J-S35045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SERGIO SANCHEZ,

                            Appellant                  No. 1567 EDA 2014


             Appeal from the Judgment of Sentence March 28, 2013
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0008117-2010


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 17, 2015

        Appellant, Sergio Sanchez, appeals from the judgment of sentence

imposed following his bench conviction of unlawful contact with a minor,

indecent assault, corruption of a minor, terroristic threats, and simple

assault.1 Appellant challenges the sufficiency of the evidence to support his

conviction. We affirm.

        The trial court aptly summarized the facts of this case as follows:

              Between the ages of [ten] and [twelve], G.M. lived with
        her mother at 5350 Oakland Street in the City and County of
        Philadelphia. Appellant was a family friend who would often


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6318, 3126, 6301, 2706, and 2701, respectively.
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       work as a handyman at their home.[2] G.M. viewed Appellant as
       an uncle and would often give him hugs and kisses on the cheek.
       On one occasion, when G.M. was [ten] years old, Appellant was
       performing a job and told G.M. to get him some tools. When she
       went to retrieve the tools, Appellant pulled her into the corner
       and kissed her on the lips. G.M. did not say anything because
       she, “didn’t think it meant anything.” [(N.T. Trial, 12/04/12, at
       8).] On a second occasion, while G.M. was [eleven] years old
       and home alone, Appellant was working at the house. Appellant
       was working in the basement and at one point came upstairs
       and told G.M. to take her shirt off, which she did not do.
       Appellant told her not to tell anyone or someone in her family
       would get hurt.      On a third occasion, while G.M. was still
       [eleven] years old, Appellant was again working in the family’s
       basement when Appellant came into G.M.’s room. Appellant
       forced G.M. on top of her bed and laid on top of her, kissing her
       neck and chest. Appellant also touched her vagina over her
       clothes. G.M. pushed Appellant off of her and shut the door on
       him. G.M. did not tell anyone about the incident because she
       was trying to protect her family. On a fourth occasion, Appellant
       was working on the family’s driveway while G.M. was inside.
       Appellant requested, through an open window that G.M. get him
       some juice. G.M. went to the basement and was going to exit
       through a door that led to the driveway, but Appellant met her in
       the basement and grabbed her breast over her shirt.

             Some time after the fourth incident, G.M.’s aunt [,S.G.,]
       was having a discussion about puberty with [her] and G.M. told
       her aunt what had occurred because it was eating at her and
       she, “couldn’t take it anymore.” [(Id. at 11).] G.M’s aunt told
       her mother, [(Mother)]. [Mother] testified that when she asked
       G.M. about the incidents, G.M was afraid and thought she would
       be in trouble. G.M. also seemed sad and was reluctant to
       discuss the incidents. After discussing the matter with G.M.,
       [Mother] called a children’s hotline. The hotline told her to
       report the matter to the police, which she did. Officer Sheri Day
       took G.M.’s statement and observed that she was upset and
       nervous during the interview. [Mother] was also present and
       was also upset[.]
____________________________________________


2
 Appellant’s date of birth is September 21, 1968. (See Trial Court Opinion,
11/14/14, at 2).



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             After speaking to G.M., [Mother] ran into Appellant at a
       property she owned. Appellant attempted to talk to her and said
       that he wanted to fix this. [Mother] refused to talk to Appellant.
       Later, Appellant came to [Mother’s] home and said that he
       wanted to fix the situation and that it “doesn’t have to go that
       far.” ([Id.]at 37).

             Conversely, Appellant testified that he had known [Mother]
       and G.M. for ten years and they were close family friends.
       Appellant testified that he would hug and kiss G.M. like an uncle
       but that he never touched her inappropriately. He stated that he
       dated G.M.’s aunt, [S.G.], for three to four months and had
       given her money on several occasions. He testified that on the
       last occasion she had asked for money, he refused and she
       became upset. Appellant implied that there was a motive to
       coerce G.M. to fabricate the sexual encounters for revenge.
       [The trial] court found this argument without merit and not
       worthy of belief.[3]

(Trial Ct. Op., at 2-4) (some record citations omitted).

