Com. v. Lee, S.

J-S23020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SOON O. LEE,

Appellant No. 1221 EDA 2014

Appeal from the Judgment of Sentence Entered April 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013080-2012

BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 29, 2015

Appellant, Soon O. Lee, appeals from the judgment of sentence

entered following her convictions of promoting prostitution and conspiracy.

We affirm.

The trial court summarized the factual history of this case as follows:

The evidence from trial, viewed in the light most favorable
to the Commonwealth as the verdict winner, established the
following facts. On May 4, 2012, Philadelphia Police Officer
Thomas McHale was involved in an undercover prostitution
investigation with the Philadelphia Police Department, Citywide
Vice Unit. See Notes of Testimony (“N.T.”), March 31, 2014 at
p. 9. The Unit was investigating complaints of prostitution at the
Happiness Spa (“Spa”), located at 1812 Ludlow Street in
Philadelphia. Id. at 10. The Spa advertised its massage
services on the back pages of newspapers, specifically
Philadelphia Weekly. Id. at 11; 16.
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
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On May 4, 2012, around 11:00 a.m., Officer McHale
entered the Spa’s front foyer and rang the doorbell to a second
entrance, as the sign in the foyer instructed. Id. at 17. Officer
McHale was met by an older woman, later identified as
[Appellant]. Id. [Appellant] started talking to Officer McHale
and began touching and patting [the officer’s] waist area. Id.
[Appellant] then took Officer McHale by the hand and led him to
the second floor, where he was introduced to Minju Je (“Je”).
Id.

After a brief conversation with [Appellant] in Korean, Je
took Officer McHale to a bedroom where she asked him for $180.
Id. at 19. Officer McHale handed Je $200 in prerecorded buy
money. Id. at 19. Je instructed Officer McHale to take his
clothes off and put a towel on as she left the room with the
$200. Id. at 20. Je returned to the room and escorted Officer
McHale back down to the first floor shower room, where he
received a table shower.[1] Id. at 20.

Following the table shower, Je dried Officer McHale off with
a towel and escorted him back to the second-floor bedroom,
where she instructed him to remove his towel and lie down on
the bed completely nude. Id. at 21. There were no massage
tables in the bedroom, only a bed. Id. at 21. Je took an open
condom wrapped in a tissue, placed it on the bed next to Officer
McHale, took hold of his penis, and attempted to perform
“manual masturbation” on him. Id. at 21-23. Officer McHale
immediately stopped Je from proceeding and notified his backup
team, who was waiting outside. Id. at 23, 25. Officer McHale
heard his backup team knock and announce their presence.
Approximately fifteen to thirty seconds later, after no one from
the Spa answered the door, the backup team broke through the
entrance. Id. at 23. Once inside, Officer McHale and his backup
team secured the property and the five individuals inside. Id. at
24; 44.

____________________________________________

1
When asked to describe a “table shower” for the trial court, Officer McHale
stated that “[i]t’s literally just a table, like a massage table, where you lay
down and they put soap on you and they throw buckets of hot water on
you.” N.T., 3/31/14, at 20.

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Officer McHale, along with Philadelphia Police Officer James
Scott and other officers executed a search warrant at the Spa at
2:50 p.m. on May 4, 2012, in [Appellant’s] presence. Police
officers recovered ninety-one condoms; four cameras; two
televisions; three sex toys; a clipboard; four receipt rolls; six
radios; one laptop; four phones; one credit card machine; nude
gel; Vaseline; one bill; a masseuse license in [Appellant’s]
name; mail addressed to [Appellant]; a business privilege
license; numerous towels; two bottles of lubricants; six
containers of powder; seven bottles of alcohol; seven bottles of
oil; and $8,646.00 in United States currency. Id. at 37. These
items were placed on property receipts, which were introduced
at trial as exhibits C-3 and C-4. After the execution of the
search warrant, [Appellant] and Je were placed under arrest.

Trial Court Opinion, 8/15/14, at 2-3.

