Com. v. Fowler, M.

• Court: Superior Court of Pennsylvania
• Decided: July 16, 2019
• Docket: 4061 EDA 2017
• Status: Unpublished

Opinion

J-S26020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MYRON FOWLER : : Appellant : No. 4061 EDA 2017

Appeal from the Judgment of Sentence September 28, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012068-2014

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 16, 2019

Appellant, Myron Fowler, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for indecent assault of child less than 13, endangering the

welfare of children, corruption of minors, and unlawful contact with a minor.1

We affirm in part, vacate in part, and remand.

In its opinion, the trial court correctly set forth most of the relevant facts

and procedural history. Therefore, we have no reason to restate them. We

add that Appellant sexually assaulted Victim from approximately 2005 to

2014. The court sentenced Appellant on September 28, 2017, to 1 to 3 years’

imprisonment, plus 7 years’ probation. The court required Appellant to

____________________________________________

1 18 Pa.C.S.A. §§ 3126(a)(7), 4304(a)(1), 6301(a)(1)(ii), 6318(a)(1), respectively. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S26020-19

register and report for life as a Tier III offender under the Sexual Offender

Registration and Notification Act (“SORNA”) and designated Appellant as a

sexually violent predator (“SVP”). On December 27, 2017, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant filed a Rule 1925(b) statement on

January 22, 2018.

Appellant raises the following issue for our review:

WAS THERE INSUFFICIENT EVIDENCE TO CONVICT APPELLANT…OF UNLAWFUL CONTACT WITH MINOR— SEXUAL OFFENSES, INDECENT ASSAULT [OF A] PERSON LESS THAN 13 YEARS OF AGE, CORRUPTION OF MINORS, AND ENDANGERING [THE] WELFARE OF CHILDREN?

(Appellant’s Brief at 3).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gwendolyn N.

Bright, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed April 18, 2018, at 4-6) (finding: Appellant

engaged in routine course of conduct of sexually assaulting Victim; evidence

established Appellant regularly assaulted Victim by putting his hand in Victim’s

pants, fondling her buttocks, and kissing her neck; Appellant’s assaultive

behavior began when Victim was four years old and continued until Victim was

fourteen years old; Appellant invoked God as means to dissuade Victim from

resisting assaults; Appellant’s claim that Commonwealth failed to prove

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specific time and place where assault occurred is without merit; Victim

testified that Appellant sexually assaulted her when she was between ages of

four and fourteen; Appellant routinely abused Victim when she visited

Appellant on “C” Street and Vista Street in Philadelphia; incidents occurred in

Appellant’s bedroom at those locations, as well as in Victim’s grandmother’s

basement and in Appellant’s car; no ambiguity existed as to time frame and

locations of Appellant’s criminal conduct). The record supports the trial court’s

rationale. Therefore, we confirm the sufficiency of the evidence.

Nevertheless, we are mindful of recent case law calling into question the

validity of Appellant’s SORNA registration requirements and SVP status.

Consequently, we elect to review the legality of Appellant’s sentence sua

sponte. See Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003)

(en banc) (explaining challenges to illegal sentence cannot be waived and may

be raised by this Court sua sponte, assuming jurisdiction is proper; illegal

sentence must be vacated); Commonwealth v. Butler, 173 A.3d 1212

(Pa.Super. 2017), allowance of appeal granted, ___ PA. ___, 190 A.3d 581

(2018) (addressing legality of appellant’s SVP status sua sponte).

Our Supreme Court declared SORNA unconstitutional, to the extent it violates the ex post facto clauses of both the United States and Pennsylvania Constitutions. [Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)]. The Muniz court determined SORNA’s purpose was punitive in effect, despite the General Assembly’s stated civil remedial purpose. SORNA also violates the ex post facto clause of the Pennsylvania Constitution because it places a unique burden on the right to reputation and undermines the

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finality of sentences by demanding more severe registration requirements. The effective date of SORNA, December 20, 2012, controls for purposes of an ex post facto analysis.

