J-A12006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    PATRICK I. ONESKO,

                             Appellant                  No. 494 WDA 2018


         Appeal from the Judgment of Sentence Entered March 1, 2018
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005351-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 03, 2019

        Appellant, Patrick I. Onesko, appeals from the judgment of sentence of

an aggregate term of incarceration of 1 year (less one day) to 2 years (less

two days), followed by 5 years’ probation, imposed after a jury convicted him

of criminal solicitation to commit involuntary deviate sexual intercourse

(hereinafter, “solicitation”),1      unlawful contact with a minor (hereinafter,

“unlawful contact”),2 and two counts of corruption of minors.3       On appeal,

Appellant challenges the sufficiency of the evidence to sustain his convictions

for solicitation and unlawful contact. After careful review, we affirm.

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



____________________________________________


1   18 Pa.C.S. § 902(a); 18 Pa.C.S. § 3123(a).
2   18 Pa.C.S. § 6318(a)(1).
3   18 Pa.C.S. § 6301(a)(1)(ii).
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             During the months of January and February 2017,
      Appellant, … who was 27 years of age at the time, contacted A.G.,
      and T.S. (collectively, the “victims”), ages 14 and 15, through a
      social media platform known as Snapchat. A.G. and T.S. are
      friends who were aware Appellant was contacting both of them at
      the same time. Appellant went by the username “[alaina]bp5”
      and claimed to be a 15 year-old female from Bethel Park High
      School. During his conversations with the victims, Appellant later
      claimed to be two different teenage boys from the victims’ school,
      South Fayette High School. Appellant would frequently initiate
      conversations with the victims, despite the victims[’] repeatedly
      referring to Appellant as a “pedophile[,]” … indicating that they
      suspected Appellant was not being truthful[, and] repeatedly
      requesting a photograph of Appellant. Later, Appellant admitted
      to his true identity, a 2[7] year-old former assistant football coach
      at South Fayette High School, identifying himself as “Coach O”
      and subsequently sending a photograph of himself. Appellant
      requested the victims not go to the police[,] and [he] also
      requested A.G. to text him outside of Snapchat to confirm his
      (Appellant’s) identity. Throughout his conversations with the
      victims, Appellant requested that A.G. describe his genitals,
      asking A.G. what his penis “was like” and further asking if he
      (Appellant) could guess the size of it. Additionally, Appellant
      propositioned T.S. with oral sex, writing to the minor[,] “I will suck
      your cock.” Appellant also told T.S. that he had a photograph of
      T.S.’s older brother’s genitals. Once the conversations became
      sexually explicit, the victims alerted their parents who then
      notified the police.

Trial Court Opinion (TCO), 8/2/18, at 2-3.

      Based on this evidence, a jury convicted Appellant of the above-stated

offenses. On June 5, 2018, the court sentenced him to the aggregate term of

incarceration and probation set forth supra.      Appellant filed a timely post-

sentence motion seeking, inter alia, judgment of acquittal for his solicitation

and unlawful contact convictions, which the court denied on March 8, 2018.

Appellant then filed a timely notice of appeal, and he also timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors


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complained of on appeal.     The trial court filed a Rule 1925(a) opinion on

August 2, 2018. Herein, Appellant presents three issues for our review:

      1. To convict [Appellant] of [s]olicitation…, the Commonwealth
      was required to establish that [he] “commanded,” “encouraged,”
      or “requested” T.S. to engage in specific conduct, namely, oral
      sex. It failed to do so. Was the evidence insufficient to support
      [Appellant’s] [s]olicitation conviction?

      2. To convict [Appellant] of [s]olicitation…, the Commonwealth
      was also required to establish that [Appellant] acted with the
      “intent of promoting or facilitating” the crime of [involuntary
      deviate sexual intercourse (IDSI)]. It failed to do so. Was the
      evidence insufficient to support [Appellant’s] [s]olicitation
      conviction for this reason?

      3. To convict [Appellant] of [u]nlawful contact…, the
      Commonwealth was also required to establish that [he] contacted
      T.S. for the purpose of engaging in “unlawful sexual contact
      including criminal solicitation for the crime of” IDSI. It failed to
      do so.     Was the evidence likewise insufficient to support
      [Appellant’s] [u]nlawful contact conviction?