Appellant was charged with promoting prostitution and conspiracy. On

March 4, 2013, Appellant filed a motion to suppress physical evidence, which

was denied on September 9, 2013. On April 1, 2014, following a nonjury

trial, Appellant was convicted of both crimes. That same day, the trial court

sentenced Appellant to serve concurrent terms of probation of two years for

each conviction. This appeal followed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

Whether the evidence was insufficient as a matter of law to
sustain the convictions for promoting prostitution and
conspiracy.

Appellant’s Brief at 7.

When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

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to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, this Court may

not substitute its judgment for that of the fact finder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

Initially, Appellant challenges her conviction of promoting prostitution.

Appellant’s Brief at 9-15. Appellant contends that the evidence reflects that

she was simply an employee of the business and that she was not present

when the interaction between the masseuse and the undercover officer took

place and therefore, she did not actively participate in the running of the

business.

The crime of promoting prostitution is defined in the Crimes Code, in

relevant part, as follows:

b) Promoting prostitution.-- A person who knowingly
promotes prostitution of another commits a misdemeanor or

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felony as provided in subsection (c) of this section. The
following acts shall, without limitation of the foregoing,
constitute promoting prostitution:

(1) owning, controlling, managing, supervising or
otherwise keeping, alone or in association with
others, a house of prostitution or a prostitution
business;

18 Pa.C.S. § 5902(b)(1).

Regarding the elements of the crime of promoting prostitution, we

have stated the following:

In order to sustain a conviction of promoting prostitution,
this court must determine that there is sufficient evidence to
convince the [fact finder] beyond a reasonable doubt that the
Commonwealth proved: (1) the existence of a prostitution
business; and (2) that the accused actively participated in the
“running, control, supervision or keeping of the prostitution
business.”

Commonwealth v. Dobrinoff, 784 A.2d 145, 147-148 (Pa. Super. 2001)

(quoting Commonwealth v. Blankenbiller, 524 A.2d 976 (Pa. Super.

1987)). Prostitution is defined as “sexual relations for hire.” Dobrinoff,

784 A.2d at 148 (quoting Commonwealth v. Miller, 364 A.2d 886, 887

(Pa. 1976)). Furthermore, it is well established that “[t]here was no need

for the officer to participate in the sexual activity to the extent of having

intercourse” in order to sustain a conviction for promoting prostitution.

Commonwealth v. Danko, 421 A.2d 1165, 1171 (Pa. Super. 1980).

Here, the trial court offered the following analysis regarding

Appellant’s challenge to the sufficiency of the evidence relevant to the

conviction of promoting prostitution:

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[Appellant] argues that there is insufficient evidence to
establish the charge of promoting prostitution . . . .

In the case at bar, the evidence was sufficient to establish
beyond a reasonable doubt that the Spa was being used to
house a prostitution business (i.e., wherein individuals would
engage in sexual activity as a business). The Spa’s
advertisement depicts a young woman in the nude and promises
to treat each customer like a “king.” See Trial Exhibit C-1.3
After Officer McHale paid $200, Je led him to a bedroom, told
him to disrobe and put a towel on, escorted him downstairs and
gave him a “table shower,” took him back upstairs and directed
him to lie on a bed in the nude, placed an open condom beside
his waist, and then proceeded to attempt to perform “manual
masturbation” on him. Moreover, in addition to the condom
recovered from the bed on which Officer McHale was lying,
ninety other condoms, as well as multiple sex toys, were
recovered from the Spa. This evidence, as well as all reasonable
inferences drawn therefrom, was sufficient to prove that a
prostitution business was operating from the Spa.
3
The Spa’s advertisement appears among other
provocative advertisements for “phone sex” and
spas.

The evidence at trial also established beyond a reasonable
doubt that [Appellant] ran, controlled, or supervised the
prostitution business operating out of the Spa: the masseuse
license was in [Appellant’s] name; [Appellant] had the authority
to control who entered the premises; and she was the one who
initially greeted Officer McHale, patted him down, and then led
him to Je. The court reasonably inferred from this evidence that
[Appellant] was in control of and/or supervised the Spa
operation. Therefore, sufficient evidence was presented at trial
for the court to find [Appellant] guilty of promoting prostitution.

