J-A04036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    POK SUN CHANG                              :
                                               :
                       Appellant               :   No. 248 EDA 2018

            Appeal from the Judgment of Sentence November 8, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008605-2016


BEFORE:      LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

DISSENTING MEMORANDUM BY COLINS, J.:                      FILED JUNE 26, 2019

        As I would conclude that the evidence presented at trial, viewed in the

light most favorable to the Commonwealth as the verdict winner, was

sufficient to prove that Appellant committed the offense of promoting

prostitution, I must respectfully dissent from the learned majority’s reversal

of Appellant’s conviction.

        The offense of promoting prostitution as defined in Section 5902(b)(1)

of the Crimes Code, 18 Pa.C.S. § 5902(b)(1) requires proof of two elements:

first, the existence of a prostitution business, and, second, that the defendant

owned, controlled, managed, supervised, or otherwise kept – in other words,

“promoted” – the prostitution business.1 Though not defined in the statute,

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1   Section 5902(b)(1) provides:




*    Retired Senior Judge assigned to the Superior Court.
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this Court has held that a prostitution business is “commercial [sexual] activity

engaged in for gain.” Commonwealth v. Johnson, 670 A.2d 666, 669 (Pa.

Super. 1996) (quoting Commonwealth v. DeStefanis, 658 A.2d 416, 420

(Pa. Super. 1995)). The mere agreement or offer to perform sexual acts for

gain satisfies the statute, and there is no requirement that sexual acts actually

be performed.      Commonwealth v. Chon, 983 A.2d 784, 789 (Pa. Super.

2009); DeStefanis, 658 A.2d at 420 n.4.

       The Commonwealth presented overwhelming evidence that the Pink Spa

was a prostitution business. Officer Kearney first learned of the Pink Spa from

an advertisement on the Backpage.com website, which Officer Kearney knew

from his experience in vice investigations was frequently a site of

advertisement for prostitution services.         N.T., 8/31/17, at 8-16.     The

Commonwealth introduced this advertisement as an exhibit, which stated that

the Pink Spa offered “3 NEW CHERRY GIRLS,” “ASIAN LOVE,” and “Old Style

Service,” and displayed photographs of young Asian women in lingerie.


____________________________________________


   The following acts shall…constitute promoting prostitution:
       (1) owning, controlling, managing, supervising or otherwise
       keeping, alone or in association with others, a house of
       prostitution or a prostitution business…
18 Pa.C.S. § 5902(b)(1). Though Appellant goes to great pains to argue that
the Commonwealth did not prove that the Pink Spa is a “house of prostitution”
which requires, under the statutory definition, that prostitution “is regularly
carried on” in a particular location, 18 Pa.C.S. § 5902(f), Section 5902(b)(1)
was written in the disjunctive and a plain reading of this statute makes clear
that the offense of promoting prostitution may be found where a defendant
promoted either a prostitution business or a house of prostitution.

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Commonwealth Ex. C-1. Officer Kearney visited the Pink Spa at the address

listed online, rang the bell as instructed in the advertisement, and was greeted

at the front door by Appellant. N.T., 8/31/17, at 16-17. Officer Kearney then

asked Appellant “[h]ow much is it” – with no discussion of any specific service

to be performed – and Appellant quoted him a price of $160. Id. at 16-17,

20.   After Officer Kearney asked whether there was more than one girl

available to choose from, Appellant presented two young women, Miss An and

Miss Kim, and Officer Kearney selected Miss An. Id. at 18. Officer Kearney

then paid Miss An the quoted $160 price as directed by Appellant, and,

following a table shower and massage, Officer Kearney asked “[c]an we have

sex now?” Id. at 18-19, 44. Miss An responded in the affirmative, and Officer

Kearney then asked “[d]o I have to give you any more money?” Id. at 19.

Miss An responded to this question in the negative, confirming that her

performance of sexual acts was included in the previously quoted price. Id.

at 19.   This evidence clearly establishes the provision of a sex act for

commercial gain required of a prostitution business. See, e.g., Johnson, 670

A.2d at 669-70 (provision of hand stimulation of genitals that was included

within the price of the massage service established a prostitution business).

