J-S08002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES LEONARD RUSSELL : : Appellant : No. 1706 WDA 2018
Appeal from the Judgment of Sentence Entered May 21, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012425-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES LEONARD RUSSELL : : Appellant : No. 1707 WDA 2018
Appeal from the Judgment of Sentence Entered May 21, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009272-2017
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 29, 2020
Appellant, James Leonard Russell, appeals from the judgment of
sentence entered on May 21, 2018, as made final by the denial of Appellant’s
post-sentence motion on November 26, 2018. We affirm.
The trial court ably summarized the underlying facts of this case.
At trial, S.G., the daughter of Appellant's former paramour, testified that Appellant lived with her from when she was in second grade until some point when she was in the third J-S08002-20
grade. S.G. described Appellant as kind at first, the father figure she was lacking. Appellant was trusted to watch S.G. and her siblings while her mother was not in the home. . . .
S.G. testified that one day, she was downstairs in the living room watching television when Appellant called her upstairs to her mother's bedroom. She was seven years old at the time. Appellant closed the door and she sat on the bed while he stood next to her and rubbed her arm with his hand, then he rubbed her stomach and thighs. He pulled down her pants and she was scared because no other adult was home to help her. . . .
Appellant told her to turn around and positioned her such that her hands were on the bed and her knees were on the floor. She heard him remove his belt and unzip his jeans. Appellant placed her on the bed, placed her face down, and inserted his penis into her vagina. He took his penis out and inserted his fingers and penis alternately for approximately five minutes. Afterward, Appellant instructed her not to tell her mother. . ..
[S.G.] testified that he attempted to do this to her four times. Once, she went into her mother's room to retrieve her dolls. Appellant entered the room behind her and shut the door. He took off all of her clothes and pulled his pants down to his ankles. He kissed her on the lips and then penetrated her vaginally and anally. Specifically, she testified that Appellant put his penis in "both holes." She stated that Appellant put his penis in her "butt part" "but it didn't go all the way in." Every time that he did this it hurt. On the last occasion she told him "No" and when he said, "Just one more time, please?" she replied, "No, get out of my room." He left, but threatened to hurt her if she told her mom or anyone else.
Another victim, I.W., testified that she had been touched by Appellant in 2011, when she was six years old. She recalled an incident when her mother and S.G.'s mother went to pick up I.W.'s father from work, leaving Appellant alone with S.G. and I.W. at S.G.'s house. I.W. testified that she and S.G. fell asleep on the couch. I.W. said that Appellant came into the living room, shirtless and drunk. She pretended to be asleep while he touched her leg and tried to pull her skirt up. He repeatedly whispered "Are you a big girl?" and then
-2- J-S08002-20
responded, "No, you are not a big girl." She heard him unbuckle his belt and she felt afraid, so she jumped up and asked him for more blankets.
Trial Court Opinion, 5/16/19, at 2-3 (citations omitted).
The cases against Appellant were joined for trial. As to S.G., the jury
found Appellant guilty of rape of a child, involuntary deviate sexual intercourse
with a child, unlawful contact with a minor, corruption of minors, and indecent
assault – person less than 13 years of age;1 as to I.W., the jury found
Appellant guilty of endangering the welfare of a child, unlawful contact with a
minor, indecent assault – person less than 13 years of age, and corruption of
minors.2 On May 21, 2018, the trial court sentenced Appellant to serve an
aggregate term of 226 to 472 months in prison for his convictions.
The trial court denied Appellant’s post-sentence motion on November
26, 2018 and Appellant filed a timely notice of appeal. Appellant raises five
claims on appeal:
[1.] Did the [trial] court err when it granted the Commonwealth’s motion for joinder and ordered the two separate criminal informations filed against [Appellant] to be tried together when the offenses charged were not based on the same act or transaction, the evidence of each of the offenses would not have been admissible in a separate trial for the other, and the evidence was not susceptible to separation by the jury so that there was no danger of
____________________________________________
1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(7), respectively.
