Com. v. Graves, J.

J-S01024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ROZELLE GRAVES :
:
Appellant : No. 452 MDA 2021

Appeal from the Judgment of Sentence Entered March 3, 2021
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000441-2019

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 8, 2022

Appellant Joseph Rozelle Graves appeals from the judgment of sentence

imposed following his jury trial and convictions for intimidation of a witness,

corruption of minors, indecent assault, and endangering the welfare of

children (EWOC).1 Appellant challenges the sufficiency of the evidence

supporting his convictions. We affirm.

We state the facts as set forth by the trial court:

At the time of trial in 2020, S.M. was thirteen (13) years old. S.M.
testified that the last time he spent any time with [Appellant, his
father,] was when he was seven (7) years old. At that time, S.M,
spent approximately one (1) week with [Appellant] in an
apartment in Lebanon [City].

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 4952(a)(1), 6301(a)(1)(i), 3126(a)(7), and 4304(a)(1),
respectively.
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During this visit, [Appellant] “touched” S.M. while he was taking
a shower. S.M. started taking a shower by himself and “then
[Appellant] came in.” [Appellant] was not wearing any clothing .
. . . [Appellant] used his hand to touch S.M.’s penis and butt.

While [Appellant] was touching S.M.’s penis, he pulled it [S.M.’s
penis] “more than one time” and [Appellant] was “making [a]
moaning noise.” [Appellant] stopped “[because S.M.] pushed him
away” and “[Appellant] got up and went out of the room.”

S.M. testified that [Appellant] showed him a picture of a gun on
his phone. [Appellant] told S.M. “if [you] tell, [Appellant would]
make a visit down to your grandmom’s.” S.M. has a close
relationship with his grandmother. When [Appellant] showed S.M.
the picture of the gun it made S.M. feel scared and S.M. believed
[Appellant’s] threat.

Following the visit when he was seven (7), S.M. did not see
[Appellant] until the time of trial preparation. S.M, did not tell his
mom about what had happened right away when he returned
home because he “was scared”. It took S.M. “years” to tell his
mother about the incident. Telling his mother made him “feel
better”.

* * *

S.M.’s mother, [M.M. (Mother)], testified that [Appellant] is S.M.’s
biological father. [Mother] stated that S.M. had not spent time
with [Appellant] “for about four or five years.” S.M. disclosed to
[Mother] that he had been sexually abused by [Appellant] “about
three and a half years ago [prior to the time of trial]”.

[Mother] researched “on Google how to report child abuse” and
called the hotline. [Mother] reported the abuse in the City of
Philadelphia. DHS opened a case and [Mother] took S.M. to [St.
Christopher’s Hospital for Children] where he was interviewed . .
..

* * *

Detective David Shaffer . . . of the Lebanon County Detective
Bureau was assigned to investigate what occurred. Shaffer
indicated that he worked in conjunction with Jessica McTavish of
Lebanon County Children and Youth Services on the case. S.M.
was interviewed at a Children’s Advocacy Center in Bucks County
because that is where the case originated. Shaffer and Ms.

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McTavish were present at the time of the interview. At the time
of the interview, S.M. confirmed that the location of the incident
was [Appellant’s residence] in Lebanon City. Following cross-
examination, the videotape of the interview was played for the
jury.

Trial Ct. Op., 6/16/21, at 2-5 (citations omitted and formatting altered).

On September 25, 2020, the jury convicted Appellant of the

aforementioned charges. On March 3, 2021, the trial court sentenced

Appellant to an aggregate term of ten months to five years’ imprisonment.

Appellant did not file post-sentence motions.

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement. The trial court filed a Rule 1925(a) opinion concluding

generally that the evidence was sufficient to sustain the verdict.2 See Trial

Ct. Op. at 8-9. However, the trial court did not address the specific elements

of the offenses that Appellant is challenging on appeal. See id. at 9.

Furthermore, the trial court addressed the weight of the evidence, but

Appellant is not challenging the weight of the evidence on appeal. See id. at

6-9.

