Com. v. Brown, P.

• Court: Superior Court of Pennsylvania
• Decided: February 12, 2018
• Docket: 1147 EDA 2016
• Status: Unpublished

Opinion

J-A22009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

PAUL BROWN

Appellant No. 1147 EDA 2016

Appeal from the Judgment of Sentence March 14, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005729-2013

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 12, 2018

Paul Brown appeals from the judgment of sentence of seven to

fourteen years incarceration imposed after he was convicted of unlawful

contact with a minor (“unlawful contact”), corruption of a minor

(“corruption”), and endangering the welfare of a child (“EWOC”). We affirm.

The following facts underlie this matter. In March 2013, the victim,

J.B.B., was three-years old. During that time, J.B.B. was regularly cared for

by Appellant and his wife, J.B.B.’s maternal great-grandmother, while

J.B.B.’s mother, Bianca Benjamin, went to work. On March 13, 2013, J.B.B.

stayed the night with Appellant and his great-grandmother. The following

evening, when Ms. Benjamin arrived to pick up J.B.B., the child stated that

* Retired Senior Judge specially assigned to the Superior Court. J-A22009-17

Appellant had “sucked [his] penis.” N.T. Trial, 11/19/15, at 12. J.B.B. then

pulled his pants down revealing that his penis was red and swollen. Ms.

Benjamin took the victim to the hospital. A medical examination revealed

that J.B.B.’s penis was red, swollen, and sensitive to the touch. Utilizing a

sexual abuse testing kit, samples were taken from J.B.B.’s body, and his

clothing was collected for further evaluation. Further testing revealed

Appellant’s DNA on J.B.B.’s sock, the crotch of his pants, and the crotch of

his underwear.

Based on the foregoing, Appellant was arrested and charged with

unlawful contact, corruption, EWOC, indecent assault on a person less than

thirteen years of age, involuntary deviate sexual intercourse with a minor,

and other related offenses. Appellant was first tried in October 2014, but

after deliberation, the jury was hopelessly deadlocked, and the court

declared a mistrial. In November 2015, Appellant was retried, and the jury

convicted him of unlawful contact, corruption, and EWOC. Appellant was

acquitted of involuntary deviate sexual intercourse with a minor, and the

remaining charges were nolle prossed. Following a sentencing hearing, the

trial court imposed an aggregate judgment of sentence of seven to fourteen

years incarceration. Appellant did not file a post-sentence motion.

However, on April 9, 2016, he filed a timely notice of appeal. Appellant

complied with the trial court’s order to file a Rule 1925(b) concise statement

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of errors complained of on appeal, and the trial court authored its Rule

1925(a) opinion. This matter is now ready for our review.

Appellant raises two questions for our consideration:

A. Was the evidence insufficient as a matter of law to establish Appellant’s guilt beyond a reasonable doubt on the charges of: 1) unlawful contact with a minor 18 § 6318 §§ A1 (1 st Degree Felony); 2) corruption of minors 18 § 6301 § A1i (1 st Degree Misdemeanor); and 3) endangering welfare of children 18 § 4304 §§ A1 (1st Degree Misdemeanor)?

B. Whether a new trial should be awarded in the interests of justice because they jury verdict was against the weight of the evidence on the charges of 1) unlawful contact with a minor 18 § 6318 §§ A1 (1st Degree Felony); 2) corruption of minors 18 § 6301 § A1i (1st Degree Misdemeanor); and 3) endangering welfare of children 18 § 4304 §§ A1 (1 st Degree Misdemeanor)?

Appellant’s brief at 7 (capitalization omitted).