       On December 4, 2012, following a bench trial, the court found

Appellant guilty of the above-stated offenses.     It deferred sentencing for

preparation of pre-sentence investigation and mental health reports.        On

March 28, 2013, the court sentenced Appellant to an aggregate term of not

less than one day nor more than twenty-three months’ incarceration, with

immediate parole to house arrest for six months, followed by five years’

probation. Appellant did not file post-sentence motions or a direct appeal.

       On April 22, 2014, Appellant filed a counseled petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking

____________________________________________


3
  The court found G.M.’s testimony “very compelling and completely
believable.” (Trial Ct. Op., at 5).



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reinstatement of his post-sentence and direct appeal rights nunc pro tunc.

The PCRA court granted the petition on April 29, 2014. This timely appeal

followed.4

       Appellant raises five issues for our review:

       I.    Whether the evidence submitted at trial was sufficient to
       convict [Appellant] of [i]ndecent [a]ssault where the evidence
       presented suggested he did not have the required mens rea to
       commit the crime?

       II.   Whether the evidence submitted at trial was sufficient to
       convict [Appellant] of [u]nlawful [c]ontact with a [m]inor, where
       the evidence presented did not rise to the level necessary to
       make out the crime?

       III. Whether the evidence submitted at trial was sufficient to
       convict [Appellant] of [c]orruption of the [m]orals of a [m]inor
       where no evidence was presented that he corrupted the morals
       of a minor as contemplated in the statute he was convicted
       under?

       IV.   Whether the evidence submitted at trial was sufficient to
       convict [Appellant] of [t]erroristic [t]hreats where the evidence
       presented at trial showed the alleged threats to [be] unspecific,
       not involve any weapon or direct threat, and be in the heat of
       the moment?

       V.    Whether the evidence submitted at trial was sufficient to
       convict [Appellant] of [s]imple [a]ssault where there is no
       evidence of any injuries, or that the [c]omplainant was struck in
       any way?
____________________________________________


4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 8, 2014. See Pa.R.A.P.
1925(b). We note that, although the document is titled “Preliminary Concise
Statement of Matters Complained of on Appeal,” Appellant did not file a
supplemental statement. (Rule 1925(b) Statement, 7/08/14, at 1). The
court filed an opinion on November 14, 2014. See Pa.R.A.P. 1925(a).



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(Appellant’s Brief, at 3).

      All of Appellant’s issues challenge the sufficiency of the evidence

supporting his conviction. Our standard of review 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 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)

(citations omitted).

      Preliminarily,   we    must   determine   whether   Appellant   properly

preserved his issues for our review.        Pennsylvania Rule of Appellate


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Procedure 1925(b) provides, in pertinent part: “Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”         Pa.R.A.P. 1925(b)(4)(vii); see also

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived”).           “In order to

preserve a challenge to the sufficiency of the evidence on appeal, the

appellant’s Rule 1925(b) statement must state with specificity the element

or elements of the crime upon which the appellant alleges the evidence was

insufficient.”   Commonwealth v. Veon, 109 A.3d 754, 775 (Pa. Super.

2015) (citations omitted).

      In the instant case, after review of the record, we conclude that

Appellant has waived his first, second, and fourth issues on appeal, in which

he challenges his convictions for indecent assault, unlawful contact with a

minor, and terroristic threats, respectively. (See Appellant’s Brief, at 3). In

his Rule 1925(b) statement, Appellant generically and vaguely alleges with

respect to unlawful contact with a minor and terroristic threats: “the

evidence was insufficient where the complaining witness[’]s testimony was

inconsistent, and the complaining witness[’]s behavior is inconsistent with

being a victim of such a crime.” (See Rule 1925(b) statement, 7/08/14, at

1-2 ¶¶ 1, 4).     Appellant failed to identify any specific element of these

crimes that lacked sufficient evidence. With regard to indecent assault, he

repeats this same general allegation and adds: “Further, there is no

evidence that the complaining witness ever came into contact with, or even

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saw, any seminal fluid, urine or feces.” (Id. at 2 ¶ 2). However, Appellant

did not carry these allegations forward to his appellate brief.   Instead, for

each offense, he challenges the sufficiency of the evidence on different

bases.5 Because Appellant failed to include the claims discussed in his brief

in his Rule 1925(b) statement, he waived them for purposes of appeal. See

Pa.R.A.P. 1925(b)(4)(vii); Lord, supra at 309; Veon, supra at 775.

