Com. v. Hayward, A.

• Court: Superior Court of Pennsylvania
• Decided: February 4, 2022
• Docket: 1048 EDA 2020
• Status: Unpublished

Opinion

J-S29006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AYEOLA HAYWARD : : Appellant : No. 1048 EDA 2020

Appeal from the Judgment of Sentence Entered March 6, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002394-2018

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 4, 2022

Ayeola Hayward appeals from the judgment of sentence entered

following her conviction for unlawful contact with a minor, indecent assault,

rape of a child, and involuntary deviate sexual intercourse with a child.

Hayward was found guilty of these crimes following a four-day jury trial and

was thereafter sentenced to an aggregate fifteen to thirty years’ incarceration.

At trial, the complainant testified he was eleven years old. See N.T.

11/6/2019 at 44. He further testified that Hayward lived in the complainant’s

home for a time and then moved to the complainant’s grandmother’s home

where they would see each other when the complainant spent days there

during the summer. See id. at 47-48.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S29006-21

He stated he was six or seven years old the first time Hayward victimized

him. See id. at 55. He was downstairs at his grandmother’s house and

Hayward called for him to come upstairs and he saw her in the bathroom,

where she showed him her chest and asked him to comment on her

nakedness. See id. at 54. This behavior repeated many times, making the

complainant uncomfortable. See id. at 56-57. He recalled a specific incident

in the bathroom where Hayward made him put his penis in her mouth. See

id. at 74.

The complainant testified to other incidents as well. Some time after the

incidents in the bathroom, Hayward called the complainant from downstairs

to come upstairs into his aunt’s bedroom. See id. at 58. When the complainant

entered the room, Hayward was laying down on the bed and pulled her pants

down and told him to have sexual intercourse with her. See id. at 60. This

same situation happened multiple times when the complainant was between

the ages of six and seven. See id. at 63. Each time Hayward asked him to

choose whether to insert his penis into her anus or vagina. See id. at 61-63.

Eventually, the complainant stopped going to his grandmother’s house as

frequently and the abuse stopped. See id. at 67.

One day, years later, the complainant was watching the news with his

mother and heard a story of sexual abuse. See id. at 69. His mother asked

him if he was ever abused and he became emotional and told her about

Hayward’s attacks. See id. He later attempted to tell people about the abuse

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at his grandmother’s house but Hayward heard and stopped him, calling the

accusations a lie and pushing him to the ground. See id. at 68. Despite the

complainant’s disclosure, his mother chose not to report the abuse to the

police. See id. at 108-109. Later, the complainant was being evaluated by a

doctor for his yearly physical when the doctor noticed he had an emotional

response to the evaluation and asked the complainant if anything was wrong,

to which the complainant responded by again disclosing the abuse, which the

doctor reported. See id. at 110-111.

On appeal, Hayward claims that the evidence at trial was insufficient to

support a verdict on all charges and that her sentences for indecent assault

and unlawful contact are illegal.

We address Hayward’s sufficiency claim first. When reviewing a claim

that the evidence presented at trial was not sufficient to sustain the verdict,

we must view the evidence and all reasonable inferences we can draw from it

in the light most favorable to the Commonwealth. See Commonwealth v.

Steele, 234 A.3d 840, 845 (Pa. Super. 2020). We must determine whether

the evidence, when viewed in this light, was sufficient to prove each element

of the offense in question beyond a reasonable doubt. See id. It is not

necessary that the evidence presented by the Commonwealth eliminates all

possible theories of innocence. See id. The Commonwealth’s burden may be

reached by presenting only circumstantial evidence. See id. The jury holds

the responsibility to weigh the evidence and as an appellate court we do not

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re-weigh the evidence or substitute our judgment of the testimony for the

jury’s. See id.

Here, Hayward does not challenge any specific element of any of her

convictions. Instead, her argument is that the complainant’s testimony was

so unreliable and contradictory that the jury could only speculate about her

guilt. Generally speaking, this challenge is best classified as a challenge to the

weight of the evidence. However, as Hayward notes, our jurisprudence has

recognized this claim as a challenge to the sufficiency of the evidence in

extreme cases where a witness provides inherently contradictory testimony or

where the basis of the witness’s testimony is clearly speculation. See, e.g.,

Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super. 1973) (finding

inconsistent testimony by Commonwealth’s main witness created situation

where jury could do nothing but speculate about the defendant’s guilt).

