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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERNEST PORTER A/K/A :
KEVIN ERNEST PORTER, : No. 2771 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, July 25, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0000143-2016
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 21, 2018
Ernest Porter, a/k/a Kevin Ernest Porter, appeals from the July 25,
2017 aggregate judgment of sentence of 3 to 6 years’ imprisonment,
followed by 9 years’ probation, imposed after a jury found him guilty of
aggravated indecent assault, indecent assault, unlawful contact with a
minor, and corruption of minors.1 Contemporaneously with this appeal,
counsel has requested leave to withdraw in accordance with Anders v.
California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981), and their progeny. After careful review, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
1 18 Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), 6318(a)(1), and 6301(a)(1)(i),
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The trial court summarized the relevant facts and procedural history of
this case as follows:
At trial, the Commonwealth presented the following
testimony: the complainant, S.B. (defendant’s
niece); K.F. (S.B.’s friend); Lila Corgan (S.B.’s
teacher); [L.B.] (S.B.’s mother and [appellant’s]
sister-in-law); Philadelphia Police Detective Manuel
Gonzalez; and Philadelphia Children’s Alliance
Forensic Interview Specialist, Maylis Feliz.
[Appellant] presented the testimony of [L.B.-P.]
([appellant’s] wife and S.B.’s biological aunt).
Viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence
established the following.
On November 1, 2015, the complainant, thirteen-
year-old, S.B., was in her bedroom, in her home in
Philadelphia, when her uncle, [appellant] entered the
room. [Appellant] laid across S.B.’s bed and began
to ask her “weird” questions, such as, “Do you love
me?” and “Do you miss me?” He then went over to
where S.B. was fixing her hair and pushed her
against the wall. He proceeded to kiss her and stick
his hand under her clothes to touch her breasts,
buttocks, and vagina. He then digitally penetrated
her vagina. During the act, [appellant] told S.B. that
it was supposed to make her feel good and that she
could not tell anyone because they would both get
into trouble and therefore, they had to take it to
their graves.
After the incident, [appellant] left S.B.’s bedroom
and went to the bathroom to wash his hands. Once
[appellant] left, S.B. texted her best friend, K.F., “I
think my uncle just sexually assaulted me.” K.F.
encouraged S.B. to tell someone about what had
happened. The next day, at school, S.B. reported
the incident to a teacher, Lila Corgan. Corgan called
S.B.’s mother, [L.B.], and the incident was reported
to the Philadelphia Police.
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Trial court opinion, 10/31/17 at 2-3 (citations to notes of testimony and
footnote omitted).
Appellant was subsequently arrested and charged with aggravated
indecent assault and related offense in connection with this incident. On
January 18, 2017, appellant proceeded to a jury trial and was found guilty of
aggravated indecent assault, indecent assault, unlawful contact with a
minor, and corruption of minors, following a two-day trial. On June 15,
2017, the trial court sentenced appellant to an aggregate term of 3 to
10 years’ imprisonment, followed by 5 years’ probation. On June 22, 2017,
appellant filed a motion for reconsideration of sentence, which was granted
by the trial court on July 25, 2017. That same day, the trial court
resentenced appellant to an aggregate term of 3 to 6 years’ imprisonment,
followed by 9 years’ probation. This timely appeal followed on August 23,
2017.
On August 24, 2017, the trial court directed appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Robert Marc Gamburg, Esq. (hereinafter “counsel”), filed
a timely Rule 1925(b) statement on appellant’s behalf on September 12,
2017. The trial court filed its Rule 1925(a) opinion on October 31, 2017.
Thereafter, on April 11, 2018, counsel filed a petition and brief to withdraw
from representation pursuant to Anders/McClendon. On May 4, 2018, we
issued a per curiam order directing counsel to forward a letter to appellant
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advising him of his right to retain new counsel, proceed pro se, or raise any
additional points that he deems worthy of this court’s attention. Counsel
complied on May 9, 2018. Appellant did not respond to counsel’s petition to
withdraw.
In his Anders brief, counsel argues on appellant’s behalf that there
was insufficient evidence to sustain appellant’s convictions for aggravated
indecent assault, indecent assault, unlawful contact with a minor, and
corruption of minors. (Anders brief at 8-10.)
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.
2010) (citation omitted). In order to withdraw pursuant to Anders,
“counsel must file a brief that meets the requirements established by our
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)
(parallel citation omitted). Specifically, counsel’s Anders brief must comply
with the following requisites:
(1) provide a summary of the procedural history
and facts, with citations to the record;
(2) refer to anything in the record that counsel
believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
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(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case
law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Id. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option to
“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
or (3) raise any points that the appellant deems worthy of the court[‘]s
attention in addition to the points raised by counsel in the Anders brief.”
