J-A28038-19

                                   2019 PA Super 365


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC J. DAVIS                              :
                                               :
                       Appellant               :   No. 660 EDA 2018

            Appeal from the Judgment of Sentence January 29, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006801-2014


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                         FILED DECEMBER 23, 2019

       Appellant Eric J. Davis appeals from the Judgment of Sentence Entered

in the Court of Common Pleas of Philadelphia County on January 29, 2018,

following his convictions of Rape of a Child and related offenses. We affirm.

       The trial court set forth the relevant facts revealed during the jury trial

herein as follows:

             [Appellant] was found guilty of Rape of a Child, Involuntary
       Deviate Sexual Intercourse with a Child, Aggravated Indecent
       Assault of a Child, and Unlawful Contact with a Minor, following
       a jury trial on July 25, 2017.1 These charges stemmed from a
       May 21, 2014 phone call to the police which reported the sexual
       assault of the complainant, [N.W.], [1] age 12, by her cousin,
       [A]ppellant. When officers arrived, the complainant stated to the
       police that [Appellant] had digitally penetrated her vagina earlier
       that same day. At trial, the complainant testified that [A]ppellant
       had been touching her inappropriately since August 2013. Notes
____________________________________________


*Former Justice specially assigned to the Superior Court.
1 To protect the identity of the victim, we have replaced her name and the
proper names of her relatives with initials.
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     of Testimony ("N.T."), 07/19/2017, at 16, 29-31, 36, 38.
     Appellant was tried by a jury and convicted for the above
     offenses and was sentenced on January 29, 2018 to an aggregate
     term of 15 to 40 years of state confinement and 10 years
     reporting probation with Megan's Law Lifetime Registration.
     Sentencing Order, 01/29/18. This timely appeal followed.

                                        ***

                                  Evidence

           At trial, the [C]ommonwealth's case-in-chief consisted of
     the testimony of nine (9) witnesses: Complainant, [N.W], [J.D.
     IV], ([N.W’s] step father), [A.W.] ([N.W.’s] great aunt), [M.W.]
     ([N.W.’s] brother), Police Officer Ramon Rosado, Detective Erin
     Hinnov (Special Victim's Unit-Child Abuse Unit), Detective Michael
     Swan, Dr. Maria McColgan and Michele Kline (Forensics Interview
     Specialist, Children's Alliance). The errors claimed by [A]ppellant
     deal specifically with the testimony of the complainant and of Dr.
     Maria McColgan, who was called by the Commonwealth as an
     expert witness in the field of physical and sexual abuse of children,
     whose testimony included hearsay statements of the complainant
     contained within her medical records.

     Complainant's Trial Testimony

            The complainant testified as follows. Complainant was born
     on November 29, 2001 and was sixteen (16) years [old] at the
     time of trial. She testified that she spent time at her aunt's house
     at 2527 North 19th St. while her mother was at work. N.T.,
     07/20/17, at 17-18. The Appellant, who was the complainant's
     older cousin, also resided at this location with the complainant's
     aunt. Id. The complaint [sic] testified that the Appellant began
     inappropriately touching her in August of 2013. Id. at 16. She
     testified that on one occasion, the Appellant placed her on top of
     him “and started like rocking [her] back and forth. . . .” Id. at 23.
     Several times, the Appellant digitally raped her. Id. at 27-28.
     When the victim was 11 years old, [Appellant] licked and rubbed
     his penis on the complainant's vagina. Id. at 28-29. The
     complainant testified that, during one such encounter, the
     Appellant, referring to his penis, told her, “I'm just going to rub it
     on top.” Id. at 30.
            After these reoccurring incidents, the complainant asked the
     Appellant why he was doing this to her. Id. at 32. In response to

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      the complainant's question, the Appellant said he and the
      complainant were going to get married and have kids. Id. at 32.
      Another time, [Appellant] “took out his penis” and attempted to
      force the victim to touch it. Id. at 30.
            On May 21,2014, the complainant called the police after the
      Appellant again inserted his fingers into her vagina. Id. at 35-37.
      ____
      118 Pa.C.S.A. § 3121 §§ C, § 3123 §§ B, § 3125 §§ B, and § 6318

      §§Al, respectively.