This Court has previously described the co-defendant's testimony in

Bennett that this Court found to be insufficient due to its inherent

contradictions:

several wholly different, conflicting and inconsistent versions of when and how he had told [the defendant] that the car had been in fact stolen by him. On a previous occasion Jones had denied he had ever conveyed to defendant knowledge of the car's theft. With each new version Jones would recant the previous one and protest that the newest version was in fact the true one.

Com. v. Bibbs, 970 A.2d 440, 446 (Pa. Super. 2009). Therefore, for

testimony to be so inherently contradictory, it must display more than just

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inconsistencies, it must involve wholly incompatible stories that the witness

claims to be the absolute truth. As such we turn to analyze the crimes at issue

and the challenged testimony of the complainant. A person is guilty of indecent

assault of a person less than thirteen years of age under 18 Pa.C.S.A. § 3126

(a)(7) when, 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: the complainant is less than 13 years of age.” Indecent contact is defined

as, “Any touching of the sexual or other intimate parts of the person for the

purpose of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A.

§ 3101.

A person is guilty of rape of a child under 18 Pa.C.S.A. § 3121 (c) when,

“The person engages in sexual intercourse with a complainant who is less than

13 years of age.” Sexual intercourse is defined as, “In addition to its ordinary

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

however slight; emission is not required.” 18 Pa.C.S.A. § 3101.

A person is guilty of involuntary deviate sexual intercourse with a child

under 18 Pa.C.S.A. § 3123 (b) when, “The person engages in deviate sexual

intercourse with a complainant who is less than 13 years of age.” Deviate

sexual intercourse is defined as, “Sexual intercourse per os or per anus

between human beings and any form of sexual intercourse with an animal.

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The term also includes penetration, however slight, of the genitals or anus of

another person with a foreign object for any purpose other than good faith

medical, hygienic or law enforcement procedures.” 18 Pa.C.S.A. § 3101.

A person is guilty of unlawful contact with a minor under 18 Pa.C.S.A. §

6318 (a)(1) if they are, “Intentionally in contact with a minor … for the purpose

of engaging in an activity prohibited under … any of the offenses enumerated

in Chapter 31 (relating to sexual offenses)”.

Here, there was testimony from the complainant establishing multiple

occasions of sexual contact, including penetration orally, anally, and vaginally

between the complainant and Hayward. See N.T. 11/6/2019 at 54-64. The

complainant testified that he was six and seven years old when the sexual

abuse occurred. See id. at 53. He testified that Hayward specifically called

him to come upstairs when he was downstairs at his grandmother’s house so

that she could execute the abuse. See id. at 54 and 56. The complainant’s

testimony was corroborated by the testimony of the medical expert who

examined the complainant for physical signs of the abuse he suffered. See id.

at 14. The doctor also recounted an interview with the complainant where he

disclosed the nature of the physical sexual abuse he suffered, including, “Oral

genital contact, breast to oral contact, and genital to anal contact.” Id. at 17.

The forensic interviewer who spoke to the complainant testified that he

recounted the sexual abuse and described Hayward forcing him to touch her

genitalia as well as putting her mouth on his genitalia. See id. at 140.

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On appeal, Hayward argues that the evidence presented at trial was

insufficient to sustain all the charges against her. See Appellant’s Brief at 14.

As noted previously, Hayward’s sufficiency argument fails to call attention to

any specific element which the Commonwealth has failed to prove, simply

raising claims of inconsistent testimony. See id. at 15-16. Further, Hayward

cites a discrepancy between the complainant’s story of how he disclosed the

abuse and his mother’s testimony of the disclosure. See id. at 16-17.

This discrepancy is far from the wholly incompatible stories told by the

co-defendant in Bennett. The complainant’s testimony referenced repeated

instances of criminal conduct by Hayward that occurred when the complainant

was a mere seven years old. That some of the instances were different from

the others, and that the complainant is not entirely clear about the

circumstances of each criminal episode is not the same as the co-defendant's

testimony in Bennett.

We agree with the Commonwealth’s assertion that Hayward’s challenges

to the consistency and credibility of the testimony do not properly invoke a

sufficiency claim but would be better suited to a weight of the evidence claim.

See Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000).

However, there is no weight claim before us for review.