In light of Muniz, this Court also held: “[U]nder Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] and Alleyne [United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] a factual finding, such as whether a defendant has a mental abnormality or personality disorder that makes him…likely to engage in predatory sexually violent offenses, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.” Butler, supra at 1217 (addressing SVP status sua sponte as illegal sentence) (internal quotations and citations omitted). See also Alleyne, supra (holding any fact that increases mandatory minimum sentence for crime is considered element of crime to be submitted to factfinder and found beyond reasonable doubt). This Court further held: “Section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt.” Id. at 1218. The Butler Court concluded that trial courts can no longer designate convicted defendants as SVPs or hold SVP hearings, “until [the] General Assembly enacts a constitutional designation mechanism.” Id. (vacating appellant’s SVP status and remanding to trial court for sole purpose of issuing appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting requirements for sex offenders, as to appellant’s registration obligation).

Following Muniz and Butler, the Pennsylvania General Assembly enacted legislation to amend SORNA. Act 10 amended several provisions of SORNA, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania signed new legislation striking the Act 10 amendments and reenacting several SORNA provisions, effective June 12, 2018. Through Act 10, as amended in Act 29, the General Assembly created Subchapter I, which addresses sexual offenders who committed an offense on or after April 22, 1996, but before December 20, 2012. Subchapter I contains less stringent reporting requirements

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than Subchapter H, which applies to offenders who committed an offense on or after December 20, 2012.

Commonwealth v. Alston, 2019 PA Super 178, *2-*3 (filed June 6, 2019)

(footnotes and some internal citations omitted). “[W]hen an appellant's

offenses straddle the effective dates of Subchapters H and I of SORNA, he is

entitled to the lower reporting requirements of Subchapter I, absent a specific

finding of when the offenses related to the convictions actually occurred.” Id.

at *3.

Instantly, Appellant committed sexual offenses between 2005 and 2014.

A jury convicted Appellant of indecent assault of child less than 13,

endangering the welfare of children, corruption of minors, and unlawful

contact with a minor. The court sentenced Appellant to an aggregate term of

1 to 3 years’ imprisonment, plus 7 years’ probation; during the sentencing

hearing, the court also designated Appellant as an SVP and required Appellant

to register and report for life under SORNA.

Here, the court designated Appellant an SVP by clear and convincing

evidence under Section 9799.24(e)(3), which violates the federal and state

constitutions. See Butler, supra. Therefore, we must vacate Appellant's

SVP status. See id.

Further, the jury did not specifically find the dates when Appellant

committed his offenses. Appellant’s offenses straddle the operative dates for

Subchapters H and I. Without a specific finding by the chosen factfinder of

when the offenses occurred, Appellant is entitled to the lowest punishment.

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See Alston, supra.

Accordingly, we affirm the judgment of sentence in part and vacate that

portion of the judgment of sentence regarding Appellant’s SVP status and

SORNA reporting requirements; we remand the case to the trial court to

instruct Appellant on his proper registration and reporting requirements.

Judgment of sentence affirmed in part and vacated in part solely as to

SVP status and SORNA reporting requirements; case remanded with

instructions. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/16/19

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: SUPERJOR COURT OF PENNSYLVANIA MYRON FOWLER � EDA2017 tf./061 OPINION

BRIGHT, J.

On January 30, 2017 Appellant was found guilty by a jury before the Honorable Gwendolyn

N. Bright on charges of Unlawful Contact With Minor-Sexual Offenses, Indecent Assault Person

Less Than 13 Years of Age, Corruption of Minors and Endangering Welfare of Children. On

September 28, 2017 Appellant was sentenced to a term of incarceration followed by probation. By

agreement of counsel Appellant was determined to be a Sexually Violent Predator (SVP) with

lifetime registration requirements. 9/28/17 N .T. at 4-5, 32-34.1 On December 7, 2017 Appellant's

Motion to Reconsider Sentence was denied. ,This appeal followed on December 14, 2017.

