J-S16013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT ALICEA                              :
                                               :
                       Appellant               :   No. 1378 EDA 2018

            Appeal from the Judgment of Sentence December 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003525-2015


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

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

       Appellant, Robert Alicea, appeals from the December 5, 2017 Judgment

of Sentence entered in the Philadelphia County Court of Common Pleas

following his jury conviction of Attempted Rape of a child; Aggravated

Indecent Assault of a child; Unlawful Contact With a Minor; Endangering the

Welfare of a Child (“EWOC”); Corruption of Minors (“COM”); and Indecent

Assault of a child.1     On appeal, Appellant challenges the sufficiency of the

evidence in support of his convictions. After careful review, we affirm.

       The relevant facts and procedural history, as gleaned from the record,

are as follows. On March 10, 2015, A.A. (the “victim”) reported to Philadelphia

Police Officer Kathryn Lewis that several years earlier, in 2008 or 2009, her

____________________________________________


118 Pa.C.S. §§ 901(a), 3125(b), 6318(a)(1), 4304(a)(1), 6301(a)(1), and
3126(a)(7), respectively.
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uncle, Appellant, had “touched her private parts.”2 Officer Lewis and Detective

Brian Meissler from the Special Victims Unit interviewed the victim. The victim

positively identified Appellant as her perpetrator. The victim reported that she

was eight or nine years old when the incident occurred. The victim’s mother

reported that the victim was eight.

       Police arrested Appellant, and on August 17, 2017, his jury trial

commenced. The Commonwealth presented the testimony of the victim, her

mother, Officer Lewis, and Detective Meissler.

       Relevantly, the victim testified that when she was growing up she would

see Appellant at her maternal grandmother’s house. N.T., 8/18/17 at 8. She

testified that she was close with her grandmother and, from the time she was

about four or five, she often slept at her grandmother’s house during the week

in the summer and on weekends during the school year, sometimes for

extended periods of time. Id. at 11-12. She also testified that she was close

with Appellant. Id. at 64.

       The victim testified that at the time of the assault Appellant lived with

her grandmother. Id. at 12-13. She stated that she would watch TV with

Appellant sometimes, and they would sometimes walk to the store and talk

about her life. Id.at 44. She testified that they spent at least one Christmas

together. Id. at 56.



____________________________________________


2 The victim was born in February 2000. She was 15 years old when she
reported the assault to the police.

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      She testified that, when she was about eight or nine years old, Appellant

assaulted her in his bedroom at her grandmother’s house. N.T., 8/18/17 at

8-9, 13, 16. She testified that she knew she was about eight or nine because

her grandmother had bought her a dry erase board when she was that age

because she had been having trouble with math in school, and she had been

using it just prior to the assault. Id. at 13-14, 58. She testified that she had

been in the living room on the evening in question when Appellant called her

upstairs to his bedroom and assaulted her by putting her on his lap with her

back to him, and telling her to open her legs. Id. at 14-16. The victim testified

that when she resisted opening her legs, Appellant did it for her, and then

touched her vagina, first over her clothing, and then under them. Id. at 16-

17. She stated that Appellant inserted his finger in her vagina and then laid

her on the bed. He told her to sit up, and he removed his pants halfway. He

then grabbed her hand and forced her to touch his penis. Id. at 18-19. She

testified that she and Appellant then heard her grandmother walk out of the

adjoining room, and Appellant quickly and abruptly put his pants back on. Id.

at 19-20. The victim testified that Appellant also touched her chest area over

her clothes. Id. at 20.

      The victim testified that she told her mother what had happened years

later, when she was 13 and in 7th grade. Id. at 23. She stated that she

decided to report the assault to police a year or more later when she learned

that Appellant was again staying with her grandmother, and she was scared

to see him. Id. at 29, 121. The victim’s mother testified that Appellant’s

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reappearance coincided with the victim exhibiting “depressed” and “anti-

social” behavior. Id. at 102.

