Opinion
239 EDA 2021 J-A03029-22
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. GEORGE MICHAEL ARTHUR, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered February 7, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004105-2019
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM
DUBOW, J.
Appellant, George Michael Arthur, appeals from the Judgment of Sentence imposed after a jury found him guilty of Endangering the Welfare of Children ("EWOC") and Unlawful Contact with a Minor. He challenges the sufficiency of the evidence supporting his Unlawful Contact conviction, asserting that because the jury specifically found that Appellant did not contact the victim for the purpose of committing indecent assault, the Commonwealth failed to prove each statutory element of the crime of Unlawful Contact with a Minor. Based on our review of recent case law and the unique facts of this case, we agree. We, thus, vacate Appellant's conviction of Unlawful Contact with a Minor.
We summarize the relevant factual and procedural history of this case, as gleaned from the trial court's Pa.R.A.P. 1925(a) Opinion filed July 20, 2020, and the certified record, as follows. In April 2019, E.A., Appellant's then-13-year-old granddaughter, acted out at school and when the school counselor spoke with her, E.A. disclosed that Appellant had asked to see her vagina and had once reached under her shorts and underwear to touch her vagina. The Philadelphia Department of Human Services interviewed E.A., and the Special Victims' Unit of the Philadelphia Police Department investigated. The
Commonwealth then charged Appellant with five offenses, including Unlawful Contact with a Minor-Sexual Offenses, EWOC, Corruption of a Minor ("COM"), and Indecent Assault of a Child Under Thirteen Years of Age.
18 Pa.C.S. §§ 6318(a)(1), 4304(a)(1), 6301(a)(1)(ii), and 3126(a)(7), respectively.
A jury trial commenced on December 4, 2019, at which the Commonwealth presented the testimony of the investigating detective, E.A.'s school counselor, and E.A. E.A. testified that when she was living with her father, brother, and Appellant in her father's house, Appellant "touched her butt over her clothes when she was nine years old, touched her vagina under her clothes when she was about ten or eleven years old, and complimented her legs and butt and asked to see her vagina when she was thirteen years old." Trial Ct. Op., filed July 20, 2021, at 1 (citing N.T. Trial, 12/4/19, at 51-53, 56-58). With respect to the April 2019 incident, E.A. testified that Appellant came into her room after telling her she had a nice butt and legs and asked to see her "coochie." N.T. Trial at 55. E.A. interpreted "coochie" as meaning her vagina. After she said "no," Appellant left the room. E.A. testified that she then heard him talking to himself in the adjoining bedroom before he knocked on the wall and said, "I should have never said that." Id. E.A. also testified that she locked her bedroom door after she showered because Appellant tried "on a daily basis" to enter her bedroom while she was getting dressed, which made her feel uncomfortable. Id. at 60.
On December 5, 2019, after discussion with counsel, the court charged the jury. On the offense of Unlawful Contact with a Minor, the court instructed:
N.T. Trial, 12/5/19, at 48.The defendant has been charged with Unlawful Contact with a Minor. To find the defendant guilty of this offense, you must find that each of the following three elements have been proven beyond a reasonable doubt. First, that the defendant was intentionally in contact with a minor. Second, that the contact was for the purpose of engaging in an unlawful act. If you find this element is proven beyond a reasonable doubt, you must indicate on the verdict form which act or acts you find to have been so proven. Third, that either the defendant or person being contacted is within the Commonwealth.
See Pa. SSJI (Crim), § 15.6318.
While deliberating, the jury submitted several questions to the court. After one such question, the court amended the verdict sheet without objection from counsel, to determine whether, if the jury found Appellant guilty of Unlawful Contact, the contact was for the purpose of committing indecent assault.
On December 6, 2019, the jury found Appellant guilty of Unlawful Contact with a Minor and EWOC. On the verdict sheet, the jury wrote "Guilty" next to the charge of Unlawful Contact with a Minor. To the question immediately following that offense, i.e., "If You Find That There Was Unlawful Contact With A Minor, Do You Find That It Was For The Act Of Indecent Assault? Yes Or No? Please Circle One," the jury circled "No." Next to the offenses of Corruption of Minors and Indecent Assault of a Child Under 13 Years of Age, the jury wrote "hung."