Appellant’s Brief at 3.

      Appellant’s issues challenge the sufficiency of the evidence to support

his convictions for solicitation and unlawful contact.

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).



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       First, we address Appellant’s sufficiency arguments regarding his

solicitation conviction. That offense is defined as follows:

       (a) Definition of solicitation.--A person is guilty of solicitation
       to commit a crime if with the intent of promoting or facilitating its
       commission he commands, encourages or requests another
       person to engage in specific conduct which would constitute such
       crime or an attempt to commit such crime or which would
       establish his complicity in its commission or attempted
       commission.

18 Pa.C.S. § 902(a).

       Appellant first avers that the Commonwealth failed to prove that he

commanded, encouraged, or requested that the victim, T.S., engage in

conduct constituting IDSI. Specifically at issue is Appellant’s statement, “I

will suck your cock[,]” which Appellant made to the victim, T.S., during a

conversation on a social media website.            According to Appellant, this

statement did not command, or order, T.S. to do anything. Appellant also

insists that his statement does not meet the common definition of

“encourage,” as it did not “persuade” or “urge” T.S. to engage in any act, nor

was it a “request” because his statement to T.S. was not a question. See

Appellant’s Brief at 16-17.         Relying on the admitted transcription of his

conversation with T.S.,4 Appellant contends that the Commonwealth’s

evidence was “largely devoid of context” for the statement and, from what

____________________________________________


4 The transcribed conversation is not contained in the certified record, but the
Commonwealth concedes that the exhibits attached to Appellant’s reproduced
record are authentic copies of the transcripts that were introduced at trial.
See Commonwealth’s Brief at 14 n.8; Appellant’s Reproduced Record at 419-
21 (Exhibit 6).

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context was apparent, it was obvious that T.S. interpreted the remark as a

joke. Appellant also stresses that it was clear that T.S. “wasn’t interested in

any relationship” with Appellant and, thus, Appellant had to have been “aware

that any efforts to initiate sexual contact with T.S. would be fruitless.” Id. at

18. Consequently, he maintains that the Commonwealth failed to prove the

actus reus element of the offense of solicitation.

      Appellant’s   argument    is   unconvincing.    Initially,   neither   T.S.’s

interpretation of Appellant’s statement, nor the likelihood that T.S. was going

to actually participate in a sex act with Appellant, are elements required to

establish the offense of solicitation under section 902(a). Additionally, those

factors do not demonstrate that Appellant did not command, encourage, or

request that T.S. engage in IDSI. Although phrased as a statement, the jury

could reasonably infer that Appellant’s remark, “I will suck your cock,” was

intended to encourage and/or request that T.S. engage in oral sex with him.

This interpretation stems not only from the words used by Appellant, but also

from the fact that Appellant — a 27-year-old man — repeatedly communicated

with A.G. and T.S. — 14 and 15-year-old children, respectively — over the

course of several weeks; he initially told the victims that he was a 15-year-

old girl from a neighboring school before admitting that he was “Coach O”; he

asked A.G. to describe his genitals; he told T.S. he had a photograph of the

genitals of T.S.’s older brother, who had played football while Appellant

coached the team; and Appellant declared he was “just being honest” when

T.S. questioned if he was joking after stating he would perform oral sex on

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T.S.    Contrary to Appellant’s argument on appeal, these circumstances,

considered together, provided context for his statement, “I will suck your

cock,” and made it reasonable for the jury to conclude that, by making the

statement, Appellant was encouraging and/or requesting that T.S. engage in

oral sex with him.

       We also find that Appellant’s reliance on Commonwealth v. Bohonyi,

900 A.2d 877 (Pa. Super. 2006), is misplaced. There, we affirmed Bohonyi’s

conviction for solicitation to commit IDSI where he “persistently described for

[the victim] both the mechanics of and the sensual gratification to be derived

from their anticipated mutual genital stimulation[,]” and Bohonyi had met with

the victim on a specific date and at a specific time. Id. at 882. This evidence,

we concluded, was sufficient to prove that Bohonyi had encouraged the victim

to engage in IDSI.