Appellant raises the following issues for our review, which we reorder as

follows:

____________________________________________

2 In its opinion, the trial court stated that it denied Appellant’s post-sentence
motion seeking reconsideration of his sentence. See Trial Ct. Op. at 2. The
trial court’s opinion is accompanied by an order purporting to deny Appellant’s
post-sentence motion. See Order, 6/16/21. However, as stated above,
Appellant did not file any post-sentence motions; rather he filed a timely
appeal following the imposition of sentence in open court. See Pa.R.A.P.
903(c)(3).

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1. The evidence was insufficient, as a matter of law, to find
[Appellant] guilty . . . of corruption of the morals of a minor
where the Commonwealth failed to establish [Appellant]
tended to corrupt the morals of [the] minor, S.M.

2. The evidence was insufficient, as a matter of law, to find
[Appellant] guilty . . . of indecent assault of a person under the
age of thirteen (13) where the Commonwealth failed to
establish [that Appellant] had indecent contact with [a] minor
and that minor, S.M., was under thirteen (13) years of age at
the time of the alleged contact.

3. The evidence was insufficient, as a matter of law, to find
[Appellant] guilty . . . of endangering the welfare of a minor
where the Commonwealth failed to prove [Appellant] violated
a duty of care, protection or support of [the] minor child, S.M.

4. The evidence was insufficient, as a matter of law, to find
[Appellant] guilty . . . of intimidating a witness as the
Commonwealth failed to prove intent or knowledge of
[Appellant] and failed to prove he importuned the minor, S.M.
to refrain from reporting any information regarding the
commission of a crime.

Appellant’s Brief at 6-7 (formatting altered).

In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. 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, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh

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the evidence and substitute our judgment for that of the fact-
finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted); see also Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super.

2017) (stating generally that “[i]ntent can be proven by direct or

circumstantial evidence; it may be inferred from acts or conduct or from the

attendant circumstances” (citation omitted)).

Further, “the uncorroborated testimony of a sexual assault victim, if

believed by the trier of fact, is sufficient” to sustain a conviction.

Commonwealth v. Diaz, 152 A.3d 1040, 1047 (Pa. Super. 2016) (citation

omitted).

Corruption of Minors and Indecent Assault

In his first two claims, Appellant challenges the sufficiency of the

evidence supporting his convictions for corruption of minors and indecent

assault. Appellant’s Brief at 16-19. With respect to corruption of minors,

Appellant argues that the Commonwealth failed to establish that he corrupted

or tended to corrupt the morals of a minor. Id. at 16-18. Appellant contends

that although S.M. testified that Appellant touched S.M.’s penis and buttocks,

there was no evidence showing that those acts corrupted or tended to corrupt

S.M.’s morals. Id. at 18. Appellant claims that the facts of this case are not

the type of circumstances that the corruption of minors statute was meant to

address. Id.

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As to indecent assault, Appellant claims that the Commonwealth failed

to establish that he touched S.M. with the purpose of arousing or gratifying

sexual desire. Id. at 19. Appellant also contends that the Commonwealth did

not prove that the complainant was less than thirteen years old because S.M.

was uncertain about his age at the time of the offense. Id. at 18-19.

Section 6301 of the Crimes Code defines corruption of minors, in

relevant part, as follows:

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, . . . commits a misdemeanor of the first degree.

18 Pa.C.S. § 6301(a)(1)(i).

It is well established that “[t]he Commonwealth need not prove that the

minor’s morals were actually corrupted. Rather, a conviction for corrupting

morals will be upheld where the conduct of the defendant tends to corrupt the

minor’s morals.” Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa. Super.

2014) (quoting Commonwealth v. Mumma, 414 A.2d 1026, 1030 (Pa.

1980)).

For the purposes of this offense, this Court has “held that actions that

tended to corrupt the morals of a minor were those that would offend the

common sense of the community and the sense of decency, propriety and

morality which most people entertain.” Slocum, 86 A.3d at 277 (citation and

quotation marks omitted).