2 18 Pa.C.S.A. §§ 4304(a)(1), 6318(a)(1), 3126(a)(7), and 6301(a)(1)(i), respectively.
-3- J-S08002-20
confusion [and Appellant] was unduly prejudiced by the consolidation [of] the criminal informations?
[2.] Relative to [I.W.], was the evidence insufficient to sustain the conviction for endangering the welfare of children, as the Commonwealth failed to prove beyond a reasonable doubt (1) that [Appellant] was a parent, guardian, or other person supervising the welfare of I.W.; (2) that [Appellant] violated a duty of care, protection or support to I.W.; or (3) that [Appellant] engaged in inappropriate sexual touching of I.W.?
[3.] Relative to accuser I.W., was the evidence insufficient to sustain the conviction for unlawful contact with minor, as the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] (1) intentionally contacted I.W. and (2) that he intentionally contacted I.W. for the purpose of engaging in inappropriate sexual contact as prohibited by Chapter 31 of the Crimes Code?
[4.] Relative to accuser I.W., was the evidence insufficient to sustain the conviction for indecent assault, as the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] had indecent contact with I.W. Specifically, the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] touched I.W.’s sexual or other intimate parts?
[5.] Relative to accuser, I.W., was the evidence insufficient to sustain the conviction for corruption of minors, as the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] corrupted or tended to corrupt the morals of I.W. by the acts of sexual contact?
Appellant’s Brief at 8-9 (some capitalization omitted).
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Jill E. Rangos. We conclude that Appellant is not entitled to
relief in this case, for the reasons expressed in Judge Rangos’ May 16, 2019
-4- J-S08002-20
opinion. Therefore, we affirm on the basis of Judge Rangos’ thorough opinion
and adopt it as our own. In any future filing with this or any other court
addressing this ruling, the filing party shall attach a copy of Judge Rangos’
May 16, 2019 opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/29/2020
-5- Circulated 05/19/2020 02:50 PM
IN THE COURT .
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J-S08002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES LEONARD RUSSELL : : Appellant : No. 1706 WDA 2018
Appeal from the Judgment of Sentence Entered May 21, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012425-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES LEONARD RUSSELL : : Appellant : No. 1707 WDA 2018
Appeal from the Judgment of Sentence Entered May 21, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009272-2017
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 29, 2020
Appellant, James Leonard Russell, appeals from the judgment of
sentence entered on May 21, 2018, as made final by the denial of Appellant’s
post-sentence motion on November 26, 2018. We affirm.
The trial court ably summarized the underlying facts of this case.
At trial, S.G., the daughter of Appellant's former paramour, testified that Appellant lived with her from when she was in second grade until some point when she was in the third J-S08002-20
grade. S.G. described Appellant as kind at first, the father figure she was lacking. Appellant was trusted to watch S.G. and her siblings while her mother was not in the home. . . .
S.G. testified that one day, she was downstairs in the living room watching television when Appellant called her upstairs to her mother's bedroom. She was seven years old at the time. Appellant closed the door and she sat on the bed while he stood next to her and rubbed her arm with his hand, then he rubbed her stomach and thighs. He pulled down her pants and she was scared because no other adult was home to help her. . . .
Appellant told her to turn around and positioned her such that her hands were on the bed and her knees were on the floor. She heard him remove his belt and unzip his jeans. Appellant placed her on the bed, placed her face down, and inserted his penis into her vagina. He took his penis out and inserted his fingers and penis alternately for approximately five minutes. Afterward, Appellant instructed her not to tell her mother. . ..