Appellant’s first issue challenges the sufficiency of the evidence

underpinning his convictions. Whether the evidence was sufficient to

support Appellant’s convictions presents a matter of law. Thus, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Walls, 144 A.d 926, 931 (Pa.Super 2016) (citation omitted). The following

principles are well-established:

There is sufficient evidence to sustain a conviction when the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to enable the fact-finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Further, we note that the entire trial

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record is evaluated and all evidence received against the defendant is considered, being cognizant that the trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Diaz, 152 A.3d 1040, 1043-44 (Pa.Super. 2016)

(internal quotation omitted, citation omitted). Generally, a witness’s

credible testimony is sufficient to prove an element of a crime. This is

especially true in this context, where we have previously held that “the

uncorroborated testimony of a sexual assault victim, if believed by the trier

of fact, is sufficient to convict a defendant, despite contrary evidence from

defense witnesses.” Commonwealth v. Charlton, 902 A.2d 554, 562

(Pa.Super. 2006) (quoting Commonwealth v. Davis, 650 A.2d 452, 455

(Pa.Super. 1994)).

As is relevant herein, the Crimes Code defines unlawful contact with a

minor as the intentional contact with a minor for the purpose of engaging in

activity prohibited by chapter 31 (relating to sexual offenses). 18 Pa.C.S. §

6318(a)(1). Corruption of a minor is defined as “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[.]” 18 Pa.C.S. §

6301(a)(1). Finally, a person endangers the welfare of a child if, while

“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

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endangers the welfare of a child by violating a duty of care, protection or

support.” 18 Pa.C.S. § 4304(a)(1).

Appellant premises his argument on the line of reasoning enunciated

by our Supreme Court in Commonwealth v. Farquharson, 354 A.2d 545

(Pa. 1976). In this vein, he contends that the evidence presented against

him was “so unreliable or contradictory as to make any verdict based

thereon obviously the result of conjecture and not reason[.]” Id. at 550;

Appellant’s brief at 21. Appellant argues that the testimony presented by

Ms. Benjamin and J.B.B. was “riddled with inconsistencies and falsities.”

Appellant’s brief at 22. He emphasizes discrepancies in J.B.B.’s account of

the incident, as reported by Ms. Benjamin, such as the presence of a fish

tank in the room where the assault took place, when there was no such fish

tank, J.B.B.’s failure to name Appellant as his assailant until being probed by

Ms. Benjamin for additional information, and J.B.B.’s initial assertion that

Appellant bit his penis.

Appellant also contends that J.B.B.’s testimony was inconsistent, and

thus, wholly unreliable. He highlights portions of J.B.B.’s testimony where

he appears to contradict himself, including statements that Appellant forced

J.B.B. to perform fellatio on him, which contradicted a statement to the

contrary which J.B.B. offered on direct examination. J.B.B. also testified to

wearing “church clothes” during the incident, but on cross-examination, he

stated that he was wearing pajamas. Appellant’s brief at 23. Appellant

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alleges that such inconsistencies render the whole of J.B.B.’s testimony so

unreliable that it cannot provide sufficient support for his convictions.

Appellant bolsters his conclusion by noting that the Commonwealth

failed to prove that J.B.B. was wearing the underwear upon which

investigators ultimately found his DNA, and that none of his DNA was found

on J.B.B.’s penis. Essentially, he maintains the trier of fact should have

credited his explanation that his DNA was found on J.B.B.’s clothing because

he “regularly handled” J.B.B.’s clothing “doing laundry, washing, and folding

clothes.” Id. at 24. Further, the finder of fact should have determined that

J.B.B.’s injuries were likely caused by the child, himself, as multiple

witnesses testified that the victim “fondled himself excessively.” Appellant’s

brief at 26. Finally, Appellant highlights the testimony of his witnesses,

which spoke highly of him and his relationship with J.B.B.

At the outset, we note that much of Appellant’s argument reads as a

challenge to the weight of the evidence, and, as noted above, the finder of

fact was free to believe, all, or none of the evidence. Diaz, supra. Thus,

the jury was free to disbelieve Appellant’s innocent explanations for the

evidence against him, and, when convicting him of the above-enumerated

offense, it clearly credited the Commonwealth’s testimony offered against

him. As we previously observed, our standard of review dictates that we

review the evidence of record in the light most favorable to the

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Commonwealth to determine whether the jury’s findings are sufficiently

supported.