Trial Court Opinion, 8/15/14, at 4-5.

Our review reflects that Appellant controlled the entry of the

undercover officer into the establishment and conducted a pat down search

of the officer. N.T., 3/31/14, at 17, 29. Although there was a masseuse

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license recovered in Appellant’s name, Appellant did not provide a massage.

Rather, Appellant took the officer by the hand to an upstairs bedroom and

introduced the officer to the prostitute. Id. at 29. Appellant then had a

conversation with the prostitute in a foreign language, left the room, and the

prostitute then quoted the officer a price of $180.00. Id. at 19, 30. The

officer also testified that there was no massage table in the bedroom. Id. at

21. This evidence, viewed in the light most favorable to the Commonwealth

as the verdict winner, is sufficient to prove beyond a reasonable doubt that

Appellant committed the crime of promoting prostitution.

We observe that in support of her argument, Appellant relies on this

Court’s decision in Commonwealth v. DeStefanis, 658 A.2d 416 (Pa.

Super. 1995). In DeStefanis, an undercover detective went to a fitness

center and paid for a massage. At the completion of the massage, the

masseuse asked if the detective wanted a “hand release.” Id. at 417. The

detective declined, but confirmed that a “hand release” was in fact “manual

stimulation of the genitals,” and while the masseuse did not charge for this

service, she indicated that a tip would be appreciated. Id. Several weeks

later the detective returned and received a massage. On that occasion, the

detective inquired about “the availability of specific sexual acts other than a

hand release.” Id. The second masseuse indicated the “house rule” was

that only hand releases would be performed. Id.

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Over three months later, a female undercover officer interviewed with

DeStefanis for a position as a masseuse at the fitness center. DeStefanis,

658 A.2d at 417. During the interview, which was taped with a recording

device, the officer asked if she was permitted to provide a hand release to

customers as an option to make more money. Id. at 417-418. DeStefanis

indicated nine times during the taped conversation that the house rules

included no sexual intercourse, but that she was permitted to offer a hand

release for an additional tip, although, to his knowledge, none of the other

masseuses offered the service. Id. at 418. DeStefanis further indicated

that masseuses kept their own tips and that he did not “touch” that money.

Id. About a month after the interview, DeStefanis was arrested. Id. A jury

convicted DeStefanis of two counts of promoting prostitution and one count

of conspiracy. Id. On appeal, DeStefanis argued that the evidence was

insufficient to sustain his convictions. We agreed with DeStefanis, holding

that the fitness center was not a “prostitution business” as defined by 18

Pa.C.S. § 5902, nor were the masseuses who offered hand releases doing so

as part of the business. Id. at 420.

Specifically, we stated the following:

Detective Carroll’s testimony reveals that the fitness center
charged $60.00 - $65.00 up front for a legitimate massage. The
evidence further revealed that, after the completion of his first
massage, Detective Carroll was made aware that a hand release
was available by [the first masseuse]. When Detective Carroll
inquired about the price of a hand release, the vague response
was, “a tip would be appreciated.” Arguably, when a client does
not agree to pay for a sexual service up front, the ensuing act

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constitutes sexual activity between two consenting adults. [The
second masseuse] did not even make Detective Carroll an offer
of any type of sexual activity; it was not until the massage was
completed and Detective Carroll initiated inquiries to [the second
masseuse] about sexual options that she spoke about hand
releases. There can be no assumption, therefore, that a hand
release was included in the price of the massage. No price was
discussed with [the second masseuse]. The fact that DeStefanis
indicated to [the undercover officer] that providing hand releases
was an acceptable way to make “tips” is not probative of a
prostitution “business,” nor are the admissions of [the first
masseuse] and [the second masseuse] that they gave hand
releases to some of their customers. This evidence, even when
viewed in the light most favorable to the Commonwealth, is not
sufficient to establish the “business” element of the prostitution
statute beyond a reasonable doubt, specifically, that there
existed “a commercial activity engaged in for gain.” . . .
Because no underlying “prostitution business” has been
established, DeStefanis cannot be said to have promoted
prostitution under section 5902(b) and, therefore, his conviction
must be reversed.

