J-S05033-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES LEONARD HAKES,                     :
                                               :
                       Appellant               :      No. 1575 MDA 2019

        Appeal from the Judgment of Sentence Entered August 29, 2019
               in the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000848-2018

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

MEMORANDUM BY MUSMANNO, J.:                              FILED APRIL 21, 2020

        Charles Leonard Hakes (“Hakes”) appeals from the judgment of

sentence imposed following his conviction of corruption of minors, graded as

a felony of the third degree (“COM – Felony”).1 We reverse the conviction,

vacate the judgment of sentence, and discharge Hakes.

        Hakes was arrested and charged with multiple counts of involuntary

deviate sexual intercourse with a child (“IDSI”), aggravated indecent assault

of a child,2 and COM – Felony, following allegations of sexual abuse made by

his granddaughter.

        On April 2, 2019, a jury found Hakes guilty of one count of COM –

Felony, and not guilty of all counts of IDSI and aggravated indecent assault

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1   See 18 Pa.C.S.A. § 6301(a)(1)(ii).

2   See 18 Pa.C.S.A. §§ 3123(b), 3125(b).
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of a child. The trial court deferred sentencing and ordered the preparation of

a pre-sentence investigation report. The trial court subsequently sentenced

Hakes to a term of 11½ to 23 months in prison, followed by 37 months of

probation.3 The trial court also ordered Hakes to pay a $500 fine.

        Hakes filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

        Hakes now presents the following questions for our review:

        I. Whether the jury’s verdict on the charge of [COM – Felony] was
        supported by sufficient evidence since a material element of the
        offense was the commission of a Chapter [314] sex crime offense
        that [Hakes] was acquitted of[?]

        II. [Whether] the court erred in sentencing [Hakes] on a [COM –
        Felony] charge[?]

Brief for Appellant at VII (some capitalization omitted; footnote added).

        We   will   address    Hakes’s    claims   together.   First,   Hakes   cites

Commonwealth v. Baker-Myers, 210 A.3d 1093 (Pa. Super. 2019) (en




____________________________________________


3The original Sentencing Order addressed only the count of COM – Felony for
which Hakes was convicted. On September 26, 2019, the trial court entered
an Order clarifying that, upon agreement by the parties, the remaining four
counts of COM – Felony were dismissed prior to the start of trial.

4   See 18 Pa.C.S.A. §§ 3121-3131.


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banc), appeal granted, 221 A.3d 182 (Pa. 2019),5 and avers that the

evidence was insufficient to support his conviction of COM – Felony, because

the jury found him not guilty of each of the predicate Chapter 31 sexual

offenses for which he was charged. Id. at 9, 13. Hakes also points out that

he was never charged with corruption of minors as a misdemeanor, nor was

the jury instructed that it is a lesser-included offense of COM – Felony. Id. at

9. In his second claim, Hakes argues that the trial court improperly imposed

a sentence for COM – Felony, where the conviction was not supported by

sufficient evidence.6 Id. at 13-14.

       We observe the following standard of review:

       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
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5 This Court issued the Baker-Myers decision on May 21, 2019, after Hayes
was convicted, but prior to the scheduled sentencing hearing. Accordingly,
the trial court rescheduled the sentencing hearing, and permitted both parties
to file briefs relevant to the issue of whether the Baker-Myers decision would
affect Hakes’s sentencing.

6 Hakes includes in his appellate brief a separate Statement of reasons for
allowance of appeal, pursuant to Pa.R.A.P. 2119(f). See Brief for Appellant
at 8. However, Hakes’s claim does not challenge the discretionary aspects of
his sentence.

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      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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      The Crimes Code defines the offense 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). “In other words, the jury must find, inter alia,

that a defendant acted ‘in violation of Chapter 31 (relating to sexual

offenses).’”   Baker-Myers, 210 A.3d at 1095 (citing 18 Pa.C.S.A.

§ 6301(a)(1)(ii)).

      This Court has recently addressed whether a conviction of COM – Felony

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

31 sexual offenses:

            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 (2005), guides our
      analysis. In Magliocco, a jury convicted the defendant of Ethnic
      Intimidation, but did not convict him of Terroristic Threats. The
      Ethnic Intimidation statue requires, inter alia, that the
      Commonwealth prove that the defendant committed Terroristic

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      Threats 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. § 2710(a). The Supreme Court concluded
      that since the Commonwealth charged and prosecuted [a]ppellant
      with the predicate offense of Terroristic Threats, but failed to
      obtain a conviction, the evidence was insufficient to convict the
      defendant of Ethnic Intimidation. Id. at 493.

             Analogously, in the instant case, the Commonwealth
      charged and prosecuted [a]ppellant for COM – Felony and the
      Sexual Offenses, but failed to obtain a conviction on any of the
      Sexual Offenses. By acquitting [the a]ppellant of the Chapter 31
      Sexual Offenses, the jury found that the Commonwealth had failed
      to establish beyond a reasonable doubt that [the a]ppellant acted
      “in violation of Chapter 31.” Thus, because the jury found that
      [the a]ppellant 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, supra 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)].

Baker-Myers, 210 A.3d at 1096 (some brackets omitted).

      Here, the trial court attempts to distinguish this case from Baker-Myers

on the basis that the criminal information filed in Baker-Myers charged the

defendant with COM – Felony, which it defined as “any course of conduct

related to sexual offenses.” Sentencing Opinion, 8/28/19, at 2. In contrast,

the trial court notes that its jury instruction concerning COM – Felony in the

instant case required the jury to find beyond a reasonable doubt that the

defendant engaged in a course of conduct constituting IDSI or aggravated

indecent assault of a child. Id. at 2, 4. The trial court also explained that the

jury submitted a question, specifically asking whether, in light of this

instruction, it could find him guilty of COM – Felony if it found him not guilty

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of IDSI and aggravated indecent assault of a child. Id. at 4. The trial court

answered that “[e]ach verdict is independent of each other.           You must

determine whether the elements of each count have been proven beyond a

reasonable doubt.” Id. (citing Question #2). The trial court therefore submits

that the jury was clear that it was required to find the elements of IDSI or

aggravated indecent assault of a child, and its finding of guilt as to COM –

Felony necessarily included a finding of a violation of Chapter 31. Id. at 4;

see id. at 5 (stating that “because the verdict was rendered knowingly by the

jury after inquiry into this very issue of inconsistent verdicts, this court does

not attach any significance to the not guilty verdicts in this case insofar as

they related to or undermine the guilty verdict for [COM – Felony].”). The

trial court’s attempts to distinguish this case are unavailing.

       This case is directly controlled by the en banc Court’s decision in Baker-

Myers, and we cannot agree with the trial court’s proposition that that the

jury’s question concerning inconsistent verdicts requires a different result.

The jury acquitted Hakes of all Chapter 31 sexual offenses.           Thus, the

Commonwealth failed to establish, beyond a reasonable doubt, an essential

element of COM – Felony. See Baker-Myers, 210 A.3d at 1096. Accordingly,

we reverse Hakes’s conviction of COM – Felony, vacate the judgment of

sentence, and discharge Hakes.7



____________________________________________


7 Because there are no remaining convictions, we need not remand for
resentencing.

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      Conviction reversed.   Judgment of sentence vacated.   Appellant is

discharged. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/21/2020




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