J-S35045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SERGIO SANCHEZ,
Appellant No. 1567 EDA 2014
Appeal from the Judgment of Sentence March 28, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008117-2010
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 17, 2015
Appellant, Sergio Sanchez, appeals from the judgment of sentence
imposed following his bench conviction of unlawful contact with a minor,
indecent assault, corruption of a minor, terroristic threats, and simple
assault.1 Appellant challenges the sufficiency of the evidence to support his
conviction. We affirm.
The trial court aptly summarized the facts of this case as follows:
Between the ages of [ten] and [twelve], G.M. lived with
her mother at 5350 Oakland Street in the City and County of
Philadelphia. Appellant was a family friend who would often
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6318, 3126, 6301, 2706, and 2701, respectively.
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work as a handyman at their home.[2] G.M. viewed Appellant as
an uncle and would often give him hugs and kisses on the cheek.
On one occasion, when G.M. was [ten] years old, Appellant was
performing a job and told G.M. to get him some tools. When she
went to retrieve the tools, Appellant pulled her into the corner
and kissed her on the lips. G.M. did not say anything because
she, “didn’t think it meant anything.” [(N.T. Trial, 12/04/12, at
8).] On a second occasion, while G.M. was [eleven] years old
and home alone, Appellant was working at the house. Appellant
was working in the basement and at one point came upstairs
and told G.M. to take her shirt off, which she did not do.
Appellant told her not to tell anyone or someone in her family
would get hurt. On a third occasion, while G.M. was still
[eleven] years old, Appellant was again working in the family’s
basement when Appellant came into G.M.’s room. Appellant
forced G.M. on top of her bed and laid on top of her, kissing her
neck and chest. Appellant also touched her vagina over her
clothes. G.M. pushed Appellant off of her and shut the door on
him. G.M. did not tell anyone about the incident because she
was trying to protect her family. On a fourth occasion, Appellant
was working on the family’s driveway while G.M. was inside.
Appellant requested, through an open window that G.M. get him
some juice. G.M. went to the basement and was going to exit
through a door that led to the driveway, but Appellant met her in
the basement and grabbed her breast over her shirt.
Some time after the fourth incident, G.M.’s aunt [,S.G.,]
was having a discussion about puberty with [her] and G.M. told
her aunt what had occurred because it was eating at her and
she, “couldn’t take it anymore.” [(Id. at 11).] G.M’s aunt told
her mother, [(Mother)]. [Mother] testified that when she asked
G.M. about the incidents, G.M was afraid and thought she would
be in trouble. G.M. also seemed sad and was reluctant to
discuss the incidents. After discussing the matter with G.M.,
[Mother] called a children’s hotline. The hotline told her to
report the matter to the police, which she did. Officer Sheri Day
took G.M.’s statement and observed that she was upset and
nervous during the interview. [Mother] was also present and
was also upset[.]
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2
Appellant’s date of birth is September 21, 1968. (See Trial Court Opinion,
11/14/14, at 2).
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After speaking to G.M., [Mother] ran into Appellant at a
property she owned. Appellant attempted to talk to her and said
that he wanted to fix this. [Mother] refused to talk to Appellant.
Later, Appellant came to [Mother’s] home and said that he
wanted to fix the situation and that it “doesn’t have to go that
far.” ([Id.]at 37).
Conversely, Appellant testified that he had known [Mother]
and G.M. for ten years and they were close family friends.
Appellant testified that he would hug and kiss G.M. like an uncle
but that he never touched her inappropriately. He stated that he
dated G.M.’s aunt, [S.G.], for three to four months and had
given her money on several occasions. He testified that on the
last occasion she had asked for money, he refused and she
became upset. Appellant implied that there was a motive to
coerce G.M. to fabricate the sexual encounters for revenge.
[The trial] court found this argument without merit and not
worthy of belief.[3]
(Trial Ct. Op., at 2-4) (some record citations omitted).