[S.G.] testified that he attempted to do this to her four times. Once, she went into her mother's room to retrieve her dolls. Appellant entered the room behind her and shut the door. He took off all of her clothes and pulled his pants down to his ankles. He kissed her on the lips and then penetrated her vaginally and anally. Specifically, she testified that Appellant put his penis in "both holes." She stated that Appellant put his penis in her "butt part" "but it didn't go all the way in." Every time that he did this it hurt. On the last occasion she told him "No" and when he said, "Just one more time, please?" she replied, "No, get out of my room." He left, but threatened to hurt her if she told her mom or anyone else.
Another victim, I.W., testified that she had been touched by Appellant in 2011, when she was six years old. She recalled an incident when her mother and S.G.'s mother went to pick up I.W.'s father from work, leaving Appellant alone with S.G. and I.W. at S.G.'s house. I.W. testified that she and S.G. fell asleep on the couch. I.W. said that Appellant came into the living room, shirtless and drunk. She pretended to be asleep while he touched her leg and tried to pull her skirt up. He repeatedly whispered "Are you a big girl?" and then
-2- J-S08002-20
responded, "No, you are not a big girl." She heard him unbuckle his belt and she felt afraid, so she jumped up and asked him for more blankets.
Trial Court Opinion, 5/16/19, at 2-3 (citations omitted).
The cases against Appellant were joined for trial. As to S.G., the jury
found Appellant guilty of rape of a child, involuntary deviate sexual intercourse
with a child, unlawful contact with a minor, corruption of minors, and indecent
assault – person less than 13 years of age;1 as to I.W., the jury found
Appellant guilty of endangering the welfare of a child, unlawful contact with a
minor, indecent assault – person less than 13 years of age, and corruption of
minors.2 On May 21, 2018, the trial court sentenced Appellant to serve an
aggregate term of 226 to 472 months in prison for his convictions.
The trial court denied Appellant’s post-sentence motion on November
26, 2018 and Appellant filed a timely notice of appeal. Appellant raises five
claims on appeal:
[1.] Did the [trial] court err when it granted the Commonwealth’s motion for joinder and ordered the two separate criminal informations filed against [Appellant] to be tried together when the offenses charged were not based on the same act or transaction, the evidence of each of the offenses would not have been admissible in a separate trial for the other, and the evidence was not susceptible to separation by the jury so that there was no danger of
____________________________________________
1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(7), respectively.
2 18 Pa.C.S.A. §§ 4304(a)(1), 6318(a)(1), 3126(a)(7), and 6301(a)(1)(i), respectively.
-3- J-S08002-20
confusion [and Appellant] was unduly prejudiced by the consolidation [of] the criminal informations?
[2.] Relative to [I.W.], was the evidence insufficient to sustain the conviction for endangering the welfare of children, as the Commonwealth failed to prove beyond a reasonable doubt (1) that [Appellant] was a parent, guardian, or other person supervising the welfare of I.W.; (2) that [Appellant] violated a duty of care, protection or support to I.W.; or (3) that [Appellant] engaged in inappropriate sexual touching of I.W.?
[3.] Relative to accuser I.W., was the evidence insufficient to sustain the conviction for unlawful contact with minor, as the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] (1) intentionally contacted I.W. and (2) that he intentionally contacted I.W. for the purpose of engaging in inappropriate sexual contact as prohibited by Chapter 31 of the Crimes Code?
[4.] Relative to accuser I.W., was the evidence insufficient to sustain the conviction for indecent assault, as the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] had indecent contact with I.W. Specifically, the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] touched I.W.’s sexual or other intimate parts?
[5.] Relative to accuser, I.W., was the evidence insufficient to sustain the conviction for corruption of minors, as the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] corrupted or tended to corrupt the morals of I.W. by the acts of sexual contact?
Appellant’s Brief at 8-9 (some capitalization omitted).