Following the reading of the verdict, the trial judge excused the jury to communicate to counsel her concern that because an element of the offense of Unlawful Contact requires the jury to indicate what offense under Chapter 31 Appellant intended to commit, and the jury found the act was not indecent assault, "I don't have a choice but to set aside the jury's verdict with regards to unlawful contact with a minor and enter a verdict of not guilty due to the inconsistency." Id. at 11-12. The court then took a brief recess and upon returning, the prosecutor cited case law to argue that the unlawful conduct conviction should stand as the question to which the jury answered "no" was relevant only for grading purposes. Defense counsel disagreed. The court informed counsel that it had polled the jury on the "hung" charges and learned that 10 jurors voted "not guilty" on each of the Indecent Assault of a Child Under 13 Years of Age and Corruption of Minor charges. N.T. Trial, 12/6/19, at 13. The court held the case under advisement to allow counsel to submit written briefs on the issue.
On December 9, 2019, the court reconvened and ruled that the guilty verdict would not be set aside "as the question [immediately following the offense of Unlawful Contact] went to grading and not proof of the elements." Tr. Ct. Op. at 3. See also N.T. Post-Trial Hearing, 12/9/19, at 2-3. The court then ordered a pre-sentence investigation and deferred sentencing.
On February 7, 2020, the court sentenced Appellant to 2½ to 5 years' incarceration, followed by 2 years' probation, for the Unlawful Contact conviction graded as a third-degree felony. It imposed the same term of incarceration for the EWOC conviction and ordered the sentences to run concurrently. In addition, the court informed Appellant that he must register as a Tier II sex offender with the state police for 25 years.
Following the post-conviction reinstatement of his appeal rights nunc pro tunc, Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
Appellant's Br. at 4.Is the evidence legally sufficient to convict defendant/appellant of unlawful contact where the jury expressly found that appellant did not contact a minor for the purpose of engaging in indecent assault, where indecent assault is the only unlawful act that the jury was instructed regarding which could sustain the conviction for unlawful contact?
A challenge to the sufficiency of the evidence presents a question of law for which our standard of review is de novo. Commonwealth v. Weimer, 977 A.2d 1103, 1104-05 (Pa. 2009). In reviewing a sufficiency challenge, we must determine whether the evidence, and all reasonable inferences to be drawn from that evidence, when viewed in the light most favorable to the Commonwealth as the verdict winner, establish each element of the challenged offense beyond a reasonable doubt. Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
Our legislature has provided that a person commits the crime of Unlawful Contact with a Minor if, in relevant part, "he is intentionally in contact with minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor. . . for the purpose of engaging in an activity prohibited under . . . [a]ny of the offenses enumerated in Chapter 31 (relating to sexual offenses)." 18 Pa.C.S. § 6318(a)(1), (c). Thus, the Commonwealth must prove the defendant (1) intentionally contacted the minor directly or indirectly (2) for the purpose of engaging in a sex offense enumerated in Chapter 31. Commonwealth v. Reed, 9 A.3d 1138, 1146 (Pa. 2010). The statute defines "Contacts" as "[d]irect or indirect contact or communication by any means, method or device, including contact or communication in person or through an agent or agency, through any print medium, the mails, a common carrier or communication common carrier, any electronic communication system and any telecommunications, wire, computer or radio communications device or system." Id. at (c). In the context of the Unlawful Contact statute, our case law has interpreted "contact" to mean "communication." See, e.g., Commonwealth v. Leatherby, 116 A.3d 73 (Pa. Super. 2015) (discussed infra).
In Reed, the Supreme Court reviewed what effect the acquittals of the charges underlying the Unlawful Contact with a Minor charge had on the grading of the defendant's unlawful contact conviction. Unlike the instant case, the Reed Court did not address the sufficiency of the evidence underlying the conviction.
Appellant challenges the sufficiency of the evidence supporting the Unlawful Contact with a Minor conviction. Specifically, he contends that the Commonwealth failed to prove the second element of the offense, i.e., that he contacted E.A. for the purpose of committing a Chapter 31 offense. He notes that the only offense the court instructed the jury on was Indecent Assault, the jury was unable to reach a unanimous verdict on that charge, and, as indicated on the verdict sheet, the jury specifically found that Appellant did not contact E.A. for the purpose of committing Indecent Assault. Appellant's Br. at 18. Appellant further observes that no other Chapter 31 offense was defined for the jury. Id. at 20, 26. "Accordingly, in order to convict [Appellant] of unlawful contact it was essential that the jury find- beyond a reasonable doubt-that [Appellant] contacted [E.A.] for the purpose of engaging in indecent assault." Id. We agree.
