J-S19037-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
RAYFEL GORDON,                             :
                                           :
                    Appellant              :   No. 885 EDA 2018

             Appeal from the Judgment of Sentence March 12, 2018
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010542-2016

BEFORE:          LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 12, 2019

        Rayfel Gordon (Appellant) appeals from the judgment of sentence

imposed following his convictions for indecent assault and unlawful contact

with a minor. We affirm.

        In October 2016, a criminal complaint was filed against Appellant,

charging him with, inter alia, the abovementioned crimes.       These charges

arose from an August 2016 incident involving his minor daughter, N.W.

Eventually, Appellant proceeded to a non-jury trial. We begin with the trial

court’s summary of the facts presented at Appellant’s trial.

              [N.W.] testified at trial that she did not meet [Appellant]
        until 2015, [shortly after learning Appellant was her father,]
        when she was [around fifteen1] years old. After getting to know
        [Appellant], she would sometimes sleep at his house. She and
        [Appellant] would sleep in the same bed. N.W. testified that


1
    N.W. testified she was born in December 2000. N.T., 12/8/2017, at 15.

*Retired Senior Judge assigned to the Superior Court.
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      around August 1 or 2, 2016, while [Appellant] was giving her a
      back massage as she laid on her stomach [and Appellant sat on
      top of N.W. on the] bed, she noticed that [Appellant] had an
      erection. She could feel his erection just below her buttocks.

             When N.W. asked [Appellant] to get off of her, she
      testified that it took “a little while, so [she] shoved [Appellant]
      just a bit.” After he got up, [Appellant] told her he had been
      sexually attracted to her for months. [Appellant] then asked
      N.W. if they could have sex. After she said “no,” [Appellant]
      asked if he could “dry hump” her. N.W. again replied “no.”
      [Appellant] left the bedroom, but later returned and apologized,
      saying that it would never happen again.

            N.W. was scared to tell her mother what had happened,
      but told her best friend, [D.H.], the next day. [D.H.] testified
      that N.W. told her that while [Appellant] gave her a back
      massage, he became aroused, and then asked N.W. if they could
      have sex.

             N.W. testified that to make everything seem normal, she
      saw [Appellant] on several occasions after the incident. About a
      month after the incident, N.W. decided she would tell her mother
      what had happened with [Appellant]. After N.W. informed
      [Appellant] she was going to tell her mother, [Appellant] texted
      her, “So you want me in jail?” [Appellant] also wished to move
      on from the incident, texting her, “can we from this point, put
      behind us for real and start new?” N.W. later told her mother
      about the incident and her mother contacted the police. N.W.
      told the police what had happened with [Appellant] and a
      forensic interview was conducted by the Philadelphia Children’s
      Alliance.

Trial Court Opinion, 6/19/2018, at 1-2 (citations omitted).

      Following trial, Appellant was convicted of the aforementioned crimes,

and on March 12, 2018, the trial court sentenced Appellant to 11 to 23

months of incarceration “with immediate parole to house arrest, followed by

a consecutive term of five years of sex offender probation.”         Id. at 2.

Appellant did not file a post-sentence motion.       This timely-filed appeal

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followed.2 On appeal, Appellant challenges the sufficiency of the evidence to

sustain his convictions. Appellant’s Brief at 3. We review Appellant’s claims

mindful of the following.

             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
      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 evidence actually received must be considered. Finally, the
      [finder] 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.

            Further, in viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

      We begin with Appellant’s indecent assault conviction.         A person

commits the crime of indecent assault when




2
 Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.

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      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 person does
      so without the complainant’s consent.

18 Pa.C.S. § 3126(a)(1).

      The separate crime of indecent assault was established because
      of a concern for the outrage, disgust, and shame engendered in
      the victim rather than because of physical injury to the victim.
      Due to the nature of the offenses sought to be proscribed by the
      indecent assault statute, and the range of conduct proscribed,
      the statutory language does not and could not specify each
      prohibited act.

Commonwealth v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012)

(citation omitted).   Furthermore, it is well-settled that “[a] person is not

guilty of an offense unless his liability is based on conduct which includes a

voluntary act or the omission to perform an act of which he is physically

capable.” 18 Pa.C.S. § 301(a).

      Appellant avers the evidence was insufficient to sustain his conviction

because the Commonwealth failed to prove the contact was “voluntary.”

Appellant’s Brief at 8 (“While giving a totally consensual back rub,

[Appellant] experienced an unintentional and involuntary bodily response.”).

Specifically, Appellant contends that

      the supposed indecent contact, necessary for the indecent
      assault conviction, occurred when [Appellant] got an erection
      while sitting on [N.W.’s] legs and rubbing her back. However,
      the back rub itself was unquestionably consensual[, as N.W.]
      testified clearly that she requested it from [Appellant]. And the
      erection was not a voluntary act. There was no voluntary act of



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     unconsented indecent contact here to sustain the conviction for
     indecent assault.

Id. at 11 (footnote omitted).

     The trial court responded to Appellant’s sufficiency claim as follows.