On December 4, 2012, following a bench trial, the court found
Appellant guilty of the above-stated offenses. It deferred sentencing for
preparation of pre-sentence investigation and mental health reports. On
March 28, 2013, the court sentenced Appellant to an aggregate term of not
less than one day nor more than twenty-three months’ incarceration, with
immediate parole to house arrest for six months, followed by five years’
probation. Appellant did not file post-sentence motions or a direct appeal.
On April 22, 2014, Appellant filed a counseled petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking
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3
The court found G.M.’s testimony “very compelling and completely
believable.” (Trial Ct. Op., at 5).
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reinstatement of his post-sentence and direct appeal rights nunc pro tunc.
The PCRA court granted the petition on April 29, 2014. This timely appeal
followed.4
Appellant raises five issues for our review:
I. Whether the evidence submitted at trial was sufficient to
convict [Appellant] of [i]ndecent [a]ssault where the evidence
presented suggested he did not have the required mens rea to
commit the crime?
II. Whether the evidence submitted at trial was sufficient to
convict [Appellant] of [u]nlawful [c]ontact with a [m]inor, where
the evidence presented did not rise to the level necessary to
make out the crime?
III. Whether the evidence submitted at trial was sufficient to
convict [Appellant] of [c]orruption of the [m]orals of a [m]inor
where no evidence was presented that he corrupted the morals
of a minor as contemplated in the statute he was convicted
under?
IV. Whether the evidence submitted at trial was sufficient to
convict [Appellant] of [t]erroristic [t]hreats where the evidence
presented at trial showed the alleged threats to [be] unspecific,
not involve any weapon or direct threat, and be in the heat of
the moment?
V. Whether the evidence submitted at trial was sufficient to
convict [Appellant] of [s]imple [a]ssault where there is no
evidence of any injuries, or that the [c]omplainant was struck in
any way?
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4
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 8, 2014. See Pa.R.A.P.
1925(b). We note that, although the document is titled “Preliminary Concise
Statement of Matters Complained of on Appeal,” Appellant did not file a
supplemental statement. (Rule 1925(b) Statement, 7/08/14, at 1). The
court filed an opinion on November 14, 2014. See Pa.R.A.P. 1925(a).
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(Appellant’s Brief, at 3).
All of Appellant’s issues challenge the sufficiency of the evidence
supporting his conviction. Our standard of review is well-settled:
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-finder to find every element of the
crime beyond a reasonable doubt. In applying [the
above] test, we may not weigh the evidence and
substitute our judgment 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 unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving 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, part or none
of the evidence.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations omitted).
Preliminarily, we must determine whether Appellant properly
preserved his issues for our review. Pennsylvania Rule of Appellate
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Procedure 1925(b) provides, in pertinent part: “Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived”). “In order to
preserve a challenge to the sufficiency of the evidence on appeal, the
appellant’s Rule 1925(b) statement must state with specificity the element
or elements of the crime upon which the appellant alleges the evidence was
insufficient.” Commonwealth v. Veon, 109 A.3d 754, 775 (Pa. Super.
2015) (citations omitted).
In the instant case, after review of the record, we conclude that
Appellant has waived his first, second, and fourth issues on appeal, in which
he challenges his convictions for indecent assault, unlawful contact with a
minor, and terroristic threats, respectively. (See Appellant’s Brief, at 3). In
his Rule 1925(b) statement, Appellant generically and vaguely alleges with
respect to unlawful contact with a minor and terroristic threats: “the
evidence was insufficient where the complaining witness[’]s testimony was
inconsistent, and the complaining witness[’]s behavior is inconsistent with
being a victim of such a crime.” (See Rule 1925(b) statement, 7/08/14, at
1-2 ¶¶ 1, 4). Appellant failed to identify any specific element of these
crimes that lacked sufficient evidence. With regard to indecent assault, he
repeats this same general allegation and adds: “Further, there is no
evidence that the complaining witness ever came into contact with, or even
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saw, any seminal fluid, urine or feces.” (Id. at 2 ¶ 2). However, Appellant
did not carry these allegations forward to his appellate brief. Instead, for
each offense, he challenges the sufficiency of the evidence on different
bases.5 Because Appellant failed to include the claims discussed in his brief
in his Rule 1925(b) statement, he waived them for purposes of appeal. See
Pa.R.A.P. 1925(b)(4)(vii); Lord, supra at 309; Veon, supra at 775.
