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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC PHILLIPS
Appellant No. 3282 EDA 2014
Appeal from the Judgment of Sentence October 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006729-2013
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED MAY 06, 2016
Eric Phillips appeals from the June 6, 2014, judgment of sentence
entered in the Bucks County Court of Common Pleas. At the conclusion of a
bench trial on October 7, 2014, the court convicted Phillips of invasion of
privacy, criminal attempt – invasion of privacy, disorderly conduct, and retail
theft – taking merchandise.1 That same day, the court sentenced him to a
term of three to 12 months’ incarceration in a county correctional facility.
On appeal, Phillips raises the following issues: (1) the court erred in denying
his motion for judgment of acquittal on the count of invasion of privacy; (2)
there was insufficient evidence to convict him of invasion of privacy; (3) the
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 7507.1(a)(2), 901(a), 5503(a)(4), 3929(a)(1), respectively.
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court erred in considering evidence related to his Fifth Amendment right to
remain silent; and (4) the court erred in failing to file an opinion in the
matter. Based on the following, we affirm.
The trial court summarized the facts and procedural history as follows:
On September 3, 2013, Appellant, Eric Phillips … was
charged with one count of Invasion of Privacy, one count of
Criminal Attempt – Invasion of Privacy, one count of Disorderly
Conduct, and one count of Retail Theft – Taking Merchandise.
These charges stemmed from an incident that occurred on
August 12, 2013, at the Walmart store in Bensalem, Bucks
County, Pennsylvania, in which Phillips was observed by store
personnel attempting to film up a woman’s skirt with a small
handheld camcorder “without her knowledge or consent.” When
confronted by the store manager, Phillips then ran out of the
store without paying for a 2-pack of bar soap and Gatorade he
had been holding in his hand.
On January 13, 2014, after an extensive colloquy, the
Honorable Rea B. Boylan … accepted Phillips’ voluntary, knowing
and intelligent plea of guilty to the charge of Invasion of Privacy.
The remaining charges of Criminal Attempt, Disorderly Conduct
and Retail Theft were nolle prossed. Sentencing was deferred to
permit the Pennsylvania Sexual Offender’s Assessment Board to
perform an evaluation of Phillips pursuant to 42 Pa.C.S.A. §
9799.24.
On July 14, 2014, Phillips filed a Motion to Withdraw Guilty
Plea. In his Motion, Phillips argued that his negotiated plea had
“required a Tier I SORNA registration for 15 years,” but “the
current SORNA statute requires lifetime Tier III registration for
an individual that has previously plead [sic] or been found guilty
of any other crime that required SORNA registration.” Phillips
contended that because he had been “found guilty in a
negotiated plea to a prior Invasion of Privacy charge in 2006,”
which “at that time … did not require SORNA registration as
Invasion of Privacy was not a SORNA offense,” he had therefore
not been properly informed in this instance of “the true
ramifications of his guilty plea” including the potential
requirement for lifetime registration as a sexual offender, and as
a result his plea had been compromised.
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After a hearing on July 18, 2014, Judge Boylan entered an
Order denying Phillips’ Motion on August 8, 2014, but after a
subsequent hearing on Phillips’ Motion to Reconsider his Motion
to Withdraw his Guilty Plea on September 4, 2014, Judge Boylan
granted his Motion to Withdraw his Guilty Plea by Order of
September 8, 2014.
A non-jury trial was held on October 7, 2014, after which
this Court found Phillips guilty of all four original counts and
sentenced him to undergo imprisonment in the Bucks County
Correctional Facility on Count 1, Invasion of Privacy, for a period
of not less than 3 months and not more than 12 months. No
further penalties were imposed on the remaining counts for
Criminal Attempt, Disorderly Conduct or Retail Theft, but Tier 1
SORNA registration was required.
Trial Court Opinion, 12/5/2014, at 1-2 (footnotes and record citations
omitted). This appeal followed.2
Before we may address the merits of Phillips’ claims, we note the trial
court found the matter should be quashed and the issues should be waived
because Phillips failed to a file a written request for the transcription of the
notes of testimony from the October 7, 2014, trial pursuant to Pa.R.A.P.
1911 (request for transcription) and Pa.R.J.A. 5000.5 (requests for
transcripts). See Trial Court Opinion, 12/5/2014, at 3, 5.3 Since that time,
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2
On November 5, 2014, the trial court ordered Phillips to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Phillips filed a concise statement on November 24, 2014. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 5, 2014.
3
See Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa. Super.