The following issues are raised on appeal:

l. The evidence was insufficient to convict Appellant Myron L. Fowler of Unlawful Contact With Minor - Sexual Offenses 18 §6318 §A 1, Corruption of Minors - Defendant Age 18 or Above 18 § 6301 §§ Al ii, Indecent Assault Person Less Than 13 Years of Age 18 § 3126 §§ A7, Endangering Welfare of Children 18 § 4304 §§ Al.

2. There was no defined time period within which these alleged acts occurred. The evidence at trial was vague as to time and place of the alleged acts. There was no

I9/28/17 N.T. refers to the Notes of Testimony from Appellant's sentencing hearing before Honorable Gwendolyn Bright on September 28, 2017.

Page 1 of 6 credible evidence of corroboration of the alleged acts.

FACTS

Appellant, the biological father of K.D.F. sexually assaulted his daughter starting when she

was four to five years old. 1/25/17 N.T. at 25-26.2 The incidents of illicit touching lasted until

K.D.F. was about fourteen. Id. 40.

K.D.F. testified that one of the first incidents occurred when Appellant wrapped her in a

towel, took her out of the bathtub and brought her to his bedroom. In the bedroom Appellant stood

K.D.F. on the bed, grabbed and squeezed her butt. Id at 26. �.D.F. testified that she remembered

the incident, even though she was so young at the time, because "I knew it was not normal, but it

was coming from my dad. I didn't know what to think." Id.

K.D.F. testified to a number of similar incidents that took place at different locations,

including in a car and at her grandmother's house. According to K.D.F. it became a "routine" that

took place every other weekend when she visited her father. Id. at 30-35, 38, 40. Appellant's

behavior involved either unbuckling the child's pants, or squeezing his hand down herpants to

grasp and squeeze her butt. Id. According to K.D.F. "his fingers were like in between my butt,"

but not in her butt hole. Id. at 39-40. K.D.F. described an incident when she was older and told

Appellant "no" when he started to advance on her. Id. at 31. Appellant's response was "I can't say

no to him because God will punish me. He told me l can't say no because God will punish me and

I have to honor him." Id.

Contemporaneous with Appellant's sexual abuse, K.D.F. kept a diary chronicling the abuse

and emotional impact on her. Id. at 41. K.D.F. read exerts from her diary describing "Dad told me

he loved me today. It is hard to believe it when he is touching on me", and "the way he holds me

2 1/25/17, N.T. refers to the Notes of Testimony from Appellant's trial held before Honorable Gwendolyn Bright on January 25, 2017.

Page 2 of 6 close to him and kiss on my neck makes me want to cry." Id. at 42. The complainant goes on to

describe the pain and reluctance to disclose the abuse, stating "I feel nasty that I have not stopped

him," and even contemplated suicide. Id. at 42-44. K.D.F. finally disclosed to her mother after a

school meeting where other girls talked about family issues. Id. at 45.

DISCUSSION

Appellant first complains that the evidence is insufficient to support the verdict. This claim

is without merit.

In Commonwealth v. Levy, 83 A.3d 457, 2013 Pa. Super. 331 (Pa. Super. 2013), the

Superior Court of Pennsylvania stated the well-established standard of review for challenges to the

sufficiency of the evidence as follow:

"A. challenge to the sufficiency of the evidence is a question of law, subject to plenary review. When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the defendant's guilt to a mathematical certainty. Finally, the trier of fact while passing upon the credibility of witnessed and the weight of the evidence produced, is free to believe all, part or none of the evidence."

Commonwealth v. Levy, 83 AJd 457, supra @461, (citations omitted). In the instant case,

Appellant was found guilty of Unlawful Contact With a Minor, Corruption of a Minor and

Endangering the Welfare of a Child, and Indecent Assault.