We next address the issues Appellant preserved for review in his Rule
1925(b) statement, issues three and five. (See Rule 1925(b) statement,
7/08/14, at 2 ¶¶ 3, 5).
In Appellant’s third issue, he claims that the evidence was insufficient
to support a corruption of minors conviction “where there is no indication
that [he] did anything to corrupt the morals of a minor as indicated in the
statute.” (Appellant’s Brief, at 14). He argues that the conviction cannot be
sustained because there is no evidence that he encouraged the victim to
commit any crime. (See id. at 15; Rule 1925(b) statement, 7/08/14, at 2 ¶
3). This issue lacks merit.
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5
Specifically, in his brief, with respect to the indecent assault conviction
(issue one in the brief), Appellant argues that the Commonwealth failed to
prove that he had the requisite mes rea to commit the crime. (See
Appellant’s Brief, at 10-12). With regard to the unlawful contact with a
minor conviction (issue two), he asserts that the evidence did not show that
he made multiple sexually explicit comments to the victim; at most he made
one. (See id. at 12-13). Finally, regarding the terroristic threats offense
(issue four), Appellant contends that his alleged threats seemed to be “spur
of the moment,” and there was no evidence that he had any weapon or
intended to terrorize the victim. (Id. at 16).
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The offense of corruption of minors is defined in relevant part as
follows:
(a) Offense defined.—
(1) (i) Except as provided in subparagraph (ii), whoever, being
of the age of 18 years and upwards, by any act corrupts or tends
to corrupt the morals of any minor less than 18 years of age, or
who aids, abets, entices or encourages any such minor in the
commission of any crime, or who knowingly assists or
encourages such minor in violating his or her parole or any order
of court, commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6301(a)(1)(i) (emphases added).6
In Commonwealth v. Slocum, 86 A.3d 272 (Pa. Super. 2014), this
Court addressed a sufficiency challenge similar to the claim advanced by
Appellant. In Slocum, the appellant “maintain[ed] that there was no
evidence that [he] attempted to encourage the child to commit any crime, to
violate his probation or parole or commit any act which the statute was
designed to prohibit.” Slocum, supra at 277 (record citation and internal
quotation marks omitted). This Court rejected Slocum’s argument,
explaining:
. . . [A] conviction for corrupting morals will be
upheld where the conduct of the defendant tends to
corrupt the minor’s morals. The statute speaks to
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6
The trial court and the Commonwealth quote subsection (a)(1)(ii), the
felony grading of the statute. (See Trial Ct. Op., at 6; Commonwealth’s
Brief, at 16). However, Appellant was convicted under subsection (a)(1)(i),
the misdemeanor grading of the statute. (See Sentencing Order, 3/28/13,
at 1; Appellant’s Brief, at 15).
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conduct toward a child in an unlimited variety of
ways which tends to produce or to encourage or to
continue conduct of the child which would amount to
delinquent conduct. . . .
The statute requires that the knowing,
intentional acts of the perpetrator tend to have the
effect of corrupting the morals of a minor.
This court has visited the question of what
constitutes “corruption” of a minor’s morals before.
In Commonwealth v. Decker, 698 A.2d 99, 101
(Pa. Super. 1997),[appeal denied, 705 A.2d 1304
(Pa. 1998)], we held that actions that tended to
corrupt the morals of a minor were those that “would
offend the common sense of the community and the
sense of decency, propriety and morality which most
people entertain.”
