J-S25041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT LEE KANE,                            :
                                               :
                       Appellant               :      No. 1485 MDA 2018

          Appeal from the Judgment of Sentence Entered July 7, 2017
               in the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000429-2016

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 05, 2019

        Scott Lee Kane (“Kane”) appeals from the judgment of sentence entered

following his conviction of endangering the welfare of a child-course of conduct

(“EWOC”), and corruption of minors as a third-degree felony (“COM-Felony”).1

We vacate and remand for resentencing.

        The trial court summarized the relevant procedural history underlying

the instant appeal as follows:

              On April 7, 2017, after a jury convicted [Kane] of … EWOC
        and [COM-Felony,] Kane was acquitted on a number of other
        counts. On July 7, 2017, the [trial c]ourt imposed consecutive
        sentences of not less than six (6) months to not more than eighty-
        four (84) months on each count. [Kane] did not file a post-
        sentence motion or direct appeal after sentencing.



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1   18 Pa.C.S.A. §§ 4304(a)(1), 6301(a)(1)(ii).
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              [Kane], acting pro se, filed a Motion for Post Conviction
        Collateral Relief[, pursuant to the Post Conviction Relief Act
        (“PCRA”),2] on November 2, 2017. The [PCRA c]ourt appointed
        [] counsel to represent [Kane] and directed [the filing of an]
        amendment by counsel and a response from the Commonwealth.
        On February 22, 2018, counsel filed an Amended Post Conviction
        Relief Act Petition. … The Commonwealth filed its Answer on
        March 19, 2018.

                                     *         *   *

              On [June 7, 2018,] the parties entered into a stipulation
        restoring [Kane’s] post-sentence and direct appeal rights. By
        Order of Court, dated June 7, 2018, the [trial c]ourt approved the
        stipulation and directed that a post-sentence motion be filed
        within ten (10) days. The instant Post-Sentence Motion was then
        timely filed. Upon review of the claims raised in the Post-Sentence
        Motion, the [trial c]ourt determined that [a] hearing and oral
        argument were unnecessary. The [trial c]ourt directed [that] the
        Commonwealth file a response …. The Commonwealth filed a
        timely response ….

Trial Court Opinion, 8/6/18, at 1-2 (footnotes and emphasis omitted, one

footnote added). The trial court subsequently denied Kane’s Post-Sentence

Motion.    Kane timely filed a Notice of Appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

        Kane presents the following issue for our review:

        Whether the [t]rial [c]ourt erred in denying [Kane] relief in the
        form [of] setting aside the guilty verdicts as being based upon
        insufficient evidence of [COM-Felony] and [EWOC,] [where] the
        witness was incredible and there was insufficient proof of contact
        between [Kane] and the victim to support any conviction[?]

Brief for Appellant at 6.



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2   42 Pa.C.S.A. §§ 9541-9546.

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        Kane challenges the sufficiency of the evidence underlying his

convictions. Id. at 13. We apply the following standard of review to Kane’s

claim:

        A challenge to the sufficiency of the evidence is a question of law,
        subject to plenary review. When reviewing a sufficiency of the
        evidence claim, the appellate court must review all of the evidence
        and all reasonable inferences drawn therefrom in the light most
        favorable to the Commonwealth, as the verdict winner. Evidence
        will be deemed to support the verdict when it establishes each
        element of the crime charged and the commission thereof by the
        accused, beyond a reasonable doubt. The Commonwealth need
        not preclude every possibility of innocence or establish the
        defendant’s guilt to a mathematical certainty. 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. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013).

        Kane first asserts that the jury acquitted him of the most serious

charges, “including the Chapter 31 Sexual Offenses,[3] in which the jury would

have to find and believe the victim, that [Kane] actually had sexual contact

with her.” Brief for Appellant at 13 (footnote added).

        Regarding his EWOC conviction, Kane specifically asserts that the

Commonwealth failed to present evidence sufficient to support a showing of

substantial risk of death, or serious bodily injury, “an element required for the

offense to constitute a felony of the third degree.” Id. (emphasis omitted).

Kane contends that, for EWOC to constitute a felony of the third degree, the



____________________________________________


3   See 18 Pa.C.S.A. §§ 3121-3131.

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Commonwealth was required to establish that the actor created a substantial

risk of death or serious bodily injury. Id.

      The Crimes Code defines the crime of EWOC as follows:

      (a)    Offense defined.

             (1)    A parent, guardian or other person supervising the
                    welfare of a child under 18 years of age, or a person
                    that employs or supervises such a person, commits an
                    offense if he knowingly endangers the welfare of the
                    child by violating a duty of care, protection or support.

                                  *      *      *

      (b)    Grading.