DeStefanis, 658 A.2d at 420. In addition, although admittedly in dicta, the

Court noted that there was no evidence that DeStefanis was receiving

income from any sexual acts performed by masseuses, particularly in light of

his statements that he did not think any employees were engaging in sexual

activity and that he did not share in any portion of the employees’ tips. Id.

at 421.

Likewise, Appellant directs our attention to this Court’s decision in

Blankenbiller. Blankenbiller was an officer in companies that owned both a

restaurant and a café. Blankenbiller, 524 A.2d at 977. He had sponsored

a softball team by paying for their uniforms. Id. A party was held at the

restaurant in order to raise additional funds for the softball team. Id. The

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$15.00 ticket price for admission to the party entitled each purchaser to

beer, snacks, and a go-go-dancer show. Id. Two undercover state troopers

attended the party after purchasing tickets to the event at the café. Id.

During the party, announcements were made over a speaker system

indicating that sex was available for money, and Blankenbiller was in the

vicinity of the loud speaker system. Id. The woman who ran a booking

agency for the go-go dancers testified that she had hired four female

dancers at $150 each and that she was paid $100 for making the

arrangements and acting as a hostess. Id. at 977-978. The booking agent

also testified that she brought four other women along for purposes of

prostitution. Id. at 978. One of the prostitutes testified that she was

responsible for collecting a certain amount of proceeds from the other girls,

that the money was used to benefit the softball team, and that she did not

know who Blankenbiller was. Id. Blankenbiller was convicted of promoting

prostitution under 18 Pa.C.S. § 5902(b)(1). On appeal, Blankenbiller argued

that the evidence was insufficient to sustain his conviction in light of the fact

that he was merely present at the scene. Id. at 978. We agreed with

Blankenbiller, stating the following:

It is unreasonable to infer, from the fact that he either had
allowed the party organizers to sell tickets at the restaurant or
had allowed the use of the property for the party, that
[Blankenbiller] ran, controlled, supervised, or kept a prostitution
business at the party. The Commonwealth did not produce any
evidence that [Blankenbiller] told anyone that prostitutes would
be available at the event. Nor has it been shown that he
personally made any of the “arrangements” with the women in

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question. The Commonwealth also failed to demonstrate that he
took part in any way in the illicit activities on the day of the
party. The evidence shows only that [Blankenbiller] was present
while the crimes took place and that he had helped promote the
party. These facts do not make him criminally responsible for
everything that occurred at the event. [M]ere presence does not
establish guilt.

Blankenbiller, 524 A.2d at 979. The Court went on to mention the

following facts:

The “hostess,” who knew [Blankenbiller] previously, stated that
she had made the party arrangements with . . . the manager of
the softball team. Both [the hostess and the prostitute] who
testified stated that the girls themselves told the guests that sex
was available, that [Blankenbiller] had not made any of the
announcements on the public address system, and that none of
the entertainment arrangements, including the prostitution
arrangements, had been made with [Blankenbiller].

Id.

Upon review of the certified record, we are left to conclude that

Appellant’s reliance upon DeStefanis and Blankenbiller is misplaced.

Indeed, the decisions in those cases relied upon the facts that the appellants

were not instrumental in organizing the illicit business between the

prostitutes and their clients. Instantly, however, the record reflects that the

undercover officer’s entry into the establishment was controlled by

Appellant, and Appellant conducted a pat-down search of the officer. N.T.,

3/31/14, at 17-18. Appellant then took the officer, by the hand, to a second

floor bedroom and introduced him to the prostitute, who was “scandalously

clad.” Id. at 17, 29. Appellant and the prostitute then had a conversation

in a foreign language, and Appellant left the officer alone with the prostitute.

