J-S63020-19

                                   2019 PA Super 370

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW JEFFREY SIPPS                      :
                                               :
                       Appellant               :   No. 1872 EDA 2018

        Appeal from the Judgment of Sentence Entered January 18, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002590-2017


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

OPINION BY MURRAY, J.:                              FILED DECEMBER 31, 2019

        Matthew Jeffrey Sipps (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of concealment of the

whereabouts of a child, corruption of minors, and patronizing a victim of

sexual servitude.1 After careful review, we affirm.

        On appeal, Appellant presents two issues for our review:

        1. Whether the evidence at trial was insufficient to support
           [Appellant’s] conviction of Count 3, Patronizing a victim of
           sexual servitude [18 Pa.C.S. § 3013], where the government
           failed to prove beyond a reasonable doubt that [Appellant]
           engaged in a sex act or performance with another individual
           knowing that the act or performance is the result of the person
           being a victim of human trafficking?

        2. Whether the evidence at trial was insufficient to support
           [Appellant’s] conviction of Count 1, Concealment of
           whereabouts of a child, 18 Pa.C.S. § 2909(a), where the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2909, 6301, and 3013.
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          government failed to prove beyond a reasonable doubt that
          [Appellant] removed a child from her known place of residence
          with the intent to conceal the child’s whereabouts from her
          parent or guardian, caused the child to be removed from her
          known place of residence, prevented the child from returning
          or being returned to her known place of residence, or failed to
          return a child to her known place of residence when the child’s
          parent or guardian had a reasonable expectation that
          [Appellant] would return the child?

Appellant’s Brief at 6.2

       Preliminarily, we address the trial court’s contention that Appellant’s

sufficiency issues “should be deemed waived” because Appellant “has not

cogently identified the mandated elements of the crimes.” Trial Court Opinion,

12/26/18, at 7. Referencing both case law and Appellant’s “wholesale lack of

specificity,” the court stated that it “must guess” at Appellant’s “generalized

sufficiency claims.”       Id. at 8.     However, despite its consternation with

Appellant’s Rule 1925(b) concise statement, the trial court authored a

comprehensive, articulate and impressive opinion, which we reference infra.

       In response to the trial court’s assertion of waiver, Appellant also notes

that the trial court “addressed the merits of the question[s] at length.”

Appellant’s Brief at 17. For its part, the Commonwealth does not address




____________________________________________


2 Although Appellant raised seven issues in his Pa.R.A.P. 1925(b) concise
statement, we need only address the two issues presented in his appellate
brief. See Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)
(Issues are waived when they are raised in a 1925(b) statement, but not
raised and developed in appellate brief).


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waiver, but argues against the merits of Appellant’s sufficiency claims. See

generally, Commonwealth Brief at 4-17.

      This Court has held that we may find waiver where a concise statement

is too vague. See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.

2011). “When a court has to guess what issues an appellant is appealing, that

is not enough for meaningful review.”       Commonwealth v. Dowling, 778

A.2d 683, 686 (Pa. Super. 2001) (citation omitted). “A Concise Statement

which is too vague to allow the court to identify the issues raised on appeal is

the functional equivalent of no Concise Statement.” Id. at 686-87. We have

stated:

      If Appellant wants to preserve a claim that the evidence was
      insufficient, then the 1925(b) statement needs to specify the
      element or elements upon which the evidence was insufficient.
      This Court can then analyze the element or elements on appeal.
      [Where a] 1925(b) statement [ ] does not specify the allegedly
      unproven elements[,] ... the sufficiency issue is waived [on
      appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).

      Here, although the trial court has advocated waiver, we find that the

two sufficiency issues Appellant raises on appeal were not so vaguely stated

in the Rule 1925(b) statement so as to compel waiver. For example, in his

first issue, Appellant’s assertion reflects his first question on appeal:

          The evidence at trial was insufficient to support [Appellant’s]
          conviction of Count 3, Patronizing a victim of sexual servitude
          [18 Pa.C.S. § 3013], where the government failed to prove
          beyond a reasonable doubt that [Appellant] engaged in a sex
          act or performance with another individual knowing that the


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         act or performance is the result of the person being a victim of
         human trafficking?

Appellant’s Rule 1925(b) Statement, 7/20/18, at 1.

      While Appellant’s Rule 1925(b) statement may be flawed, the trial court

— after discussing waiver — has provided a thoughtful analysis rejecting the

sufficiency claims on the merits.   On this record, we, like the trial court,

proceed to review the merits of Appellant’s sufficiency claims.

      It is well-settled that:

      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. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019) (citation

omitted).

      Appellant first claims the evidence was insufficient to support his

conviction of patronizing a victim of sexual servitude. The relevant statute

reads:


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     (a) Offense defined.--A person commits a felony of the second
     degree if the person engages in any sex act or performance with
     another individual knowing that the act or performance is the
     result of the individual being a victim of human trafficking.

