Com. v. Calixto, D.

J-S06038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL CALIXTO :
:
Appellant : No. 1512 MDA 2021
Appeal from the Judgment of Sentence Entered July 22, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001117-2019
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: MARCH 31, 2023
Appellant Daniel Calixto appeals from the judgment of sentence entered
by the Court of Common Pleas of Luzerne County after a jury convicted
Appellant of corruption of minors.1 Appellant claims the trial court erred in
grading his corruption of minors charge as a third-degree felony when the jury
acquitted Appellant of the underlying indecent assault charge.2 On appeal, the
trial court agrees that this charge was graded incorrectly. We vacate
Appellant’s conviction of the felony corruption of minors charge and remand
for resentencing on the lesser-included offense of corruption of minors graded
as a misdemeanor of the first degree.3
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 6301(a)(1)(ii).
2 18 Pa.C.S.A. § 3126(a)(7) (complainant less than 13 years of age).
3 18 Pa.C.S.A. § 6301(a)(1)(i).
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In February 2019, Appellant was charged with corruption of minors and
indecent assault where both offenses were graded as felonies of the third
degree. On April 23, 2019, the Commonwealth filed a criminal information
listing both of these charges, which were based on allegations that Appellant
sexually abused his minor stepdaughter (“the victim”) between September
2014 and September 2018. The victim claimed that Appellant had touched her
sexually since she was ten years old, recalling that Appellant put his hand
down her pants and in her shirt on multiple occasions. Notes of Testimony
(N.T.), 9/23/20 – 9/25/20, at 30, 34-35.
Thereafter, Appellant proceeded to a jury trial which began on
September 23, 2020. At the conclusion of the evidence, the trial court
provided the jury the following instructions on the offenses for which Appellant
was charged:
In Count 1, [Appellant] has been charged with corrupting a
minor. To find [Appellant] guilty of this offense, you must find that
each of the following three elements have been proven beyond a
reasonable doubt:
First, that [Appellant] was 18 years of age or older at the
time of the incident giving rise to the charge. Second, that [the
victim] was under 18 years of age at that time. And third, that
[Appellant] engaged in a course of conduct that constituted the
following sexual offense under the Crimes Code of Pennsylvania.
And in this case, it’s alleged to be indecent assault.
And, that by that conduct, [Appellant] corrupted or tended
to corrupt the morals of a minor, namely [the victim].
In count 2, [Appellant] has been charged with indecent
assault of a child. To find [Appellant] guilty of this offense, you
must find that the following elements have been proven beyond a
reasonable doubt:
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First, that [Appellant] had indecent contact with [the victim]
or caused [the victim] to have indecent contact with him. To prove
[Appellant] had indecent contact with the alleged victim or caused
the alleged victim to have indecent contact with him, the
Commonwealth must prove that [Appellant] brought about a
touching of the sexual or other intimate parts of the body by one
of them - - of one of them by the other and that [Appellant] did
so for the purpose of arousing or gratifying his own or the victim’s
sexual desire. Contact may be indecent even though the clothing
of [Appellant] or a victim prevents their flesh from touching.
Second, that [the victim] was less than 13 years old. It is
no defense if [Appellant] did not know the age of the child or the
child lied about his or her age or [Appellant] honestly believed
that the child was 13 or older or [Appellant] reasonably believed
that the child was 13 or older.
If you find that these elements have been proven beyond a
reasonable doubt, you should find [Appellant] guilty. If you do so
find, you should indicate on the verdict form whether you also find
the following element proven beyond a reasonable doubt: That
there has been a course of conduct of indecent assault by the
person.
A course of conduct means a pattern of actions composed
of more than one act over a period of time however short
evidencing a continuity of conduct.
N.T. at 320-321 (emphasis added).
After the jury began deliberating, the jury sent the trial court a note
indicating that they were having trouble reaching a unanimous decision. The
trial court asked them to continue with their deliberations a while longer to
see if they could reach a consensus. N.T. at 328-329. Thereafter, the jury
requested to hear the definitions of each of the charges again. N.T. at 330.
The trial court reread the above instructions to the jury. N.T. at 330-332.
The jury ultimately convicted Appellant of corruption of minors but could
not reach a verdict on the indecent assault charge. On July 22, 2021, the trial
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court graded the corruption of minors charge as a third-degree felony and
sentenced Appellant to nine to twenty-four months’ imprisonment to be
followed by two years’ consecutive probation. The Commonwealth withdrew
the indecent assault charge and indicated it would not seek further
prosecution. While Appellant was deemed not to be a sexually violent
predator, the trial court directed Appellant to register as a Tier I offender
under SORNA II based on the corruption of minors conviction.
On August 2, 2021, Appellant filed a timely post-sentence motion in
which he challenged, inter alia, the grading of the corruption of minors charge.
