J-A01027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC PHILLIPS

                            Appellant                 No. 3282 EDA 2014


            Appeal from the Judgment of Sentence October 7, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0006729-2013


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 06, 2016

        Eric Phillips appeals from the June 6, 2014, judgment of sentence

entered in the Bucks County Court of Common Pleas. At the conclusion of a

bench trial on October 7, 2014, the court convicted Phillips of invasion of

privacy, criminal attempt – invasion of privacy, disorderly conduct, and retail

theft – taking merchandise.1 That same day, the court sentenced him to a

term of three to 12 months’ incarceration in a county correctional facility.

On appeal, Phillips raises the following issues: (1) the court erred in denying

his motion for judgment of acquittal on the count of invasion of privacy; (2)

there was insufficient evidence to convict him of invasion of privacy; (3) the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 7507.1(a)(2), 901(a), 5503(a)(4), 3929(a)(1), respectively.
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court erred in considering evidence related to his Fifth Amendment right to

remain silent; and (4) the court erred in failing to file an opinion in the

matter. Based on the following, we affirm.

     The trial court summarized the facts and procedural history as follows:

           On September 3, 2013, Appellant, Eric Phillips … was
     charged with one count of Invasion of Privacy, one count of
     Criminal Attempt – Invasion of Privacy, one count of Disorderly
     Conduct, and one count of Retail Theft – Taking Merchandise.
     These charges stemmed from an incident that occurred on
     August 12, 2013, at the Walmart store in Bensalem, Bucks
     County, Pennsylvania, in which Phillips was observed by store
     personnel attempting to film up a woman’s skirt with a small
     handheld camcorder “without her knowledge or consent.” When
     confronted by the store manager, Phillips then ran out of the
     store without paying for a 2-pack of bar soap and Gatorade he
     had been holding in his hand.

           On January 13, 2014, after an extensive colloquy, the
     Honorable Rea B. Boylan … accepted Phillips’ voluntary, knowing
     and intelligent plea of guilty to the charge of Invasion of Privacy.
     The remaining charges of Criminal Attempt, Disorderly Conduct
     and Retail Theft were nolle prossed. Sentencing was deferred to
     permit the Pennsylvania Sexual Offender’s Assessment Board to
     perform an evaluation of Phillips pursuant to 42 Pa.C.S.A. §
     9799.24.

           On July 14, 2014, Phillips filed a Motion to Withdraw Guilty
     Plea. In his Motion, Phillips argued that his negotiated plea had
     “required a Tier I SORNA registration for 15 years,” but “the
     current SORNA statute requires lifetime Tier III registration for
     an individual that has previously plead [sic] or been found guilty
     of any other crime that required SORNA registration.” Phillips
     contended that because he had been “found guilty in a
     negotiated plea to a prior Invasion of Privacy charge in 2006,”
     which “at that time … did not require SORNA registration as
     Invasion of Privacy was not a SORNA offense,” he had therefore
     not been properly informed in this instance of “the true
     ramifications of his guilty plea” including the potential
     requirement for lifetime registration as a sexual offender, and as
     a result his plea had been compromised.

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             After a hearing on July 18, 2014, Judge Boylan entered an
       Order denying Phillips’ Motion on August 8, 2014, but after a
       subsequent hearing on Phillips’ Motion to Reconsider his Motion
       to Withdraw his Guilty Plea on September 4, 2014, Judge Boylan
       granted his Motion to Withdraw his Guilty Plea by Order of
       September 8, 2014.

             A non-jury trial was held on October 7, 2014, after which
       this Court found Phillips guilty of all four original counts and
       sentenced him to undergo imprisonment in the Bucks County
       Correctional Facility on Count 1, Invasion of Privacy, for a period
       of not less than 3 months and not more than 12 months. No
       further penalties were imposed on the remaining counts for
       Criminal Attempt, Disorderly Conduct or Retail Theft, but Tier 1
       SORNA registration was required.

Trial Court Opinion, 12/5/2014, at 1-2 (footnotes and record citations

omitted). This appeal followed.2

       Before we may address the merits of Phillips’ claims, we note the trial

court found the matter should be quashed and the issues should be waived

because Phillips failed to a file a written request for the transcription of the

notes of testimony from the October 7, 2014, trial pursuant to Pa.R.A.P.

1911    (request for transcription)            and Pa.R.J.A. 5000.5   (requests for

transcripts). See Trial Court Opinion, 12/5/2014, at 3, 5.3 Since that time,

____________________________________________


2
   On November 5, 2014, the trial court ordered Phillips to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Phillips filed a concise statement on November 24, 2014. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 5, 2014.
3
   See Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa. Super.
2007) (“It is black letter law in this jurisdiction that an appellate court
cannot consider anything which is not part of the record in the case. It is
(Footnote Continued Next Page)


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the October 7, 2014, transcript was made a part of the certified record.

