J-S21028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON CARGILE :
:
Appellant : No. 1453 WDA 2017
Appeal from the PCRA Order September 5, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014493-2013
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 17, 2018
Brandon Cargile (Appellant) appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
In 2013, Appellant was charged with criminal attempt to commit
involuntary deviate sexual intercourse with a child (attempted IDSI),1 unlawful
contact with a minor,2 corruption of a minor,3 indecent exposure,4 and
endangering the welfare of a child.5
____________________________________________
1 18 Pa.C.S.A. §§ 901(a), 3123(b).
2 18 Pa.C.S.A. § 6318(a)(1) (involving sexual offenses).
3 18 Pa.C.S.A. § 6301(a)(1)(i).
4 18 Pa.C.S.A. § 3127(a).
5 18 Pa.C.S.A. § 4304(a).
J-S21028-18
This matter proceeded to trial and the jury found Appellant guilty of all
charges. The trial court sentenced Appellant to serve consecutive terms of 10
to 20 years of incarceration for attempted IDSI and unlawful contact with a
minor. The trial court imposed no further penalty for the remaining offenses.
Appellant did not file post-sentence motions. On direct appeal, this Court
affirmed Appellant’s judgment of sentence, and our Supreme Court denied
Appellant’s petition for allowance of appeal on April 23, 2016.
Commonwealth v. Cargile, 52 WDA 2015 (Pa. Super. Dec. 30, 2015)
(unpublished memorandum), appeal denied, 136 A.3d 978 (Pa. 2016).
On June 9, 2016, Appellant filed a timely pro se PCRA petition seeking
a new trial. The PCRA court appointed counsel (PCRA Counsel) to represent
Appellant. PCRA Counsel subsequently filed an amended PCRA petition. On
July 26, 2017, PCRA Counsel filed a second amended PCRA petition
challenging the effectiveness of trial counsel and the legality of Appellant’s
sentence. The Commonwealth filed an answer to Appellant’s second amended
PCRA petition, and the PCRA court issued its notice of intent to dismiss
pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure.
Appellant did not respond to the notice, and on September 5, 2017, the PCRA
court dismissed Appellant’s petition without a hearing.
Appellant appealed the PCRA court’s decision and complied with the
court’s order to file a concise statement of errors complained of on appeal
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.
The PCRA court then issued its Rule 1925(a) opinion.
-2-
J-S21028-18
Appellant presents the following questions for our review:
I. Whether counsel gave ineffective assistance when she failed
to file a pretrial motion to quash the criminal information?
II. Whether counsel gave ineffective assistance when she failed
to object to the [trial] court’s instruction to the jury
regarding the crime of unlawful contact with a minor?
III. Whether the sentence for unlawful contact with a minor was
illegal?
Appellant’s Brief at 5 (suggested answers omitted).6
Appellant’s first two issues allege that trial counsel was ineffective
relative to Appellant’s conviction for unlawful contact with a minor.
Our standard of review governing the denial of a PCRA petition is as
follows:
In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determinations are supported by the record and are
free of legal error. The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court; however,
we apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted).
In order to obtain relief on an ineffectiveness claim:
a petitioner must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that there is a
____________________________________________
6 Although Appellant raised an additional claim of ineffectiveness of counsel
in his concise statement, he has abandoned this issue by failing to raise it in
his brief. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(concluding that the failure to properly include a developed argument in an
appellate brief constitutes waiver).
-3-
J-S21028-18
reasonable probability that the result of the proceeding
would have been different absent such error.
Trial counsel is presumed to be effective, and Appellant bears the
burden of pleading and proving each of the three factors by a
preponderance of the evidence.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations
omitted). “A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead, if a claim fails
under any necessary element of the ineffectiveness test, the court may
proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,
747 (Pa. 2014) (citations omitted).
Appellant argues that trial counsel was ineffective for failing to move to
quash the Commonwealth’s criminal information. Appellant asserts that the
criminal information failed to allege that Appellant made contact with the
victim for the purpose of committing one of the enumerated offenses in
Chapter 31 of the Pennsylvania Crimes Code (relating to sexual offenses),
which Appellant contends was necessary in order for the Commonwealth to
charge him with unlawful contact with a minor. Appellant’s Brief at 20-21.
Appellant further asserts that he was prejudiced because the defective
criminal information prevented him from adequately preparing a defense for
the unlawful contact with a minor charge.
