J-S28026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 JAMES WILLIAM LEWIS                       :
                                           :
                     Appellant             :   No. 3 MDA 2018


           Appeal from the Judgment of Sentence, December 7, 2017,
              in the Court of Common Pleas of Huntingdon County,
             Criminal Division at No(s): CP-31-CR-0000483-2016.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED JULY 05, 2018

      James Lewis appeals from the judgment of sentence imposed after his

conviction in numerous criminal sexual offenses against his own minor

children. He challenges the sufficiency of the evidence underlying the

convictions. We affirm the judgment of sentence.

      The trial court opinion discussed the pertinent facts of the case as

follows:

      1.     James Lewis (Defendant) is the biological father of Victim
             1, born [in January 1987], (Trial Tr. p. 37) and Victim 2,
             born [in November 1988]. (Trial Tr. p. 69).

      2.     When Victim 1 was eight -years -old, his father, James
             Lewis, began touching the child's genitals. (Trial Tr. p.
             31).

      3.     Under the guise of teaching his child sex education, James
             Lewis played with, stroked, rubbed, and sucked on Victim
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          1's penis on several different occasions. (Trial Tr. p. 31,
          33).

     4.   These incidents occurred in [Lewis’] bedroom, with the
          door locked, while his wife and other son (Victim 2) were
          out of the house. (Trial Tr. p. 33).

     5.   James Lewis had Victim 1 lay on his stomach on his bed
          while James forced his penis between Victim 1's legs and
          began to hump him. James Lewis would have his son
          reciprocate this on him. (Trial Tr. p. 32).

     6.   James Lewis coerced Victim 1 to perform oral sex on him
          when the child was approximately 12 or 13 years old.
          (Trial Tr. p. 36). Victim 1 was also required to stroke his
          penis to ejaculation on several occasions. (Trial Tr. p. 33).

     7.   James Lewis would force Victim 1 to perform sexual acts
          on him by saying, "You don't love me if you don't do it."
          (Trial Tr. p. 34).

     8.   One Sunday morning, James Lewis sucked on Victim l's
          neck to the point a "hickey" developed. [Lewis] did not
          allow Victim 1 to go to church that particular morning
          because of the presence of the hickey. (Trial Tr. p. 36.)

     9.   Victim 1 was subjected to sexual abuse by his father
          approximately 10 times. (Trial Tr. p. 35.)

     10. Victim 2 is also the biological son of [Lewis]. When Victim
         2 was approximately eight years old, [Lewis] began to
         sexually abuse him. (Trial Tr. p.70).

     11. [Lewis] would take Victim 2 into his bedroom when his
         wife and Victim 1 were not home and engage in sexual
         acts with Victim 2. (Trial Tr. p. 70).

     12. The abuse starting (sic) by [Lewis] having Victim 2 watch
         [Lewis] masturbate then forced Victim 2 to stroke [Lewis’]
         penis until he ejaculated. (Trial Tr. p. 71).

     13. [Lewis] performed oral sex on his son, Victim 2, and at
         times required Victim 2 to perform oral sex on [Lewis].
         (Trial Tr. p. 72).

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       14. [Lewis] inserted his penis into his son's anus despite
           Victim 2's pleas to stop because it hurt. (Trial Tr. p. 72,
           73).

       15. Victim 2 endured this abuse approximately twice a month
           over a four-year span. (Trial Tr. p. 71).

       16. The abuse ended when Victim 2 refused to engage in
           these sexual acts with his father. (Trial Tr. p. 73).

       17. Victim 2 agreed to make a consensual recorded telephone
           call to [Lewis] per a request from the Pennsylvania State
           Police. This call took place at the Pennsylvania State Police
           Barracks in Huntingdon, Pennsylvania on August 1, 2016.
           (Trial Tr. p.76, 77).

       18. [Lewis] made several incriminating statements during the
           recorded call on August 1, 2016. (Recording).

       19. [Lewis] admitted under oath at trial that he engaged in
           anal sex with Victim 2, but claimed the then 12 -year -old
           victim had asked him to engage in the conduct. (Trial Tr.
           p. 131).

Trial Court Opinion, 1/30/18, at 1-2.

       The single issue raised on appeal is whether the Commonwealth

presented sufficient evidence to support a conviction1. However, Lewis’ brief



____________________________________________


   1. Lewis’ “Statement of the Question Involved” frames the issue as
      whether the trial court erred in not granting his motion for a directed
      verdict (the same as a motion for judgment of acquittal). Essentially, he
      is challenging the sufficiency of evidence. The Pennsylvania Supreme
      Court has stated, “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.” Commonwealth v.
      Sunealitis, 153 A.3d 414, 419 (Pa. 2016) citing Commonwealth v.
      Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014).

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and 1925(b) statement also discuss admissibility of evidence. This issue was

undeveloped in Lewis’ brief and as such fails to meet the requirements of

Pa.R.A.P. 2119 (a) and will not be addressed here.

      Our standard of review is well-settled for addressing challenges to

sufficiency of evidence. Whether sufficient evidence exists to support a verdict

is a question of law, and, as such, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Tejada, 107 A.3d 788 (Pa.

Super. 2015). Furthermore:

         In reviewing the sufficiency of the evidence, we must
         determine whether the evidence admitted at trial, and all
         reasonable inferences drawn from that evidence, when
         viewed in the light most favorable to the Commonwealth as
         verdict winner, was sufficient to enable the fact finder to
         conclude that the Commonwealth established all of the
         elements of the offense beyond a reasonable doubt. The
         Commonwealth may sustain its burden by means of wholly
         circumstantial evidence. Further, the trier of fact is free to
         believe all, part, or none of the evidence.