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Jill E. Rangos. We conclude that Appellant is not entitled to
relief in this case, for the reasons expressed in Judge Rangos’ May 16, 2019
-4- J-S08002-20
opinion. Therefore, we affirm on the basis of Judge Rangos’ thorough opinion
and adopt it as our own. In any future filing with this or any other court
addressing this ruling, the filing party shall attach a copy of Judge Rangos’
May 16, 2019 opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/29/2020
-5- Circulated 05/19/2020 02:50 PM
IN THE COURT . OF COMMON . . . PLEAS.OF . . ALLEGHENYCOUNTY, . . . ·. . . PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL,DNISlON
v. CP-02-Cll-09272.:2017 CP-02--CR-12425-2.017 JAME$ RUSSEL.L; Appellant
QPINION
RANGOS,J. May16,20i9
On March 2? 2018, a j� convicted Appellant.james Russell, at CP,.:02-CR,.09272-201 Tof one
count each of�pe ofa Child? Invol:untaty Deviate Sexual Intercourse with a Child ("IDSI''), Unlawful
Contact with a Minor, Corruption of Minors, and Indecent Assault-:Pei:sori Less than .13 Years of
Age.1 ·The jury also found Appellarif guilty at CP-02-CR-12425-2017 of one count each of
Endangering . the . Welfare of a Child, Unlawful Contact with a Minor, Indecent Assault-Person Less than 13. Years of Age� and Corruption of Minors." This Court sentenced Appellant to 210 to 420
months of confinement with, five years of consecutive probation at CC 2017..:09272, and 16 to 32
months of incarceration, followed by five· years of probation, at CC 2017-12425. The period of
incarceration at. cc 2017-12425 ran coneecueively to the pei::iod of 1n�cei:at1QO.. at cc 2017-09272.
Appellant filed a Post-Sentence Motion which this Court denied on November i, 2018'3 Appellant
1 18 Pa. CS.§§ 3121 (c),J123 (b); 6318 (a) (1) and (b) (1)/6301 (a) (1) (ii), 3126 (a) .(?),.respectively� 218 Pa. CS.§§ 4.304 (a) (1), 6318(a) (1) and (b) (2}, 3126 (a) (1), 63()1 (a) (1),respectively,
3This Court notes that, although the Order of Court entered November 1,. 2018 has heen properly date-stamped by the Department of Court Records, a subsequent .Order was issued on November 26, .2018 denying the Post-Sentence. Motion. by Operation. of Law, . Since Appellant filed his appeal on.November 30, 2018,.withirtthe appealperiod.of either date, this error by the department-of Court Records is of no.momet1.t: . . ·.
···········-····-··············-·······-,-. .. ···-·----··.. ----..-··· ----·-------------------- filed a Notice of Appeal on November 30) 20.18 and a Statement of Matters Complained of on
February 5, 2019.
MATTERS COMPLAINED OF.ON APPEAL Appellant alleges seven errors on appeal, five of which pertain to the s1:1fficiency of evidence. I:n his first error alleged on appeal, Appellant asserts· that this Court erred in joining two criminal
informations for a single trial Next, Appellant alleges that the evidence was insufficient on the IDSI
count relative to the victim S.G., the EWOC, Unlawful Contact with a.Minor and Indecent Assault
counts relative to· the victim, I. W.• and on the Cottuptiori of Minors count relative to both. victims.
. Lastly, Appellant alleges that this Court denied his rightto a jury and a unanimous verdict, because he
was charged with one count of Rape ofa Child and testimony elicited two separate incidents which
could support the charge, such that members of the juey may not have unanimously convicted
Appellant as to the same incident. (Statement of Errors Raised.on Appeal at 4-5).
