Com. v. Johnson, T.

J. S11003/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TYREE JOHNSON, : No. 293 EDA 2015
:
Appellant :

Appeal from the Judgment of Sentence, September 14, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0007956-2010,
CP-51-CR-0007971-2010, CP-51-CR-0007973-2010,
CP-51-CR-0007974-2010

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 11, 2016

Tyree Johnson appeals from the September 14, 2012 judgment of

sentence following his conviction of endangering the welfare of children,

indecent assault, corrupting the morals of a minor, simple assault, and

possession of an instrument of crime. We affirm.

The trial court provided the following procedural and factual history of

this case:

This is a direct nunc pro tunc appeal by the
defendant, Tyree Johnson, from judgments of
sentence entered on September 14, 2012, in four
cases that were consolidated and tried nonjury on
September 8 [and] 12, 2011.[Footnote 1] The
evidence showed that he had inflicted a pattern of
abuse upon a women [sic] and her three minor
children with whom he resided but to whom he was
not related over the course of about three or four
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years. He was convicted of three counts of
Endangering the Welfare of a Child (EWOC) and one
count each of Indecent Assault by Forcible
Compulsion and on a Person Less Than Thirteen
Years of Age, Corruption of the Morals of a Minor,
Simple Assault and Possession of an Instrument of
Crime.[Footnote 2] The last two were with regard to
the mother and the rest with regard to the children.
He was found not guilty on one count each of rape
by forcible compulsion, statutory rape, rape of a
child, unlawful contact with a minor, indecent
exposure, aggravated assault, and false
imprisonment, two counts each of unlawful restraint
and unlawful contact with a minor, and three counts
each of reckless endangerment, possessing an
instrument of crime and simple assault. In
summary, in 2003, he had met and began dating the
woman and shortly thereafter moved into her home,
and for the first one to two years, they all enjoyed a
pleasantly congenial familial relationship. However,
it thereafter evolved into an increasingly
domineering and physically abusive one which
included severe beatings of all of them and a sexual
assault on one of the daughters and frequent sexual
assaults on the other.

[Footnote 1] The others are at CP-51-
CR-0007971, 0007973, & 0007974-
2010. Separate appeals were filed for
each of those cases at 294, 295 & 296
EDA 2015, but they were dismissed as
duplicative.

[Footnote 2] 18 Pa.C.S. §§ 4304(a),
3126(a)(2), 3126(a)(7), 6301(a)(1);
2701(a), & 907(a).

Following the verdicts, trial counsel was
granted permission to withdraw and new counsel
was appointed. The defendant was given terms
aggregating to a maximum of five (5) years’
confinement followed by five (5) years’ probation.
No post verdict or sentencing motions were filed and
a timely appeal was filed but it was dismissed for

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failing to file a brief.[Footnote 3] Present counsel
filed a petition for relief under the Post Conviction
Relief Act, 42 Pa.C.S. § 9541 et seq., in which he
claimed ineffective assistance of appellate counsel
and requested reinstatement of his right to appeal
which the court granted without objection. In this
appeal, he claims that the evidence was insufficient
to support his convictions as to his assaults on the
children for various reasons which will be
summarized following the factual history.
Appellant’s Statement of Matters Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b).

The Commonwealth’s first witness was [L.M.],
who testified that, when she was living with her
mother, [] Marsett, her younger sister, [M.M.], and
brother, [A.M.], and was about eight or nine years
old, her mother started dating the defendant, and
about a year later he moved into their home. Notes
of Testimony, Trial (Waiver) Volume 1, September 8,
2011, pp. 29-32. In the beginning, her relationship
with the defendant had been like father-daughter
and he would treat her nice and provide for the
family, but after awhile, whenever she misbehaved,
he would beat her on the legs and back with a belt
causing bruises and on her hands with the back of a
brush causing them to swell and sting. Id., pp. 32-
6. She also observed him give similar beatings with
like results to her sister, which occurred many more
times than hers and more than twice a month, and
for which they had to put on shorts and a sleeveless
shirt, and beat her b[r]other with a belt causing
welts and punch him in the chest. Id., pp. 37-42.
That behavior had begun about a year after he
moved in, and later he also began exhibiting a
controlling and abusive relationship with her mother
by hitting her and preventing her from doing things
by herself, noting that “We didn’t really get to see
our family a lot.” Id., pp. 43-4. As time went on
those abuses, slapping her face, choking and arguing
with her, became more frequent. Id., pp. 45-6.

