Com. v. Rodriguez, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE A. RODRIGUEZ :
:
Appellant : No. 1022 MDA 2022
Appeal from the Judgment of Sentence Entered July 7, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001973-2021
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED: MAY 1, 2023
Appellant, Jose A. Rodriguez, appeals from the July 7, 2022 judgment
of sentence following his jury conviction of Unlawful Contact with a Minor,
Indecent Assault with Threat of Forcible Compulsion, Indecent Assault of a
Person Less Than 16 Years of Age, and Corruption of Minors.1 Appellant
challenges the sufficiency of the evidence and the legality of his sentence.
Upon review, we affirm Appellant’s convictions but vacate Appellant’s
judgment of sentence and remand for resentencing.
It its Pa.R.A.P. 1925(a) Opinion, the trial court set forth an accurate and
detailed recitation of the factual and procedural history, as well as a summary
of testimony, which we adopt for purposes of this appeal. See Trial Ct. Op.,
8/24/22, at 1-7. In sum, Appellant and Francheska Rodriguez are cousins
____________________________________________
1 18 Pa.C.S. §§ 6318(a)(1), 3126(a)(3), 3126(a)(8), and 6301(a)(1)(ii),
respectively.
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who reunited at a family funeral in the summer of 2020 where then-twenty-
eight-year-old Appellant met Ms. Rodriguez’s daughter, then-fifteen-year-old
A.A. (“Victim”), for the first time. Ms. Rodriguez invited Appellant to her home
to visit in October 2020, and again for Thanksgiving. On the day before
Thanksgiving, Appellant arrived with his girlfriend Dana Colon (“Girlfriend”),
her children, and a friend.
On November 24, 2020, Thanksgiving Day, Victim had a friend over to
the house. After dinner, Victim asked to leave with her friend and Ms.
Rodriguez said no because it was too late. Victim became upset, and cried
and yelled as she stomped up the stairs to her bedroom. A few minutes later,
Appellant walked into Victim’s bedroom, shut the door, and sat on the bed
next to Victim. Appellant told Victim that she should be thankful for her
mother. Appellant explained that he did not have a mother growing up and
that his childhood was very hard.
The conversation soon shifted, and Appellant told Victim that her clothes
were inappropriate, or provocative, for her age. Appellant explained “the
things he has to do for a living” and told Victim that “sometimes I have to kill
people and do stuff that I don’t want to do.” N.T. Trial, 4/6/22-4/8/22, at 51.
Appellant then told Victim that he does not care about life, because he has
nothing to lose. Appellant was shocked by the things Appellant was saying
and did not respond.
Appellant and Victim were both crying, and Appellant hugged Victim.
Appellant then began kissing Victim on the neck, and Victim did not move.
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Appellant started to rub his hand along Victim’s body from the top of her hip
down the outside of her thigh on top of her clothing. Appellant proceeded to
kiss Victim on the lips. Victim did not scream or make noise because she
thought: “maybe if I stay quiet enough, nothing will happen because if I
scream I could just – I don’t know, something can happen to me. Like he
doesn’t have nothing to lose. He can just kill me, kill my mom. I don’t know.
I stayed quiet. I was just in shock because I didn’t believe it.” Id. at 55.
Appellant stopped kissing Victim when Ms. Rodriguez called Victim on
her cell phone to request that she come downstairs. A few minutes later,
Victim’s brother knocked on the door, which was locked, and the interruption
prompted Appellant to leave the bedroom.
Victim went into the bathroom to call her friend and tell her what just
happened. Victim’s friend convinced her to tell Ms. Rodriguez about the
incident. Ms. Rodriguez confronted Appellant, who denied any wrongdoing
and left.
Around 10:45 PM, Victim called the police and Police Officer Jeremy
Sborz responded to the scene. On December 8, 2020, the Children’s Resource
Center conducted a forensic interview of Victim. On January 5, 2021, the
Commonwealth charged Appellant with the above-listed crimes.
On April 6, 2022, a jury trial commenced. The Commonwealth
presented testimony from Victim, Ms. Rodriguez, Officer Sborz, and Detective
Nina Maus, each of whom testified in accordance with the above recitation of
facts. Appellant presented testimony from Ms. Colon, who testified that
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approximately fifteen to twenty minutes after Appellant went to Victim’s
bedroom, she also went into the bedroom for a few minutes. Ms. Colon
explained that, at the time, the door was unlocked, and that Appellant and
Victim were not sitting near each other.