      DeStefanis and Commonwealth v. Blankenbiller, 524 A.2d 976 (Pa.

Super. 1987), relied upon by the majority, do not support the conclusion that

the Pink Spa was not a prostitution business.      In DeStefanis, the crucial

factors demonstrating that the fitness center was not a prostitution business

was that the only financial benefit for the hand release would be to the

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massage therapist as a tip rather than as a part of the fee paid to the fitness

center and the owner’s statements making clear that the provision of such sex

acts could only be a side business to the therapist’s main role of providing

legitimate massage services. 658 A.2d at 417-18, 420. By contrast, in this

case, Appellant told Officer Kearney that the service on offer at the Pink Spa

cost $160, and Miss An confirmed to Officer Kearney that sexual contact was

included within the service at no extra charge. Unlike in DeStefanis, there

is no basis to conclude that Miss An was operating a side prostitution business

in addition to the provision of legitimate massages, but rather the evidence at

trial, including the online advertisement for the Pink Spa, gave the opposite

inference that sex was part and parcel of the service for sale at the Pink Spa.2

       Blankenbiller is even less apposite.      In Blankenbiller, this Court

concluded that, while there was no question that a prostitution business was

____________________________________________


2 The majority cites the fact that Miss An massaged Officer Kearney for
approximately 20 to 30 minutes prior to sex being discussed as a reason to
conclude that sex was not included in the original price of the service. Majority
Opinion at 10. However, one would be hard pressed to describe the full-body
“table shower” massage that Miss An performed topless on Officer Kearney
including contact with the officer’s genitals as a standard, legitimate massage
service. N.T., 8/31/17, at 18-19, 37, 43; see 49 Pa. Code §§ 20.1,
20.42(b)(5)-(7), 20.43(a) (providing that a massage therapist violates the
standard of professional conduct and subjects herself to immediate suspension
of her license through indecent exposure, exposing or touching a client’s
genitals except for therapeutic treatment, or engaging in sexually suggestive
or erotic behavior). Even if this massage would not be seen as a prelude to
the sexual activity that was explicitly offered later, the statute provides no
basis upon which to conclude that the inclusion of a legitimate massage
service would make an establishment offering sex for money any less of a
prostitution business.

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in operation at the fundraising party for the softball team, the owner of the

restaurant where the party occurred did not have any involvement with the

prostitution business simply based on the fact that he organized and sold

tickets for the party and was seen near a loudspeaker where announcements

were made publicizing the presence of the prostitutes. 524 A.2d at 977-80.

Here, Appellant’s connection to the prostitution business at the Pink Spa is

well-established because she admitted customers into the establishment, set

the price for the prostitute’s services, and directed the actions of the

prostitutes working at the establishment.

      In addition to establishing a prostitution business at the Pink Spa, the

Commonwealth also showed that Appellant promoted that business. As the

text of Section 5902(b)(1) makes clear, promoting prostitution can be shown

by a defendant either “owning, controlling, managing, supervising or

otherwise keeping” the prostitution business and that such efforts in

promoting the prostitution business may be taken “alone or in association with

others.” 18 Pa.C.S. § 5902(b)(1) (emphasis added); see also Blankenbiller,

524 A.2d at 978 (to prove promoting prostitution Commonwealth must show

existence of a prostitution business and “that the accused had a connection

with the ‘running, control, supervision or keeping of the prostitution

business’” (emphasis added))); see also DeStefanis, 658 A.2d at 419

(same).   There is no requirement in the statute or our case law that an

individual take a portion of the fee paid for sexual acts to be found guilty of




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promoting the prostitution business.3 Instead, the element of promoting a