Accordingly, we may now review the merits of the issues Phillips raises on

appeal.

      Based on the nature of Phillips’ claims, we will address his first two

arguments together. In Phillips’ first issue, he contends the trial court erred

in denying his motion for judgment of acquittal because the Commonwealth

failed to prove he photographed the woman without her knowledge or

consent. Phillips’ Brief at 9. Specifically, Phillips states:

            In the instant case, [he] testified that he and the alleged
      victim had pre-arranged the encounter anonymously using a
      website designed to assist in arranging such encounters between
      parties who wished to remain anonymous. The Commonwealth
      presented no evidence whatsoever contradicting this assertion of
      consent, nor presented no direct evidence of a lack of consent
      whatsoever. No victim ever came to Court at any stage of the
      legal proceedings. Both Commonwealth case in chief witnesses
      admitted that they made no effort to speak with the alleged
      victim about the charges. [The] Commonwealth wholly failed to
      prove lack of consent, an element of the crime itself, beyond a
      reasonable doubt.

Id. at 9-10 (citation omitted).                  Moreover, Phillips argues the court

improperly shifted the burden of proof with regard to lack of consent to him

when it stated that it “felt that [Phillips’] averment that he had the victim’s

consent was not believable, and, moreover, that [Phillips] had failed to prove

that he had consent.” Id. at 10 (emphasis removed).
                       _______________________
(Footnote Continued)

also well-settled in this jurisdiction that it is Appellant’s responsibility to
supply this Court with a complete record for purposes of review.”) (citations
omitted), appeal denied, 940 A.2d 363 (Pa. 2008).



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       In Phillips’ second argument, he claims there was insufficient evidence

to convict him of invasion of privacy because, again, the Commonwealth

failed to produce an alleged victim and there was no testimony or other

evidence to establish that he invaded the privacy of the alleged victim

without her knowledge or consent.              Id. at 11.   Moreover, he argues the

Commonwealth never made an attempt to contact the victim to find out if

her privacy was invaded and the victim did not appear in court to tell her

side of the story.      Id. at 12.     Phillips states the “only” evidence was the

store’s videotape of him photographing the victim. Id.4

       Our standard of review of Phillips’ claim that the trial court erred in

denying his motion for judgment of acquittal is as follows:           “A motion for

judgment of acquittal challenges the sufficiency of the evidence to sustain a

conviction on a particular charge, and is granted only in cases in which the

Commonwealth has failed to carry its burden regarding that charge.”

____________________________________________


4
    Phillips also asserted the Commonwealth “failed to prove that a crime
actually occurred, the corpus delicti of the crime itself.” Id. We find that he
has waived this part of his argument because he raised it for the first time
on appeal, which is not permitted.          See Pa.R.A.P. 302(a); Pa.R.A.P.
1925(b)(4)(vii).     Nevertheless, Phillips’ argument appears misplaced.
“Under the corpus delicti rule, extrajudicial statements of the accused may
not be admitted into evidence unless corroborated by independent evidence
that the crime actually occurred. The purpose of the rule is to prevent a
conviction based solely upon a confession where no crime has in fact been
committed.”      Commonwealth v. Fears, 836 A.2d 52, 67 (Pa. 2003)
(citations omitted), cert. denied, 545 U.S. 1141 (2005). Here, Phillips did
not provide a confession to police and, as will be discussed supra, there was
independent evidence that a crime occurred.



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Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa. Super. 2011).

Moreover,

      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.

Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011),

quoting Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super.

2010).

      The Pennsylvania Crimes Code defines invasion of privacy, in pertinent

part, as follows:

      (a) Offense defined. --

      Except as set forth in subsection (d), a person commits the
      offense of invasion of privacy if he, for the purpose of arousing
      or gratifying the sexual desire of any person, knowingly does any
      of the following:

      (1) Views, photographs, videotapes, electronically depicts, films
      or otherwise records another person without that person’s

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       knowledge and consent while that person is in a state of full or
       partial nudity and is in a place where that person would have a
       reasonable expectation of privacy.

18 Pa.C.S. § 7507.1(a)(1).5

       At the conclusion of trial, including viewing the video at issue, the

court made the following determinations:

       On August 12th, 2013, the defendant, Eric Phillips, was in the
       Walmart store in Bensalem when he went to the deodorant aisle,
       and a female was in the aisle prior to his arrival. [Phillips] sidled
       up to the victim or in an area near where the victim was
       standing, and had a video camera in his hand, which he
       concealed by placing a wallet over the camera. He waited until
       the victim was looking in another direction and he then placed
       the video camera in a position to view up the woman’s skirt.