Under Pennsylvania law, the crime of unlawful contact with a minor is
defined as follows:
(a) Offense defined. – A person commits an offense if he is
intentionally in contact with a minor, or a law enforcement officer
acting in the performance of his duties who has assumed the
-4-
J-S21028-18
identity of a minor, for the purpose of engaging in an activity
prohibited under any of the following, and either the person
initiating the contact or the person being contacted is within this
Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating
to sexual offenses). [(Chapter 31 offenses)].
...
18 Pa.C.S.A. § 6318(a)(1). “There are more than ten sexual offenses set forth
in Chapter 31, including rape, statutory sexual assault, IDSI, sexual assault,
aggravated indecent assault, indecent assault, and indecent exposure.”
Commonwealth v. Aikens, 168 A.3d 137, 139 n.4 (Pa. 2017) (emphasis
added).
Here, regarding the charge of unlawful contact with a minor, the criminal
information provided as follows: “[Appellant] intentionally contacted with a
minor namely, [the victim], age 8 for the purpose of engaging in the activity
of attempted unlawful sexual contact with a child in violation of Section
6318(1) of the Pennsylvania Crimes Code.” Criminal Information, 12/3/13, at
1 (unpaginated).
Appellant asserts that “attempted unlawful sexual contact” is not one
of the defined enumerated offenses in Chapter 31 of the Crimes Code.
Appellant’s Brief at 19. He claims the Commonwealth’s failure to specify a
particular enumerated offense was in violation of his rights under the Sixth
Amendment of the United States Constitution, and Article I, Section 9 of the
Pennsylvania Constitution. Id. at 19, 20-21. These constitutional provisions
-5-
J-S21028-18
require that the accused be provided with sufficient notice to prepare a
defense.
Appellant is not entitled to relief. The purpose of a criminal information
is to provide the accused with notice to prepare a defense, and to ensure that
he will not be tried twice for the same act. Commonwealth v. Ohle, 470
A.2d 61, 73 (Pa. 1983); Commonwealth v. Diaz, 383 A.2d 852 (Pa. 1978).
A criminal information is sufficient if it sets forth the elements of the offense
intended to be charged with sufficient detail that the defendant is apprised of
what he must be prepared to meet, and may plead double jeopardy in a future
prosecution based on the same set of events. Commonwealth v. Bell, 516
A.2d 1172 (Pa. 1986); Ohle, supra. This may be accomplished through use
of the words of the statute itself as long as “those words of themselves fully,
directly, and expressly, without any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offense intended to be punished.”
Hamling v. United States, 418 U.S. 87, 117 (1974) (quoting United States
v. Carll, 105 U.S. 611 (1882).
The Commonwealth’s criminal information tracked the language of 18
Pa.C.S.A. § 6318(a), and thus, sufficiently apprised Appellant of all necessary
elements of the crime of unlawful contact with a minor. The criminal
information charged Appellant with unlawful contact with a minor for the
purpose of engaging in sexual activity and with the intent to commit one of
the enumerated offenses in Chapter 31 of the Crimes Code. The criminal
information further charged Appellant with several of the offenses enumerated
-6-
J-S21028-18
in Chapter 31 of the Crimes Code, namely, attempted IDSI and indecent
exposure. It is evident when reading the charge of unlawful contact with a
minor, in conjunction with the criminal information as a whole, that the
criminal information alleged the specific offense underlying the unlawful
contact with a minor charge.
Based upon the detail of the criminal information, Appellant suffered no
surprise or prejudice with regard to his ability to prepare a defense, and he
was sufficiently protected from being placed in jeopardy in the future for
criminal acts performed during the same set of events. Therefore, we discern
no defect in the Commonwealth’s criminal information. Accordingly, trial
counsel cannot be deemed ineffective for failing to raise a meritless claim.
See Commonwealth v. Sims, 919 A.2d 931, 939 (Pa. 2007) (“Counsel will
not be found ineffective for failing to raise a meritless claim.”).