At the conclusion of the trial, the jury convicted Appellant of Unlawful
Contact, two counts of Indecent Assault, and Corruption of Minors. On July 7,
2022, the trial court sentenced Appellant to an aggregate term of three to five
years’ incarceration.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether there was insufficient evidence to sustain the
conviction for Unlawful Contact with a Minor when the contact
in a question occurred after a verbal communication, and the
predicate verbal communication had no expressive element to
show the required purpose for contact under the Unlawful
Contact statute.
2. Whether there was insufficient evidence to support the
conviction for Indecent Assault by Threat of Forcible
Compulsion when the verbal communication was not related to
any threat and the objective circumstances prior to and after
the contact show no directed threat.
3. Whether the trial court erred in sentencing Appellant consistent
with a felony Corruption of Minors Statute, when the jury did
not find a course of conduct.
Appellant’s Br. at 6 (numbered and reordered for ease of disposition, some
capitalization changed).
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In his first two issues, Appellant raises challenges to the sufficiency of
the evidence for his Unlawful Contact and Indecent Assault convictions. Id.
at 6.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Our standard
of review is de novo, and our scope of review is plenary.” Commonwealth
v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019). When reviewing
sufficiency challenges, we evaluate the record in the light most favorable to
the verdict winner, giving the Commonwealth the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v. Trinidad, 96
A.3d 1031, 1038 (Pa. Super. 2014). This Court will not disturb a verdict when
“there is sufficient evidence to enable the fact-finder to find every element of
the crime beyond a reasonable doubt.” Commonwealth v. Orr, 38 A.3d 868,
872 (Pa. Super. 2011) (en banc) (citation omitted). “[T]he fact finder is free
to believe all, part, or none of the evidence presented.” Commonwealth v.
Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011) (citation omitted). In
reviewing a sufficiency challenge, we do not re-weigh the evidence and
substitute our judgment for that of the fact-finder. Id. at 890.
Challenges to witness credibility pertain to the weight, not sufficiency,
of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.
2014). Moreover, inconsistencies are for the fact-finder “to resolve and do
not dictate a finding the evidence was not sufficient for conviction.”
Commonwealth v. Juray, 275 A.3d 1037, 1046 (Pa. Super. 2022). Our
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sufficiency analysis must therefore accept the credibility and reliability of all
evidence that supports the verdict. Commonwealth v. Breakiron, 571 A.2d
1035, 1042 (Pa. 1990).
Finally, “the uncorroborated testimony of a single witness is sufficient to
sustain a conviction for a criminal offense, so long as that testimony can
address and, in fact, addresses, every element of the charged crime.”
Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa. Super. 2018).
In his first issue, Appellant avers that the evidence was insufficient to
convict him of Unlawful Contact with a Minor. Appellant’s Br. at 13. He argues
that the Commonwealth had the burden of proving that he communicated with
Victim for the purpose of initiating sexual contact, but that the evidence
demonstrated only that Appellant engaged in a conversation for a non-sexual
purpose, i.e., to tell Victim that she should be thankful for her mother and
wear more conservative clothing. He argues that this evidence proves that
he did not communicate with Victim during the assault. Id. at 11, 15.
Appellant’s argument has no merit.
A person is guilty of Unlawful Contact with a Minor if he or she is
intentionally in contact with a minor for the purpose of engaging in a
prohibited Chapter 31 sexual offense. 18 Pa.C.S. § 6318(a)(1). “Contact” is
defined, in relevant part, as “[d]irect or indirect contact or communication by
any means, method or device, including contact or communication in
person[.]” 18 Pa.C.S. § 6318(c). “[T]he crime of Unlawful Contact with a
Minor focuses on communication, verbal or non-verbal, and does not
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depend upon the timing of the communication.” Commonwealth v. Davis,
225 A.3d 582, 587 (Pa. Super. 2019). “Thus, it matters not whether the
communication occurred at the outset of or contemporaneously with the
[actual sexual] contact; once the communicative message is relayed to a
minor, the crime of unlawful contact is complete.” Id. As this Court has
explained, the statute is “best understood as unlawful communication with
a minor [because b]y its plain terms, the statute prohibits the act of
communicating with a minor for enumerated sexual purposes.”
Commonwealth v. Rose, 960 A.2d 149, 152-53 (Pa. Super. 2008).
Notably, “Section 6318 does not require that a defendant even be
charged with, let alone convicted of, any underlying substantive offense for
which he contacted the minor.” Commonwealth v. Aikens, 168 A.3d 137,
141 (Pa. 2017). Moreover, “a defendant need not be successful in completing
the purpose of his communication with a minor in order to be convicted of
unlawful contact with a minor.” Id.Appellant attempts to classify his verbal communication with Victim as
a discrete, non-sexual conversation that was not connected in time or context
to his actions of hugging, kissing, and touching a fifteen-year-old in a sexual
manner. The record belies Appellant’s claims. Victim testified that Appellant
entered her bedroom, closed the door, sat next to victim on her bed, talked
to Victim about her provocative clothing, and soon thereafter hugged and
kissed Victim on her neck and mouth and rubbed her leg. N.T. Trial at 46-56.