18 Pa.C.S.A. § 3013. By law, human trafficking occurs when a person:

     (1)    recruits, entices, solicits, harbors, transports, provides,
            obtains or maintains an individual if the person knows or
            recklessly disregards that the individual will be subject to
            involuntary servitude; or

     (2)    knowingly benefits financially or receives anything of value
            from any act that facilitates any activity described in
            paragraph (1).

18 Pa.C.S.A. § 3011.

     Appellant argues that “the jury used surmise and conjecture to convict

because testimony from the witness stand did not support” his patronizing a

victim of human trafficking conviction.   Appellant’s Brief at 12.   Appellant

concedes that he had sex with the complainant, satisfying the first element of

the offense, but as to the second element, claims the evidence did not support

a finding that he knew the complainant was being trafficked. Appellant states

that the Commonwealth evidence “proved only at best [that Appellant]

engaged in sex with a young runaway.” Id. at 14. Appellant continues:

     Nowhere in the record does evidence appear Appellant was aware
     that complainant was from Rhode Island, that she met Ray Justis
     through a website or that Justis transported her to New Jersey.
     Testimony does not bear this out.

Appellant’s Brief at 15. This argument is specious.

     As noted, the trial court addressed the merits of this claim. Although at

this writing there are no published decisions specifically discussing the

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sufficiency of the evidence as it pertains to a conviction of patronizing a victim

of sexual servitude, the trial court nonetheless offered a detailed record-based

analysis with citation to related legal authority.       Specific to Appellant’s

contention that he lacked knowledge that the “young runaway,” i.e., the

complainant, V.M., was the victim of human trafficking, the court explained:

            At trial, V.M. testified she had sexual intercourse with
      [Appellant] on three (3) occasions stemming from her being a
      “worker” for Ray Justis and these interactions were subsequent
      and in response to Ray posting an advertisement for her on
      Backpage.com, and in each such instance [Appellant] paid Ray
      five hundred ($500.00) dollars per liaison. [Appellant], after
      taking V.M. to his home, continued to have with [V.M.] repeated
      sexual intercourse. N.T., 9/6/17, pp. 93-96, 99, 100, 114. See
      also Commonwealth Exhibit C-1 – Backpage.com Advertisement
      for V.M. There was clearly legally sufficient evidence for the jury
      to have determined that [Appellant] engaged in sexual acts with
      V.M. N.T., 9/6/17, pp. 99, 100, 114. See also 18 Pa.C.S. §
      3013(a).

            The sole remaining issue is thus whether the evidence at
      trial was as a matter of law sufficient to demonstrate that
      [Appellant] knew his repeatedly having intercourse with V.M. was
      “the result of [V.M.] being a victim of human trafficking.” See §
      3013. See also 18 Pa.C.S. 302(a)(2)(i)(ii).

            The trial record on being viewed in the light most favorable
      to the Commonwealth, certainly contains more than sufficient
      evidence to support the jury’s rational inferences drawn from the
      circumstantial evidence, as well as the direct evidence, and
      common sense that when having repeated sexual liaisons with
      V.M., [Appellant] knew such was the result of V.M. being a victim
      of human trafficking. See Commonwealth v. Crawford, 24 A.3d
      396, 401 (Pa. Super. 2011); Commonwealth v. Wallace, 817 A.2d
      485, 490 (Pa. Super. 2002); and Commonwealth v. Lewis, 911
      A.2d at 564, quoting Commonwealth v. Alford, 880 A.2d at 671
      quoting Commonwealth v. Gruff, 822 A.2d at 776 (“‘An intent is a
      subjective frame of mind, it is of necessity difficult of direct
      proof[.] We must look to all the evidence to establish intent,
      including, but not limited to, appellant’s conduct as it appeared to

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     his eyes[.] Intent can be proven by direct or circumstantial
     evidence; it may be inferred from acts or conduct or from the
     attendant circumstances.’”).

