J-S59005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS R. QUINONES,
Appellant No. 804 EDA 2016
Appeal from the Judgment of Sentence Entered March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009610-2014
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 25, 2017
Appellant, Luis R. Quinones, appeals from the judgment of sentence of
an aggregate term of 5 years’ probation, and a lifetime registration
requirement under the Sexual Offender Registration and Notification Act
(SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, imposed after he was convicted
of corruption of a minor, 18 Pa.C.S. § 6301(a)(1)(i), and indecent assault by
forcible compulsion, 18 Pa.C.S. § 3126(a)(2). On appeal, Appellant
challenges the sufficiency of the evidence to sustain his indecent assault
conviction, as well as the legality of his lifetime SORNA registration
requirement. After careful review, we reverse in part, and affirm in part.
The trial court summarized the facts of Appellant’s case, as follows:
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* Former Justice specially assigned to the Superior Court.
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The Complainant, B.F., knew [Appellant] for a couple of
years as his godfather. Notes of Testimony (“N.T.”) Aug. 7,
2015, at 9. [Appellant] and B.F.’s mother were close friends.
Id. [Appellant] would often sleep over [at] B.F.’s house where
he shared a room with B.F.[,] who was eleven years old[,] and
B.F.’s younger brother[,] who was four years old. Id. at 10, 39.
Usually, when [Appellant] slept over at the house, if B.F. was
sleeping in the bed, [Appellant] would nudge him to wake him
up. Id. at 10-11. B.F. would then move from the bed and sleep
on the sofa bed in the same room. Id. at 11. [Appellant] would
sleep on the bed. Id.
On or about Father’s Day [of] 2014, B.F. went to sleep in
his bed at around 9:30 p.m. Id. at 9. … At approximately one
or two in the morning, B.F. felt a hand rubbing around his
buttocks and testicles under his pants, but over his underwear.
Id. at 9. He woke up and saw [Appellant] lying next to him with
his eyes closed. Id. B.F. told [Appellant] he was going to tell
his mom. Id. at 12. [Appellant] then got up and ran out of the
house. Id. B.F. then went to his mother’s bedroom and told her
what happened. Id. B.F.’s mother was in a very deep sleep and
thought it was a dream. Id. at 23. The next morning[,] she
asked B.F. about what he told her the night before. Id. at 12.
B.F. told her again what happened and she called the police. Id.
[Appellant] was arrested on June 30, 2014 and charged with
unlawful contact with a minor, corruption of a minor, and
indecent assault.
Trial Court Opinion (TCO), 11/10/16, at 2-3 (footnote omitted).
On August 11, 2015, Appellant proceeded to a nonjury trial, at the
close of which the court convicted him of corruption of a minor and indecent
assault by forcible compulsion. Sentencing was deferred for the preparation
of a presentence report and an evaluation by the Sexual Offenders
Assessment Board (SOAB). On November 17, 2015, Appellant was
determined not to be a sexually violent predator, and he was sentenced to
concurrent terms of five years’ probation for his two convictions. The court
also imposed a lifetime reporting requirement under SORNA.
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Appellant filed a timely post-sentence motion, which the court denied.
He then filed a timely notice of appeal, and he also complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement. Herein, Appellant
presents two issues for our review:
[I.] Was the evidence insufficient to sustain a conviction of
indecent assault?
[II.] Did the court err in requiring Appellant to register as a Tier
III offender under 42 Pa.C.S.[] [§] 9799.15(a)(3)?
Appellant’s Brief at 3 (unnecessary capitalization omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
conviction of indecent assault. To begin, we note our standard of review of
a challenge to the sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant was convicted of indecent assault under 18 Pa.C.S. §
3126(a)(2), which states:
(a) Offense defined.--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
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seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
…
(2) the person does so by forcible compulsion[.]
Additionally, ‘forcible compulsion’ is defined as “[c]ompulsion by use of
physical, intellectual, moral, emotional or psychological force, either express
or implied. This term includes, but is not limited to, compulsion resulting in
another person’s death, whether the death occurred before, during or after
sexual intercourse.” 18 Pa.C.S. § 3101.
Appellant contends that in this case, the Commonwealth failed to
demonstrate the forcible compulsion element of indecent assault under
section 3126(a)(2). Appellant premises his argument on the fact that B.F.
was sleeping at the time of the assault, averring that he could “not induce
B.F. to submit to his wishes where B.F. was fast asleep.” Appellant’s Brief at
9. Appellant contrasts the facts of his case with Commonwealth v. Price,
616 A.2d 681 (Pa. Super. 1992). There, the victim testified that Price began
raping her when she was asleep, but she “woke up while Price was having
intercourse with her[,]” and she immediately “screamed at Price and told
him to ‘get off’ of her.” Id. at 683. “Despite [the victim’s] immediate
protest, Price continued penetration” and “[a] physical struggle ensued.” Id.
