Com. v. Rodriguez, J.

• Court: Superior Court of Pennsylvania
• Decided: May 1, 2023
• Docket: 1022 MDA 2022
• Status: Unpublished

Opinion

J-S02033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S02033-23

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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