SUMMAJlY OFTHE EVIDENCE
At trial, S.G�,· the daughter of App�nt's former paramour, t�stified that Appellarit lived with
her from -hen she -as in second gi:ade until some point; when she was .in the third grade, (I'rartsci;ipt:
of Jucy Trial, Nov. 3.0, 2016,hereinafter."T"f" at 8+88) S.G, described Appellant as kind at first, the
father figure she was lackin�. (IT89) Appellantwas trusted towatch S.G. and.her siblings while her
mother was not in the. home. {IT 9Q) S. G; testified. that one. day, she was downstairs in the living
room watching television when Appellant called her upstairs to her mother's bedroom (IT 92) .She
was seven year� old at the time. (IT 95) Appellant closed the door and she sat oil the bed while he
stood next toher and rubbed her arm with hishand, then he rubbed her stomachand thighs. (IT.96)
He pulled down her pants and she was scared because. no other adult was home. to help her. (IT 98)
................................ ·············-------·········· --.. -·----------- Appellant told her to .turn. around arid positioned her such that her hands were on die. bed and her.
knees were on the floor. (IT 99) She heard hiin remove his belt and unzip his jeans. (tr 101) Appellant placed. her on the bed, placed her face down, and inserted his penis into her. vagina. (IT
104) He took his penis out and inserted his fingers and penis· alternately for approximately five
minutes. (IT 106) Afre�ard> Appellant instructed her notto-tell.her mother. {IT 107) She testified
that he attempted to do this to her four.times, (IT 110) Once, she went into her mother's room to
retrieve-her dolls. (IT 114) Appellant entered the room behind her arid shut the door, Id: He took
<->ff all ofher clothes and pulled bis pants down to his ankles. (IT 115) He kissed her on the lips arid
then penetrated lier vaginally and anally. (IT 116-117) Specifically. she testified that Appellant put
his penis in "both holes." (IT 117) She stated that Appellant put his penis in her "butt part" "butit
didn't go all the way in." Id. Every time that he did this it hurt. {IT 118) On the fast occasion she told him "No" and whenhe said, '1ust one more time, please?" she replied, ''No, get out of my room,"
(IT 113) He left, but threatened to hurt her if.sbe toldher mom or anyone else. Id. ·
Another victim, I.W., testified thatshe had been touched by Appellant in 2?.11, when she was
six.years old. (TT 240) She recalled art incident when her mother ancl S.G. 's mother went 'to pick up
l.W.'s father from work, leaving Appellant alone with S.G. and I.W, at S:G:'s house. (IT 241) I.W;
testified i:hat she and S.:G. fell asleep on the: couch. (IT' 242) t:w. s�d d:iatApp&arit cam:� into the living room, shirtless and drunk. (IT 244� 252) She pretended to be asleepwhile he touched her leg
and tried to. pull her skirt up. (IT 244) He repeatedly whispered "Aie you a big girl?" and then
responded, "No, you ate riot. a big girl." (IT 246) She heard him unbuckle his belt and she felt afraid, so shejumped up and asked him for more blankets. (IT247)
......... ·······-························---.. ,, .. ,,_ ,•................•_.. _ -----·-··-··"--·-·-·---·---·· DISCUSSION.
Appellant alleges that this Court abused its discretion in gr�ting the Commonwealth's Pretrial
Motion to Join Cases CP-02'.'CR�09272:"20f7 and CP-0,2-CR-12425-2017, "[T]he propriety of
consolidating separate indictments for trial is a matter of discretion with the trial judge, and. the
exercise of this discretion will.be reversed only for manifest abuse of discretion.or prejudice and clear
injustice to the defendant," Commonwealth v. Moore, 344 A.2d 850, 852 (Pa. 1.975). Specifically, joinder
is governed by Rule 582 of the Pennsylvania Rules of Criminal Procedure, which states:
Offenses charged in separate indictments or informations may be tried together.if (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of-separation by the jury so that there.is no danger of confusion; or (b) the offenses charged are based on the same act or transaction,
Pa.R.Crim.P. Rule 582 (A) (l).
This Court determined that joinder was appropriate, because the charges Involve. similar
charges and circumstances. Appellant, in both cases, inappropriately touched children of similar agesj
one child was the daughter of his paramour, the other was that child's friend.and neighbor; the parents
of both children trusted hiin tosupervise their.children. The victims knew one another and one
victim, L W., was assaulted :in the presence ofthe victim oil the other case. Since the evidence would
be admissible to show a common plan or pii.tte:m, joinder was appropriate and this Court did .not
abuse its discretion. Similar sexual offenses committed several months apart may be joined in a single
.trial.. See; »s- Coinlit.
