Commonwealth v. DeStefanis

CIRILLO, Judge:

Frank DeStefanis appeals from a judgment of sentence entered in the Court of Common Pleas of Bucks County following his conviction of two counts of promoting prostitution and one count of conspiracy. We reverse.

On February 16, 1993, Detective Timothy Carroll of the Bensalem Township Police Department went to the Executive Fitness Center in Bristol Borough as part of an undercover operation. Detective Carroll paid Jessica Vanderburg (“Alexis”) $60.00 for a body massage. Ms. Vanderburg massaged Detective Carroll’s feet, legs, arms, back, and chest. Toward the completion of the massage, Ms. Vanderburg asked if Detective Carroll wanted a “hand release.” When Detective Carroll asked about the meaning of a hand release, Ms. Vanderburg indicated that it meant a “hand job.” Detective Carroll determined that she was referring to manual stimulation of the genitals, and inquired about the price of a hand release. Ms. Vanderburg told him that a tip would be appreciated. She also indicated that only a hand release was available, as opposed to oral sex or other sexual activity. Detective Carroll told Ms. Vanderburg that he was not interested in a hand release.

On March 3, 1993, Detective Carroll returned to the Executive Fitness Center and was this time met by a woman who identified herself as “Madison” (Beata Grama). Detective Carroll paid $65.00 and received a massage. After the completion of the massage, Detective Carroll told Ms. Grama that he had spoken to Alexis, and was interested in the availability of specific sexual acts other than a hand release. Ms. Grama indicated that it was the “house rule” that only hand releases would be performed, nothing else. Detective Carroll did not receive a hand release.

On June 23, 1993, Officer Libby Hagger of the Morrisville Borough Police Department went to the Executive Fitness Center and, as part of the undercover investigation, interviewed for a position as a masseuse. There she met Appellant Frank DeStefanis. During the interview, DeStefanis instructed Officer Hagger to put her handbag in an adjoining room, and to remove her clothing to make sure she was not “wired” with a recording device. DeStefanis stated that he did not want to have any problems with the police. Officer Hagger removed her shirt for this purpose. In fact, the conversation was recorded by Detective Robert Potts of the Bucks County District Attorney’s Office using a remote transmitter placed in Officer Hagger’s handbag. The tape was later played for the • jury and transcribed. During their conversation, Officer Hagger asked DeStefanis if “he had a problem with ...” and then made a gesture indicating a hand release. The following dialogue was exchanged:

DESTEFANIS: That’s up to you. You talking about a hand release?

HAGGER:- Yeah.

DESTEFANIS: That’s up to you, but I don’t think anybody’s doing that.

HAGGER: OK. But that is acceptable ... to make more money, that would be one of my options then?

DESTEFANIS: Yes.

DeStefanis also told her that “the rules” included no sexual intercourse (including oral and anal sex). DeStefanis reiterated that there was strictly “no sex” allowed approximately nine times during the taped conversation, and mentioned at least twice that he would be “checking” on Hagger. Additionally, DeStefanis informed Hagger'that she would receive $20.00 for each hour (presumably for each massage), plus tips. When asked by Hagger if she was able to keep her tips, DeStefanis replied, “I don’t touch any of your money---- Everyone keeps their own tips.”

About one month after the interview, officers from the Bristol Borough Police Department arrested DeStefanis, Ms. Yanderburg, and Ms. Grama. Detective Potts interviewed Ms. Vanderburg, who admitted to giving hand releases to a few of her customers. Specifically, she related to Officer Potts how much money she made per week and that she was able to keep her tips. Additionally, Officer Randy Morris spoke with Ms. Grama, who also admitted performing hand releases on some customers, but did not perform oral sex and/or other “full service” sex.

A jury trial was held on December 13, 1993, and DeStefanis was convicted of two counts of promoting prostitution and one count of conspiracy. Post-verdict motions were filed and denied. DeStefanis was sentenced to thirty days to twenty-three months imprisonment, and was directed to pay a $2,500.00 fine. This appeal followed.

DeStefanis raises the following issues for our consideration:

(1) Was the evidence in this case insufficient to establish criminal activity because:

(a) Solicitation and prostitution are separate and distinct offenses and no act constituting prostitution took place?

(b) Masturbation does not constitute sexual activity within the meaning of the prostitution statute?

(c) The evidence was insufficient to connect DeStefanis to any act of prostitution?

(2) Did the court err when it admitted testimony about statements and confessions made by defendants when the corpus delicti of prostitution had not been established?

(3) Did the court err and abuse its discretion in permitting witnesses to express an opinion that a gesture made meant male masturbation, while refusing to permit the gesture to be either shown or described?