2007) (“It is black letter law in this jurisdiction that an appellate court
cannot consider anything which is not part of the record in the case. It is
(Footnote Continued Next Page)
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the October 7, 2014, transcript was made a part of the certified record.
Accordingly, we may now review the merits of the issues Phillips raises on
appeal.
Based on the nature of Phillips’ claims, we will address his first two
arguments together. In Phillips’ first issue, he contends the trial court erred
in denying his motion for judgment of acquittal because the Commonwealth
failed to prove he photographed the woman without her knowledge or
consent. Phillips’ Brief at 9. Specifically, Phillips states:
In the instant case, [he] testified that he and the alleged
victim had pre-arranged the encounter anonymously using a
website designed to assist in arranging such encounters between
parties who wished to remain anonymous. The Commonwealth
presented no evidence whatsoever contradicting this assertion of
consent, nor presented no direct evidence of a lack of consent
whatsoever. No victim ever came to Court at any stage of the
legal proceedings. Both Commonwealth case in chief witnesses
admitted that they made no effort to speak with the alleged
victim about the charges. [The] Commonwealth wholly failed to
prove lack of consent, an element of the crime itself, beyond a
reasonable doubt.
Id. at 9-10 (citation omitted). Moreover, Phillips argues the court
improperly shifted the burden of proof with regard to lack of consent to him
when it stated that it “felt that [Phillips’] averment that he had the victim’s
consent was not believable, and, moreover, that [Phillips] had failed to prove
that he had consent.” Id. at 10 (emphasis removed).
_______________________
(Footnote Continued)
also well-settled in this jurisdiction that it is Appellant’s responsibility to
supply this Court with a complete record for purposes of review.”) (citations
omitted), appeal denied, 940 A.2d 363 (Pa. 2008).
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In Phillips’ second argument, he claims there was insufficient evidence
to convict him of invasion of privacy because, again, the Commonwealth
failed to produce an alleged victim and there was no testimony or other
evidence to establish that he invaded the privacy of the alleged victim
without her knowledge or consent. Id. at 11. Moreover, he argues the
Commonwealth never made an attempt to contact the victim to find out if
her privacy was invaded and the victim did not appear in court to tell her
side of the story. Id. at 12. Phillips states the “only” evidence was the
store’s videotape of him photographing the victim. Id.4
Our standard of review of Phillips’ claim that the trial court erred in
denying his motion for judgment of acquittal is as follows: “A motion for
judgment of acquittal challenges the sufficiency of the evidence to sustain a
conviction on a particular charge, and is granted only in cases in which the
Commonwealth has failed to carry its burden regarding that charge.”
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4
Phillips also asserted the Commonwealth “failed to prove that a crime
actually occurred, the corpus delicti of the crime itself.” Id. We find that he
has waived this part of his argument because he raised it for the first time
on appeal, which is not permitted. See Pa.R.A.P. 302(a); Pa.R.A.P.
1925(b)(4)(vii). Nevertheless, Phillips’ argument appears misplaced.
“Under the corpus delicti rule, extrajudicial statements of the accused may
not be admitted into evidence unless corroborated by independent evidence
that the crime actually occurred. The purpose of the rule is to prevent a
conviction based solely upon a confession where no crime has in fact been
committed.” Commonwealth v. Fears, 836 A.2d 52, 67 (Pa. 2003)
(citations omitted), cert. denied, 545 U.S. 1141 (2005). Here, Phillips did
not provide a confession to police and, as will be discussed supra, there was
independent evidence that a crime occurred.
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Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa. Super. 2011).
Moreover,
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.
Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011),
quoting Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super.
2010).
The Pennsylvania Crimes Code defines invasion of privacy, in pertinent
part, as follows:
(a) Offense defined. --
Except as set forth in subsection (d), a person commits the
offense of invasion of privacy if he, for the purpose of arousing
or gratifying the sexual desire of any person, knowingly does any
of the following:
(1) Views, photographs, videotapes, electronically depicts, films
or otherwise records another person without that person’s
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knowledge and consent while that person is in a state of full or
partial nudity and is in a place where that person would have a
reasonable expectation of privacy.
18 Pa.C.S. § 7507.1(a)(1).5
At the conclusion of trial, including viewing the video at issue, the
court made the following determinations:
On August 12th, 2013, the defendant, Eric Phillips, was in the
Walmart store in Bensalem when he went to the deodorant aisle,
and a female was in the aisle prior to his arrival. [Phillips] sidled
up to the victim or in an area near where the victim was
standing, and had a video camera in his hand, which he
concealed by placing a wallet over the camera. He waited until
the victim was looking in another direction and he then placed
the video camera in a position to view up the woman’s skirt.