Instantly, Ms. Benjamin testified that, on March 14, 2013, she

returned to her grandmother’s house to pick up J.B.B., who had stayed over

the previous night. After her arrival, J.B.B. told his mother that “somebody

sucked my penis.” N.T. Trial, 11/19/15, at 12. When she pressed J.B.B. for

additional information, he indicated “[Appellant] sucked my penis.” Id.

J.B.B. then pulled his pants down revealing his penis was “swollen and red

and bruised.” Id. at 13. Ms. Benjamin noted that, at the time of the

incident, J.B.B. was wearing brand new clothes, which had only been washed

once at her own home. Id. at 17.

J.B.B., who was five-years old at the time of trial, also testified. J.B.B.

recounted the events that occurred in March 2013, and stated that Appellant

“sucked my penis.” Id. at 44. He noted that, at the time of the event, he

was wearing “church clothes.” Id. at 45. J.B.B. also asserted that Appellant

removed his own clothes while in the room with J.B.B., so that J.B.B.

observed Appellant’s private parts. Id. at 46-47. J.B.B. testified that,

Appellant, while naked, implored J.B.B. to “suck it, man, suck it,” but J.B.B.

denied complying with that command. Id. at 47. On cross-examination,

J.B.B. offered that he was wearing “pajamas” at the time of his assault. Id.

at 52. In addition, he stated, “[Appellant] forced me to suck his penis.” Id.

at 53.

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The Commonwealth offered the testimony of Modupe Adewumi, an

expert in field forensics, and Bryne Strother, an expert in DNA analysis. Ms.

Adewumi analyzed physical evidence obtained during the investigation into

Appellant’s assault, including the sexual assault test kit used on J.B.B.

during his treatment at the hospital, and J.B.B.’s clothing, which had been

collected at the hospital. This evidence revealed P-30, an enzyme commonly

found in seminal fluid, present on J.B.B.’s sock. N.T. Trial, 11/18/15, at 75-

77. Ms. Strother detailed her analysis of the DNA evidence obtained from

J.B.B.’s clothing. In this regard, she discovered the presence of Appellant’s

DNA on J.B.B.’s sock, the crotch of J.B.B.’s pants, and the crotch of J.B.B.’s

underwear. Id. at 90-94. Further, she clarified that, although DNA was not

found on J.B.B.’s body, this was common, since it is easily removed from the

body by washing or other mechanisms. Id. at 96-97. In contrast, clothing is

a “good material to adhere to[.]” Id. at 97. Lastly, the Commonwealth

offered medical reports from J.B.B.’s hospital visit that confirmed that, on

March 14, 2013, he presented with a red and swollen penis.

We find that, when viewing this evidence in the light most favorable to

the Commonwealth as verdict-winner, the evidence supporting Appellant’s

convictions was not so unreliable or contradictory as to amount to nothing

more than mere conjecture. Diaz, supra; Farquharson, supra. Thus, we

find that is was sufficient to establish the elements of his offenses beyond a

reasonable doubt. Although J.B.B.’s testimony was inconsistent at times, he

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unequivocally stated that Appellant performed fellatio on him. This

testimony, alone, was sufficient to support Appellant’s convictions.

Charlton, supra. In addition, J.B.B.’s testimony was corroborated by the

physical evidence proffered by the Commonwealth, and was consistent with

Ms. Benjamin’s retelling of the night in question. In light of this support, the

discrepancies in Appellant’s testimony did not undermine the sufficiency of

the evidence underpinning Appellant’s convictions. Hence, this claim fails.

Appellant’s second issue raises a challenge to the weight of the

evidence. A claim that the verdict was against the weight of the evidence

must be raised with the trial judge in a motion for a new trial orally, on the

record, or in writing prior to sentencing, or in a post-sentence motion.

Pa.R.Crim.P. 607(A). Since the record reveals that Appellant failed to raise

this issue before the trial court pursuant to Pa.R.Crim.P. 607, this claim is

waived. Commonwealth v. Kinney, 157 A.3d 968, 972 (Pa.Super. 2017).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/12/18

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