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Id. at 19. Without discussion of services, the prostitute asked the officer for

$180, and the officer gave her $200. Id. The prostitute then took the

officer to be washed, and when the two returned to the bedroom, she placed

a condom at his waist and immediately proceeded to perform masturbation

upon him. Id. at 21. Thus, unlike the circumstances in DeStefanis and

Blankenbiller, the evidence in this case establishes that there was no

legitimate massage business being conducted at the Spa, but rather, this

was a venue for prostitution. Furthermore, Appellant was an integral part of

the business. Thus, Appellant’s claim challenging the sufficiency of the

evidence to support her conviction of promoting prostitution lacks merit.

In addition, Appellant argues that there was insufficient evidence to

support her conviction of conspiracy. Appellant’s Brief at 15. Appellant

contends that she was merely present at the business when the undercover

officer had an encounter with a prostitute.

Pursuant to the Crimes Code, conspiracy is defined as follows:

§ 903. Criminal conspiracy

(a) Definition of conspiracy.-- A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an
attempt or solicitation to commit such crime.

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18 Pa.C.S. § 903(a).

Moreover, we have explained the following:

A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is
sustained where the Commonwealth establishes that the
defendant entered an agreement to commit or aid in an unlawful
act with another person or persons with a shared criminal intent
and an overt act was done in furtherance of the conspiracy.

The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is to be
accomplished. Mere association with the perpetrators, mere
presence at the scene, or mere knowledge of the crime is
insufficient. Rather, the Commonwealth must prove that the
defendant shared the criminal intent, i.e., that the Appellant was
“an active participant in the criminal enterprise and that he had
knowledge of the conspiratorial agreement.” The defendant
does not need to commit the overt act; a co-conspirator may
commit the overt act.

A conspiracy is almost always proved through
circumstantial evidence. “The conduct of the parties and the
circumstances surrounding their conduct may create ‘a web of
evidence’ linking the accused to the alleged conspiracy beyond a
reasonable doubt.” The evidence must, however, “rise above
mere suspicion or possibility of guilty collusion.”

Among the circumstances which are relevant,
but not sufficient by themselves, to prove a corrupt
confederation are: (1) an association between
alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene
of the crime; and (4) in some situations,
participation in the object of the conspiracy. The
presence of such circumstances may furnish a web of
evidence linking an accused to an alleged conspiracy
beyond a reasonable doubt when viewed in
conjunction with each other and in the context in
which they occurred.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en

banc) (citations omitted). See also Commonwealth v. Finnegan, 421

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A.2d 1086 (Pa. Super. 1980) (affirming conviction of conspiracy where the

defendant arranged the meeting of an undercover officer with a prostitute).

In addressing this issue challenging the sufficiency of the evidence, the

trial court offered the following cogent analysis:

[Appellant] also argues that there was insufficient evidence
of a conspiracy to commit prostitution.

***

The evidence proved beyond a reasonable doubt that
[Appellant] was guilty of conspiring to commit prostitution.
[Appellant] asserts that her “mere presence” at the Spa and
possession of a license to run a massage parlor was insufficient
to sustain the conspiracy conviction. See [Pa.R.A.P. 1925(b)]
Statement at ¶ 2. While Officer McHale may not have heard or
understood any direct communication between [Appellant] and
Je about engaging in sexual activity for profit, there was
sufficient circumstantial evidence to support the finding of a
conspiracy. The silent exchange of money for the performance
of sexual favors indicated that everything done to Officer McHale
was done in the ordinary course of business. Neither [Appellant]
nor Je asked Officer McHale what services he was seeking.
Instead, [Appellant] patted him down, brought him to Je,
engaged in a brief conversation with Je in Korean, and left. It
was after this conversation with [Appellant] that Je quoted
Officer McHale a price and had no further discussion with him,
except to tell him to remove his clothing. The seamless nature
in which these encounters and transactions took place was
circumstantial evidence of an agreement between [Appellant]
and Je that Je would perform sexual activity for monetary
compensation. Therefore the evidence was sufficient to find
[Appellant] guilty of conspiracy.

Trial Court Opinion, 8/15/14, at 5-6. We find this analysis by the trial court

to be persuasive and affirm the conviction of conspiracy on its basis.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/29/2015

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