Commonwealth v. Woodard, 129 A.3d 480, 489-90 (Pa. 2015). Evidence

will be deemed insufficient to support a conviction when the verdict contradicts

the facts of the case and is in “contravention to human experience and the

laws of nature.” Commonwealth v. Santana, 333 A.2d 876 (Pa. 1975).

      Pennsylvania’s legislature has specifically allowed uncorroborated

testimony from the victim of a sex crime to uphold a conviction under a

Chapter 31 offense, even if that testimony is the only evidence against the

accused. 18 Pa.C.S. § 3106. We have made frequent use of this principal and

it is well established in case law. See Commonwealth v. Castelhun, 889

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A.2d 1228 (Pa. Super. 2005); Commonwealth v. Bishop, 742 A.2d 178 (Pa.

Super. 1999).

        The General Assembly defines “sexual intercourse” to include the

ordinary meaning of sexual intercourse (vaginal), or intercourse per os (oral),

or per anus (anal), with some penetration however slight, and emission is not

required. 18 Pa.C.S. § 3101; Commonwealth v. Kelley, 801 A.2d 551, 555

(Pa. 2002). Any other forced interpretation of the statute would result in an

“absurd construction being placed upon the statute which the General

Assembly     in   enacting   legislation,   is   presumed   never   to   intend.”

Commonwealth v. Bruner, 527 A.2d 575, 576 (Pa. Super. 1987).

        Furthermore, regarding legislative intent, we have also held that the

Commonwealth has a strong interest in “shielding members of the public from

unwelcome submission to sexual contact and in protecting minors from being

sexually abused by adults.” Id. This is consistent with our interpretation of

the definition of sexual intercourse and its elements found in Kelley.

        The legislature has also defined deviate sexual intercourse to include

both oral and anal intercourse, as well as any slight penetration of the genitals

or anus of another person with a foreign object for any purpose, other than

good faith medical, hygienic, or law enforcement procedures. 18 Pa.C.S. §

3101.

        All of Lewis’ convictions challenged on this appeal require an act of

sexual intercourse in order for a conviction to be upheld, with the exception


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of the convictions of indecent assault. Indecent assault requires the accused

to have indecent contact with the victim, the victim to have indecent contact

with the accused, or the victim to come into contact with seminal fluid with

the purpose of arousing sexual desire in the victim or the accused. 18 Pa.C.S.

§ 3126. The legislature has defined indecent contact as “any touching of the

sexual or other intimate parts of the person for the purpose of arousing or

gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

      The trial court declared the evidence was sufficient because the

Pennsylvania General Assembly has stated that the testimony of the victim

alone is adequate to uphold a sex crime conviction. Additionally, the trial court

noted that the Lewis’ conduct was in fact corroborated by his own words in

the telephone call recording, and in portions of his testimony. Lewis did not

deny that certain sex acts occurred between him and his victims, either in the

telephone recording or his testimony. The trial court concluded that the

evidence was not only sufficient, it was overwhelming. Trial Court Opinion,

1/30/18 at 3.

      Lewis argues that his sexual contact with his sons was entirely for

educational purposes, not for pleasure, and, therefore, the evidence was

insufficient to convict him on all charges. Lewis’ Brief at 12. He mistakenly

believes that where the General Assembly states that sexual intercourse is

given its ordinary meaning in §3101, it included within that definition some

element of sexual gratification. Lewis’ Brief at 11-12. He ignores the case law


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cited above which defined sexual intercourse as any intercourse without any

reference to pleasure. See Kelley, 801 A.2d at 555. Instead, Lewis argues

the legislature intended that sexual intercourse, to be a crime, must be for

the purposes of “procreation or pleasure.” Lewis’ Brief at 12. This argument is

without merit. Nothing in the crimes code relating to sexual intercourse states

the accused must perform the acts for pleasure or sexual gratification. The

code only requires that there be some slight penetration of the vagina, mouth,

or anus of the victim. Thus, Lewis’ argument fails.

      Additionally Lewis argues the evidence was insufficient to sustain a

conviction because there was conflicting testimony between him and the two

victims. Lewis’ Brief at 12-13. However, consistency is not required to sustain

a criminal verdict and the fact finder’s decision will not be overturned so long

as sufficient evidence existed for conviction. Commonwealth v. McCalman,

795 A.2d 412 (Pa. Super. 2001). The testimony of both victims was more than

enough to establish the elements of the convicted crimes beyond a reasonable

doubt. Both victims testified to the fact that Lewis had penetrated them orally

and had indecent contact with them on numerous occasions. Victim 2 also

testified that Lewis penetrated him anally on one occasion. The victims’

testimony was corroborated by Lewis’ own testimony and in the recorded

phone call between Victim 2 and Lewis. For both victims, Lewis did not deny

that he committed the heinous crimes, but attempts to justify them, saying

he did them for educational purposes. The victims’ testimony was sufficient


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on its own to convict Lewis, and was bolstered by Lewis’ own brazen

admissions and lack of denial. Thus, Lewis’ second argument fails.

     In sum, we find that the evidence presented at trial is sufficient, if

believed, to establish all the elements of the charged offenses beyond a

reasonable doubt.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2018




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