He then left the area, and in so doing, placed the camera
in a position to view the lower torso of another woman in the
store.
The circumstances of the encounter was described by
[Phillips] as being incident to an arranged meeting between the
victim and [Phillips]. [He] states that he did not know what the
woman looked like other than a general description of age and
race. He asserts that the meeting was arranged through a fetish
website known as FetLife.
[Phillips] asserts that he was going around the large
Walmart store asking various women if they were Flossin’ Kitty.
And he asserts that he knew that the victim was, in fact, Flossin’
Kitty because of the general description as to race and age.
I find [Phillips]’s testimony incredible. I find that [Phillips],
once confronted by the loss prevention people, immediately ran
out of the store and refused to return items that he had taken,
namely soap and a bottle of Gatorade.
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5
Our research has uncovered no case law regarding a challenge to the
sufficiency of the crime of invasion of privacy.
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I find [Phillips’] assertion that his failure to return the
items, after having been requested to do so by loss prevention
representative Kevin Drum, because of fingerprints that would
be on those items as incredible. I find that [Phillips] removed
those items from the Walmart without making payment, and was
outside of the last point of payment in the store.
I find that [Phillips’] refusal to return the items and his
fleeing on his motorcycle constituted consciousness of guilt, both
with respect to the retail theft and also with respect to the
invasion of privacy of an individual who had not provided
consent to have her private areas videotaped by [Phillips].
While the invasion of privacy is supported by the
circumstantial evidence, I find that circumstantial evidence to be
consistent in all respects with the conclusion. I do find as a fact
that consent was not given, and that [Phillips] filmed a person
without that person’s knowledge or consent, and that [Phillips]
filmed the victim in a manner that showed partial nudity on the
part of the victim and, therefore, the offense of invasion of
privacy, all of those elements have been proven beyond a
reasonable doubt.
N.T., 10/7/2014, at 76-80.
We agree with the court’s findings. First, we note the following: “The
Commonwealth is not bound to call the victim of a crime as a witness as
long as testimony is not withheld solely because it would be favorable to the
defendant.” Commonwealth v. Leatherbury, 469 A.2d 263, 266 (Pa.
Super. 1983) (citations omitted). Here, it is apparent from the record that
the victim was unavailable as a witness because the employees at Walmart
did not stop her and she left prior to police arrival. See N.T., 10/7/2014, at
22. Likewise, neither the Commonwealth nor Phillips knew where she could
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be located. As such, we are simply not persuaded that the Commonwealth
was required to present the testimony of the victim.
Second, viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner, and drawing all reasonable inferences
therefrom, we find the Commonwealth presented sufficient circumstantial
evidence to support Phillips’ conviction. Specifically, we note the testimony
of Walmart employee, Kevin Drum, in conjunction with the store’s
surveillance videotape, established Phillips stood by the female victim, with a
video camera surreptitiously covered by a wallet, and waited until she was
looking in another direction when he then placed the video camera in a
position to view up the woman’s skirt. Id. at 8-21. Furthermore, when
another Walmart employee attempted to speak with Phillips, Phillips started
to walk away, ignoring the employee, and then started jogging outside the
store. Id. at 12-13. It bears emphasis that “[w]hile evidence of flight alone
is not sufficient to convict one of a crime, such evidence is relevant and
admissible to establish an inference of guilt.” Commonwealth v. Rolan,
964 A.2d 398, 410 (Pa. Super. 2008), quoting Commonwealth v.
Williams, 615 A.2d 716, 721 (Pa. 1992) (citations omitted).
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Third, to the extent Phillps attempts to justify his actions, asserting
that the victim consented6 to the filming based on a prearranged agreement
via a fetish website, the trial court found his testimony not credible based on
the totality of the circumstances. The court, sitting as the fact-finder, was
free to do so. LaBenne, 21 A.3d at 1289. Accordingly, we conclude the
Commonwealth presented sufficient circumstantial evidence to support its
case-in-chief and Phillips’ invasion of privacy conviction.
Lastly, with respect to Phillips’ claim that the court improperly shifted
the burden of proof regarding the element of lack of consent to him, we note
the following:
It is well established that “an accused in a criminal case is
clothed with a presumption of innocence.” Commonwealth v.