18 Pa. C.S.A. § 6318 defines Unlawful Contact With Minor in pertinent part as foliows:

§ 6318. Unlawful Contact With Minor.

(a) Offense defined.-A person commits an offense if he is intentionally in contact with a minor---- for the purpose of engaging in an �nlawfui ac!}. The act being (1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).

Corruption of a Minor is defined in 18 Pa. C.S.A. § 6301 as follows:

Page 3 of 6 1 (a) Offense defined. [W]hoever, 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 ....

Endangering Welfare of Children is defined in 18 Pa. C.S.A. § 4304 as follows:

(a) Offense defined. A parent, guardian or other person 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 endangers the welfare of the child by violating a duty of care, protection or support.

Indecent Assault is defined in 18 Pa. C.S.A. § 3126 §§ A 7 as follows:

(a) Offense defined. -A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:

(7) the complainant is less than 13 years of age.

ln the instant case it was established that Appellant engaged in a course of conduct that

became "routine" of sexually assaulting his daughter by putting his hands in her pants, fondling and

squeezing her buttocks. Appellant's sexually inappropriate behavior included putting his fingers

between the child's butt cheeks, and kisses on her neck. This assaultive behavior continued at

diverse times while the child was between the ages of four to fourteen. Appellant even invoked

"God" as a means to instill a duty of non-resistance in his daughter. This evidence is more than

sufficient to sustain Appellant's conviction.

Next, appellant claims that relief is due because the Commonwealth failed to prove a

specific time and place where the criminal acts occurred. This claim is without merit.

K.D.F. testified to a continuous course of sexual assault against her, perpetrated by her

father when she was between the ages of four and fourteen. This abuse occurred routinely when the

child visited her father on "C" Street and Vista Street in Philadelphia. The incidents occurred in

Appellant's bedroom at those locations, in her grandmother's basement and in a car. There was no

Page 4 of 6 ambiguity as to the time frame and locations of Appellant's criminal behavior. Id. at 24-25, 27-32,

35-36, 38-40. Pa. R. Crim. P. 504 (4) (a) states:

Every complaint should contain:

(4) The date when the offense is alleged to have been committed; provided, however:

(a) If the speci fie date is unknown, or if the offense is a continuing one, it shall be sufficient to state that it was committed on or about any date within the period of limitations ...

Here, Appellant's crimes were continuous against the minor complainant. There was sufficient

notice to Appellant regarding the applicable time range, place and circumstances of his offenses.

Commonwealth v. Einhorn, 911 A.2d 9°60, 978 (Pa. Super. 2006t

An issue not raised by Appellant relates to his SVP designation and registration

requirements. However, in light of the Superior Court's decision in Commonwealth v. Butler, 173

A.3d 1212, t 2 t 7 (Pa. Super. 2017), which held that trial courts' designations of convicted

defendants as sexually violent predators are unconstitutiona], this Court anticipates the Superior

Court to address Appellant's SVP determination. The Butler court, applying Commonwealth v.

Muniz, 1'111- AJd 11tq (Pa. 2017), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.

United States, 570 U.S. 99 (2013), found that 42 Pa.C.S. § 9799.24(e) (3) of SO RNA is

unconstitutional. Section 9799.24(e) (3) lists the burden of proof to designate a convicted defendant

as a Sexually Violent Predator as "clear and convincing evidence." Butler, 173 A.3d at 1218. Here,

Appellant was determined to be an SVP under the above mentioned burden of proof, which has

now been deemed unconstitutional. Accordingly, it is respectfully requested that the portion of this

Court's sentencing order designating Appe11ant as an SVP be vacated and/or remanded to the trial

court for proper determination and notice of registration requirements.

Page S of 6 CONCLUSION

For the foregoing reasons Appellant is not entitled to relief for his conviction of sexually related

offenses against a minor. However, relief may be due as to his Sexually Violent Predator

determination.

BY THE COURT:

DATE: f//;g-/;g

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