J-A22009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PAUL BROWN
Appellant No. 1147 EDA 2016
Appeal from the Judgment of Sentence March 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005729-2013
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 12, 2018
Paul Brown appeals from the judgment of sentence of seven to
fourteen years incarceration imposed after he was convicted of unlawful
contact with a minor (“unlawful contact”), corruption of a minor
(“corruption”), and endangering the welfare of a child (“EWOC”). We affirm.
The following facts underlie this matter. In March 2013, the victim,
J.B.B., was three-years old. During that time, J.B.B. was regularly cared for
by Appellant and his wife, J.B.B.’s maternal great-grandmother, while
J.B.B.’s mother, Bianca Benjamin, went to work. On March 13, 2013, J.B.B.
stayed the night with Appellant and his great-grandmother. The following
evening, when Ms. Benjamin arrived to pick up J.B.B., the child stated that
* Retired Senior Judge specially assigned to the Superior Court.
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Appellant had “sucked [his] penis.” N.T. Trial, 11/19/15, at 12. J.B.B. then
pulled his pants down revealing that his penis was red and swollen. Ms.
Benjamin took the victim to the hospital. A medical examination revealed
that J.B.B.’s penis was red, swollen, and sensitive to the touch. Utilizing a
sexual abuse testing kit, samples were taken from J.B.B.’s body, and his
clothing was collected for further evaluation. Further testing revealed
Appellant’s DNA on J.B.B.’s sock, the crotch of his pants, and the crotch of
his underwear.
Based on the foregoing, Appellant was arrested and charged with
unlawful contact, corruption, EWOC, indecent assault on a person less than
thirteen years of age, involuntary deviate sexual intercourse with a minor,
and other related offenses. Appellant was first tried in October 2014, but
after deliberation, the jury was hopelessly deadlocked, and the court
declared a mistrial. In November 2015, Appellant was retried, and the jury
convicted him of unlawful contact, corruption, and EWOC. Appellant was
acquitted of involuntary deviate sexual intercourse with a minor, and the
remaining charges were nolle prossed. Following a sentencing hearing, the
trial court imposed an aggregate judgment of sentence of seven to fourteen
years incarceration. Appellant did not file a post-sentence motion.
However, on April 9, 2016, he filed a timely notice of appeal. Appellant
complied with the trial court’s order to file a Rule 1925(b) concise statement
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of errors complained of on appeal, and the trial court authored its Rule
1925(a) opinion. This matter is now ready for our review.
Appellant raises two questions for our consideration:
A. Was the evidence insufficient as a matter of law to establish
Appellant’s guilt beyond a reasonable doubt on the charges
of: 1) unlawful contact with a minor 18 § 6318 §§ A1 (1 st
Degree Felony); 2) corruption of minors 18 § 6301 § A1i (1 st
Degree Misdemeanor); and 3) endangering welfare of children
18 § 4304 §§ A1 (1st Degree Misdemeanor)?
B. Whether a new trial should be awarded in the interests of
justice because they jury verdict was against the weight of
the evidence on the charges of 1) unlawful contact with a
minor 18 § 6318 §§ A1 (1st Degree Felony); 2) corruption of
minors 18 § 6301 § A1i (1st Degree Misdemeanor); and 3)
endangering welfare of children 18 § 4304 §§ A1 (1 st Degree
Misdemeanor)?
Appellant’s brief at 7 (capitalization omitted).
Appellant’s first issue challenges the sufficiency of the evidence
underpinning his convictions. Whether the evidence was sufficient to
support Appellant’s convictions presents a matter of law. Thus, our standard
of review is de novo and our scope of review is plenary. Commonwealth v.
Walls, 144 A.d 926, 931 (Pa.Super 2016) (citation omitted). The following
principles are well-established:
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Further, we note that the entire trial
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record is evaluated and all evidence received against the
defendant is considered, being cognizant that the trier of fact is
free to believe all, part, or none of the evidence.