[Footnote 3] 2746 EDA 2012. In its
Pa.R.A.P. 1925(a) opinion in that appeal,

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this court only noted and addressed the
fact that the defendant’s 1925(b)
Statement, which simply stated that his
trial counsel rendered ineffective
assistance without more, lacked the
specificity required by the rule and the
issue should have been deemed waived.

When the defendant first moved in, he and her
mother shared the front bedroom, her brother had
the middle bedroom, and her [sic] and her sister and
the defendant’s one year old daughter shared the
back bedroom. Id., p. 47. When she was about ten
or eleven, the defendant’s daughter was given the
middle bedroom, her brother was made to sleep on
the couch in the living room, and she moved into the
basement to have a room of her own and to get
away from her sister with whom she would often
argue. Id., pp. 47-9. She then described in detail
his sexually abusing her which started with excessive
hugging and progressed to his rubbing his penis
against her buttocks, breasts and vagina, at first
with their clothing on but eventually without, and
then to intercourse; the frequency gradually
increased to a practically daily or nightly basis and
often times occurred in the basement. Id., pp. 51-
63. She never told anyone about it because she was
afraid that her mother would get hurt, and she did
not resist the defendant because she was afraid he
would hurt her if she did. Id., pp. 63-5. In 2008,
when she was thirteen or fourteen, they moved to a
different home and the sexual abuse continued but
less frequently. Id., pp. 67-8.[Footnote 4]

[Footnote 4] The testimony as to the
living arrangements was elicited in
anticipation of attempts by the defense
to portray the sexual abuse as having
been unlikely to have occurred in such a
crowded environment.

One night in early November of 2008, at about
11:00 or 12:00 o’clock, the defendant sent her
mother and her sister to a laundromat and tried to

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assault her but she refused to let him and he never
tried to do so again. Id., pp. 68-9. After that, his
physical abuse of the mother became worse and
more obvious and culminated in his throwing all of
them out (the home they lived in before was owned
by the mother but the new home was owned solely
by the defendant); she never saw him again until the
court proceedings. Id., pp. 68-70. She still did not
tell anyone about the sexual abuse because she was
afraid her mother would have an emotional
breakdown. Id., pp. 71-2. Then in April or May of
2010, as a result of her sister and brother having
exhibited hostility and anger at school, her [sic] and
her mother, sister, brother, an aunt and school
counselors attended a meeting with a group
organized by “It Takes a Village”[Footnote 5] during
which her sister and brother described the
defendant’s physical abuse; during an intermission,
her aunt asked her in private whether the defendant
ever did anything sexual to her, upon which she
started crying and then disclosed everything when
the meeting resumed. Id., pp. 72-7. It was
reported, and she gave a statement to the police on
May 4th. Id., pp. 77-80.

[Footnote 5] Later described as an
organization that conducts a practice
called family group conferences or family
group decision making.

The Commonwealth then called [M.M.] who
described her relationship with the family and the
defendant and their living arrangements as being, at
first, much the same as her sister had described.
Id., pp. 98-101. One day, when she was about
eleven or twelve and had slept in her sister’s bed
with her, she awoke to find that her underwear was
gone; the next night she awoke to find the defendant
in her bed with her rubbing her vagina, and though it
was dark and she kept her eyes closed she could
sense that it was him.

One night I woke up and my underwear
wasn’t on. And then the next night I had

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felt -- I felt Tyree -- I had felt him, like,
just rubbing on me. And I just laid
there. The next day -- then afterwards
he walked out the room. But I know my
mom touch from -- like I told you earlier,
I know my mom touch from his touch
and everybody touch, so I knew it was
him. I knew it wasn’t nobody else. I
knew it was him.

Id., pp. 100-1. She didn’t tell her mother about it
because she didn’t think she would have been
believed. Id., pp. 101-9. She further clarified her
recognition of the defendant.

Because it’s just -- like me and him -- I
hugged him before. When I was little, I
hugged him before. I shook his hand. It
was like I know -- that’s like if I touch
you and somebody else touch. You
would know my touch from me being
around you so long. So I knew his
touch. I knew what he felt like and all
that. So it wasn’t, oh, it was my mom or
it was my brother. I know what his
touch feel like.

Id., pp 106-7. She told her mother about those
incidents after they attended the group meeting.
Id., pp. 109-11. At the meeting, she told the group
about the beatings, not being allowed to see her
father, other family members, or friends, being made
to wear Muslim attire, not being allowed to go
outside and having to come right home from school
and stay there.