            [Appellant] came into contact with V.M. through an
     advertisement      posted    on   Backpage.com     depicting   the
     complainant clad scantily in lingerie, posed provocatively and
     which also provided, inter alia, as follows: “…I’m on spring break
     looking to go wild. I am looking for an [sic] generous man to
     make me got [sic] wild! Any men up for the challenge? I am
     doing In calls/out calls [sic].” See Commonwealth Exhibit C-1 –
     Backpage.com Advertisement for V.M. Responding to this ad’s
     contact cellular telephone number (215-821-xxxx), [Appellant]
     arranged per Ray Justis to meet with V.M., and he during their
     “encounter” specifically inquired of her whether she was a “cop.”
     N.T., 9/6/17, pp. 97, 100-01. N.T., 9/7/17, pp. 29, 31. For his
     four (4) “visits” with V.M., [Appellant] on each occasion paid Ray
     Justis five hundred ($500.00) dollars in exchange for which he on
     the later three (3) encounters had with the minor complainant
     sexual intercourse. N.T., 9/6/17, pp. 95-96, 99-103. When
     interviewed by Special Agent Goodhue, [Appellant] characterized
     Ray Justis as V.M.’s “pimp.” N.T., 9/7/17, pp. 37, 40, 42. See
     also Commonwealth Exhibits C-8—Stipulation, C-10—Cricket Cell
     Phone Subscriber Information for Ray Justis (215-821-xxxx), C-
     11—Cricket Cell Phone Records for Ray Justis (215-821-xxxx), C-
     12—Special Agent Jennifer Batish Summary of Contacts between
     [Appellant] and Ray Justis, and C-13—FBI FD-302 Interview
     Form-[Appellant’s] Interview on May 8, 2015.

           [Appellant] was advised during his third encounter with V.M.
     of her constraining situation. Although he then voiced the desire
     to remove her from those circumstances, [Appellant] being aware
     that Ray Justis was then outside the hotel room took no such
     action. N.T., 9/6/17, pp. 99, 100, 102-03. It was only on his next
     and fourth liaison with V.M. and learning from her that Ray Justis
     was not then about the hotel area that [Appellant] ferreted [V.M.]
     from the hotel room and took her to his Aston residence. N.T.,
     9/6/17, pp. 103-05.

           On consideration of the totality of the evidence presented at
     the trial, both direct and circumstantial, the same when viewed
     most favorably to the prosecution established that at those times
     [Appellant] had sexual intercourse with V.M., he knew that the


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      same was “. . . the result of [V.M.] being a victim of human
      trafficking.” . . .

            The jury as the “sole judge of the credibility and weight of
      all testimony” was “free to believe all, part of none of the
      evidence.”

Trial Court Opinion, 12/26/18, at 34-37 (footnote and some legal and record

citations omitted).

      Upon review, the trial court’s analysis is factually and legally seamless.

As any further commentary by this Court would be redundant, we proceed to

Appellant’s second claim.

      In his second issue, Appellant argues that the evidence did not support

his conviction of concealing the whereabouts of a child. The statute reads:

      (a)   Offense defined.--A person who removes a child from the
            child’s known place of residence with the intent to conceal
            the child’s whereabouts from the child’s parent or guardian,
            unless concealment is authorized by court order or is a
            reasonable response to domestic violence or child abuse,
            commits a felony of the third degree. For purposes of this
            subsection, the term “removes” includes personally
            removing the child from the child’s known place of
            residence, causing the child to be removed from the child’s
            known place of residence, preventing the child from
            returning or being returned to the child’s known place of
            residence and, when the child’s parent or guardian has a
            reasonable expectation that the person will return the child,
            failing to return the child to the child’s known place of
            residence.

18 Pa.C.S.A. § 2909.

      Appellant claims that he was wrongly convicted under this statute

because he “did not remove [V.M.] from her known place of residence or




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prevent her from returning there.”             Appellant’s Brief at 10.   Appellant

continues:

       Appellant did not know her place of residence, her parents’ home
       in Rhode Island, until they parted company. Complainant came
       and went as she pleased while living at Appellant’s home in
       Delaware County, Appellant gave her a cell phone, and she was
       returned to her parents’ home one week after receiving the phone,
       when she called her mother.

Id.

       Although Appellant cites the relevant statute, 18 Pa.C.S.A. § 2909, he

fails to cite any other pertinent authority to develop his argument, and does

not offer a meaningful analysis as to why the evidence supporting conviction

was insufficient.3 Our rules require an appellant to provide in the argument

section of his brief “such discussion and citation of authorities as are deemed

pertinent.” Pa.R.A.P. 2119(a). See also Commonwealth v. B.D.G., 959

A.2d 362, 371-72 (Pa. Super. 2008) (“When an appellant fails to develop his

issue in an argument and fails to cite any legal authority, the issue is

waived.”); Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super.

2007) (failure to develop an adequate argument in an appellate brief may

result in waiver of the claim under Pa.R.A.P. 2119).




____________________________________________


3 At this writing, Commonwealth v. Slocum, 86 A.3d 272 (Pa. Super. 2014),
is the only published opinion discussing sufficiency relative to 18 Pa.C.S.A. §
2909. However, Appellant, like the trial court, could have cited related case
law; he did not.