Next, Appellant asserts that trial counsel was ineffective for failing to
object to the trial court’s jury instruction on the offense of unlawful contact
with a minor. Appellant argues that the trial court only required the jury to
find that he contacted the victim for the purpose of “engaging in an unlawful
act[,] [t]hat is, unlawful sexual contact,” and did not define what specific
Chapter 31 offense(s) Appellant intended to commit when he contacted the
victim. Appellant’s Brief at 26-27. Appellant argues that the instruction was
insufficient because the Commonwealth charged him with multiple sexual
offenses committed against the victim, and he contends that the jury could
have been confused or misled regarding his intended purpose for the contact
-7-
J-S21028-18
(i.e. the jury could have concluded that corruption of minors, rather than IDSI,
was his intended purpose). Appellant’s Reply Brief at 8.7 Appellant asserts
that he was prejudiced by trial counsel’s failure to object to a clearly erroneous
jury instruction.
When examining the propriety of a trial court’s jury instructions, “the
key inquiry is whether the instruction on a particular issue adequately,
accurately and clearly presents the law to the jury, and is sufficient to guide
the jury in its deliberations.” Commonwealth v. Sneeringer, 668 A.2d
1167, 1171 (Pa. Super. 1995), appeal denied, 680 A.2d 1161 (Pa. 1996). It
is well-settled that:
[a] jury charge will be deemed erroneous only if the charge as a
whole is inadequate, not clear or has a tendency to mislead or
confuse, rather than clarify, a material issue. A charge is
considered adequate unless the jury was palpably misled by what
the trial judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions.
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (internal
citations and quotation marks omitted).
____________________________________________
7 We note that Appellant waited until his reply brief to specify why the trial
court’s jury instruction may have confused or mislead the jury. We caution
that a reply brief is not a vehicle to argue issues raised but inadequately
developed in the appellant’s original brief. Pa.R.A.P. 2113(a) (“[T]he
appellant may file a brief in reply to matters raised by appellee’s
brief and not previously addressed in appellant’s brief. If the appellee has
cross appealed, the appellee may file a similarly limited brief.” (emphasis
added)); Pa.R.A.P. 2113 cmt. (“The scope of the reply brief is limited ... in
that such brief may only address matters raised by appellee. . . .”
(emphasis added)); see also Commonwealth v. Belak, 825 A.2d 1252,
1256 n.10 (Pa. 2003).
-8-
J-S21028-18
Here, the trial court instructed the jury in relevant part as follows:
A person commits [IDSI] if he has deviate sexual intercourse with
another person.
In order to find [Appellant] guilty of this, you must find that
the following elements have been proven beyond a reasonable
doubt. First, that [Appellant] had deviate sexual intercourse with
the victim. Second, that the victim was less than 13 years of age.
Deviate sexual intercourse is intercourse by mouth or anus
between two people. Thus, it is deviate sexual intercourse if a
man uses his penis to have sexual intercourse with the mouth of
the victim.
In order to find [Appellant] guilty of attempted [IDSI], you
must be satisfied that the following elements have been proven
beyond a reasonable doubt. First, that [Appellant] did a certain
act. Second, that [Appellant] did the act with the intent to commit
the crime of [IDSI]. And third, that the act constituted a
substantial step toward the commission of that crime.
A person intends to commit the crime of [IDSI] and cannot
be guilty of attempt to commit the crime unless he has a firm
intent to commit that crime. A person cannot be guilty of an
attempt to commit a crime unless he does an act which constitutes
a substantial step toward the commission of the crime.
An act is a substantial step if it is a major step towards the
commission of the crime and also strongly corroborates the jury’s
belief that the person at the time he did the act had a firm intent
to commit the crime. An act can be a substantial step even though
other steps would have to have been taken before the crime could
be carried out.
For [IDSI], you will note that consent is not an element of
the crime. A child under the age of 13 is legally incapable of
consenting to the alleged act. It does not matter if the victim did
not resist or even consented to the act.
[Appellant] is charged with one count of unlawful contact
with a minor. In order to find [Appellant] guilty of this charge,
you must be satisfied that the following elements have been
proven beyond a reasonable doubt. First, that [Appellant] was
intentionally in contact with a minor. And second, that the contact
was for the purpose of engaging in an unlawful act. That is,
-9-
J-S21028-18
unlawful sexual contact. And third, that either [Appellant] or the
person being contacted is within the Commonwealth.
Contact is either a direct or indirect contact or
communication by any means. A minor is an individual under the
age of 18.
N.T., 9/2/14, at 108-111.