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Further, this Court has held that the act of touching and “playing with”

a minor’s genitals is sufficient to sustain a conviction for corruption of minors

under subsection (a)(1)(i). See Commonwealth v. Kelly, 102 A.3d 1025,

1027, 1032 (Pa. Super. 2014) (en banc) (concluding that the evidence was

insufficient to convict the defendant of corruption of minors as a felony of the

third degree under Section 6301(a)(1)(ii) but was sufficient for a

misdemeanor conviction under subsection (a)(1)(i)).

Section 3126 of the Crimes Code defines indecent assault, in relevant

part, as follows:

A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
for the purpose of arousing sexual desire in the person or the
complainant and . . . the complainant is less than 13 years of
age[.]

18 Pa.C.S. § 3126(a)(7). “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 any person.” 18 Pa.C.S. § 3101.

The element that the touching was done for the purpose of arousing or

gratifying sexual desire can be proven by circumstantial evidence. See, e.g.,

Commonwealth Capo, 727 A.2d 1126, 1127-28 (Pa. Super. 1999) (holding

that there was sufficient evidence of a purpose of arousing or gratifying sexual

desire in any person where the defendant, after sketching the victim, grabbed

the victim’s arm, touched her, and tried to kiss her; concluding that “the

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gropings and pawings forcibly imposed on the victim are not consistent with

artistic interest or friendship, but speak eloquently of a failed attempt to

gratify sexual desire more directly”).

Here, as we have noted, the trial court did not specifically address the

sufficiency of the evidence as to these offenses in its Rule 1925(a) opinion.

However, at trial, S.M. testified that he was seven years old when Appellant

got into the shower with him, at which point Appellant touched S.M.’s buttocks

with his hand, grabbed S.M.’s penis, and pulled on it more than once. See

N.T. Trial Vol. 1, 9/25/20, at 12-16. While he was touching S.M., Appellant

made a moaning noise. See id. at 16. After S.M. pushed Appellant away,

Appellant stopped touching S.M. and left the bathroom. See id.

Based on our review of the record, and viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, we agree with the

trial court that this testimony was sufficient to establish Appellant’s

convictions for both corruption of minors and indecent assault. See Palmer,

192 A.3d at 89.

Similarly, concerning Appellant’s conduct with S.M., as it relates to his

corruption of minors conviction, “[it] would offend the common sense of the

community and the sense of decency, propriety and morality which most

people entertain.” See Slocum, 86 A.3d at 277; see also Kelly, 102 A.3d

at 1027, 1032 (holding that grabbing and “playing with” a minor’s genitals is

sufficient to sustain a conviction for corruption of minors). Therefore, we

conclude that S.M.’s testimony was sufficient to establish that Appellant’s

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actions corrupted or tended to corrupt the morals of a minor. See Diaz, 152

A.3d at 1047.

As to Appellant’s indecent assault conviction, the evidence presented at

trial was sufficient for the jury to infer that Appellant, who was moaning,

grabbed S.M.’s penis and buttocks for the purpose of arousing or gratifying

sexual desire. See, e.g., Capo, 727 A.2d at 1128. Further, S.M.’s testimony

established that he was seven years old at the time of this incident and

thirteen years old at the time of trial.3 See Diaz, 152 A.3d at 1047.