       We next address the issues Appellant preserved for review in his Rule

1925(b) statement, issues three and five.        (See Rule 1925(b) statement,

7/08/14, at 2 ¶¶ 3, 5).

       In Appellant’s third issue, he claims that the evidence was insufficient

to support a corruption of minors conviction “where there is no indication

that [he] did anything to corrupt the morals of a minor as indicated in the

statute.” (Appellant’s Brief, at 14). He argues that the conviction cannot be

sustained because there is no evidence that he encouraged the victim to

commit any crime. (See id. at 15; Rule 1925(b) statement, 7/08/14, at 2 ¶

3). This issue lacks merit.
____________________________________________


5
   Specifically, in his brief, with respect to the indecent assault conviction
(issue one in the brief), Appellant argues that the Commonwealth failed to
prove that he had the requisite mes rea to commit the crime. (See
Appellant’s Brief, at 10-12). With regard to the unlawful contact with a
minor conviction (issue two), he asserts that the evidence did not show that
he made multiple sexually explicit comments to the victim; at most he made
one. (See id. at 12-13). Finally, regarding the terroristic threats offense
(issue four), Appellant contends that his alleged threats seemed to be “spur
of the moment,” and there was no evidence that he had any weapon or
intended to terrorize the victim. (Id. at 16).



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       The offense of corruption of minors is defined in relevant part as

follows:

       (a) Offense defined.—

       (1) (i) Except as provided in subparagraph (ii), 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, or
       who aids, abets, entices or encourages any such minor in the
       commission of any crime, or who knowingly assists or
       encourages such minor in violating his or her parole or any order
       of court, commits a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i) (emphases added).6

       In Commonwealth v. Slocum, 86 A.3d 272 (Pa. Super. 2014), this

Court addressed a sufficiency challenge similar to the claim advanced by

Appellant.     In Slocum, the appellant “maintain[ed] that there was no

evidence that [he] attempted to encourage the child to commit any crime, to

violate his probation or parole or commit any act which the statute was

designed to prohibit.” Slocum, supra at 277 (record citation and internal

quotation marks omitted).             This Court rejected Slocum’s argument,

explaining:

              . . . [A] conviction for corrupting morals will be
              upheld where the conduct of the defendant tends to
              corrupt the minor’s morals. The statute speaks to
____________________________________________


6
  The trial court and the Commonwealth quote subsection (a)(1)(ii), the
felony grading of the statute. (See Trial Ct. Op., at 6; Commonwealth’s
Brief, at 16). However, Appellant was convicted under subsection (a)(1)(i),
the misdemeanor grading of the statute. (See Sentencing Order, 3/28/13,
at 1; Appellant’s Brief, at 15).



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                conduct toward a child in an unlimited variety of
                ways which tends to produce or to encourage or to
                continue conduct of the child which would amount to
                delinquent conduct. . . .

                       The statute requires that the knowing,
                intentional acts of the perpetrator tend to have the
                effect of corrupting the morals of a minor.

                      This court has visited the question of what
                constitutes “corruption” of a minor’s morals before.
                In Commonwealth v. Decker, 698 A.2d 99, 101
                (Pa. Super. 1997),[appeal denied, 705 A.2d 1304
                (Pa. 1998)], we 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.”

      Decker had explained that:

                      In deciding what conduct can be said to
                corrupt the morals of a minor, “ ‘[t]he common
                sense of the community, as well as the sense of
                decency, propriety and the morality which most
                people entertain is sufficient to apply the statute to
                each particular case, and to individuate what
                particular conduct is rendered criminal by it.’ ”

                      Corruption of a minor can involve conduct
                towards a child in an unlimited number of ways. The
                purpose of such statutes is basically protective in
                nature. These statutes are designed to cover a
                broad range of conduct in order to safeguard the
                welfare and security of our children. Because of the
                diverse types of conduct that must be proscribed,
                such statutes must be drawn broadly. It would be
                impossible to enumerate every particular act against
                which our children need be protected.
                Decker, supra at 101.

