Com. v. Dorsey, G.

• Court: Superior Court of Pennsylvania
• Decided: March 24, 2020
• Docket: 1115 WDA 2019
• Status: Unpublished

Opinion

J-S08034-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GEORGE ANDREW DORSEY, : : Appellant : No. 1115 WDA 2019

Appeal from the Judgment of Sentence Entered February 8, 2019 in the Court of Common Pleas of Indiana County Criminal Division at No(s): CP-32-CR-0000243-2018

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 24, 2020

George Andrew Dorsey (“Dorsey”) appeals from the judgment of

sentence imposed following his convictions of statutory sexual assault,

endangering welfare of children (“EWOC”), and corruption of minors.1 We

affirm.

On February 2, 2017, Indiana County Children and Youth Services

received a report of potential abuse of a child. The report was passed on to

Pennsylvania State Police, who opened an investigation. Following an

interview of the victim, Dorsey was charged with the above-mentioned crimes,

as well as rape of a child, involuntary deviate sexual intercourse with a child,

and corruption of minors.2

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1 18 Pa.C.S.A. §§ 3122.1(b), 4304(a)(1), 6301(a)(1)(ii).

2 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b). J-S08034-20

Following a jury trial, Dorsey was convicted of statutory sexual assault,

EWOC, and corruption of minors. The trial court sentenced Dorsey to an

aggregate term of 5 to 15 years in prison. Dorsey filed a timely post-sentence

Motion challenging the sufficiency of the evidence, which the trial court denied.

Dorsey filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

On appeal, Dorsey raises the following questions for our review:

I. Whether the evidence was sufficient to find [Dorsey] guilty of [EWOC] (18 Pa.C.S.[A.] § 4304(a)(1))?

II. Whether the evidence was sufficient to find [Dorsey] guilty of [s]tatutory [s]exual [a]ssault (18 Pa.C.S.[A.] § 3122.1(b))?

Brief for Appellant at 7.

In his first claim, Dorsey alleges that the evidence was insufficient to

support his conviction for EWOC. See Brief for Appellant at 12-13. Dorsey

argues that the evidence did not establish that he (1) was aware of his duty

to protect the child; (2) was aware that the child was in circumstances that

threatened the child’s physical or psychological welfare; and (3) had failed to

act or had taken action so lame or meager that such action cannot be

reasonably expected to have protected the child’s welfare. Id.

The standard for reviewing a challenge to the sufficiency of the evidence

is

whether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In

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addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder[,] unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

Here, Dorsey fails to provide pertinent argument as to why the evidence

was insufficient to support his conviction, or to reference relevant legal

authority in support. “[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009); see also

Pa.R.A.P. 2119(a). It is not the role of this Court to “formulate [an a]ppellant’s

arguments for him.” Id. at 925. Nevertheless, we decline to find Dorsey’s

claim waived.

Section 4304(a)(1) states, in relevant part, that “[a] parent, guardian

or other person supervising the welfare of a child under 18 years of age …

commits an offense if he knowingly endangers the welfare of the child by

violating a duty of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).

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The Pennsylvania courts have established a three-part test that must be satisfied to prove EWOC: 1) The accused was aware of his/her duty to protect the child; 2) The accused was aware that the child was in circumstances that could threaten the child’s physical or psychological welfare; and 3) The accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.

….

On multiple occasions, we have extended a duty of care to non-relatives who exercise some supervisory role over children. In reviewing EWOC, Pennsylvania courts have long recognized that the legislature attempted to prohibit a broad range of conduct in order to safeguard the welfare and security of our children. Furthermore, the common sense of the community should be considered when interpreting the language of the statute.

Commonwealth v. Bryant, 57 A.3d 191, 197-98 (Pa. Super. 2012) (some

citations, quotation marks and brackets omitted) (citing Commonwealth v.

Trippett, 932 A.2d 188, 195 (Pa. Super. 2007) (stating that the evidence was

sufficient to establish that the defendant owed the victim a duty of care where

the defendant took care of victim when the victim was young and no other

adults were in the home, and the abuses occurred when no other adults were

in the home)); see also Commonwealth v. Leatherby, 116 A.3d 73, 81

(Pa. Super. 2015) (stating that the evidence was sufficient to establish that

the defendant was aware of his duty to protect the victim where the defendant

had been dating the victim’s mother for 2½ years; the defendant had lived

with the victim for 6 months; the defendant had conceived a child with the

victim’s mother; the victim testified that the defendant was the only father

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figure she had known in her life; and the victim’s siblings called the defendant

“dad”).