            This claim is without merit as the evidence was more than
     sufficient to support the conviction. Although [N.W.] may have
     consented to [Appellant] sitting on her for a massage, she did
     not consent to him touching her, just below the buttock, with his
     erect penis, for the purpose of arousing his sexual desire.
     [Appellant’s] own words immediately after the massage
     requesting to have sex with [N.W.]; or, in the alternative, to
     “dry hump” her[,] shows his intent and state of mind when his
     erect penis was pressing on her body. [Appellant’s] intent and
     state of mind is further evident by him telling [N.W.]
     immediately after that he had been attracted to her “for
     months.” Finally, [N.W.] testified that she requested [Appellant]
     to get off of her after she felt his erect penis pressed against
     her, but [Appellant] continued to sit on her. [Appellant] only got
     up after [N.W.] shoved him. The fact that [Appellant] continued
     to sit on [N.W.] with his erect penis pressed against her
     contradicts his claim that the indecent contact was unintentional
     or involuntary.

Trial Court Opinion, 6/19/2018, 4.

     Reviewing the evidence in light most favorable to the verdict winner,

we conclude the trial court’s findings and conclusions are supported by the

record.   Without addressing whether Appellant’s erection constituted a

“voluntary act” within the meaning of the statute, we find the evidence

presented with respect to Appellant’s actions subsequent to the erection

firmly established that he voluntary engaged in behavior that constituted

indecent assault.




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      Specifically, Appellant continued to massage N.W. despite his penis

becoming erect.     N.T., 12/8/2017, at 24.      N.W. testified that she felt

Appellant’s erect penis touch her leg, and despite N.W.’s request that he get

off of her, Appellant continued to sit on N.W. until she pushed him away.

Id. at 24, 75. The foregoing, coupled with Appellant’s own words to N.W.

that he had been “sexually attracted” to her for months and wished to have

sex with her or in the alternative, wanted to “dry hump” her, established

that his unlawful actions were done for the purpose of arousing his sexual

desire. Id. at 25. Thus, this claim fails.

      We now turn to Appellant’s conviction for unlawful contact with a

minor. The statute provides, in relevant part, as follows. “A person commits

an offense if he is intentionally in contact with 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[.]” 18 Pa.C.S. § 6318(a). “Contacts,” for purposes of this

crime, has been 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. § 6318(c).    Essentially, as this Court has explained, “[unlawful

contact with a minor] is best understood as unlawful communication with a

minor.” Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015).

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      The crux of Appellant’s argument is that a defendant cannot be

convicted of unlawful contact of a minor when the contact is, as here, not

initiated by the defendant. Appellant’s Brief at 16.

      Here, [Appellant] did not initiate the communications with [N.W.
      N.W.] was a guest in [Appellant’s] house, and she asked him for
      a back [massage]. In the course of that back [massage] and its
      aftermath, [Appellant] confessed his feelings to [N.W.] and then
      asked for sex. He did not initiate the conversation, and he
      certainly did not reach out or initiate the encounter for the
      purpose of sex with [N.W.] - she was a guest in his house and
      she began the conversation by asking for the back [massage].

Id. at 14.

      The trial court found that the evidence was sufficient to sustain

Appellant’s conviction because, inter alia, “the evidence plainly shows

[Appellant] communicated with the underage victim for the purposes of

sexual contact[] … by asking [N.W.] to have sex with him or to [allow him

to] ‘dry hump’ her.” Trial Court Opinion, 6/19/2018, 4. We agree with the

trial court’s conclusion. In doing so, we find Appellant’s argument that his

conviction for unlawful contact with a minor cannot stand because he did not

initiate the contact or communication to be without merit.

      In finding as such, we note that the statute clearly sets forth the

elements of unlawful contact with a minor, none of which requires the

perpetrator to be the individual to initiate contact with the minor prior to

engaging in unlawful communication.        See Commonwealth v. Morgan,

913 A.2d 906, 910 (Pa. Super. 2006) (“[O]nce Appellant contacts or

communicates with the minor for the purpose of engaging in the

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prohibited activity, the crime of unlawful contact with a minor has been

completed.”) (emphasis in the original).      Indeed, this Court has found

sufficient evidence to sustain a conviction of unlawful contact with a minor

when the defendant did not initiate contact with the victim.               See

Leatherby, 116 A.3d at 81 (finding “the jury could infer that, by

intentionally remaining silent when [the victim] knocked on the door, thus

causing [the victim] to walk in on [Leatherby] while he was naked,

Leatherby engaged in nonverbal communication with [the victim] for the

purposes of sexual contact. As such, there was sufficient evidence to support

the conviction of unlawful contact[ with a minor]”).

      Moreover, even if the massage was consensual and initiated by N.W.,

it was Appellant who intentionally initiated direct contact with N.W. for the

purpose of engaging in a prohibited activity, when he propositioned N.W. to

have sex with him. Thus, it is of no moment that their initial interaction was

consensual and lawful. In light of the foregoing, we find Appellant’s verbal

communication by way of requesting N.W. engage in sex sufficient to

establish that Appellant engaged in unlawful contact with N.W., a minor.

      Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that Appellant’s issues warrant relief from this

Court.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 6/12/19




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