Commonwealth v. Diaz, 152 A.3d 1040, 1043-44 (Pa.Super. 2016)
(internal quotation omitted, citation omitted). Generally, a witness’s
credible testimony is sufficient to prove an element of a crime. This is
especially true in this context, where we have previously held that “the
uncorroborated testimony of a sexual assault victim, if believed by the trier
of fact, is sufficient to convict a defendant, despite contrary evidence from
defense witnesses.” Commonwealth v. Charlton, 902 A.2d 554, 562
(Pa.Super. 2006) (quoting Commonwealth v. Davis, 650 A.2d 452, 455
(Pa.Super. 1994)).
As is relevant herein, the Crimes Code defines unlawful contact with a
minor as the intentional contact with a minor for the purpose of engaging in
activity prohibited by chapter 31 (relating to sexual offenses). 18 Pa.C.S. §
6318(a)(1). Corruption of a minor is defined as “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[.]” 18 Pa.C.S. §
6301(a)(1). Finally, a person endangers the welfare of a child if, while
“supervising the welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense if he knowingly
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endangers the welfare of a child by violating a duty of care, protection or
support.” 18 Pa.C.S. § 4304(a)(1).
Appellant premises his argument on the line of reasoning enunciated
by our Supreme Court in Commonwealth v. Farquharson, 354 A.2d 545
(Pa. 1976). In this vein, he contends that the evidence presented against
him was “so unreliable or contradictory as to make any verdict based
thereon obviously the result of conjecture and not reason[.]” Id. at 550;
Appellant’s brief at 21. Appellant argues that the testimony presented by
Ms. Benjamin and J.B.B. was “riddled with inconsistencies and falsities.”
Appellant’s brief at 22. He emphasizes discrepancies in J.B.B.’s account of
the incident, as reported by Ms. Benjamin, such as the presence of a fish
tank in the room where the assault took place, when there was no such fish
tank, J.B.B.’s failure to name Appellant as his assailant until being probed by
Ms. Benjamin for additional information, and J.B.B.’s initial assertion that
Appellant bit his penis.
Appellant also contends that J.B.B.’s testimony was inconsistent, and
thus, wholly unreliable. He highlights portions of J.B.B.’s testimony where
he appears to contradict himself, including statements that Appellant forced
J.B.B. to perform fellatio on him, which contradicted a statement to the
contrary which J.B.B. offered on direct examination. J.B.B. also testified to
wearing “church clothes” during the incident, but on cross-examination, he
stated that he was wearing pajamas. Appellant’s brief at 23. Appellant
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alleges that such inconsistencies render the whole of J.B.B.’s testimony so
unreliable that it cannot provide sufficient support for his convictions.
Appellant bolsters his conclusion by noting that the Commonwealth
failed to prove that J.B.B. was wearing the underwear upon which
investigators ultimately found his DNA, and that none of his DNA was found
on J.B.B.’s penis. Essentially, he maintains the trier of fact should have
credited his explanation that his DNA was found on J.B.B.’s clothing because
he “regularly handled” J.B.B.’s clothing “doing laundry, washing, and folding
clothes.” Id. at 24. Further, the finder of fact should have determined that
J.B.B.’s injuries were likely caused by the child, himself, as multiple
witnesses testified that the victim “fondled himself excessively.” Appellant’s
brief at 26. Finally, Appellant highlights the testimony of his witnesses,
which spoke highly of him and his relationship with J.B.B.
At the outset, we note that much of Appellant’s argument reads as a
challenge to the weight of the evidence, and, as noted above, the finder of
fact was free to believe, all, or none of the evidence. Diaz, supra. Thus,
the jury was free to disbelieve Appellant’s innocent explanations for the
evidence against him, and, when convicting him of the above-enumerated
offense, it clearly credited the Commonwealth’s testimony offered against
him. As we previously observed, our standard of review dictates that we
review the evidence of record in the light most favorable to the
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Commonwealth to determine whether the jury’s findings are sufficiently
supported.