Here, Dorsey and the victim’s mother both testified that they had been

in a romantic relationship for several years from 2014 or 2015 to at least

2017, and that Dorsey had lived with the victim and victim’s mother at various

times. See N.T., 10/22-25/18, at 16-17, 92-94, 100-07, 116, 173-75.

Dorsey stated that, during this period, he stayed at the victim’s home four or

five days a week; he provided support for the victim; he paid the bills for the

victim and victim’s mother’s home; the bills were in his name; he considered

himself a care taker for the victim; and he loved the victim. Id. at 174, 176,

182, 191, 205-06, 242. This evidence is sufficient to prove that Dorsey was

a “person supervising the welfare of” the victim, and owed a duty of care to

the victim. See Bryant, supra; Trippett, supra; Leatherby, supra.

Regarding whether Dorsey violated his duty of care, the victim testified

at trial that Dorsey had performed oral sex on her, penetrated her vagina with

his penis, and touched her breasts and vagina with his hand. N.T., 10/22-

25/18, at 21-22, 27, 29, 30-33, 40-42. These events occurred when the

victim was 12 or 13 years of age. Id. at 23, 26, 35. This evidence is sufficient

to prove that Dorsey knowingly endangered the victim’s welfare. See

Commonwealth v. Bishop, 742 A.2d 178, 182, 190 (Pa. Super. 1999)

(stating that the defendant knowingly endangered the welfare of the child

victim where the defendant performed oral sex on the victim, digitally

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penetrated the victim’s vagina, and instructed the victim to touch his penis

and buttocks); see also Trippett, 932 A.2d at 201 (stating that “the

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

fact, is sufficient to convict a defendant.” (brackets omitted)). Accordingly,

Dorsey’s first claim fails.

In his second claim, Dorsey alleges that the evidence was insufficient to

support his conviction for statutory sexual assault. See Brief for Appellant at

13. Dorsey argues that the evidence was insufficient to establish that he

engaged in sexual intercourse with the victim. Id.

Section 3122.1, statutory sexual assault, states, in relevant part, that

“[a] person commits a felony of the first degree when that person engages in

sexual intercourse with a complainant….” 18 Pa.C.S.A. § 3122.1(b). Sexual

intercourse “includes intercourse per os or per anus, with some penetration

however slight.” Id. § 3101. “Our courts have viewed the phrase intercourse

per os or per anus as describing oral and anal sex.” See Commonwealth v.

Kelley, 801 A.2d 551, 555 (Pa. 2002) (quotation marks omitted).

Here, the victim testified that, on one occasion, Dorsey “was licking

[her] vaginal area….” N.T., 10/22-25/18, at 32. The prosecutor asked the

victim, “you said a phrase[,] he was licking your vaginal area. Specifically,

what do you mean he was doing? Was it on the outside of your body? Was

it on the inside of your body? Where was he licking?” Id. The victim

responded, “[i]nside I guess. The inside, yeah he was, my pants were off and

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he had my legs spread and he was licking, and like licking my vagina.” Id.

The victim also testified that, on another occasion, she was with her mother

and Dorsey, and her mother gave her a marijuana-laced candy, some alcohol,

and a Xanax pill. Id. at 36-38; see also id. at 101 (wherein the victim’s

mother testified to giving the victim a marijuana-laced candy). The victim

stated that she then fell asleep, and awoke to find herself naked, with Dorsey

on top of her, also naked, and with his penis inside of her vagina. Id. at 39-

41, 43; see also id. at 103-06 (wherein the victim’s mother testified,

regarding this occasion, that she had witnessed Dorsey performing oral sex

on the victim).

We conclude that this evidence was sufficient to prove that Dorsey had

engaged in sexual intercourse with the victim. See 18 Pa.C.S.A.

§§ 3122.1(b), 3101; Kelley, supra; see also Commonwealth v. Ziegler,

550 A.2d 567, 569-70 (Pa. Super. 1988) (stating that a victim’s testimony

that the defendant had licked her vagina was sufficient evidence to prove that

the defendant engaged in sexual intercourse with the victim) (abrogated on

other grounds by Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super.

2000)). Accordingly, Dorsey’s second claim fails.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/24/2020

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