       According to Appellant, the evidence offered in Bohonyi is “materially

different than that offered against [him,]” as he “never described oral sex in

his communications with T.S.[,]” he “[n]ever asked T.S. to meet him in

person[,]” and he “[n]ever tried to meet T.S. in person.” Appellant’s Brief at

22.    He maintains that here, the “level of evidence” did not rise to that

presented in Bohonyi and, therefore, the Commonwealth failed to establish

that he committed solicitation. In response, the Commonwealth contends that

Appellant is essentially

       suggest[ing] that the facts in Bohonyi set forth necessary
       elements to sustain a conviction for solicitation - [IDSI]. That
       assertion is false.  Just because the appellant in Bohonyi

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      described in detail the sexual acts of oral sex that he wished to
      engage in, asked the victim if she’d be willing to perform oral sex
      and arranged to meet the victim at a specific date and time does
      not mean that these facts are always required for such a
      conviction. Rather, the Court in Bohonyi found those facts
      sufficient to sustain a conviction for solicitation - [IDSI].

Commonwealth’s Brief at 15 (emphasis in original).

      We agree with the Commonwealth.          Despite the factual differences

between this case and Bohonyi, the evidence was sufficient to sustain

Appellant’s solicitation conviction. As discussed above, viewing the totality of

the circumstances in the light most favorable to the Commonwealth, with the

primary focus being on Appellant’s statement, “I will suck your cock,” we find

that it was reasonable for the jury to conclude that Appellant encouraged

and/or requested that T.S. allow Appellant to perform oral sex on him.

Therefore, the Commonwealth established the actus reus element of

solicitation.

      Likewise, we conclude that the evidence was sufficient to prove the

mens rea element of that offense; specifically, that Appellant intended to

promote or facilitate the crime of IDSI with T.S. Again, Appellant claims that

the Commonwealth failed to establish the context of his statement to T.S. and,

thus, there was a “dearth of evidence corroborative of an intent to actually

consummate the crime of IDSI.” Appellant’s Brief at 23. Appellant further

insists that while it was “possible that [he] ultimately intended to try and

persuade T.S. to engage in oral sex, … it’s equally possible on this evidence

that [Appellant], while obviously engaging in inappropriate behavior, wasn’t



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to the point where he was committed to ever meeting T.S. in person.” Id. at

23-24.

      In rejecting this argument, the trial court focused on the fact that, when

T.S. questioned whether Appellant was joking about performing oral sex on

T.S., Appellant responded, “No[,] just being honest[.]” TCO at 5. According

to the court,

      Appellant’s intent is clear by his own words; Appellant’s statement
      (“No[,] just being honest”) is evidence of his intent to facilitate
      and commit the act.         Furthermore, the facts establish that
      Appellant was aware he was speaking with a minor child[,] as
      Appellant himself initially pretended to be a 15-year-old girl as a
      ruse to engage the boys to speak with him. Moreover, Appellant
      continuously sent messages and contacted the two minors over
      the course of two months[,] further showing his intent to facilitate
      or promote the illicit conduct with T.S.

Id.

      We agree with the trial court. If, as Appellant now claims, he did not

intend T.S. to take his offer of oral sex seriously, he could have clarified that

fact when T.S. questioned him.      Appellant’s decision to instead affirm the

sincerity of his statement about performing oral sex on T.S. made it

reasonable for the jury to infer that he intended to facilitate or promote the

commission of that IDSI offense.       Therefore, his second challenge to the

sufficiency of the evidence to sustain his solicitation conviction is meritless.

      Finally, Appellant challenges the sufficiency of the evidence to sustain

his unlawful contact conviction.

      (a) Offense defined.--A person commits an offense if he is
      intentionally in contact with a minor, or a law enforcement officer
      acting in the performance of his duties who has assumed the

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      identity of 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:

         (1) Any of the offenses enumerated in Chapter 31 (relating
         to sexual offenses).

18 Pa.C.S. § 6318(a)(1).

      Appellant   does    not   present   any   argument   regarding    how   the

Commonwealth failed to prove any specific element(s) of this offense.

Instead, he simply argues that because the evidence was insufficient to

sustain his solicitation conviction, it was also inadequate to support the “piggy-

back” offense of unlawful contact. Appellant’s Brief at 25. Because we find

Appellant’s challenge to his solicitation conviction meritless for the reasons set

forth supra, we likewise reject his argument that the evidence was insufficient

to sustain his unlawful contact conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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