Bishop, 472 Pa. 485, 372 A.2d 794, 796 (Pa. 1977). The
Commonwealth bears the burden of proving guilt beyond a
reasonable doubt as to every element of the crime. See id. The
Commonwealth’s failure to maintain this burden of proof will
result in the acquittal of the accused. See id. This Court has
long held that the burden of proving an affirmative defense that
relieves the accused of criminal responsibility, but does not
negate an element of the offense charged may be placed on the
defendant. See [Commonwealth v. Hilbert, 382 A.2d 724,
729 (Pa. 1978)]. Thus, when a defense is asserted that relates
to the defendant’s mental state or information that is peculiarly
within the defendant’s own knowledge and control, the general
rule is that the defendant has the burden of proving the defense
by a preponderance of the evidence. See Commonwealth v.
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6
Consent is defined as follows: “The consent of the victim to conduct
charged to constitute an offense or to the result thereof is a defense if such
consent negatives an element of the offense or precludes the infliction of the
harm or evil sought to be prevented by the law defining the offense.” 18
Pa.C.S. § 311(a).
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Rishel, 441 Pa. Super. 584, 658 A.2d 352, 355 (Pa. Super.
1995), reversed on other grounds 545 Pa. 297, 681 A.2d 162
(Pa. 1996).
Commonwealth v. Collins, 810 A.2d 698, 701 (Pa. Super. 2002).
Accordingly, Phillips’ argument is meritless because he presented the
affirmative defense that the victim consented to the filming. Therefore,
Phillips’ first and second arguments fail.
In his third issue, Phillips claims the court erred in considering
evidence related to his Fifth Amendment right to remain silent where the
court indicated it was persuaded by the fact that he fled from police and
store employees and refused to speak with them. See Phillips’ Brief at 13.
He avers he was exercising his constitutional right to remain silent and it
was improper to consider his actions as evidence of guilt. Id. Moreover,
Phillips notes he admitted at trial that he did not want to speak with the
police because he was afraid his comments would be misconstrued and
would be used against him in an improper manner. Id. at 14.
By way of background, Drum testified Phillips did not speak with the
Walmart employee who tried to stop Phillips from leaving the store. N.T.,
10/7/2014, at 11. The investigating officer, Detective Christopher McMullin,
testified attempts were made to contact Phillips, but he would not respond.
Id. at 22. Defense counsel did not object to this testimony. Phillips then
took the stand and stated that he did not talk to the store employee or the
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police because he did not want to interact with the police based on prior
dealings with them, and he was afraid. Id. at 35-36; 46-48.
Phillips’ claim is without merit for several reasons. First, his failure to
object to the testimony at issue constitutes waiver. See Commonwealth
v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (“[I]t is axiomatic that
issues are preserved when objections are made timely to the error or
offense.”); Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005) (holding
that the “absence of contemporaneous objections renders” an appellant’s
claims waived).
Moreover,
In general, after a defendant has been given Miranda warnings,
the defendant’s post-arrest silence may not be used against him
to impeach an explanation subsequently offered at trial.
However, where a prosecutor’s reference to a defendant’s silence
is a fair response to a claim made by defendant or his counsel at
trial, there is no violation of the Fifth Amendment privilege
against self-incrimination.
Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (citations
omitted), abrogated on other grounds by Commonwealth v. Rizzuto, 777
A.2d 1069 (Pa. 2001). Here, Phillips’ post-arrest silence was not used at
trial. The evidence at issue concerned his refusal to speak to the employee
or police prior to his arrest. Furthermore, a review of the court’s findings, as
recited above, does not reveal that the court relied upon Phillips’ silence, at
any point during the incident, in its decision. Rather, the court pointed to
Phillips’ flight as evidence of guilt and his failure to return the items he took
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from the store because of his concern over the taking of his fingerprints as
incredible testimony. The court did not comment on his silence. See N.T.,
10/7/2014, at 76-80. Accordingly, Phillips’ third argument also fails.
In Phillips’ final argument, he claims the court erred by not rendering a
Pa.R.A.P. 1925(a) opinion. See Phillips’ Brief at 16-17. We point out the
trial court was not required to file an opinion because Phillips did not file a
timely request for transcription pursuant to Pa.R.A.P. 1911 and Pa.R.J.A.
5000.5. Nevertheless, in the interests of judicial economy, and based on the
court’s explanation of its non-jury verdict, we did not remand this matter for
a Pa.R.A.P. 1925(a) opinion on the merits.7
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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7
We “may affirm the lower court on any basis, even one not considered or
presented in the court below.” Commonwealth v. Burns, 988 A.2d 684,
690 n. 6 (Pa. Super. 2009), appeal denied, 8 A.3d 341 (Pa. 2010); see also
Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa. Super. 2013),
appeal denied, 87 A.3d 320 (Pa. 2014).
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