In Commonwealth v. Leatherby, 116 A.3d 73, 79-80 (Pa. Super. 2015), this Court concluded insufficient evidence supported the appellant's conviction of Unlawful Contact where there was evidence of touching but no evidence from which the jury could infer that the appellant engaged in communication to commit a sexual assault.
In Commonwealth v. Baker-Myers, 255 A.3d 223 (Pa. 2021), our Supreme Court addressed a challenge to the sufficiency of the evidence supporting a COM conviction where the appellant was acquitted of all the sexual offenses underlying the COM charge. The COM statute specifically requires that a defendant engage in a course of conduct "in violation of" Chapter 31. The Court held that where an indictment alleges and the court gives a "specific[] instruct[ion] on the predicate offense or offenses pertaining to the corruption of minors charge, and the jury then renders an acquittal on all such predicates, a conviction for felony corruption of minors cannot stand." Id. at 235. Significantly, the Court held that because the trial court provided a clear jury instruction regarding the applicable predicate offenses in defining the course of conduct, the jury's explicit finding that the appellant had not committed the underlying charged sexual offenses rendered the conviction for corruption of minors unsupported by sufficient evidence.
Although Baker-Myers reviewed a different statute from the one at issue here, we find the reasoning in Baker-Myers to be instructive in analyzing Appellant's sufficiency challenge. As noted above, the Unlawful Contact statute requires, in relevant part, that the Commonwealth prove beyond a reasonable doubt that a defendant contacted the minor for the purpose of engaging in a sex offense enumerated in Chapter 31. Here, the Commonwealth charged Appellant as contacting E.A. for the purpose of engaging in an act prohibited under Chapter 31. In instructing the jury, the court defined the second element of the offense of Unlawful Contact as, relevantly, "that the contact was for the purpose of engaging in an unlawful act. If you find this element is proven beyond a reasonable doubt, you must indicate on the verdict form which act or acts you find to have been so proven." N.T., 12/5/19, at 48 (emphasis added). The only Chapter 31 offense about which the jury was instructed was Indecent Assault of a Minor under 13 years of age. The jury specifically indicated on the verdict sheet that the contact was not "for the act of indecent assault." Since the Commonwealth charged Appellant with no other Chapter 31 offense and the Court provided no instruction on any Chapter 31 offense other than indecent assault, we conclude that the Commonwealth failed to prove beyond a reasonable doubt that Appellant's contact with E.A. was for the purpose of committing a Chapter 31 sex offense.
"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 … the complainant is less than 13 years of age." 18 Pa. C.S. § 3126(a)(7).
The Commonwealth suggests that our review is not whether there was sufficient evidence to support the conviction; rather, "the pertinent question is simply whether, as a matter of law, there was enough evidence to submit the case to the fact-finder." Commonwealth's Br. at 12. This is a question that pertains to the purpose of a preliminary hearing or the consideration of a motion for a directed verdict. Here, the issue is specifically whether the evidence was sufficient to sustain the conviction.
The Commonwealth also urges us to affirm the conviction as a permissible inconsistent verdict. See Commonwealth's Br. at 14 (citing, inter alia, Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008)). The instant case does not present inconsistent verdicts. Because the jury was unable to reach a verdict on the indecent assault charge and specifically indicated that it found the purpose of the contact was not to commit the act of indecent assault, this case does not involve inconsistent verdicts.
In Rose, this Court reinstated a verdict the trial court had set aside by concluding, inter alia, that we "will not disturb guilty verdicts on the basis of apparent inconsistences as long as there is sufficient evidence to support the verdict." Rose, 960 A.2d at 158 (citation omitted; emphasis added). Rose actually supports the proposition that in order to sustain a conviction for Unlawful Contact, the jury must make an explicit finding as to the purpose of the Unlawful Contact, the second element of the offense.
Based on the foregoing, we affirm Appellant's Judgment of Sentence imposed after his conviction of Endangering the Welfare of Children and vacate Appellant's conviction of, and the Judgment of Sentence imposed for, Unlawful Contact with a Minor. Because the court ordered Appellant's sentences to run concurrently, our disposition does not alter Appellant's term of incarceration. We, nonetheless, remand for the trial court to determine whether Appellant is still required to register with the state police pursuant to the Sex Offenders Registration and Notification Act and, if not, to enter an Order to that effect.
Conviction for Unlawful Contact with Minor vacated. Judgment of Sentence affirmed in part; vacated in part. Case remanded. Jurisdiction relinquished.