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      Appellant’s argument primarily assails the factual narrative set forth by

the trial court in its opinion. Appellant further states:

            The story of this case tells of bad judgment by [Appellant]
      and ugly criminal conduct on the part of Mr. Justis, but the
      Commonwealth fails to establish the nexus required to convict and
      it seeks to convict by associating the two men. The record does
      not contain proof beyond a reasonable doubt that [Appellant]
      removed complainant from a known place of residence with the
      intent to conceal her whereabouts from her parent or guardian.

Appellant’s Brief at 19-20. We disagree.

      In the absence of waiver, Appellant’s claim lacks merit. Again, the trial

court has thoroughly and scrupulously explained why Appellant’s argument

lacks merit, stating:

            During their fourth paid for sexual liaison at the motel, V.M.
      informed [Appellant] of Ray Justis’s then not being about the
      motel’s immediate vicinity, which prompted [Appellant] to voice
      that the two (2) together flee the motel. N.T., 9/6/17, pp. 103-
      04. [Appellant] told her “... I can take you away from this. I have
      my own place. … Like I’m good. I’ll take care of you. You don’t
      have to worry about anything.” N.T., 9/6/17, p. 104. V.M. in
      response directly acknowledged to [Appellant], “I’m a runaway.
      I’m 16 and I don’t live anywhere near here. I’m not from here. I
      don’t know where to go.” N.T., 9/6/17, pp. 104, 142. Although
      knowing she was an underage runaway and prostituting for the
      pimp, Ray, [Appellant] then took V.M. from the New Jersey motel
      room to his Aston, Pennsylvania residence. N.T., 9/6/17, pp. 87-
      88, 89, 93-94, 95-96, 104-05.

            While at his home for approximately a month and a half,
      V.M.’s contact was restricted to just [Appellant] and his family,
      who were purposely misled at [Appellant’s] urging to believe that
      [V.M.] was his online girlfriend from out-of-state. N.T., 9/6/17,
      pp. 105, 111, 115, 117, 145. V.M. when at [Appellant’s] house
      was confined to eating her meals in the bedroom she shared with
      [Appellant], her actions routinely monitored by his family, and was
      also prohibited by him from going outside the residence. N.T.,
      9/6/17, pp. 110-12.


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            Over the course of a few weeks, V.M. “begged and pleaded”
     with [Appellant] to be given a cell phone and he eventually
     obliged. N.T., 9/6/17, p. 112. When asked why [Appellant]
     adamantly refused for a number of weeks to give her access to a
     cellular phone which she regularly implored him to provide, V.M.
     replied “. . . [H]e knew that I was going to reach out to somebody
     and that I was going to break free . . .” N.T., 9/6/17, p. 115.

            Despite his full appreciation of her being an underage
     prostitute so working for the pimp, Ray, and status as a “runaway”
     from another state, [Appellant] neither undertook any efforts to
     return V.M. home nor even once made contact with law
     enforcement authorities. N.T., 9/6/17, pp. 104, 142. Rather,
     [Appellant] kept the minor complainant in the house and not only
     limited her contact to the outside, but “hid” V.M. at the residence
     under the false pretenses that she was his adult, online girlfriend
     visiting from out-of-town, while continuing with the child
     complainant his sexual relationship and demanding she greet him
     in the nude. N.T., 9/6/17, pp. 105, 111, 113-14, 117, 145.

           Throughout her testimony, V.M. related she acceded to
     [Appellant’s] constraining control “[b]ecause I was afraid of what
     would happen if I didn’t. . . . That I’d be kicked out in the middle
     of somewhere where I don’t know anything or, you know, I – you
     never know what someone else’s intent is. I didn’t know if he
     was, you know, going to be abusive or anything like that, you
     know. I was just scared.” N.T., 9/6/17, p. 114.

           On a review of the totality of the circumstances seen most
     favorable to the Commonwealth, the trial evidence as a matter of
     law established that [Appellant] intended to “. . . prevent the child
     from returning or being returned to the child’s known place of
     residence . . .” 18 Pa.C.S.A. § 2909(a). . . .

     Having enticed the minor prostitute to flee from her pimp with
     repeated promises that he would take care of her and she would
     have no further such worries, [Appellant] simply replaced Ray
     Justis’s direct control of the underage runaway’s life with that of
     his own, albeit limiting the child’s sexual services just to him.
                                  ***
            It was the jury’s task to consider the material testimony
     however they reasonably saw fit. The jury’s conclusion that the
     trial evidence established [Appellant], a Pennsylvania resident,
     harbored V.M. in his home and did not return [her] to her mother


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     is on the instant record aptly supported. See 18 Pa.C.S.A. §
     2909(a)(b) and Commonwealth v. Slocum, 86 A.3d 272, 275-
     76 (Pa. Super. 2014).

Trial Court Opinion, 12/26/8, at 39-42, 45.

     For the above reasons, and in agreement with the trial court, we affirm

the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/19




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