. . . . he used to beat us. . . . That
would occur every time we do something
wrong, every time something wasn’t
basically his way. If -- like, every time
the fishes -- one of the fishes would die,
we all would get in trouble for the fish
dying. Like there was probably, like, five
fish, and every time one of them died,

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everybody would get in trouble because
the fish died. And if something went
wrong, everybody got in trouble about it,
not just one person. . . . -- it first began
-- like, when he first started beating us,
we used to have to put on T-shirts and
shorts, and we would get a beating. We
have to go down to the basement and
bend over, and we’ll get a beating. Then
it turned out we had to put our hands on
the bed, and if we moved then we got
beaten longer. Then with me, . . . I used
to have to stand up with my hands up in
the air, and he used to beat me. And if
my hands fall, I used to keep on getting
a beating. And with the brushes -- that
happened before the hands. We used to
get hit on our hands with, like, the back
of a wooden brush. . . .

Id., pp. 114-15. She described him beating her with
a belt on her back [and] buttocks and legs which
would cause welts and purple bruises which she at
one point showed to her “TSS worker” who took
pictures and later asked the defendant about them
but he denied causing them and nothing came of it.
Id., pp. 115-6. The beatings on the hands with the
brush made her hands swell to the point that she
couldn’t close them; she would be beaten with the
belt for fifteen minutes and then be made to stand
with her hands in the air while he sat at the
computer or PlayStation and be beaten again if her
hands dropped, and how similar treatment was
meted out to her sister and brother, and the latter
being punched in the chest. Id., pp. 116-9. She
then described the final incident of him beating her
mother causing her to bleed from the nose and
mouth and their being thrown out. Id., pp. 120-1.
Anthony then testified to being beaten with a belt
and brush and punched in the chest about once a
month beginning when he was five years old, the
defendant beating his sisters with the belt and brush,
and seeing his mother with scars or bruises on her

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face and legs after he had heard them arguing. Id.,
pp. 143-50.

[Mother] then testified to meeting and starting
to date the defendant in 2003, his moving in with
them with his daughter shortly thereafter, and their
relationship being fine at first. Notes of Testimony,
Trial (Waiver) Volume 1, September 12, 2011, pp. 5-
7. After about two years, he began beating her and
became increasingly controlling: “. . . I had to listen
to everything he told me to do, you know, and I
couldn’t do anything without his permission. . . . like,
go to the store or go see my mom or go see anybody
in my family or anything like that.” Id., pp. 7-8.
She was required to where [sic] Muslim garments
whenever she went outside, to be back after a
specific time period, and to take her daughter [M.M.]
with her. Id., pp. 8-10. In 2005, the defendant
began beating her with a belt and choking her. Id.,
pp. 10-11. She then described one incident when,
after her daughter [M.M.] left the house to go with
her grandfather to visit her father, the defendant
beat her severely with a belt all over her body and
choked her causing purple, black and blue bruises on
her legs, and another occasion where he hit her
causing her to black out. Id., pp. 11-16. She
testified that he would beat her from one to three
times a month, that she didn’t go to the hospital or
tell anyone about it because she was afraid he would
beat her for it and he threatened to harm her
children if she did. Id., pp. 17-19. She described
his hitting [A.M.] on the hands with a brush, “if one
of his fish died or something like that”, and his
beating all of the children with a belt or brush
leaving welts on their behinds and legs and their
hands swelling to the point where they couldn’t move
them, and she wouldn’t do anything for fear of his
hurting her. Id., pp. 21-7. She then described the
group meeting in much the same way as the children
had (Id., pp. 28-33) and her and the children
moving to his house and being thrown out; she
continued to see him on occasion to try to work
things out, but stopped doing so after the group

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meeting when she found out what he had done to
[L.M.]. Id., pp. 34-5.

The Commonwealth then called Ayesha
Marsett, [Mother’s] sister, who the[n] confirmed that
after the defendant moved in with [Mother], she
became cut off from the family in not speaking to
them or attending family gatherings, would cover her
face when she went anywhere, and, on occasion,
would not answer the door when she went to her
house, and, when asked why, would say that it was
what she wanted to do. Id., pp. 56-62. She then
described the group meeting in much the same way
as the other witnesses. Id., pp. 62-9. The
Commonwealth then called Marietta Brown-Sanders,
the Philadelphia County supervisor for “It Takes a
Village”, who also described the meeting in much the
same way, and, as required, filed a report of it with
the Department of Human Services. Id., pp. 74-82.
The prosecutor then submitted stipulations that, in
essence:

Nicole Heinz, would testify that in April of
2010 she was a parents ombudsman for
the JL Kinsey School, which was
attended by [A.M.] and [M.M.], that in
her position, she made a referral to It
Takes a Village to address behavioral
issues they were having at school and
was present during the group meeting on
April 24th.