Given the totality of the evidence, it was reasonable for the jury to infer that
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Appellant’s verbal communication regarding Victim’s clothing, coupled with
Appellant’s non-verbal communication of closing the door, sitting next to
Victim on the bed, and hugging Victim, constituted communication with Victim
for the purpose of engaging in sexual activity. Viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, the
Commonwealth presented sufficient evidence to convict Appellant of Unlawful
Contact with a Minor.
Appellant cites Commonwealth v. Leatherby, 116 A.3d 73 (Pa. Super.
2015), to support his argument that his conversation with Victim did not
constitute contact for the purpose of indecent assault; rather, it represented
“contact incident to the assault.” Appellant’s Br. at 17. In Leatherby, this
Court vacated the appellant’s conviction for Unlawful Contact with a Minor
where the victim testified that the appellant would repeatedly come into her
bedroom at night while she was sleeping and grope her breast and buttocks
without talking to her. 116 A.3d at 79-80. Here, Appellant talked to Victim,
and Victim was awake. Leatherby is, thus, easily distinguished from the
instant case and, therefore, unpersuasive.
Appellant next challenges his conviction for Indecent Assault by Forcible
Compulsion. Appellant’s Br. at 20. Appellant argues that Appellant’s
statements about killing people did not constitute the requisite threat of
forcible compulsion because they were made in the course of a conversation
about Appellant’s childhood difficulties and were not directed towards Victim.
Id. at 20-21, 26.
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To prove Indecent Assault by Threat of Forcible Compulsion, the
Commonwealth must prove that a defendant had “indecent contact with the
complainant” and “does so by threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution.” 18 Pa.C.S. § 3126(a)(3).
“Indecent contact” is defined as “[a]ny touching of the sexual or other intimate
parts of the person for the purpose of arousing or gratifying sexual desire, in
any person.” Id. at § 3101. “Forcible Compulsion” is defined as “[c]ompulsion
by use of physical, intellectual, moral, emotional or psychological force, either
express or implied.” Id.
Our Supreme Court has explained that whether a threat of forcible
compulsion occurred is a determination based upon the totality of the
circumstances, including but not limited to:
[T]he respective ages of the victim and the accused, the
respective mental and physical conditions of the victim and the
accused, the atmosphere and physical setting in which the
incident was alleged to have taken place, the extent to which the
accused may have been in a position of authority, domination or
custodial control over the victim, and whether the victim was
under duress.
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986).
The evidence presented at trial demonstrated that Victim was fifteen
years old as opposed to Appellant’s age of twenty-eight, Victim was upset,
Appellant followed Victim into her bedroom and sat next to her on her bed,
Appellant commented on Victim’s provocative clothing, Appellant informed
Victim that he had previously killed people, Appellant hugged Victim, and
Appellant began to kiss Victim’s neck and mouth while she did not move or
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respond. While Appellant characterizes his comments about killing people as
a conversation about his childhood, Victim testified that the comments scared
and shocked her, and that she perceived the comments as a threat that
Appellant would kill her and her mother if she did not comply with Appellant.
See N.T. at 55. Considering the totality of the circumstances and viewing the
evidence in the light most favorable to the Commonwealth, it was reasonable
for the jury to conclude that Appellant’s comments rose to the level of a threat
of forcible compulsion. Accordingly, Appellant’s sufficiency challenge fails.
In his final issue, Appellant avers that his sentence for Corruption of
Minors is illegal and challenges the grading of the offense. Appellant’s Br. at
8. In its opinion, the trial court acknowledges that the court incorrectly
sentenced Appellant to a felony of the third degree, which requires a remand
to correct the grading of the offense to a misdemeanor of the first degree.
Trial Ct. Op. at 12. Upon review, we agree that remand is appropriate because
the jury did not find that Appellant engaged in a “course of conduct” which is
required to grade the offense as a felony of the third degree. See 18 Pa.C.S.
§ 6301(a)(1)(ii). Accordingly, we vacate Appellant’s judgment of sentence
and remand for resentencing.
In conclusion, the Commonwealth presented sufficient evidence to
convict Appellant of Unlawful Contact with a Minor and Indecent Assault by
Threat of Forcible Compulsion and we, thus, affirm those convictions. Upon
review, the trial court erred when it sentenced Appellant on the Corruption of
Minors offense as a felony of the third degree when the correct grading is a
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misdemeanor of the first degree. We, therefore, vacate Appellant’s judgment
of sentence and remand for resentencing.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2023
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