Therefore, on this record, we conclude that S.M.’s testimony was sufficient to

prove that Appellant engaged in contact with S.M. for the purpose of arousing

or gratifying sexual desire while S.M. was under the age of thirteen. See

____________________________________________

3 To the extent that Appellant argues that S.M. was uncertain about his age
at the time of the offense, that argument goes to the weight, not the
sufficiency of the evidence. See Commonwealth v. Kinney, 157 A.3d 968,
972 (Pa. Super. 2017) (explaining that claims directed at the credibility of a
witness’s testimony “challenge the weight, not the sufficiency, of the
evidence” (citation omitted)). It is well settled that a defendant must raise a
weight-of-the-evidence challenge before the trial court in order to preserve
the issue. See Pa.R.Crim.P. 607 (stating that “[a] claim that the verdict was
against the weight of the evidence shall be raised with the trial judge in a
motion for a new trial: (1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or (3) in a post-sentence
motion” (some formatting altered)). Appellant has acknowledged that he did
not preserve any challenge to the weight of the evidence before the trial court.
Appellant’s Brief at 3-4. Therefore, to the extent that Appellant challenges
the weight of the evidence regarding S.M.’s age at the time of the offense,
that issue is waived. See Pa.R.Crim.P. 607; see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal”).

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Palmer, 192 A.3d at 89. For these reasons, Appellant is due no relief on his

sufficiency claims concerning corruption of minors and indecent assault.

EWOC

Appellant next argues that the evidence was insufficient to prove EWOC

because there was no evidence that Appellant had a duty of care, protection,

or support with respect to S.M. Appellant’s Brief at 19-21. Appellant asserts

that he was away from S.M. for significant periods of time, both before and

after the alleged incident. Id. at 20-21. Appellant then concludes that in fact,

he did not have the duty of care to protect or supervise S.M., therefore, the

Commonwealth could not establish that he violated a duty of care, protection,

or support. Id. at 21. Appellant also argues that the alleged acts of

inappropriate touching did not endanger S.M.’s welfare. Id.

Section 4304 of the Crimes Code defines EWOC, in relevant part, as

follows: “A parent, guardian or other person 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 endangers the welfare of the child by

violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a)(1).

This Court has explained that, although the Crimes Code does not define

“duty of care,” “[t]he duty to render care for one’s child arises out of the

relationship of parent and child. . . . A parent is charged with the duty of care

and control, subsistence and education necessary for the child’s physical,

mental and emotional health and morals.” Commonwealth v. Cardwell,

515 A.2d 311, 314 (Pa. Super. 1986) (citation omitted). Further, any person

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with a duty of care for a child violates that duty by sexually assaulting that

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

Here, the trial court did not address Appellant’s sufficiency claim as to

EWOC in its Rule 1925(a) opinion. However, the record reflects that Appellant

is S.M.’s biological father and that Mother took S.M. to Appellant’s apartment

so they could spend the weekend together. See N.T. Trial Vol. 1 at 20, 42-

43. During the visit, Appellant assaulted S.M. See id. at 12-16.

Based on our review of the record, we agree with the trial court that

there was sufficient evidence supporting Appellant’s conviction for EWOC.

See Palmer, 192 A.3d at 89. As S.M.’s father, Appellant had a duty of care

towards S.M.4 See Cardwell, 515 A.2d at 314. Therefore, we conclude that

the evidence established that Appellant had a duty of care towards S.M., and

that he violated that duty by committing an indecent assault against S.M. See

generally Bryant, 57 A.3d at 197. Therefore, no relief is due on Appellant’s

EWOC sufficiency claim.

Intimidation of a Witness

Lastly, Appellant argues the evidence presented at trial was insufficient

to establish that he intended to intimidate S.M. Appellant’s Brief at 14-16.

Specifically, Appellant contends that “[t]he display of a picture of a gun

____________________________________________

4Section 4304 does not provide that a parent’s duty of care only applies when
a parent has regular contact with his or her child. See 18 Pa.C.S. § 4304.
Further, Appellant has not cited any case law in support of his claim that he
did not have a duty of care towards S.M. as a result of Appellant’s limited
contact with his son.

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without any adequate explanation or an over[t] threat” does not establish the

element of intent. Id. at 15. Appellant further claims that “[e]ven the

[Commonwealth’s] attempt to somehow engraft the picture of a firearm on a

statement that [Appellant] would go to S.M.’s grandmother’s house, without

more cannot sustain the charge.” Id. at 16.