On October 20, 2021, the trial court denied the post-sentence motion.
Appellant filed a timely notice of appeal and complied with the trial court’s
directions to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).4
Appellant raises one issue for our review on appeal:
Did the trial court impose an illegal sentence where the jury
failed to find and the Commonwealth failed to prove that Appellant
engaged in a “course of conduct” or the predicate offense of
indecent assault and, therefore, when sentencing [] Appellant
incorrectly graded the offense of corruption of minors as a felony
of the third degree rather than misdemeanor of the first degree,
18 Pa.C.S.A. § 6301(a)(1)(i-ii)?
Appellant’s Brief, at 2.
____________________________________________
4 In its responsive opinion pursuant to Pa.R.A.P. 1925(a), the trial court
agreed with Appellant that his corruption of minors conviction was incorrectly
graded as a third-degree felony. The trial court requested that this Court
remand the case in order to affirm Appellant’s sentence for corruption of
minors under Section 6301(a)(1)(i) and to resentence Appellant for this
charge as a first-degree misdemeanor.
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In asserting that his corruption of minors conviction was improperly
graded, Appellant is challenging the legality of his sentence, to which we apply
a de novo standard of review and plenary scope of review. Commonwealth
v. Lake, 281 A.3d 341, 348 (Pa.Super. 2022) (citing Commonwealth v.
Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013)).
Appellant was charged and convicted of corruption of minors under 18
Pa.C.S.A. § 6301(a)(1), which provides in relevant part:
(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.
18 Pa.C.S.A. § 6301(a)(1).
In order to warrant additional penalties on a corruption of minors charge
as a third-degree felony, the Commonwealth must show that the defendant
engaged in a “course of conduct in violation of Chapter 31 (relating to sexual
offenses) [of the Crimes Code].” 18 Pa.C.S.A. § 6301(a)(1)(ii). Our Supreme
Court recently held that Section 6301(a)(1)(ii) includes as an essential
element of the offense “a requirement that the Commonwealth prove beyond
a reasonable doubt that the accused engaged in a course of conduct involving
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a breach of some law or laws contained in Chapter 31 of the Crimes Code.”
Commonwealth v. Baker-Myers, 255 A.3d 223, 234 (Pa. 2021).
In Baker-Myers, the defendant raised a sufficiency challenge to his
third-degree felony corruption of minors conviction when he was acquitted of
the underlying sexual offenses that were charged. The Supreme Court held
specifically held that:
[a]lthough the Commonwealth is not required to formally charge
or secure a conviction for a predicate Chapter 31 offense, where,
as here, the jury is specifically instructed on the predicate offense
or offenses pertaining to the corruption of minors charge, and the
jury then renders an acquittal on all such predicates, a conviction
for felony corruption of minors cannot stand.
Id. at 235. As the prosecution had charged Baker-Myers with specific sexual
offenses under Chapter 31 and trial court had instructed the jury regarding
the applicable predicate offenses of the corruption of minors charge, the jury’s
decision to acquit Baker-Myers of the underlying sexual offenses rendered the
evidence insufficient as a matter of law with respect to the corruption of
minors conviction.
In this case, as noted above, the prosecution charged Appellant with
corruption of minors and the underlying offense of indecent assault. The trial
court specifically instructed the jury that in order to convict Appellant of
corruption of minors, the jury would have to find that Appellant engaged in a
course of conduct that constituted the sexual offense of indecent assault under
the Crimes Code of Pennsylvania. The trial court did not instruct the jury on
any other offense under Chapter 31 of the Crimes Code. Thereafter, the jury
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convicted Appellant of corruption of minors but could not reach a verdict on
the indecent assault charge.
While the facts of this case are not identical to those in Baker-Myers
in which the jury acquitted the defendant of the underlying predicate charges,
we find the same rationale applies to the jury’s failure to reach a verdict on
the underlying indecent assault charge in this case.
When viewing the criminal information and the trial court’s instructions
to the jury in this case, the jury was informed that the Chapter 31 offense of
indecent assault was an essential element of the third-degree felony charge
of corruption of minors. As the jury failed to make a determination that
Appellant committed indecent assault, the prosecution failed to prove beyond
a reasonable doubt that Appellant engaged in a course of conduct in violation
of Chapter 31 of the Crimes Code. Thus, the evidence supporting Appellant’s
felony corruption of minors conviction was insufficient as a matter of law.
Accordingly, we vacate the judgment of sentence for the corruption of
minors conviction and remand for the trial court to resentence Appellant for
corruption of minors graded as a first-degree misdemeanor. See Baker-
Myers, 210 A.3d at 1096. The trial court must also determine whether
Appellant is still required to register with the State Police pursuant to SORNA.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2023
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