Trial Court Opinion, filed 1/10/19, at 1-2, 3-4.

      On January 29, 2018, Appellant was sentenced to an aggregate prison

term of fifteen (15) years to forty (40) years to be followed by ten (10) years

of reporting probation. Appellant filed a post-sentence motion on February

11, 2018, and the trial court denied the same on February 13, 2018.

      Appellant filed a timely appeal on March 1, 2018. On March 5, 2018,

the trial court directed him to file a concise statement of the matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and, after receiving

his requested extension of time in which to do so, Appellant filed his concise

statement on May 30, 2018. Therein, Appellant set forth five points of error,

and he presents two of those claims in the Statement of the Questions

Involved portion of his appellate brief:

      A.    Was not the evidence insufficient for conviction of unlawful
      contact with a minor, insofar as [Appellant] was not in contact
      with the complainant for any prohibited purpose?

      B.    Did not the trial court err in denying [A]ppellant’s motion for
      a mistrial and for withdrawal of [A]ppellant’s trial counsel due to
      a newly discovered conflict of interest and actual prejudice to
      [Appellant]?

Brief for Appellant at 3.



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      Our standard and scope of review of challenges to the sufficiency of the

evidence is well-settled:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proof or proving every element of the
      crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test, the
      entire record must be evaluated and all the evidence actually
      received must be considered. Finally, the trier of fact while passing
      upon the credibility of witnesses and the weight of the evidence
      produced, is free to believe all, part or none of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).

      A person is guilty of Unlawful Contact with a Minor if he or she “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




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this Commonwealth:         (1) Any of the offenses enumerated in Chapter 31

(relating to sexual offenses).” 18 Pa. C.S.A. § 6318(a)(1).2

       For the crime of unlawful contact with a minor, “contacts” is defined as:

           “Direct or indirect contact or communication by any means,
       method or device, including contact or communication in person
       or through an agent or agency, through any print medium, the
       mails, a common carrier or communication common carrier, any
       electronic communication system and any telecommunications,
       wire, computer or radio communications device or system.

18 Pa. C.S.A. § 6318(c).

       While Appellant does not dispute that N.W.’s testimony established he

had engaged in sexual contact with her, he claims the evidence did not show

he unlawfully contacted her for the purpose of initiating those acts. Brief for

Appellant at 9. Appellant reasons that as cousins, he and N.W. communicated

on a regular basis, but the evidence did not show that he did such things like

call her over to him for the purpose of engaging in illegal sexual contact. Id.

at 9, 12. He stresses that “the crime of unlawful contact does not criminalize

all contact between a complainant and a perpetrator, but only the contact or

communications designed for the specific purpose of engaging in illegal

conduct.” Id. at 12. Appellant concludes that:

       There is no evidence that [A]ppellant so much as called the
       complainant over to him in order to touch him inappropriately.
       Instead, the complainant’s descriptions of the sexual conduct
       describes a series of incidents in which she was touched when they
____________________________________________


2 The enumerated offenses include, inter alia, Rape, Involuntary Deviate
Sexual Intercourse, and Aggravated Indecent Assault, see 18 Pa.C.S.A. §§
3121(c), 3123(b), and 3125(b), crimes of which Appellant was convicted.

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      already happened to be in close proximity to one another: They
      were together watching television or sitting next to each other
      while she did her homework. These are crimes of opportunity, not
      examples of appellant communicating with the complainant in
      order to be able to touch her sexually. . . . [T]he act of placing the
      complainant on top of him was part of the sexual contact itself,
      and not a communication engaged in for the purpose of engaging
      in that sexual contact. . . . Appellant’s act of moving her into
      position part of the sexual assault itself rather than a
      communication designed to facilitate it. There is simply no
      evidence of unlawful contact in this case, and [A]ppellant’s
      conviction must be discharged.

Id. at 12-13.

      Appellant’s argument is disingenuous, for it fails to recognize that the

crime of Unlawful Contact with a Minor focuses on communication, verbal or

non-verbal, and does not depend upon the timing of the communication.

Thus, it matters not whether the communication occurred at the outset of or

contemporaneously with the contact; once the communicative message is

relayed to a minor, the crime of unlawful contact is complete. See

Commonwealth v. Rose, 960 A.2d 149, 152-53 (Pa.Super. 2008), appeal

denied, 980 A.2d 110 (2009).        Thus, the statute is best understood as

“unlawful communication with a minor,” for by its plain terms, it prohibits

communication with a minor for the purpose of carrying out certain sex acts.

Id.

      When considering this claim, the trial court reasoned as follows:

            In Commonwealth v. Leatherby, our Superior Court
      found there was sufficient evidence that the defendant engaged
      in “the kind of communication contemplated by the statute,”
      because he had verbally and physically communicated with the
      complainant   “for    the    purposes    of   sexual   contact.”

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     Commonwealth v, Leatherby, 116 A.3d 73, 80 (Pa.Super.
     2015). There, the complainant testified that the defendant was in
     the bathroom and “told [her] to come here.” The defendant then
     “told [her] to give him a hug” and began rubbing her private
     areas, trying to pull up her skirt, and asked her if it felt good. Id.
            Similar to Leatherby, the evidence here is sufficient to
     warrant a conviction for Unlawful Contact with a Minor because
     the Appellant verbally and physically communicated with the
     complainant by placing her on top of him and communicating with
     her for the purpose of engaging in sexual contact. See
     Leatherby, 116 A.3d at 80. The [C]omplainant testified that on
     one occasion, the Appellant placed her on top of him “and started
     like rocking [her] back and forth....” N.T., 07/20/17, at 23. She
     also testified that the Appellant licked and rubbed his penis on her
     vagina. Id. at 28-29. Before doing this, the Appellant told her,
     "I'm just going to rub it on top." Id at 30.
            After these incidents, the [C]omplainant asked the Appellant
     why he was doing this to her to which he responded that he and
     the complainant were “going to get married and have kids.” Id. at
     32. Complainant testified that on another occasion, the
     [A]ppellant “took out his penis” and attempted to force the victim
     to touch it. Id. at 30. As enunciated by the court in Leatherby,
     these statements and physical contact by [A]ppellant, are proof
     that Appellant communicated to the [C]omplainant on several
     occasions, both physically and verbally, for the "purpose of sexual
     contact." Therefore, this Court committed no error as there was
     sufficient evidence to sustain a conviction for Unlawful Contact
     with a Minor pursuant to 18 Pa.C.S.A. § 6318.

Trial Court Opinion, filed 1/10/19, at 10-11. We agree.

     In viewing all of the evidence admitted at trial in the light most favorable

to the Commonwealth as verdict winner, we find that Appellant, by his own

admission in his appellate brief, communicated with the victim both verbally

and physically for the purpose of engaging in illegal sexual activity.

Appellant’s descriptions to her of what he was about to do with his private

area and why he was manipulating the victim’s private area were directly

related to his engaging in sexual contact with her, and these discussions

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demonstrate the kind of communication contemplated by the statute. See

Commonwealth v. Velez, 51 A.3d 260, 262 (Pa.Super. 2012) (rejecting the

defendant’s argument that he did not contact his victim by way of a

communicative message and that his touching of her alone was not the type

of contact contemplated by the statute where, despite the lack of evidence of

overt verbal communication between the defendant and his victim, it was

reasonable to infer that the defendant communicated with the victim, either

nonverbally or verbally, where the victim was discovered by her mother nude

from the waist down while the defendant performed oral sex on her).

      Based upon the foregoing, we find the evidence was sufficient for the

jury as the finder of fact to conclude that Appellant made statements and

engaged in actions for the purpose of engaging in unlawful contact with N.W.

Therefore, Appellant’s claim that there was insufficient evidence to convict him

of Unlawful Contact with a Minor is without merit.

      Appellant next argues the trial court erred in denying defense counsel’s

motion for mistrial or, in the alternative, her motion to withdraw as counsel

upon discovering on the third day of trial that the victim’s grandfather worked

in the file room of defense counsel’s office.       Aside from principles of law

pertaining to when a trial court must grant a defendant’s request for a new

trial in light of a conflict of interest, Appellant sets forth just one paragraph of

speculative argument in support of his position that such relief was necessary

herein:


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             In the instant case, [A]ppellant's trial counsel actively
      represented [A]ppellant while at the same time there existed a
      personal conflict within counsel's firm. The head of the file room
      in counsel's office during the pendency of this case in the trial
      court had a close personal relationship with the complainant: he
      is her grandfather. Because counsel was unaware of this fact until
      trial had already been underway for several days, she was unable
      to be removed prior to the start of trial. Because of the late
      discovery of the complainant's relationship with her office, counsel
      was unable to institute screening procedures within the office to
      protect [A]ppellant's personal information, legal strategies and
      other information in the physical file or the computer database. A
      mistrial should have been granted so that trial counsel
      unburdened by such conflict could review the evidence and move
      forward without the possibility of such interference.

Brief for Appellant at 17-18.

      An appellant cannot prevail on a conflict of interest claim without a

showing of actual prejudice. Commonwealth v. Collins, 598 Pa. 397, 420,

957 A.2d 237, 251 (2008). However, we presume prejudice if counsel was

burdened with an “actual”—rather than “potential”—conflict of interest. Id.

To show an actual conflict of interest, Appellant herein must establish: 1)

counsel “actively represented conflicting interests;” and 2) those conflicting

interests “adversely affected his lawyer's performance.” Id. See also

Commonwealth v. Hawkins, 567 Pa. 310, 320, 787 A.2d 292, 297 (2001)

(quoting Commonwealth v. Buehl, 508 A.2d 1167, 1175 (Pa. 1986)).

      In this regard, the trial court set forth the following:

             On the third day of trial, Appellant's defense counsel learned
      that the complainant's grandfather, [M.J.], was the current head
      of the file room in defense counsel's office.3 N.T., 07/21/17, at p.
      4. In an effort to “maintain transparency,” defense counsel
      immediately informed the [c]ourt of [M.J.’s] employment in her
      office. Id. at 4. Defense counsel advised this [c]ourt that she had

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     never spoken with [M.J.] about the case, and further explained to
     this [c]ourt that “It has in no way affected my preparation of the
     defense in this case.” Id. at 4. Upon inquiry from this [c]ourt,
     defense counsel stated that she had no knowledge that [M.J.] had
     spoken to anyone in her office about the case. Accordingly, the
     Court took no remedial measures and proceeded with the trial. Id.
     at 5.
            However, later that day, [A]ppellant's counsel moved for a
     mistrial or in the alternative, to withdraw as counsel due to a
     conflict of interest, based upon the employment of complainant's
     grandfather at her office. Id. at 70-72. She further advised this
     [c]ourt that, as head of the file room, [M.J.] would have had
     access to [Appellant’s] file. Defense counsel further advised this
     [c]ourt that she had been working on [Appellant’s] case for three
     (3) years and in [sic] during that time no one ha[d] spoken or
     advised her that the complainant's grandfather worked in their file
     room. Defense counsel then reiterated to this [c]ourt that this had
     no bearing on her preparation nor presentation of [Appellant’s]
     case.
            This [c]ourt denied defense counsel's motion for mistrial and
     to withdraw as counsel. Id. at 72-77. During argument on this
     motion, this [c]ourt cited two cases to support its denial of both
     the request for a mistrial and/or withdraw of counsel: (1)
     Commonwealth v. Buehl, 508 A.2d 1167 (Pa. 1986) and (2)
     Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008).
            In Commonwealth v. Beuhel [sic], defense counsel had
     previously represented a Commonwealth witness before the
     defendant retained him. 508 A.2d 1167, 1175 (Pa. 1986). Beuhl
     [sic] noted that while “prejudice is presumed when counsel is
     burdened by an actual conflict of interest, this is so only if the
     defendant demonstrates that counsel ‘actively represented
     conflicting interests’ and ‘that an actual conflict of interest
     adversely affected his lawyer's performance.’” Id. (quoting
     Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). There, our
     Supreme Court held there was no actual conflict and the
     defendant therefore was not prejudiced by defense counsel's prior
     representation of a Commonwealth witness because the
     representation had terminated by the time the defendant retained
     him. Id.
            Similarly, in Commonwealth v. Collins, our Supreme
     Court refused to find a conflict of interest. 957 A.2d 237, 250-51
     (Pa. 2008). In Collins, the defendant was convicted of the first -
     degree murder of Andre Graves. Id. at 243. The defendant alleged
     that his trial counsel had a conflict of interest because he

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J-A28038-19


      represented Aaron Montague, a man whose car was allegedly
      stolen by Andre Graves before he was murdered. Id. at 250.
      According to the defendant, this presented a conflict because it
      put defense counsel “on notice” that Montague “had clear motive
      for murdering Mr. Graves.” Id.
             The Court in Collins stated that in order to show a conflict
      of interest, “the appellant must demonstrate that: (1) counsel
      ‘actively represented conflicting interests’; and (2) those
      conflicting     interests    'adversely   affected    his     lawyer's
      performance.’” Id. at 251 (quoting Buehl, 508 A.2d at 1175).
      There, since at the time defense counsel discovered this fact he
      no longer represented Montague, nor was he involved in the case,
      Collins held that the PCRA court did not err in failing to find an
      actual conflict of interest because there was “no basis upon which
      to presume that prejudice actually resulted from [defense
      counsel's] prior representation of Montague.” Id. at 252.
             Here, defense counsel did not discover the fact that the
      complaining witness's grandfather was employed in her office until
      the third day of trial. N.T., 07/21/17, p. 4. Again, defense counsel
      did not have any communications with [M.J.] involving this case.
      Id. at 73. Furthermore, no one in her office had spoken to her
      about [M.J.]. Id. at 73-74. As such, defense counsel did not know
      of [M.J.’s] employment while preparing the case and it therefore
      had no influence on her preparation or presentation of this case,
      Id. at 74-75. Defense counsel therefore did not “actively
      represent conflicting interests,” nor did “those conflicting interests
      ‘adversely affect [the] lawyer's performance.’
             Moreover, there was no evidence that complainant's
      grandfather had viewed [A]ppellant's file nor that any prejudice
      had resulted from his employment at appellant's counsel's office.
      Accordingly, pursuant to our appellate rulings in Buehl and
      Collins, this [c]ourt properly denied [A]ppellant's Motion for
      Mistrial or in the alternative to Withdraw as Counsel.
      _____

      3Appellant was represented at trial by Micah A. Shender, Esquire,
      who worked as an Assistant Defender with the Defender's
      Association of Philadelphia.

Trial Court Opinion, filed 1/10/19, at 12-14.

      In light of the foregoing, and upon our review of the trial transcripts, we

find Appellant has failed to allege, must less show, he was actually prejudiced


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by trial counsel’s performance due to the victim’s grandfather’s employment

in the filing department of trial counsel’s firm. Accordingly, we find the trial

court acted within its discretion in denying Appellant’s motion for a mistrial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/19




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