Dr. Laura Brennan would testify that she
is the attending physician on the
suspected child abuse and neglect team
in the division of general pediatrics at
Children’s Hospital of Philadelphia, that
as an expert in child sexual abuse and
after having reviewed the medical
records of [L.M.], who was evaluated by
the CHOP Care Clinic on June 15, 2010,
for a medical evaluation of child sexual
abuse and had a full physical
examination, and would state: “Our

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impression is that [L.M.] is a 16-year-old
female with a disclosed history of sexual
abuse [and] Her examine [sic] is normal
today, which neither proves nor
disproves the reported history of sexual
abuse [and] that the history was
provided by Ms. Marsett, meaning the
mother, [], as well as [L.M.], in private
sessions.”

Id., pp. 84-6. The Commonwealth then rested.

The only defense fact witness was the
defendant’s mother, who testified that on some
unspecified number of occasions between April 24
and May 4, 2010, while she was staying over [at]
her son’s house, [Mother] would come in and go
upstairs with him and that sometimes they would
play games and sometimes be intimate which she
could tell because she could hear the noise through
the floor. Id., pp. 89-90. That was simply an
attempt to discredit [Mother] by showing that she
continued the relationship. She then testified that,
although she could not be sure, to the best of her
knowledge, [L.M.] did not sleep in the basement at
either residences [sic][Footnote 6], and that the
defendant’s reputation in the community for being a
peaceful and law abiding citizen was very good. Id.,
pp. 90-1. On cross, the prosecutor established that
the witness could not recall any specific dates when
[Mother] came over to the defendant’s house, nor
even be sure whether she was there between April
24th and May 4th, that she only came there twice
over the course of one week, and that she never
stayed overnight at [Mother’s] house. Id., pp. 92-6.
The defense then called two of the defendant’s
sisters and friends, a brother, an aunt, and [his]
“play” uncle, all of whom also testified that his
reputation in the community for being a peaceful and
law abiding citizen was very good, and then rested.
Id., pp. 97-104.

[Footnote 6] Of course, [L.M.] never
testified that she slept in the basement

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at the defendant’s house, only at her
mother’s.

Trial court opinion, 4/8/15 at 1-8.

Appellant raises the following issues for our review:

1. Was the evidence insufficient to support
[appellant’s] conviction for indecent assault
where the alleged victim did not see who was
supposedly assaulting her, thus requiring the
factfinder to guess as to [appellant’s] guilt?

2. Was the evidence insufficient to support
[appellant’s] convictions for endangering the
welfare of a child, where the physical
punishment he allegedly inflicted did not
violate a duty of care, protection, or support?

Appellant’s brief at 4.

Both of appellant’s issues relate to the sufficiency of the evidence.

When reviewing a sufficiency of the evidence claim, we are held to the

following standard:

In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of
the evidence, this Court may not substitute its
judgment for that of the fact finder; if the record

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

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

In the instant case, after reviewing the evidence presented, cast in the

light most favorable to the Commonwealth, as verdict winner, we find that

the evidence is sufficient to warrant the trial court’s convictions for indecent

assault and endangering the welfare of children.

In appellant’s first issue, he avers that the evidence was insufficient to

warrant a conviction of indecent assault.1 In order to obtain a conviction for

indecent assault, the Commonwealth must prove beyond a reasonable doubt

that the defendant had “indecent contact with the complainant or causes the

complainant to have indecent contact with the [defendant], and . . . the

complainant is less than 13 years of age.” 18 Pa.C.S.A. § 3126(a)(7).

This court has previously held that the uncorroborated testimony of a

victim of a sexually based offense is sufficient to uphold a conviction, so long

as the trier-of-fact believes the testimony. Commonwealth v. Trippett,

932 A.2d 188, 194 (Pa.Super. 2007), citing Commonwealth v. Charlton,

902 A.2d 554, 562 (Pa.Super. 2006). A fact-finder is free to believe all,

part, or none of the evidence presented, including uncorroborated

1
The trial court convicted appellant of two counts of indecent assault--one
with L.M. as the complainant and one with M.M. as the complainant.
Appellant only contests the conviction relating to M.M. in the instant appeal.

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testimony. Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.

2015) (citations omitted). Therefore, how much credibility and weight is

given to uncorroborated testimony is fully within the exclusive purview of

the fact-finder.