Next; Appellant challenges the sufficiency of the evidence as itrelates to the IDSI, EWOC,
Unlawful Contact.Tndecent Assault, and Corruption of Minors.
The. standard we apply in reviewing 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-finderto find, evexy element of the crime. beyond a .reasonable doubt. In a:pplyiiig [the above] test, we may not weigh the evidence and substitute. ourjudgment for the fact-finder; In 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 unlessthe evidence is so weak and inconclusive. that as a matter of law no probabilityof fact may be .drawn from the. combined circumstances. The Commonwealth :may sustainits burden ofproving 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, pa:rt or none of.the evidence.
Co1iimon.wealth v-. Harden, 103 A.3d 107, t u (Pa�Super.2014), quoting Commonwealth v. Phillips, 93 .A.3d
847� 856 (Pa;Super.2014) (citations omitted; bracketed material in original).
With respect to the victim KG:, Appellant cha,llenges the sufficiency of the evidence as it
relates to the charges of IDSI and Corruption of Minors. IDSI,. 18 Pa.C.S. § 3123 (b), is defined as.
follows:
§ 3123; Involuntary deviate sexual mtercourse
(b) 'Involuntary deviate sexual intercourse' with a. child.--A person commits involuntary deviate sexual intercourse. with a. child, a· felony of the.first. degree, when the person engages iii deviate sexual intercourse with a complainant who is less than. 13 years of age. 18 Pa.C.S. § 3123 (b). S.G. testified; when she was approximately seven years old, Appellant
penetrated her vaginally and. anally and that it hurt. (IT 11.6-117) This .testimony satisfies the elements
of the offense charge. Co.ttuption ofMino:cs, 18 Pa.C$. §.6301 (a) (ii). i!!l defu:ied as' follows:
§ 6301. Corruption of minors
(a) Offerise deflned.» (i) * * * . . (ii) Whoever, being of the age of 18 years and upwards, by any course of conduct· in. violation 0.£ Chapter 3 t (relating to sexual offenses) corrupts or tends to corrupt the morals oi any minor less than 18 years of age.
18 Pa.C.S. § 6301 (a) (ii); As stated above, Appellant inappropriately touched S.G. in a sexual manner
.ori multiple occasions, Appellant penetrated S.G. vagiruilly and anally. S;G. was under 18 and
Appellant was over 18 at the time, Under these facts, the sufficiency challenge is withoutmerit.
-·--······ ·-··,,········-········------ The remaining sufficiency challenges relate to the. victitnf.W. Appellant alleges the evidence
is insufficient as _it relates to the EWOC, Unlawful Contact, Indecent Assault, and Corruption of
Minors charges. EWQC, 18 Pa.C.S.A. § 4304� is defined as follows:
§ 4304. Endangeringwelfare of children
(a) Offense defined.- ·
welfare of a child under l8 (1) - A parent, guardian or other person supervising the of years age, or a person that employs supervises such a person; commits an or offense _if he knowingly endangers. the welfare of the child '�y violating a duty of care, protection or sµppor:t.
(2) A person commits an· offenseif the. person, in. an official capacity, pre!vents or· interferes with the making of a report of suspected child abuse under 23 Pa.C.S; Ch. 63 (relating to child protective services),
(3) As used in this subsection, the tenn "person supervising the welfare ofa child" means a person other than a parent or guardian that provides care, education; training or control of a child.
l8 Pa.CS, § 4304 (a). The evidence introduced at ttia1 was that Appellant, who was a trusted neighbor
.and friend of the family, was left as babysitter to I.W., a. child under eighteen y�a,rs of age, and other
children when other adults left the residence. fo; that moment, he was responsible for the care and
protection of r.w:, a duty he.breached by touching her leg.inappropriately, attempting to pull upher
skirt, and whispering "Are· you a big girl?'' A fair reading of the testitr.i:or.iy is that Appellant intended
to molest J.W; and began to touchher and speak to herinappropriately towards that end. Appellant's
claim regarding sufficiency: is.without merit
Turning to the next count, 18 Pa.CS.§ 6318 is defined as follows:
§ 6318. Unlawful contact withminor.