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)): See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Swerdlow, supra, 431 Pa.Super. 453, 636 A.2d 1173.

In claiming that his verdict was not supported by sufficient evidence, DeStefanis first contends that the offenses in question do not constitute prostitution. The offense of prostitution is defined under 18 Pa.C.S.A. § 5902(a):

(a) Prostitution. — A person is guilty of prostitution; a misdemeanor of the third degree, if he or she:

(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business-, ....

18 Pa.C.S.A. § 5902(a)(1), (2) (emphasis added).¹ The offense of promoting prostitution is defined under 18 Pa.C.S.A. § 5902(b):

(b) Promoting prostitution. — A person who knowingly promotes prostitution of another commits a misdemeanor or felony as provided in subsection (c) of this section. The following acts shall, without limitation of the foregoing, constitute promoting prostitution:

(1) owning, controlling, managing, supervising or otherwise keeping, alone or in association with others, a house of prostitution or a prostitution business;

18 Pa.C.S.A. § 5902(b)(1).

In order for the conviction of promoting prostitution to be sustained, this court must be assured that the evidence was sufficient to convince the jury beyond a reasonable doubt that the Commonwealth proved: (1) that there was a prostitution business; and (2) that the accused had a connection with the “running, control, supervision or keeping of the prostitution business.” 18 Pa.C.S.A. § 5902(b). Commonwealth v. Blankenbiller, 362 Pa.Super. 477, 480, 524 A.2d 976, 978 (1987). Thus, in determining whether the evidence is sufficient to sustain DeStefanis’ conviction for promoting prostitution, and since DeStefanis’ conviction is based on the actions of Ms. Vanderburg and Ms. Grama, it is first necessary to determine whether the activities allegedly promoted did indeed rise to the level of a prostitution business.

The prostitution statute, 18 Pa.C.S.A. § 5902, was enacted to provide an ascertainable standard of conduct directed at a defined evil, such evil being the commercial exploitation of sexual gratification. Commonwealth v. Potts, 314 Pa.Super. 256, 273-75, 460 A.2d 1127, 1136 (1983); accord Commonwealth v. Bleigh, 402 Pa.Super. 169, 172-76, 586 A.2d 450, 452-53 (1991); Commonwealth v. Robbins, 358 Pa.Super. 225, 230-32, 516 A.2d 1266, 1269 (1986).² Prostitution has persisted since biblical times and has traditionally been viewed as sexual intercourse for hire. Potts, supra, 314 Pa.Super. 256, 460 A.2d 1127; see also Bleigh, supra, 402 Pa.Super. 169, 586 A.2d 450. In the present statute, the legislature did not eradicate the commonly understood definition of prostitution, but, rather, clarified it to include “homosexual and other deviate sexual relations.” Potts, supra, 314 Pa.Super. 256, 460 A.2d 1127; 18 Pa.C.S.A. 5902(f).

Since Potts, the appellate courts of this Commonwealth have made it clear that intercourse is not the only sexual activity condemned by section 5902. In Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988), and Robbins, supra, 358 Pa.Super. 225, 516 A.2d 1266, this court held, after examining the statute’s purpose, that the masturbation of a male by a female for money was sexual activity as a business and, therefore, prostitution. In both Cohen and Robbins, the appellants were owners and/or operators of establishments where massages were performed by women who, in the course of massaging their male clients, performed “hand releases” on the men’s genitalia.

[S]ince the term “sexual activity” is undefined by statute, we are obliged to construe that term according to its common and approved usage. When the term “sexual activity” is examined in light of the statute’s underlying purpose of prohibiting commercial exploitation of sexual gratification and also in light of its common and approved usage, there is no doubt that masturbation for hire falls within the statute’s proscription.

Cohen, 371 Pa.Super. at 563, 538 A.2d at 584 (quoting Robbins, 358 Pa.Super. at 230, 231, 516 A.2d at 1269 (citations omitted)).³ .

Cohen and Robbins have made it clear that prostitution, or “sexual activity as a business,” includes “masturbation as a business” or, stated otherwise, “manual sexual stimulation for the payment of money” and “masturbation for hire.” Cohen, 371 Pa.Super. at 560-64, 538 A.2d at 583-84; Robbins, 358 Pa.Super. at 228-32, 516 A.2d at 1268-69. Thus, in order for there to be prostitution, there must not only be sexual activity (ie., manual sexual stimulation), but a payment of money as well, in other words, “a prostitution business.” 18 Pa.C.S.A. § 5902(b)(1). “This court has found that a ‘business’ is ‘a commercial activity engaged in for gain.’ ” Blankenbiller, 362 Pa.Super. at 480-82, 524 A.2d at 978 (quoting Potts, 314 Pa.Super. at 271, 460 A2d at 1135). In both Cohen and Robbins, the massages given by the nude or semi-nude female masseuses to the male customers included masturbation of the male genitalia for a set fee; it was part of the “business.” There is no question, therefore, that such conduct satisfied that proscribed by section 5902.