Slocum, supra at 277-78 (footnotes and most citations omitted; emphases

in original).


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      Here, Appellant argues that, because he did not entice or encourage

the victim to commit a crime, the evidence was insufficient to sustain his

conviction. (See Appellant’s Brief, at 15). However, this argument ignores

the plain language of section 6301, written in the disjunctive, which states

that a person is guilty if he corrupts or tends to corrupt the morals of a

minor or if he encourages the minor to commit a crime. See 18 Pa.C.S.A. §

6301(a)(1)(i). Further, the record in this case shows that Appellant, while

approximately forty years old, repeatedly forcibly kissed the daughter of a

purported family friend while she was between the ages of ten and twelve.

(See N.T. Trial, 12/04/12, at 7-9, 12; Information, 7/07/10, at 1).

Appellant pinned the victim on her bed, kissed her neck and chest, and

touched her vagina over her clothes. (See N.T. Trial, 12/04/12, at 9-10).

Appellant directed the victim not to tell anyone about the encounters, and

warned that if she did, “someone would get hurt in [her] family.” (Id. at 8-

9; see id. at 10).

      After review, we conclude that Appellant’s “actions were of a type that

would offend the common sense of the community and the sense of

decency, propriety and morality which most people entertain.”       Slocum,

supra at 281 (citation and internal quotation marks omitted). Under our

standard of review, viewing the evidence in the light most favorable to the

Commonwealth, together with all reasonable inferences, we conclude that

there was more than sufficient evidence for the court to convict Appellant of




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corruption of minors. See Harden, supra at 111. Appellant’s third issue is

meritless.

      In Appellant’s fifth and final issue, he challenges the sufficiency of the

evidence supporting his conviction for simple assault.        (See Appellant’s

Brief, at 16-17).    He maintains that the conviction cannot be sustained

where he never struck or attempted to strike the victim, and she did not

suffer any injuries. (See id.; Rule 1925(b) statement, 7/08/14, at 2 ¶ 5).

We disagree.

             18 Pa.C.S.A. § 2701, pertaining to simple assault,
      provides, in relevant part, that “[a] person is guilty of assault if
      he: (1) attempts to cause or intentionally, knowingly or
      recklessly causes bodily injury to another[.]” 18 Pa.C.S.A. §
      2701(a)(1).     “Bodily injury” is defined as “[i]mpairment of
      physical condition or substantial pain.” 18 Pa.C.S.[A.] § 2301.
      The Commonwealth need not establish the victim actually
      suffered bodily injury; rather, it is sufficient to support a
      conviction if the Commonwealth establishes an attempt to inflict
      bodily injury. See 18 Pa.C.S.A. § 2701. This intent may be
      shown by circumstances, which reasonably suggest that a
      defendant intended to cause injury.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012) (case

citation omitted).

      Here, the record reflects that Appellant grabbed the eleven-year-old

victim, forced her into her bedroom and onto her bed, and had sexual

contact with her against her will. (See N.T. Trial, 12/04/12, at 8-10). She

managed to push him away, and after the incident, Appellant told her “not

[to] tell anyone or someone will get hurt.” (Id. at 10).




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      Based on these circumstances, viewing the evidence in the light most

favorable to the Commonwealth, see Harden, supra at 111, we have no

difficulty in determining that the trial court reasonably inferred that

Appellant attempted to inflict bodily injury on the victim. See Martuscelli,

supra at 948. Appellant’s argument that the victim did not actually suffer

any injury is irrelevant because “[t]he Commonwealth need not establish the

victim actually suffered bodily injury[.]” Id. Accordingly, we conclude that

the evidence sufficiently supports Appellant’s conviction for simple assault.

Appellant’s fifth issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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