prostitution   business may be           found on a   defendant’s management,

supervision, or control of the business, actions which do not necessarily entail

that the defendant directly profit from the illicit operation.4




____________________________________________


3 The majority relies on DeStefanis for the proposition that Appellant could
not have been found to have promoted prostitution because no evidence was
presented that Appellant “benefited financially” from the transaction between
Miss An and Officer Kearney or handled Officer Kearney’s payment directly.
Majority Opinion at 10 & n.6. While this Court in DeStefanis indicated that
the defendant could not be found guilty of promoting prostitution because he
did not receive income from the business, 658 A.2d at 421, this statement, as
the Court explicitly recognized, was dicta, and it is therefore not binding in
this case. See id. Furthermore, DeStefanis relied on Blankenbiller for this
proposition, and Blankenbiller only discussed receipt of income as one of
several factors in determining whether a defendant can be found guilty of
promoting prostitution. 524 A.2d at 979-80. Moreover, Commonwealth v.
Robertson, 116 A.2d 224 (Pa. Super. 1955), the case on which we relied in
Blankenbiller regarding the significance of the receipt of money, addressed
a challenge to a conviction under Section 515 of the Penal Code of 1939, 18
P.S. § 4515, which criminalized the acceptance of bawd money. Unlike the
prior statute, Section 5902(b)(1) does not require the acceptance of money
related to the prostitution activity as an element to sustain a conviction of
promoting prostitution.
4 The terms control, manage, and supervise are not defined in the statute,
and may therefore be construed “according to their common and approved
usage” with reference to their dictionary definitions. 1 Pa.C.S. § 1903(a);
Commonwealth v. Baumgartner, 206 A.3d 11, 16 (Pa. Super. 2019).
Webster’s Dictionary defines “control,” in relevant part, as “to exercise
restraining or directing influence over” and “to have power over”; “manage”
as “to direct or carry on business or affairs”; and “supervise” as to “to
coordinate, direct, and inspect continuously and at first hand the
accomplishment of” and to “oversee with the powers of direction and decision
the implementation of one’s own or another’s intentions.” Webster’s Third
New International Dictionary 496, 1372, 2296 (2002). None of these
definitions denotes sharing in the profits of a business.

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      The testimony at trial showed that after Officer Kearney rang the bell to

the Pink Spa, Appellant opened the door for him and led him inside. Appellant

and Officer Kearney then discussed the fee and how payment should be made

directly to the young woman providing the service. When Officer Kearney

asked if he could choose the young woman who would perform the service for

him, Appellant presented two options, Miss An and Miss Kim, and advised

Officer Kearney that he could choose between them.           I believe that this

evidence was more than sufficient to support the trial court’s conclusion that

Appellant managed, supervised, and controlled the operations of the Pink Spa.

Though the Commonwealth did not directly prove that Appellant drew a wage

or salary from her work in managing the Pink Spa, even assuming such a

requirement exists in the statute, Appellant’s status as an employee or

manager of the Pink Spa could be reasonably inferred from the evidence

presented.

      Having determined that the evidence was sufficient to support a

conviction for promoting prostitution, I would also conclude that the remaining

four issues raised by Appellant in this appeal are meritless. First, with respect

to Appellant’s request for a remand to allow the suppression court to state its

findings of fact and conclusions of law supporting the denial of Appellant’s

suppression motion on the record, a remand is not required because the arrest

of Appellant by the backup officers was plainly authorized by Appellant’s prior

consent to Officer Kearney to enter the Pink Spa. See Commonwealth v.

Moye, 586 A.2d 406, 408-09 (Pa. Super. 1990). Next, Appellant’s contention

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that certain statements by the trial court when rendering the verdict were

based on speculation and conjecture lacks merit as the identified statements

were reasonable inferences that the trial court, as fact-finder, was entitled to

draw from the evidence.       Appellant’s argument that the trial court gave

improper consideration to her status as an immigrant during sentencing also

fails because the trial court’s statements at the sentencing hearing were in

the context of a discussion of the exploitation of undocumented sex workers

and did not express bias towards Appellant’s status as a naturalized citizen.

Finally,   regarding   Appellant’s   argument    that   Section   5902(b)(1)    is

unconstitutionally vague, the common meanings of the statutory terms

control, manage, supervise, and keep are sufficiently definite to give a person

of ordinary intelligence fair notice of what conduct is prohibited by the statute.

      Accordingly, because I believe that the Commonwealth presented

sufficient evidence that Appellant committed the offense of promoting

prostitution and that no other meritorious issue has been raised by Appellant,

I must dissent from the majority’s disposition of this appeal.




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