In the instant case, there is no question that a hand release, which constitutes sexual activity under the statute, was available to, at the very least, Detective Carroll.⁴ The more uncertain question is whether the actions of Ms. Vanderburg and Ms. Grama constituted manual sexual stimulation for a business. A review of the record indicates that there is insufficient evidence of the existence of a “prostitution business,” (i.e. “sexual activity as a business”) to sustain De-Stefanis’ conviction of promoting prostitution.

Detective Carroll’s testimony reveals that the fitness center charged $60.00-$65.00 up front for a legitimate massage. The evidence further revealed that, after the completion of his first massage, Detective Carroll was made aware that a hand release was available by Ms. Vanderburg. When Detective Carroll inquired about the price of a hand release, the vague response was, “a tip would be appreciated.” Arguably, when a client does not agree to pay for a sexual service up front, the ensuing act constitutes sexual activity between two consenting adults. Ms. Grama, Detective Carroll’s second masseuse, did not even make Detective Carroll an offer of any type of sexual activity; it was not until the massage was completed and Detective Carroll initiated inquiries to Ms. Grama about sexual options that she spoke about hand releases. There can be no assumption, therefore, that a hand release was included in the price of the massage. No price was discussed with Ms. Grama. The fact that DeStefanis indicated to Officer Hagger that providing hand releases was an acceptable way to make “tips” is not probative of a prostitution “business,” nor are the admissions of Ms. Vanderburg and Ms. Grama that they gave hand releases to some of their customers. This evidence, even when viewed in the light most favorable to the Commonwealth, is not sufficient to establish the “business” element of the prostitution statute beyond a reasonable doubt, specifically, that there existed “a commercial activity engaged in for gain.” Jarman, supra, 529 Pa. 92, 601 A.2d 1229. “While a criminal conviction may rest upon wholly circumstantial evidence, it may not be based upon mere surmise or conjecture.” Blankenbiller, 362 Pa.Super. at 481, 524 A.2d at 978 (citing Commonwealth v. Stores, 317 Pa.Super. 109, 117, 463 A.2d 1108, 1112 (1983)). Because no underlying “prostitution business” has been established, DeStefanis cannot be said to have promoted prostitution under section 5902(b) and, therefore, his conviction must be reversed.

By way of dicta, we also find that the evidence was insufficient to prove that DeStefanis had a connection with the “running, control, supervision, or keeping of the prostitution business.”⁵ 18 Pa.C.S.A. § 5902(b); Blankenbiller, supra, 362 Pa.Super. 477, 524 A.2d 976. In Blankenbiller, this court found insufficient evidence to sustain a conviction for promoting prostitution. There, the appellant was the president/director of the company that owned the property where prostitution took place. Part of this court’s focus in determining that the appellant did not promote prostitution was the appellant’s lack of earnings from the business. “Though it is clear that a prostitution business was operating at the date and time in question, the Commonwealth did not prove that the appellant received any income from the business.” Blankenbiller, 362 Pa.Super. at 481, 524 A.2d at 978. Here, even had we found that a prostitution business was in place, there was no evidence that DeStefanis received income from such a business. This is especially true in light of DeStefanis’ statements to Officer Hagger that he did not think anyone was providing hand releases, and that he did not share any portion of the employees’ tips.

Because we have determined that DeStefanis’ conviction shall be reversed, we need not address the remaining issues on appeal.

Judgment of sentence reversed.

OLSZEWSKI, J., files a dissenting opinion.

1 . “Sexual activity," as defined in the statute, “[i]ncludes homosexual and other deviate sexual relations.” 18 Pa.C.S.A. § 5902(f) (definitions).

2 . Other evils aimed at being abolished by the criminalization of prostitution include the spread of sexually transmitted disease, the corruption of law enforcement agencies, the incentive to exploit women, and criminal organizations living on the proceeds of prostitution. Bleigh, 402 Pa.Super. at 174-76, 586 A.2d at 453; see Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143 (1981).

3 . We note that these cases are distinguishable from Bleigh, supra, 402 Pa.Super. 169, 586 A.2d 450, where this court found that dancing girls’ self-masturbation for the sexual gratification of their customers was not prostitution and, therefore, the dancing girls' manager was not promoting prostitution.

4 . We note that it is the mere offer that is important for purposes of prostitution; no actual touching need be proven. See Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980).

5 . For purposes of this argument, we must assume that there was a prostitution business in place, even though we have already determined that there was not.