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We concluded that this evidence was “sufficient to allow a factfinder to find
forcible compulsion beyond a reasonable doubt.”1 Id.
We agree with Appellant that the present case is easily distinguishable
from Price. Appellant’s assault of B.F. immediately ceased once B.F. awoke,
as demonstrated by the following exchange during the cross-examination of
B.F.:
[Defense Counsel:] Just going back to the way you were
sleeping…[,] were you facing the wall?
[B.F.:] Yes.
[Defense Counsel:] And your back [was] turned then to
[Appellant], right?
[B.F.:] Yes.
[Defense Counsel:] Okay. And when you feel something, you
can’t see who it is initially, right?
[B.F.:] No.
[Defense Counsel:] You just felt a hand?
[B.F.:] Yeah.
[Defense Counsel:] Okay. And his hand never went underneath
your underwear, right?
[B.F.:] No. It was under my pants.
[Defense Counsel:] And you felt it for a split second?
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1 While in Price, we were assessing whether there was forcible compulsion
to sustain Price’s rape conviction under 18 Pa.C.S. § 3121, the term ‘forcible
compulsion’ is defined the same for both the offenses of rape and indecent
assault. See 18 Pa.C.S. § 3101 (presenting one definition for ‘forcible
compulsion’ for all sexual offenses set forth in Chapter 31 of the Crimes
Code).
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[B.F.:] No. Like when I woke up, I felt it, and it was like two
seconds. I didn’t know what it was. That’s when I woke up, and
I seen [sic] his hand down my pants. I got up, looked at him.
He banged his head on the wall and pretended he was sleeping.
His eyes were flickering. Then that’s when I went to the door,
[and] said, “I’m telling my mom, you psycho,” or something like
that. Right when I went to my mom’s door, he ran out.
N.T. Trial, 8/7/15, at 18-19.
B.F.’s testimony demonstrates that he was asleep when Appellant
assaulted him, and that the assault stopped immediately when B.F. woke up.
Moreover, as soon as B.F. showed resistance by getting up from the bed and
saying that he was going to tell his mother what Appellant had done,
Appellant fled. Based on this evidence, we conclude that Appellant did not
use “physical, intellectual, moral, emotional or psychological force” in
assaulting B.F. See 18 Pa.C.S. § 3101 (defining ‘forcible compulsion’).
We also cannot agree with the trial court that the trust B.F. had in
Appellant, and the fact that they knew each other well, was sufficient
evidence to demonstrate forcible compulsion. See TCO at 6. The court
stresses that Appellant used his relationship of trust with B.F. to sleep in the
same bed with B.F., where the assault then occurred. Id. However, section
3126(a) requires the use of forcible compulsion in committing the act of
‘indecent contact’; here, the ‘indecent contact’ was Appellant’s fondling
B.F.’s buttocks and testicles, not Appellant’s sleeping in the same bed as
B.F. Therefore, even if Appellant took advantage of his relationship with B.F.
to gain access to B.F.’s bed, Appellant did not utilize that relationship to
compel B.F. to succumb to Appellant’s assaultive touching. Instead, B.F. did
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not resist that indecent contact because he was completely asleep at the
time it occurred. Once B.F. awoke, the assault ended and Appellant fled.
Under these facts, we must agree with Appellant that no forcible compulsion
was demonstrated.
Consequently, we reverse Appellant’s conviction for indecent assault,
and vacate his 5-year term of probation for that offense. We also vacate
Appellant’s lifetime reporting requirement under SORNA, which was imposed
for his conviction of indecent assault.2 However, as Appellant does not
challenge his conviction for corruption of a minor, we affirm his conviction
and judgment of sentence for that offense. We need not remand for
resentencing, as our disposition has not impacted Appellant’s aggregate
term of five years’ probation.3
Judgment of sentence reversed in part, affirmed in part. Jurisdiction
relinquished.
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2 We note that the trial court concedes that it erred by imposing a lifetime
registration requirement for Appellant’s indecent assault conviction pursuant
to section 3126(a)(2), as that crime constitutes a Tier II sexual offense
under SORNA and carries only a 25-year registration requirement. See TCO
at 8.
3 Appellant’s conviction of corruption of minors under 18 Pa.C.S. §
6301(a)(1)(i) does not require him to register under SORNA.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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