Decker had explained that:
In deciding what conduct can be said to
corrupt the morals of a minor, “ ‘[t]he common
sense of the community, as well as the sense of
decency, propriety and the morality which most
people entertain is sufficient to apply the statute to
each particular case, and to individuate what
particular conduct is rendered criminal by it.’ ”
Corruption of a minor can involve conduct
towards a child in an unlimited number of ways. The
purpose of such statutes is basically protective in
nature. These statutes are designed to cover a
broad range of conduct in order to safeguard the
welfare and security of our children. Because of the
diverse types of conduct that must be proscribed,
such statutes must be drawn broadly. It would be
impossible to enumerate every particular act against
which our children need be protected.
Decker, supra at 101.
Slocum, supra at 277-78 (footnotes and most citations omitted; emphases
in original).
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Here, Appellant argues that, because he did not entice or encourage
the victim to commit a crime, the evidence was insufficient to sustain his
conviction. (See Appellant’s Brief, at 15). However, this argument ignores
the plain language of section 6301, written in the disjunctive, which states
that a person is guilty if he corrupts or tends to corrupt the morals of a
minor or if he encourages the minor to commit a crime. See 18 Pa.C.S.A. §
6301(a)(1)(i). Further, the record in this case shows that Appellant, while
approximately forty years old, repeatedly forcibly kissed the daughter of a
purported family friend while she was between the ages of ten and twelve.
(See N.T. Trial, 12/04/12, at 7-9, 12; Information, 7/07/10, at 1).
Appellant pinned the victim on her bed, kissed her neck and chest, and
touched her vagina over her clothes. (See N.T. Trial, 12/04/12, at 9-10).
Appellant directed the victim not to tell anyone about the encounters, and
warned that if she did, “someone would get hurt in [her] family.” (Id. at 8-
9; see id. at 10).
After review, we conclude that Appellant’s “actions were of a type that
would offend the common sense of the community and the sense of
decency, propriety and morality which most people entertain.” Slocum,
supra at 281 (citation and internal quotation marks omitted). Under our
standard of review, viewing the evidence in the light most favorable to the
Commonwealth, together with all reasonable inferences, we conclude that
there was more than sufficient evidence for the court to convict Appellant of
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corruption of minors. See Harden, supra at 111. Appellant’s third issue is
meritless.
In Appellant’s fifth and final issue, he challenges the sufficiency of the
evidence supporting his conviction for simple assault. (See Appellant’s
Brief, at 16-17). He maintains that the conviction cannot be sustained
where he never struck or attempted to strike the victim, and she did not
suffer any injuries. (See id.; Rule 1925(b) statement, 7/08/14, at 2 ¶ 5).
We disagree.
18 Pa.C.S.A. § 2701, pertaining to simple assault,
provides, in relevant part, that “[a] person is guilty of assault if
he: (1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]” 18 Pa.C.S.A. §
2701(a)(1). “Bodily injury” is defined as “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S.[A.] § 2301.
The Commonwealth need not establish the victim actually
suffered bodily injury; rather, it is sufficient to support a
conviction if the Commonwealth establishes an attempt to inflict
bodily injury. See 18 Pa.C.S.A. § 2701. This intent may be
shown by circumstances, which reasonably suggest that a
defendant intended to cause injury.
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012) (case
citation omitted).
Here, the record reflects that Appellant grabbed the eleven-year-old
victim, forced her into her bedroom and onto her bed, and had sexual
contact with her against her will. (See N.T. Trial, 12/04/12, at 8-10). She
managed to push him away, and after the incident, Appellant told her “not
[to] tell anyone or someone will get hurt.” (Id. at 10).
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Based on these circumstances, viewing the evidence in the light most
favorable to the Commonwealth, see Harden, supra at 111, we have no
difficulty in determining that the trial court reasonably inferred that
Appellant attempted to inflict bodily injury on the victim. See Martuscelli,
supra at 948. Appellant’s argument that the victim did not actually suffer
any injury is irrelevant because “[t]he Commonwealth need not establish the
victim actually suffered bodily injury[.]” Id. Accordingly, we conclude that
the evidence sufficiently supports Appellant’s conviction for simple assault.
Appellant’s fifth issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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