In the instant case, the trial court heard M.M.’s uncorroborated

testimony regarding one specific encounter with appellant. Appellant avers

that M.M. did not actually see who allegedly assaulted her, and, therefore

appellant’s conviction was based on the trial court’s guess that appellant

assaulted her. (Appellant’s brief at 9.) The trial court, functioning as the

fact-finder in this case, made the following credibility determination:

[M.M.’s] testimony, together with the fact that
[appellant] was the only adult male living in the
house, was sufficiently credible and consistent to
allow a factfinder to believe its accuracy and the
mere fact that she kept her eyes closed did not
render her testimony so unreliable as to make the
verdict based thereon pure conjecture.

Trial court opinion, 4/6/15 at 10. Based upon the trial court’s finding that

M.M.’s testimony was credible, her uncorroborated testimony is sufficient

evidence to warrant appellant’s conviction of indecent assault, pursuant to

Trippett. Therefore, appellant’s first issue is without merit.

In appellant’s second issue for our review, he avers that the

Commonwealth failed to present sufficient evidence to warrant a conviction

for endangering the welfare of children (“EWOC”). EWOC is defined as, “[a]

parent, guardian, or other person supervising the welfare of a child under

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18 years of age . . . commits an offense if he knowingly endangers the

welfare of the child by violating a duty of care, protection, or support.”

18 Pa.C.S.A. § 4304(a)(1). This court has established a three-part test for

determining whether the elements of EWOC have been met:

(1) the accused was aware of his duty to protect the
child; (2) the accused was aware that the child was
in circumstances that could threaten the child’s
physical or psychological welfare; and (3) the
accused has either failed to act or has taken action
so lame or meager that such actions cannot
reasonably be expected to protect the child’s
welfare.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations

omitted).

Here, the trial court convicted appellant of EWOC in regards to all

three children--L.M., M.M., and A.M. Appellant avers that he was acting

within his privilege of a parental figure by physically disciplining the children.

(Appellant’s brief at 11.) Based upon the children’s testimony, the

Commonwealth proved all three elements of EWOC beyond a reasonable

doubt.

First, as to all three children, appellant concedes the first element

under Bryant. He admits that “it is undisputed that [appellant] was seen in

a parental role while living with the children.” (Appellant’s brief at 12.) We

will first address appellant’s EWOC convictions as they related to L.M. and

M.M. In Bryant, the jury convicted the defendant of indecent assault and

EWOC. The defendant raised a sufficiency of the evidence challenge,

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averring that he did not owe the victim a duty of care. Byrant, 57 A.3d at

197. The Bryant court held that “there was sufficient evidence for the jury

to find that [the defendant] owed a duty of care to [the victim] and violated

that duty when he sexually abused her.” Id. at 199.

Here, appellant was convicted of two counts of indecent assault--one

count in which L.M. was the complainant, which appellant did not contest,

and one count in which M.M. was the complainant, which we addressed

supra. Therefore, we find that based on this court’s decision in Bryant,

appellant’s convictions of indecent assault, in which L.M. and M.M. were both

victims, are sufficient to warrant convictions for EWOC.

We shall now address appellant’s conviction for EWOC in which A.M. is

the victim. In regards to A.M., appellant avers that he was exercising his

parental privilege to exercise corporal punishment. (Appellant’s brief at 11.)

Specifically, appellant claims that his EWOC convictions should be set aside

because, “[t]here is no evidence that the punishment caused death, serious

bodily injury, disfigurement, extreme pain or mental distress or gross

degradation.” (Id. at 12.)

When it found appellant guilty of EWOC regarding A.M., the trial court

made the following statement on the record:

I find [appellant] guilty of charge number one,
endangering the welfare of a child. I don’t
necessarily think that there has been a crime
committed in the nature of simple assaults or
possessing instruments of crime vis-à-vis the child
for the discipline that was in question here. Though

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I may have personal disagreements with the manner
and intensity of the discipline, the Court is not the
parent. The parents are still free to discipline their
child unless it amounts to a serious offense. From
what the children have been -- and the mother
have [sic] defined to me, I do not see that it rises to
a simple assault on each occasion or possessing
instruments of crime. However, I do think that the
frequency of it, especially the fish incidents, I think
that is the type of atmosphere that results in what
the law would describe as endangering the welfare
by violating a duty of care, protection, and support,
hence I issued the verdicts that I have done.

Notes of testimony, 9/12/11 at 124-125. We find that the record supports

the trial court’s conclusion that appellant violated his duty of care to A.M.,

and as a result, the Commonwealth presented sufficient evidence to warrant

a conviction for EWOC.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2016

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