(a) Offense defined.�-A person commits an offense if he is. intentionally in contact with a minor, or.a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpo�e of engaging in an activity prohibited under any of the following, and either the person initiating the· contact or the person being-contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
7 18 Pa.CS.§ 6318 (a); The evidence indicates thatAppelfo.ntsaid, over and over to. I.W:,C•Are you a
big girl. No you .are not a big girl." He. drunkenly touched herleg and attempted to pull up her skirt
Appellant's words and actions indicate that his intent was to commit a Chapter 31 offense.
Next, 18 Pa.CS. § 3126 (a) (7) is defined as follows:
§ 3126 ..Indecent assault
{a) Offense defined--A person is guiltyof indecent assault if the person has indecent contact with the complainant, causes the complainant to have mdecentcontact with the person [,+: * *] for thepurpose of arousing sexual desire in the pe.rso,n or the. complainant and: · ·
* * *
(7) the complainant is.less than 13 years of age; .
18 Pa.CS.A.§ 3126 (a) (7). Appdfant touched I.W.'s leg and attempted to pull up her skirt,
while repeatedly whispering inappropriate comments indicative of his indecent intent These
facts support a conviction for Indecent. Assaul«
18 Pa.C.S. § 6301 (�) (ii} is defined as follows: § 6301. Corruption of minors
(a) Offense defined.-- (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwaeds, .by any act c9rrup.ts or tends to q)rrµpt the morals of any nµnorless than l8 years of age, of who aids, abets, entices or encourages any such minor in the commission of arty crime, or. who knowingly assists or encourages such minor ill violating his or her parole or any order of court, commits a misdemeanor of the first degree ..
18 Pa;C.S. § 6301 (a) (i). As stated above, Appellant inappropriately tried to pull up LW!s skirt and
'made inappropriate statements 'to her. I.W. was under 18.and Appellant wasover 18 at the time.
Under these facts, the sufficiency challenge is without merit.
Lastly, Appellant all�es his .right to a unanimous verdict was violated when he was charged
with one count. of Rape of a Child. ·yet two incidents described in the testimony could nt. the one
--- , , ----------------- · charge and Appellant asserts there is no w�y to know which incident the jurors attached to the Rape
of a Child count. This Court notes that the jury instructions regarding this offense clearly articulated
the elements of this offense and trial counsel did. not object or request clarification to the jw:y
instruction orto the verdict slip. (IT 376-378, 395-396) Therefore.jhis issue.is waived.
Appellant next =e= that those objections not contemporaneously raised below were nevertheless "raised in the lower court" by virtue of having been setforth . in post-sentence motions. "Issues not raised in the lower court ate waived and cannot be. raised for the.first time on appeal," Pa.R.A.P.. 302(a). Appellanthas failed to show that Rule 302(a) .has ever been interpreted as meaning that issues. may be raised at any time during the lower .court proceedings in order to preserve them. .
Rather, .fr is axiomatic that issues are preserved when objections are made· timely to the error or offense. See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750> 76i (2005) (holding that an. "absence of contemporaneous objections renders" an appellant's claims waived); arid Commonwealth vi Bruce, 207 Pa.Super, 4, 916 A.2d 657, 671 (2007), appeal denied,5.93 l'a.754; 932A.2d 74 (2007) (holding thata "failure to offer.a timely and specific objection results in waiver of" the claim). Therefore, we shall consider any issue waived where Appellant failed to assert a timely objection.