Id. “Once counsel has satisfied the above requirements, it is then this
[c]ourt’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007) (en banc) (citation and internal quotation marks omitted).
Instantly, we conclude that counsel has satisfied the technical
requirements of Anders and Santiago. Counsel has identified the pertinent
factual and procedural history and made citation to the record. Counsel has
also raised sufficiency of the evidence claims that could arguably support an
appeal, but ultimately concludes that the appeal is wholly frivolous. At our
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direction, counsel sent a letter to appellant that he attached to his petition,
which satisfied the notice requirements of Millisock. Accordingly, we will
proceed to conduct an independent review of the record to determine
whether this appeal is wholly frivolous.
Appellant contends there is insufficient evidence to sustain his
convictions for aggravated indecent assault, indecent assault, unlawful
contact with a minor, and corruption of minors. (See Anders brief at 8-11.)
For the following reasons, we disagree.
Our standard of review in assessing whether there was sufficient
evidence to sustain appellant’s convictions is well settled.
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial
and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there was sufficient
evidence from which the jury could conclude that appellant was guilty of
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both aggravated indecent assault and indecent assault. Section 3125 of the
Crimes Code defines the offense of aggravated indecent assault, in relevant
part, as follows:
(a) Offenses defined.--Except as provided in
sections 3121 (relating to rape), 3122.1
(relating to statutory sexual assault), 3123
(relating to involuntary deviate sexual
intercourse) and 3124.1 (relating to sexual
assault), a person who engages in penetration,
however slight, of the genitals or anus of a
complainant with a part of the person’s body
for any purpose other than good faith medical,
hygienic or law enforcement procedures
commits aggravated indecent assault if:
....
(8) the complainant is less than
16 years of age and the person is
four or more years older than the
complainant and the complainant
and the person are not married to
each other.
18 Pa.C.S.A. § 3125(a)(8).
A person will be found guilty of indecent assault:
if the person has indecent contact with the
complainant . . . for the purpose of arousing sexual
desire in the person or the complainant and . . . the
complainant is less than 16 years of age and the
person is four or more years older than the
complainant and the complainant and the person are
not married to each other.
18 Pa.C.S.A. § 3126(a)(8). Indecent contact is defined as “[a]ny touching of
the sexual or other intimate parts of the person for the purpose of arousing
or gratifying sexual desire, in either person.” 18 Pa.C.S.A. § 3101.
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Instantly, our review of the testimonial evidence presented in this
matter established that appellant held the 13-year-old victim, S.B., against
the wall, kissed her without her consent, fondled her breasts and buttocks,
and reached into her underwear before digitally penetrating her vagina.
(Notes of testimony, 1/18/17 at 43-45.) Additionally, both S.B.’s friend,
K.F., and her teacher, Lila Corgan, corroborated S.B.’s version of events
after she confided in them about the incident. (Id. at 65-72, 80-85.) Our
supreme court has held that evidence that a defendant digitally penetrated a
victim’s vagina is sufficient to support a conviction for aggravated indecent
assault. See Commonwealth v. Kelley, 801 A.2d 551, 557-558 (Pa.
2002). Moreover, we recognize that even the uncorroborated testimony of
the complainant alone “is sufficient to convict a defendant of sexual
offenses.” Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super.
2005) (citations and internal quotation marks omitted).
Likewise, we find ample support to sustain appellant’s conviction for
unlawful contact with a minor pursuant to Section 6318 of the Crimes Code.
A person commits the offense of unlawful contact with a minor 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 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).
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18 Pa.C.S.A. § 6318(a)(1).
As noted, the evidence in the case sub judice clearly established that
appellant engaged in multiple instances of unwanted sexual contact with
13-year-old S.B., informing her that it was supposed “to make [her] feel
good.” (Notes of testimony, 1/18/17 at 45.) This court has sustained a
conviction for unlawful contact with a minor where a defendant hugged a
victim, tried to pull her skirt up, and rubbed victim’s buttocks and private
areas while asking her if it felt good. See Commonwealth v. Leatherby,
116 A.3d 73, 80 (Pa.Super. 2015).
Lastly, appellant’s actions in engaging in the sexual assault of a
13-year-old girl clearly satisfy the requisite elements for corrupting a minor
pursuant to Section 6301 of the Crimes Code, which provides, 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).
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Based on the foregoing, we agree with counsel’s assessment that this
appeal is wholly frivolous and that appellant is entitled to no relief on his
sufficiency claims. After our own independent review of the record, we
discern no additional issues of arguable merit. Accordingly, we grant
counsel’s petition to withdraw and affirm the July 25, 2017 judgment of
sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
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