                                  *      *      *

             (1)    Except as provided under paragraph (2), the following
                    apply:


                                  *      *      *

                    (ii) If the actor engaged in a course of conduct
                    endangering the welfare of a child, the offense
                    constitutes a felony of the third degree.

18 Pa.C.S.A. § 4304.          Thus, to establish a third-degree felony, the

Commonwealth was not required to establish that Kane created a substantial

risk of death or serious bodily injury to the victim.       Consequently, Kane’s

challenge to the sufficiency of the evidence underlying his EWOC conviction,

on this basis, fails.




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      Finally, Kane asserts that the evidence is not sufficient to sustain his

conviction of COM-Felony. Brief for Appellant at 14. According to Kane, the

crime of COM-Felony requires the Commonwealth to establish, beyond a

reasonable doubt, that he committed an offense under Chapter 31, Sexual

Offenses. Id. at 15. Kane asserts that, because the jury acquitted him of the

Chapter 31 Sexual Offenses, the evidence is not sufficient to sustain his

conviction of COM-Felony. Id. We agree.

      The Crimes Code defines the crime of COM-Felony, in relevant part, as

follows:

      Whoever, being of the age of 18 years and upwards, by any course
      of conduct in violation of Chapter 31 (relating to sexual offenses)
      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 an offense under Chapter 31 commits
      a felony of the third degree.

18 Pa.C.S.A. § 6301(a)(1)(ii).

      Recently, this Court addressed whether a conviction for COM-Felony

could be sustained where the jury had acquitted the defendant of the Chapter

31 offenses, stating as follows:

      While we have not identified any authority directly on this issue,
      a review of an analogous case, Commonwealth v. Magliocco,
      584 Pa. 244, 883 A.2d 479 (Pa. 2005), guides our analysis. In
      Magliocco, a jury convicted the defendant of [e]thnic
      [i]ntimidation, but did not convict him of [t]erroristic [t]hreats.
      The [e]thnic [i]ntimidation statute requires, inter alia, that the
      Commonwealth prove that the defendant committed [t]erroristic
      [t]hreats and did so “with malicious intention toward the race,
      color, religion[,] or national origin of another individual or group
      of individuals[.]” 18 Pa.C.S.[A.] § 2710(a). The Supreme Court
      concluded that since the Commonwealth charged and prosecuted

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      Appellant with the predicate offense of [t]erroristic [t]hreats, but
      failed to obtain a conviction, the evidence was insufficient to
      convict the defendant of [e]thnic [i]ntimidation. Id. at 493.

      Analogously, in the instant case, the Commonwealth charged and
      prosecuted Appellant for COM-Felony and the Sexual Offenses,
      but failed to obtain a conviction on any of the Sexual Offenses.
      By acquitting Appellant of the Chapter 31 Sexual Offenses, the
      jury found that the Commonwealth had failed to establish beyond
      a reasonable doubt that Appellant acted “in violation of Chapter
      31.” Thus, because the jury found that Appellant had not acted
      “in violation of Chapter 31,” an essential element of COM-Felony,
      the Commonwealth was unable to establish every element of
      COM-Felony. See Magliocco, [883 A.2d] at 493 (reiterating that
      to “secure a conviction for any crime, the Commonwealth must
      prove all necessary elements beyond a reasonable doubt.”); see
      also [Commonwealth v.] Miller, 172 A.3d [632,] 640 [(Pa.
      Super. 2017)]….

Commonwealth v. Baker-Myers, 2019 Pa. Super. LEXIS 493, at *4-*6 (Pa.

Super. 2019) (en banc).      As a result, this Court vacated the appellant’s

conviction. See id.

      We conclude that this case is directly controlled by the en banc Court’s

decision in Baker-Myers. The jury acquitted Kane of all Chapter 31 Sexual

Offenses.   As such, the Commonwealth failed to establish, beyond a

reasonable doubt, an essential element of COM-Felony. We therefore vacate

Kane’s sentence as to COM-Felony.

      Because our disposition affects the trial court’s sentencing structure, we

vacate his judgment of sentence in its entirety, and remand for resentencing

as to Kane’s conviction of EWOC. See Commonwealth v. Williams, 871

A.2d 254, 266 (Pa. Super. 2005) (where the court’s disposition upset the

overall sentencing scheme of the trial court, remanding so that the trial court

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can restructure its sentence plan); Commonwealth v. Vanderlin, 580 A.2d

820, 831 (Pa. Super. 1990) (stating that, “if a trial court errs in its sentence

for one count in a multi-count case, then all sentences for all counts will be

vacated so that the court can re-structure its entire sentencing scheme”).

      Judgment of sentence vacated, case remanded for resentencing

consistent with this Memorandum. Superior Court jurisdiction relinquished.

      Judge Murray joins the memorandum.

      Judge Stabile notes his dissent.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2019




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