Commonwealihv. Ba11mhamm_ers, 960 A.2d 59, 73 (Pa. 2008).
Even if this allegation: of error is not deemed waiyec:l,Appelfo.1:1.t is not entitled to relief; The
jury reached a unanimous verdict on the charge of Rape of a Child. The. jury was· polled after the
verdict and each juror. affiitrted his/her agreement with the verdict, (IT 398-4-0.0) Beyond that, the
parties cannot invade the ·prov:idence;of the Jury.
Uury] deliberations are secret: and their inviolability must be closely .guarded. Only in clear cases [of] improper conduct by jw:ors, evidenced by competenttestimony, should a verdict, which is fully supported by theevidence, be set aside. andanew trial.granted ..
Commonwealthv. Nejf;:860 A.2d 1063; 1068:-69 (Pa. Super, 2004).
Appellant's claim is similar to an allegation that thejury reached a compromise verdict,
Appellant also claims that the jw:y arrived at its verdict by compromise, and cites a newspaper report containing postverdict interviews with jutois. However, a juror is incompetent to testify as to what transpired in the jury room, and may not . impeach the verdict after the jury has been discharged. Commonwealth .v. Sero, 478 Pa. 440, 387 A.Zd. 63 (1978); see Com111011wep/fh v. Wi//i(Jf!JJ, 279 Pa.Super, 28, 420 A:2d 727 (1980)� Commonwedlth 11.. Spencer, 259 Pa.Super, 415,.393 A.2d 895 (1978); The only exceprion to this rule applies when there ha.Ve been extraneous influences 00 the jufy
·········-· ----··--·-···· ·· --- ·---------------------------······ ··-·--·------.. , ,,_.,_,,.---···· deliberation process, an exception inapplicable to the instant facts. Appellant's contention is "without merit.
Commonwealth u.. Boden; 486 A,2d 504; 506 (Pa. Super; 1984), affd, 507 .A.2d 813 (PaJ986).
Moreover, as the jury charge demonstrates, the credibility of the victim is central .to the
disposition.ofthe charge.
The defendant has been charged with Rape of a. Child. That is with regard to the victim Shantel. A p�son commits rape ofa child when the person engages in · sexual intercourse with a child who is less than 13 years of age. And under our Crimes Code, such a rape can be committed by either a male or female �pon thechild ofthe same or the opposite gender.
Sexual intercourse has a particular meaning .in criminal law. Sexual intercourse occurs ifa man's penis penetrates the female sexual organ or mouth or. anus of a person. Sexual intercourse also occurs if the tongue .penetrates the female .sexual organ. The slightest degree of penetration is sufficient and no emission of semen is required for sexual ini:ercourseto occur for purposes of the.criminal.law.
It is-immaterial whether the child consents to the contact. Consent of the child is no defense.
It is also no defense if the defendant did not know. the age of the child, orif · the child lied about herage, or if the.deferidant'honestly believed that the child was l3. or older, or reasonably believed that the child was 13.or older.
(IT 376-378) This Court first notes that the date of the offenseis not a required element. . The jury would have to have found the victim's. testimony to be credible in. order to convict
Appellapt on this char�, as well a,i:i the several other. chru:ges for W'hid.,. Appellant was
· convicted. S.G. testified credibly to two separate incidents whichconstituted Rape of a Child,
The most logical conclusion to the jury's conviction of Appellant.at this count is that the
members of the jury found the victim credible as to both incidents. It stretches the bounds
of credulity that the jury would find the victim: credible in. one instance and not credible in.
another. As such, Appdknt's assertion that the . jury's verdict . was not unanimous, is not.
supported by the evidence.
--·-·-···-···. ········-··--···-··-····-···-·······-----·--·-··--···------------'----------------------------···--- CONCLUSION For all of the above reasons, no reversible errors occurred and the findings and rulings of this
Court .should be AFFIRMED.
BY THE COURT: