J-S22023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

 TYJAH COKER

                             Appellant               No. 3348 EDA 2016


     Appeal from the Judgment of Sentence entered September 12, 2016
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0009563-2014


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                                 Filed July 20, 2018

       Appellant, Tyjah Coker, appeals from the judgment of sentence entered

on September 12, 2016 in the Court of Common Pleas of Philadelphia County

following his convictions of attempted kidnapping and unlawful restraint of a

minor, 18 Pa.C.S.A. §§ 2901(a.1) and 2902(b)(1), respectively. Appellant

asserts the evidence was insufficient to support either conviction. We disagree

and, therefore, affirm.

       Following a waiver trial held on May 16, 2016, the trial court aptly

summarized its findings of fact as follows:


____________________________________________


* Retired Senior Judge assigned to the Superior Court.
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       On June 18, 2014, 7-year-old complainant S.E. was playing ball
       with a milk crate outside her home [] in Philadelphia,
       Pennsylvania. Complainant was accompanied by her three minor
       siblings and her mother. At that time, [Appellant 1] grabbed
       complainant and began dragging her down the street by her left
       arm. The complainant’s mother [] grabbed the wooden milk crate
       and began beating [Appellant] in the head in an effort to free her
       daughter. She hit him so many times that she lost count, but
       continued beating him even as blood began coming out of [his]
       head. Meanwhile, the complainant continued to scream, “Mom,
       mom, help me.” Although testimony at trial was somewhat
       inconsistent as to the exact distance that [Appellant] had the
       complainant, it was clear that he made it at least to the end of the
       block before she was released. After finally freeing her daughter,
       [complainant’s mother] continued to chase [Appellant] until he
       ran into a nearby store at 16th and Cecil B. Moore Streets. During
       that time, she also called 911, and the cops arrived almost
       immediately. After dropping the complainant, [Appellant] was
       chased by other males in the neighborhood, including the
       complainant’s father, who proceeded to beat him up before he was
       apprehended by police. The cops arrived at the scene and
       arrested [Appellant] at the store. The complainant was taken to
       the hospital, but only sustained scrapes and bruises.

Trial Court Opinion, 12/22/17, at 2.

       At the conclusion of the waiver trial, the court found Appellant guilty of,

inter alia, attempted kidnapping of a minor and unlawful restraint of a minor.

The trial court imposed an aggregate sentence of four to ten years in state

prison, followed by six years’ probation.        Appellant filed a post-sentence

motion that was denied on September 27, 2016. This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant asks us to consider two issues in this appeal:


____________________________________________


1Appellant, whose date of birth is January 15, 1982, was thirty-two years of
age on June 18, 2014.

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      A. Was not the evidence insufficient as a matter of law to sustain
         [Appellant’s] conviction for attempted kidnapping of a minor
         where [Appellant’s] conduct did not demonstrate the requisite
         intent, and did not the trial court violate his due process right
         to have every element of every charge against him proven
         beyond a reasonable doubt by inferring such intent where no
         evidence existed?

      B. Was not [Appellant] erroneously convicted of unlawful restraint
         of a minor where there was insufficient evidence that he
         exposed the complainant to actual risk of serious bodily injury?

Appellant’s Brief at 3.

      Our standard of review from a challenge to sufficiency of evidence is

well settled.

      When a challenge to the sufficiency of the evidence is made, our
      task is to determine whether the evidence and all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the Commonwealth as the verdict winner, were
      sufficient to enable the fact-finder to find every element of the
      crime charged beyond a reasonable doubt. In applying the above
      test, we may not weigh the evidence and substitute our judgment
      for the fact-finder. Moreover, we must defer to the credibility
      determinations of the trial court, as these are within the sole
      province of the finder of fact. The trier of fact, while passing upon
      the credibility of witnesses, is free to believe all, part, or none of
      the evidence.

In re T.G., 836 A.2d 1003, 1005 (Pa. Super. 2003) (citations omitted).

      Appellant first challenges the sufficiency of evidence supporting his

conviction of kidnapping. 18 Pa.C.S.A. § 2901 provides, in relevant part:

      (a.1) Kidnapping of a minor.--A person is guilty of kidnapping
      of a minor if he unlawfully removes a person under 18 years of
      age a substantial distance under the circumstances from the place
      where he is found, or if he unlawfully confines a person under 18
      years of age for a substantial period in a place of isolation, with
      any of the following intentions:

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          (1) To hold for ransom or reward, or as a shield or hostage.
          (2) To facilitate commission of any felony or flight
          thereafter.
          (3) To inflict bodily injury on or to terrorize the victim or
          another.
          (4) To interfere with the performance by public officials of
          any governmental or political function.

18 Pa.C.S.A. § 2901(a.1) (emphasis added).2

       Appellant argues the evidence was insufficient to convict him of

kidnapping the minor, S.E., because his conduct did not demonstrate requisite

intent. He claims the trial court inferred his intent and, as a result, violated

his due process rights to have each element of kidnapping proven beyond a

reasonable doubt. We cannot agree.

       As this Court explained in Commonwealth v. Eckrote, 12 A.3d 383

(Pa. Super. 2010):

       “The kidnapping statute is not designed to criminalize every sort
       of incidental transportation or detention which may take place
       during the commission of another crime.” Commonwealth v.
       Mitchell, 883 A.2d 1096, 1109 (Pa. Super. 2005), appeal denied,
       587 Pa. 688, 897 A.2d 454 (2006). “Such trivial movements of
       the victim generally do not substantially increase the risk of harm
       to the victim.” Id. Therefore, to successfully prosecute the crime
       of kidnapping under this section, the Commonwealth must
       establish [the defendant] kidnapped his victim with the intent to
       facilitate the commission of a felony. Commonwealth v. King,
       786 A.2d 993, 994 (Pa. Super. 2001), appeal denied, 571 Pa. 704,
       812 A.2d 1228 (2002).


____________________________________________


2 The parties stipulated that S.E.’s date of birth is November 19, 2006. See
Notes of Testimony, 5/16/16, at 96. Therefore, she was seven years old on
June 18, 2014, when the underlying events occurred.


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Id. at 388 (emphasis in original). With respect to intent:

      “A person acts intentionally with respect to a material element of
      an offense when . . . it is his conscious object to engage in conduct
      of that nature or to cause such a result.”               18 Pa.C.S.
      § 302(b)(1)(i). “As intent is a subjective frame of mind, it is of
      necessity difficult of direct proof.”           Commonwealth v.
      Matthews, 870 A.2d 924, 929 (Pa. 2005) (citations omitted).
      “Intent can be proven by direct or circumstantial evidence; it may
      be inferred from acts or conduct or from the attendant
      circumstances.” Id.

Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (brackets

omitted). Importantly, “entirely circumstantial evidence is sufficient so long

as the combination of the evidence links the accused to the crime beyond a

reasonable doubt.” Eckrote, 12 A.3d at 386 (citations omitted). “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.” Id. (citation omitted).

Finally, “[t]he factfinder is free to believe all, part, or none of the evidence

presented at trial.” Id. (citation omitted).

      Here, the evidence established that Appellant, a stranger to seven-year-

old S.E., grabbed her by the arm from in front of her home and dragged her

down the street as she called out to her mother for help.         S.E.’s mother

responded by beating Appellant in the head with a wooden milk crate in an

attempt to free her daughter from Appellant’s grasp. As the trial court noted,

the testimony relating to the distance Appellant dragged S.E. was not clear.

However, it is clear that he removed S.E. from the front of her home and


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dragged her a distance that would likely be more than substantial to a seven-

year-old child.    As the trial court stated, “[S]he was dragged, kicking and

screaming, down the street to at least the end of the complainant’s block. []

The distance here was enough to remove complainant from the safety of her

mother and her home.” Trial Court Opinion, 12/22/17, at 5 (unnumbered).3

In the course of doing so, Appellant caused S.E. to sustain scrapes to her legs

and feet. Id. at 2 (unnumbered).

       Viewing the evidence—including circumstantial evidence—as well as all

reasonable inferences therefrom in the light most favorable to the

Commonwealth, we conclude the evidence was sufficient to enable the trial

judge, as factfinder, to find that Appellant possessed the requisite intent to

kidnap S.E. and that the Commonwealth proved every element of kidnapping

a minor beyond a reasonable doubt. Appellant’s first issue fails.




____________________________________________


3 Although Appellant does not assert the Commonwealth failed to prove he
moved S.E. a “substantial distance,” we find that element of the kidnapping
definition was satisfied here. When determining whether a victim was moved
a substantial distance, “this Court has held that the definition cannot be
confined to a given linear distance.” In re T.G., 836 A.2d at 1006 (citing
Commonwealth v. Hughes, 399 A.2d 693, 696 (Pa. Super. 1979) (en
banc)). “[A] sensible interpretation is one that views a substantial distance
as one that isolates the victim and exposes him or her to increased risk of
harm.” Id. (citing Commonwealth v. Campbell, 509 A.2d 394, 397 (Pa.
Super. 1986)).



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      In his second issue, Appellant argues the evidence was insufficient to

support his conviction of unlawful restraint of a minor. 18 Pa.C.S.A. § 2902

provides, in relevant part:

      (b) Unlawful restraint of a minor where offender is not
      victim’s parent.--If the victim is a person under 18 years of age,
      a person who is not the victim’s parent commits a felony of the
      second degree if he knowingly:

           (1) restrains another unlawfully in circumstances exposing
           him to risk of serious bodily injury[.]

18 Pa.C.S.A. § 2902(b)(1).

      Appellant contends the Commonwealth failed to prove he exposed S.E.

to “serious bodily injury.”   “Serious bodily injury” is “[b]odily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2301. Appellant argues that the evidence

showed he “pulled the girl down the sidewalk the distance of a few house

lengths.    He carried no weapons, he made no threats and he never hit or

kicked or otherwise attempted to strike the complainant.” Appellant’s Brief at

15.   Appellant then cites several decisions of this Court in an effort to

demonstrate that S.E. was never exposed to serious bodily injury. Id. at 15-

18. However, none of the cited cases is factually similar to the case before

us, where a 32-year-old man grabbed a 7-year-old girl and dragged her down

the street.    Moreover, as the Commonwealth recognizes, “The offense of

unlawful restraint requires the risk of serious bodily injury, not the infliction


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of actual bodily injury.    Commonwealth Brief at 10 (citing 18 Pa.C.S.A.

§ 2902(b)(1)). “[T]he mere fact that the victim only sustained minor injuries

and did not sustain ‘serious bodily injury’ does not ipso facto establish that

appellant's actions did not place others in danger of such injury.”

Commonwealth v. Lawton, 414 A.2d 658, 662 (Pa. Super. 1979).

As the trial court observed:

      [A]t trial, the complainant’s mother testified that while she was
      chasing [Appellant] down the street, she was hitting him very hard
      with the wooden milk crate, to the point where [Appellant] began
      bleeding from the head. Meanwhile, [Appellant] is still dragging
      the 7-year-old complainant and restraining her from escape,
      putting the child at risk for serious bodily injury on account of the
      chaos that is occurring between her mother and her captor.
      Therefore, based on the evidence presented at trial, there is
      sufficient evidence to support [Appellant’s] conviction for Unlawful
      Restraint.

Trial Court Opinion, 12/22/17, at 6 (unnumbered).

      Once again, employing the applicable standard of review, viewing the

evidence and all reasonable inferences therefrom in the light most favorable

to the Commonwealth as verdict winner, we find the evidence was sufficient

to enable the trial judge, as factfinder, to find every element of unlawful

restraint beyond a reasonable doubt. Consequently, Appellant is not entitled

to relief on his second issue.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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