              He then left the area, and in so doing, placed the camera
       in a position to view the lower torso of another woman in the
       store.

              The circumstances of the encounter was described by
       [Phillips] as being incident to an arranged meeting between the
       victim and [Phillips]. [He] states that he did not know what the
       woman looked like other than a general description of age and
       race. He asserts that the meeting was arranged through a fetish
       website known as FetLife.

              [Phillips] asserts that he was going around the large
       Walmart store asking various women if they were Flossin’ Kitty.
       And he asserts that he knew that the victim was, in fact, Flossin’
       Kitty because of the general description as to race and age.

             I find [Phillips]’s testimony incredible. I find that [Phillips],
       once confronted by the loss prevention people, immediately ran
       out of the store and refused to return items that he had taken,
       namely soap and a bottle of Gatorade.
____________________________________________


5
   Our research has uncovered no case law regarding a challenge to the
sufficiency of the crime of invasion of privacy.



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           I find [Phillips’] assertion that his failure to return the
     items, after having been requested to do so by loss prevention
     representative Kevin Drum, because of fingerprints that would
     be on those items as incredible. I find that [Phillips] removed
     those items from the Walmart without making payment, and was
     outside of the last point of payment in the store.

           I find that [Phillips’] refusal to return the items and his
     fleeing on his motorcycle constituted consciousness of guilt, both
     with respect to the retail theft and also with respect to the
     invasion of privacy of an individual who had not provided
     consent to have her private areas videotaped by [Phillips].

           While the invasion of privacy is supported by the
     circumstantial evidence, I find that circumstantial evidence to be
     consistent in all respects with the conclusion. I do find as a fact
     that consent was not given, and that [Phillips] filmed a person
     without that person’s knowledge or consent, and that [Phillips]
     filmed the victim in a manner that showed partial nudity on the
     part of the victim and, therefore, the offense of invasion of
     privacy, all of those elements have been proven beyond a
     reasonable doubt.

N.T., 10/7/2014, at 76-80.

     We agree with the court’s findings. First, we note the following: “The

Commonwealth is not bound to call the victim of a crime as a witness as

long as testimony is not withheld solely because it would be favorable to the

defendant.”   Commonwealth v. Leatherbury, 469 A.2d 263, 266 (Pa.

Super. 1983) (citations omitted). Here, it is apparent from the record that

the victim was unavailable as a witness because the employees at Walmart

did not stop her and she left prior to police arrival. See N.T., 10/7/2014, at

22. Likewise, neither the Commonwealth nor Phillips knew where she could




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be located. As such, we are simply not persuaded that the Commonwealth

was required to present the testimony of the victim.

      Second, viewing the evidence in the light most favorable to the

Commonwealth, as the verdict winner, and drawing all reasonable inferences

therefrom, we find the Commonwealth presented sufficient circumstantial

evidence to support Phillips’ conviction. Specifically, we note the testimony

of Walmart employee, Kevin Drum, in conjunction with the store’s

surveillance videotape, established Phillips stood by the female victim, with a

video camera surreptitiously covered by a wallet, and waited until she was

looking in another direction when he then placed the video camera in a

position to view up the woman’s skirt.     Id. at 8-21.    Furthermore, when

another Walmart employee attempted to speak with Phillips, Phillips started

to walk away, ignoring the employee, and then started jogging outside the

store. Id. at 12-13. It bears emphasis that “[w]hile evidence of flight alone

is not sufficient to convict one of a crime, such evidence is relevant and

admissible to establish an inference of guilt.”   Commonwealth v. Rolan,

964 A.2d 398, 410 (Pa. Super. 2008), quoting Commonwealth v.

Williams, 615 A.2d 716, 721 (Pa. 1992) (citations omitted).




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       Third, to the extent Phillps attempts to justify his actions, asserting

that the victim consented6 to the filming based on a prearranged agreement

via a fetish website, the trial court found his testimony not credible based on

the totality of the circumstances. The court, sitting as the fact-finder, was

free to do so.     LaBenne, 21 A.3d at 1289. Accordingly, we conclude the

Commonwealth presented sufficient circumstantial evidence to support its

case-in-chief and Phillips’ invasion of privacy conviction.