Section 4952 of the Crimes Code defines intimidation of witness, in

relevant part, as follows:

(a) Offense defined.—A person commits an offense if, with the
intent to or with the knowledge that his conduct will obstruct,
impede, impair, prevent or interfere with the administration of
criminal justice, he intimidates or attempts to intimidate any
witness or victim to:

(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning
any information, document or thing relating to the
commission of a crime.

18 Pa.C.S. § 4952(a)(1).

Our Supreme Court has acknowledged that intimidation does not require

an overt threat, explaining that

intimidation may be accomplished with no words at all, for a mere
look or posture can bully, threaten, coerce, frighten, or intimidate
beyond question. . . . [P]eople may purposely intimidate in any
number of ways, without manifesting bullying or fearsome words,
and if they do so with the requisite mens rea, the crime is made
out.

Commonwealth v. Doughty, 126 A.3d 951, 957 (Pa. 2015).

Further, this Court has stated:

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[A]ctual intimidation of a witness is not an essential element of
the crime. The crime is committed if one, with the necessary
mens rea, “attempts” to intimidate a witness or victim. . . . The
trier of the facts, therefore, could find that [the] appellant
attempted to intimidate his accuser and that he did so intending
or, at least, having knowledge that his conduct was likely to,
impede, impair or interfere with the administration of criminal
justice. . . . The Commonwealth is not required to prove mens
rea by direct evidence. Frequently such evidence is not available.
In such cases, the Commonwealth may rely on circumstantial
evidence.

Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016) (citation

omitted and formatting altered).

Here, S.M. testified that after Appellant assaulted him, Appellant showed

S.M. a picture of a gun. See N.T. Trial Vol. 1 at 16-17. Appellant told S.M.

that if he told anyone that Appellant had touched him, Appellant would go visit

S.M.’s maternal grandmother. See id. at 17. At that time, S.M. was seven

years old. See id. at 12.

Viewing S.M.’s testimony in the light most favorable to the

Commonwealth, it was reasonable for the jury to infer that Appellant’s display

of a picture of a firearm and his statement that he would visit S.M.’s

grandmother was a threat to kill or harm her. See, e.g., Doughty, 126 A.3d

at 957 (explaining that “people may purposely intimidate in any number of

ways”). It was also reasonable for the jury to infer that Appellant intended to

intimidate S.M. into refraining from reporting Appellant’s crimes to the police.

See Beasley, 138 A.3d at 48 (explaining that intent to intimidate may be

proven by circumstantial evidence); see also Miller, 172 A.3d at 641 (holding

that intent may be inferred from acts or conduct or from the attendant

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circumstances). Therefore, Appellant is due no relief for his intimidation of a

witness sufficiency claim.5,6

For these reasons, we conclude there was sufficient evidence to sustain

all of Appellant’s convictions. Accordingly, no relief is due.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/8/2022

____________________________________________

5 To the extent Appellant argues that S.M.’s account of the timing of the threat
“strain[s] credulity,” see Appellant’s Brief at 16, that claim goes to the weight,
not the sufficiency, of the evidence. See Kinney, 157 A.3d at 972 (citation
omitted)). As noted above, Appellant waived any challenge to the weight of
the evidence. Appellant’s Brief at 3-4; see also Pa.R.Crim.P. 607; Pa.R.A.P.
302(a).

6 Additionally, Appellant argues that he “did not importune S.M. not to testify
at trial or any legal proceeding. There was no legal proceeding to speak of
and would not be legal proceedings for at least six (6) years if we accept the
testimony of S.M. at trial.” Appellant’s Brief at 16. However, Appellant was
convicted of violating Section 4952(a)(1), which deals with intimidating a
witness from reporting a crime to law enforcement, not Section 4952(a)(3)
involving intimidating a witness into withholding testimony. See 18 Pa.C.S.
§ 4952(a)(3). Because Appellant was not charged with intimidating S.M. from
testifying at trial, he is not entitled to any relief under this theory.

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