The PCRA court determined:
[The trial court] did not err in its unlawful contact instruction. The
instruction was a complete, clear and accurate statement of the
law and its wording tracked the definition of the crime continued
in 18 Pa.C.S.A. § 6318. [Appellant’s] argument regarding the use
of the words “unlawful sexual contact” as opposed to naming a
specific offense is meritless. Having just extensively explained the
crimes of [IDSI] and [c]riminal [a]ttempt, the jury was well-
versed in what constituted unlawful sexual contact and so there
was no ambiguity as to the elements of the crime. Again, because
the instruction was complete, clear and accurate, there was no
basis for an objection to it and so counsel was not ineffective for
failing to make one. This claim must also fail.
PCRA Court Opinion, 1/12/18, at 8-9. We agree.
When examining the charge as a whole, we conclude that the trial court
adequately instructed the jury on each element of unlawful contact with a
minor. The jury was required to find, beyond a reasonable doubt, that
1) Appellant intentionally contacted the minor, 2) for the purpose of engaging
in unlawful sexual contact, 3) while one of the parties was within the
Commonwealth. N.T., 9/2/14, at 110-111. Appellant’s argument requires us
to read the trial court’s instruction in isolation from the detailed description of
attempted IDSI that immediately preceded it. See id. at 108-110.
Appellant’s overly narrow interpretation of the instruction is inappropriate and
- 10 -
J-S21028-18
would lead to an absurd result when the jury was also properly instructed on
the offense underlying the crime of unlawful contact with a minor (attempted
IDSI). Because the jury charge was not erroneous, Appellant’s claim lacks
arguable merit and thus trial counsel was not ineffective for failing to object.8
Accordingly, Appellant is not entitled to relief.
In his third and final issue, Appellant challenges the legality of his
sentence relative to the grading of the unlawful contact with a minor offense.
We begin by noting that a challenge to the legality of a sentence cannot be
waived and is cognizable under the PCRA pursuant to 42 Pa.C.S.A.
§ 9543(a)(2)(vii). Commonwealth v. Jones, 932 A.2d 179, 182-83 (Pa.
Super. 2007) (jurisdictional limitations may render a claim incapable of
review, but a challenge to the legality of sentence cannot be waived). The
proper grading of an offense is a challenge to the legality of a sentence. See
Weimer, 167 A.3d 78, 83 n.6 (Pa. Super. 2017).
Issues relating to a legality of sentence claim are questions of law and,
as such, our standard of review is de novo and our scope of review is plenary.
____________________________________________
8 We add that Appellant’s claim would also fail due to his inability to
demonstrate that he suffered actual prejudice through counsel’s failure to
object. See Spotz, 84 A.3d at 320-321. While Appellant cryptically asserts
that “objecting to the instruction and moving for a new trial offered a potential
for success substantially greater than the course actually pursued[,]” he does
not address the jury’s finding that he acted with the firm intent to commit the
crime of IDSI (i.e. his conviction of attempted IDSI required the jury to find
that Appellant acted with the purpose of engaging in unlawful sexual contact).
Appellant’s Brief at 28; see N.T., 9/2/14, 108-110.
- 11 -
J-S21028-18
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011), appeal
denied, 30 A.3d 487 (Pa. 2011).
Appellant argues that his conviction for unlawful contact with a minor
was graded improperly as a first-degree felony because, due to the ambiguity
in the jury instruction and criminal information, the trial court at sentencing
was required to guess which of the enumerated Chapter 31 offenses Appellant
intended to commit when he contacted the victim. Appellant’s Brief at 40-41.
The grading of unlawful contact with a minor is determined as follows:
(b) Grading. – A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most
serious underlying offense in subsection (a) for which the
defendant contacted the minor; or
(2) a felony of the third degree;
whichever is greater.
18 Pa.C.S.A. § 6318(b) (emphasis added). “Accordingly, if a defendant
unlawfully contacts a minor for purposes of engaging in IDSI, then the
unlawful contact with a minor crime is graded as a first-degree felony.”
Aikens, 168 A.3d at 139.
Here, the trial court charged the jury, and the jury convicted Appellant
of attempted IDSI, which is an enumerated offense listed under Section 6318.
It is undisputed that attempted IDSI, a first-degree felony, is the “most
serious underlying offense” for which Appellant was convicted. Therefore, the
trial court properly graded Appellant’s unlawful contact with a minor conviction
- 12 -
J-S21028-18
as a first-degree felony. See Aikens, supra. As a result, Appellant’s final
issue fails and we affirm the order denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2018
- 13 -