Instantly, Ms. Benjamin testified that, on March 14, 2013, she
returned to her grandmother’s house to pick up J.B.B., who had stayed over
the previous night. After her arrival, J.B.B. told his mother that “somebody
sucked my penis.” N.T. Trial, 11/19/15, at 12. When she pressed J.B.B. for
additional information, he indicated “[Appellant] sucked my penis.” Id.
J.B.B. then pulled his pants down revealing his penis was “swollen and red
and bruised.” Id. at 13. Ms. Benjamin noted that, at the time of the
incident, J.B.B. was wearing brand new clothes, which had only been washed
once at her own home. Id. at 17.
J.B.B., who was five-years old at the time of trial, also testified. J.B.B.
recounted the events that occurred in March 2013, and stated that Appellant
“sucked my penis.” Id. at 44. He noted that, at the time of the event, he
was wearing “church clothes.” Id. at 45. J.B.B. also asserted that Appellant
removed his own clothes while in the room with J.B.B., so that J.B.B.
observed Appellant’s private parts. Id. at 46-47. J.B.B. testified that,
Appellant, while naked, implored J.B.B. to “suck it, man, suck it,” but J.B.B.
denied complying with that command. Id. at 47. On cross-examination,
J.B.B. offered that he was wearing “pajamas” at the time of his assault. Id.
at 52. In addition, he stated, “[Appellant] forced me to suck his penis.” Id.
at 53.
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The Commonwealth offered the testimony of Modupe Adewumi, an
expert in field forensics, and Bryne Strother, an expert in DNA analysis. Ms.
Adewumi analyzed physical evidence obtained during the investigation into
Appellant’s assault, including the sexual assault test kit used on J.B.B.
during his treatment at the hospital, and J.B.B.’s clothing, which had been
collected at the hospital. This evidence revealed P-30, an enzyme commonly
found in seminal fluid, present on J.B.B.’s sock. N.T. Trial, 11/18/15, at 75-
77. Ms. Strother detailed her analysis of the DNA evidence obtained from
J.B.B.’s clothing. In this regard, she discovered the presence of Appellant’s
DNA on J.B.B.’s sock, the crotch of J.B.B.’s pants, and the crotch of J.B.B.’s
underwear. Id. at 90-94. Further, she clarified that, although DNA was not
found on J.B.B.’s body, this was common, since it is easily removed from the
body by washing or other mechanisms. Id. at 96-97. In contrast, clothing is
a “good material to adhere to[.]” Id. at 97. Lastly, the Commonwealth
offered medical reports from J.B.B.’s hospital visit that confirmed that, on
March 14, 2013, he presented with a red and swollen penis.
We find that, when viewing this evidence in the light most favorable to
the Commonwealth as verdict-winner, the evidence supporting Appellant’s
convictions was not so unreliable or contradictory as to amount to nothing
more than mere conjecture. Diaz, supra; Farquharson, supra. Thus, we
find that is was sufficient to establish the elements of his offenses beyond a
reasonable doubt. Although J.B.B.’s testimony was inconsistent at times, he
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unequivocally stated that Appellant performed fellatio on him. This
testimony, alone, was sufficient to support Appellant’s convictions.
Charlton, supra. In addition, J.B.B.’s testimony was corroborated by the
physical evidence proffered by the Commonwealth, and was consistent with
Ms. Benjamin’s retelling of the night in question. In light of this support, the
discrepancies in Appellant’s testimony did not undermine the sufficiency of
the evidence underpinning Appellant’s convictions. Hence, this claim fails.
Appellant’s second issue raises a challenge to the weight of the
evidence. A claim that the verdict was against the weight of the evidence
must be raised with the trial judge in a motion for a new trial orally, on the
record, or in writing prior to sentencing, or in a post-sentence motion.
Pa.R.Crim.P. 607(A). Since the record reveals that Appellant failed to raise
this issue before the trial court pursuant to Pa.R.Crim.P. 607, this claim is
waived. Commonwealth v. Kinney, 157 A.3d 968, 972 (Pa.Super. 2017).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/18
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