       Lastly, with respect to Phillips’ claim that the court improperly shifted

the burden of proof regarding the element of lack of consent to him, we note

the following:

       It is well established that “an accused in a criminal case is
       clothed with a presumption of innocence.” Commonwealth v.
       Bishop, 472 Pa. 485, 372 A.2d 794, 796 (Pa. 1977). The
       Commonwealth bears the burden of proving guilt beyond a
       reasonable doubt as to every element of the crime. See id. The
       Commonwealth’s failure to maintain this burden of proof will
       result in the acquittal of the accused. See id. This Court has
       long held that the burden of proving an affirmative defense that
       relieves the accused of criminal responsibility, but does not
       negate an element of the offense charged may be placed on the
       defendant. See [Commonwealth v. Hilbert, 382 A.2d 724,
       729 (Pa. 1978)]. Thus, when a defense is asserted that relates
       to the defendant’s mental state or information that is peculiarly
       within the defendant’s own knowledge and control, the general
       rule is that the defendant has the burden of proving the defense
       by a preponderance of the evidence. See Commonwealth v.
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6
   Consent is defined as follows: “The consent of the victim to conduct
charged to constitute an offense or to the result thereof is a defense if such
consent negatives an element of the offense or precludes the infliction of the
harm or evil sought to be prevented by the law defining the offense.” 18
Pa.C.S. § 311(a).



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      Rishel, 441 Pa. Super. 584, 658 A.2d 352, 355 (Pa. Super.
      1995), reversed on other grounds 545 Pa. 297, 681 A.2d 162
      (Pa. 1996).

Commonwealth v. Collins, 810 A.2d 698, 701 (Pa. Super. 2002).

Accordingly, Phillips’ argument is meritless because he presented the

affirmative defense that the victim consented to the filming.      Therefore,

Phillips’ first and second arguments fail.

      In his third issue, Phillips claims the court erred in considering

evidence related to his Fifth Amendment right to remain silent where the

court indicated it was persuaded by the fact that he fled from police and

store employees and refused to speak with them. See Phillips’ Brief at 13.

He avers he was exercising his constitutional right to remain silent and it

was improper to consider his actions as evidence of guilt.   Id.   Moreover,

Phillips notes he admitted at trial that he did not want to speak with the

police because he was afraid his comments would be misconstrued and

would be used against him in an improper manner. Id. at 14.

      By way of background, Drum testified Phillips did not speak with the

Walmart employee who tried to stop Phillips from leaving the store. N.T.,

10/7/2014, at 11. The investigating officer, Detective Christopher McMullin,

testified attempts were made to contact Phillips, but he would not respond.

Id. at 22. Defense counsel did not object to this testimony. Phillips then

took the stand and stated that he did not talk to the store employee or the




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police because he did not want to interact with the police based on prior

dealings with them, and he was afraid. Id. at 35-36; 46-48.

      Phillips’ claim is without merit for several reasons. First, his failure to

object to the testimony at issue constitutes waiver. See Commonwealth

v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (“[I]t is axiomatic that

issues are preserved when objections are made timely to the error or

offense.”); Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005) (holding

that the “absence of contemporaneous objections renders” an appellant’s

claims waived).

      Moreover,

      In general, after a defendant has been given Miranda warnings,
      the defendant’s post-arrest silence may not be used against him
      to impeach an explanation subsequently offered at trial.
      However, where a prosecutor’s reference to a defendant’s silence
      is a fair response to a claim made by defendant or his counsel at
      trial, there is no violation of the Fifth Amendment privilege
      against self-incrimination.

Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (citations

omitted), abrogated on other grounds by Commonwealth v. Rizzuto, 777

A.2d 1069 (Pa. 2001).     Here, Phillips’ post-arrest silence was not used at

trial. The evidence at issue concerned his refusal to speak to the employee

or police prior to his arrest. Furthermore, a review of the court’s findings, as

recited above, does not reveal that the court relied upon Phillips’ silence, at

any point during the incident, in its decision. Rather, the court pointed to

Phillips’ flight as evidence of guilt and his failure to return the items he took


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from the store because of his concern over the taking of his fingerprints as

incredible testimony. The court did not comment on his silence. See N.T.,

10/7/2014, at 76-80. Accordingly, Phillips’ third argument also fails.

       In Phillips’ final argument, he claims the court erred by not rendering a

Pa.R.A.P. 1925(a) opinion.        See Phillips’ Brief at 16-17. We point out the

trial court was not required to file an opinion because Phillips did not file a

timely request for transcription pursuant to Pa.R.A.P. 1911 and Pa.R.J.A.

5000.5. Nevertheless, in the interests of judicial economy, and based on the

court’s explanation of its non-jury verdict, we did not remand this matter for

a Pa.R.A.P. 1925(a) opinion on the merits.7

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




____________________________________________


7
  We “may affirm the lower court on any basis, even one not considered or
presented in the court below.” Commonwealth v. Burns, 988 A.2d 684,
690 n. 6 (Pa. Super. 2009), appeal denied, 8 A.3d 341 (Pa. 2010); see also
Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa. Super. 2013),
appeal denied, 87 A.3d 320 (Pa. 2014).



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