for Appellant at 13 (footnote added).
Regarding his EWOC conviction, Kane specifically asserts that the
Commonwealth failed to present evidence sufficient to support a showing of
substantial risk of death, or serious bodily injury, “an element required for the
offense to constitute a felony of the third degree.” Id. (emphasis omitted).
Kane contends that, for EWOC to constitute a felony of the third degree, the
____________________________________________
3 See 18 Pa.C.S.A. §§ 3121-3131.
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Commonwealth was required to establish that the actor created a substantial
risk of death or serious bodily injury. Id.
The Crimes Code defines the crime of EWOC as follows:
(a) Offense defined.
(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.
* * *
(b) Grading.
* * *
(1) Except as provided under paragraph (2), the following
apply:
* * *
(ii) If the actor engaged in a course of conduct
endangering the welfare of a child, the offense
constitutes a felony of the third degree.
18 Pa.C.S.A. § 4304. Thus, to establish a third-degree felony, the
Commonwealth was not required to establish that Kane created a substantial
risk of death or serious bodily injury to the victim. Consequently, Kane’s
challenge to the sufficiency of the evidence underlying his EWOC conviction,
on this basis, fails.
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Finally, Kane asserts that the evidence is not sufficient to sustain his
conviction of COM-Felony. Brief for Appellant at 14. According to Kane, the
crime of COM-Felony requires the Commonwealth to establish, beyond a
reasonable doubt, that he committed an offense under Chapter 31, Sexual
Offenses. Id. at 15. Kane asserts that, because the jury acquitted him of the
Chapter 31 Sexual Offenses, the evidence is not sufficient to sustain his
conviction of COM-Felony. Id. We agree.
The Crimes Code defines the crime of COM-Felony, in relevant part, as
follows:
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.
18 Pa.C.S.A. § 6301(a)(1)(ii).
Recently, this Court addressed whether a conviction for COM-Felony
could be sustained where the jury had acquitted the defendant of the Chapter
31 offenses, stating as follows:
While we have not identified any authority directly on this issue,
a review of an analogous case, Commonwealth v. Magliocco,
584 Pa. 244, 883 A.2d 479 (Pa. 2005), guides our analysis. In
Magliocco, a jury convicted the defendant of [e]thnic
[i]ntimidation, but did not convict him of [t]erroristic [t]hreats.
The [e]thnic [i]ntimidation statute requires, inter alia, that the
Commonwealth prove that the defendant committed [t]erroristic
[t]hreats and did so “with malicious intention toward the race,
color, religion[,] or national origin of another individual or group
of individuals[.]” 18 Pa.C.S.[A.] § 2710(a). The Supreme Court
concluded that since the Commonwealth charged and prosecuted
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Appellant with the predicate offense of [t]erroristic [t]hreats, but
failed to obtain a conviction, the evidence was insufficient to
convict the defendant of [e]thnic [i]ntimidation. Id. at 493.
Analogously, in the instant case, the Commonwealth charged and
prosecuted Appellant for COM-Felony and the Sexual Offenses,
but failed to obtain a conviction on any of the Sexual Offenses.
By acquitting Appellant of the Chapter 31 Sexual Offenses, the
jury found that the Commonwealth had failed to establish beyond
a reasonable doubt that Appellant acted “in violation of Chapter
31.” Thus, because the jury found that Appellant had not acted
“in violation of Chapter 31,” an essential element of COM-Felony,
the Commonwealth was unable to establish every element of
COM-Felony. See Magliocco, [883 A.2d] at 493 (reiterating that
to “secure a conviction for any crime, the Commonwealth must
prove all necessary elements beyond a reasonable doubt.”); see
also [Commonwealth v.] Miller, 172 A.3d [632,] 640 [(Pa.
Super. 2017)]….
Commonwealth v. Baker-Myers, 2019 Pa. Super. LEXIS 493, at *4-*6 (Pa.
Super. 2019) (en banc). As a result, this Court vacated the appellant’s
conviction. See id.
We conclude that this case is directly controlled by the en banc Court’s
decision in Baker-Myers. The jury acquitted Kane of all Chapter 31 Sexual
Offenses. As such, the Commonwealth failed to establish, beyond a
reasonable doubt, an essential element of COM-Felony. We therefore vacate
Kane’s sentence as to COM-Felony.
Because our disposition affects the trial court’s sentencing structure, we
vacate his judgment of sentence in its entirety, and remand for resentencing
as to Kane’s conviction of EWOC. See Commonwealth v. Williams, 871
A.2d 254, 266 (Pa. Super. 2005) (where the court’s disposition upset the
overall sentencing scheme of the trial court, remanding so that the trial court
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can restructure its sentence plan); Commonwealth v. Vanderlin, 580 A.2d
820, 831 (Pa. Super. 1990) (stating that, “if a trial court errs in its sentence
for one count in a multi-count case, then all sentences for all counts will be
vacated so that the court can re-structure its entire sentencing scheme”).
Judgment of sentence vacated, case remanded for resentencing
consistent with this Memorandum. Superior Court jurisdiction relinquished.
Judge Murray joins the memorandum.
Judge Stabile notes his dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/05/2019
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