When viewed in the light most favorable to the Commonwealth the

evidence presented at trial is sufficient to support Hayward’s convictions. The

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complainant’s testimony established all elements of the charges, as outlined

above and the jury weighed that evidence, as is their duty. Further, we note

that inconsistency between witness’ testimony does not equate to insufficient

evidence. See Commonwealth v. Montini, 712 A.2d 761, 767 (Pa. Super.

1998). We have repeatedly held that even uncorroborated testimony of a

sexual assault complainant is sufficient for conviction. See Commonwealth

v. Cramer, 195 A.3d 594, 602 (Pa. Super. 2018). Here, the complainant’s

corroborated testimony established all the elements of the charges and was

sufficient to sustain the verdict.

Hayward next argues that her sentences for indecent assault and

unlawful contact exceed the sentencing court’s authority and are illegal.

Hayward was sentenced to fifteen to thirty years’ incarceration for her

conviction of indecent assault of a person less than 13 years of age under 18

Pa. C.S.A. § 3126 (a)(7) and fifteen to thirty years’ incarceration for her

conviction of unlawful contact with a minor under 18 Pa. C.S.A. § 6318 (a)(1).

See Order of Sentence, 3/6/2020.

Hayward claims that her conviction for indecent assault, as a third-

degree felony, carries a maximum penalty of seven years’ incarceration under

18 Pa.C.S.A. § 1103 (3). The trial court concedes that resentencing is

appropriate on this charge. See Trial Court Opinion, 12/2/2020, at 22. We

agree.

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For her sentence for unlawful contact with a minor, Hayward argues that

because the charge is graded as a first-degree felony, the maximum penalty

under 18 Pa.C.S.A. § 1103 (1) is twenty years’ incarceration. The gradation

for unlawful contact with a minor follows the most serious underlying offense

which caused the contact. 18 Pa.C.S.A. § 6318 (b)(1). In this case, Hayward

was convicted of two first-degree felonies and one third-degree felony, so the

unlawful contact charge was properly graded as a first-degree felony. Hayward

argues that just because the underlying offenses of rape of a child and IDSI

allow maximum sentences of forty years’ incarceration, this does not extend

the maximum legal sentence for unlawful contact above the statutory

maximum of twenty years’ incarceration for a first-degree felony. See

Appellant’s Brief at 21. The trial court reasoned that it correctly increased the

sentence for unlawful contact in relation to the statutes for rape of a child and

IDSI. See Trial Court Opinion, 12/2/2020, at 21-22.

We find no authority to support the trial court’s reasoning that it properly

increased the sentence for unlawful contact beyond that of a typical first-

degree felony under 18 Pa.C.S.A. § 1103 (1). Indeed, § 6318 (b)(1) states

merely that the crime of unlawful contact with a minor is to be “graded” as

the same grade of the most serious underlying offense. It does not provide

that the sentence is to be the same as the underlying offense. We do not see

any ambiguity in this language, but even if we did, we must construe the

language in favor of Hayward. See Commonwealth v. Reed, 9 A.3d 1138,

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1142 (Pa. 2010). As a result, the statutory maximum sentence for unlawful

contact with a minor in this case was twenty years. See 18 Pa.C.S.A. § 1103.

However, we need not remand for re-sentencing. We note that the trial

court chose to impose Hayward’s sentences concurrently to her fifteen-to-

thirty-year sentence for rape of a child. Hayward does not challenge that

sentence, and its term is equal to the sentences illegally imposed by the trial

court. Further, the Commonwealth concedes that vacating these two

sentences will not impact Hayward’s overall penalty. See Commonwealth’s

Brief, at 14-5. As a result, we may directly amend the sentences for unlawful

contact and indecent assault to their statutory maximums because these

amendments will not alter the sentencing scheme and clearly reflect the trial

court’s intent. See Commonwealth v. Eberts, 422 A.2d 1154, 1156

(Pa.Super. 1980) (per curiam) (“Where a case requires a correction of

sentence, this [C]ourt has the option of either remanding for resentencing, or

amending the sentence directly”).

We therefore amend the judgment of sentence for Hayward’s unlawful

contact with a minor conviction to ten to twenty years’ incarceration. Similarly,

we amend her conviction for indecent assault to three and one half to seven

years’ incarceration. In all other respects, the sentence is affirmed.

Convictions affirmed. Judgment of sentence amended in part and

affirmed in part. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/4/2022

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