       Although Appellant did not testify, he moved for the admission of

documents that he alleged supported his alibi for the entire period in which

the victim said the assault could have occurred.      In particular, the court

admitted Philadelphia Prison Department records reflecting that Appellant was

incarcerated from March 3, 2007, through and including August 10, 2009. It

also admitted business records from North Philadelphia Health System

indicating that Appellant was a patient at the Girard Medical Center from

August 10, 2009, through and including October 9, 2009.

       The jury convicted Appellant of the above charges on August 22, 2017.

On December 5, 2017, the court sentenced him to an aggregate term of 10

to 20 years’ incarceration followed by 10 years of reporting probation. 3 On

December 15, 2017, Appellant filed a Post-Sentence Motion, which was

deemed denied by operation of law on April 12, 2018.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:


____________________________________________


3 Specifically, the court sentenced Appellant to three concurrent terms of 10
to 20 years’ incarceration for his Criminal Attempted Rape of Child,
Aggravated Indecent Assault of Child, and Unlawful Contact with a Minor
convictions, followed by two consecutive terms of 5 years’ probation for his
EWOC and COM convictions and one concurrent term of 5 years’ probation for
his Indecent Assault of a Child conviction.

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       1. Whether the trial court erred in finding [Appellant] guilty of
          Attempted Rape where the Commonwealth failed to show that
          [Appellant] made any attempt to penetrate the [victim?]

       2. Whether the trial court erred in finding [Appellant] guilty of
          [EWOC] where the Commonwealth introduced no evidence that
          [Appellant] owed a duty of care or supervision to the [victim?]

       3. Whether the trial court erred in finding [Appellant] guilty of any
          of the charges when the [victim] could not provide any date or
          range of dates on which the incident could have occurred,
          thereby leading to a conviction based on insufficient evidence
          which violated [Appellant’s] due process rights under the state
          and federal constitutions[?]

Appellant’s Brief at vii.

       Each    of   Appellant’s    issues   challenges   the   sufficiency   of   the

Commonwealth’s evidence. Accordingly, we review Appellant’s claims with

the following in mind.

       “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). “We

review claims regarding the sufficiency of the evidence by considering

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.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal

quotation marks and citation omitted).           “Further, a conviction may be

sustained wholly on circumstantial evidence, and the trier of fact—while

passing on the credibility of the witnesses and the weight of the evidence—is

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free to believe all, part, or none of the evidence.” Id. (citation omitted). “In

conducting this review, the appellate court may not weigh the evidence and

substitute its judgment for the fact-finder.” Id. (citation omitted).

      Attempted Rape of a Child

      In his first issue, Appellant claims that the Commonwealth’s evidence

was insufficient to prove that he attempted to rape the victim. Appellant’s

Brief at 1-3.   In support, Appellant cites the absence of evidence that he

threatened to rape or kill the victim, tried to engage in oral sex with the victim,

or removed the victim’s clothing.     Id at 2-3.    He characterizes himself as

having voluntarily stopped his assault on the victim prior to making “any

attempt whatsoever at engaging in penetrative intercourse with” the victim.

Id. at 3. He argues that because the victim’s testimony established only that

he touched the victim with his hands and fingers, and forced the victim to

touch his penis, whether Appellant would have raped the victim is “merely a

guess.” Id. at 2. He concludes that “[w]ithout more, the touching of [the

victim] alone does not constitute a substantial step towards the commission

of [R]ape of a [C]hild and instead would merely be an Indecent Assault or

Aggravated Indecent Assault. Id. at 3.

      A defendant is guilty of Criminal Attempt if “with intent to commit a

specific crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S. §901(a).

      A person commits the offence of Rape of a Child if he “engages in sexual

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.

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§3121(c). The use of force is not an element of the crime of Rape of a Child.

In addition to its ordinary meaning, the term sexual intercourse is defined as

“intercourse per os or per anus, with some penetration however, slight.”

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003) (citations

and quotations omitted).

      To sustain Appellant’s conviction for Attempted Rape of a Child, the

Commonwealth had to prove that Appellant performed an act constituting a

substantial step toward engaging in sexual intercourse with a child under the

age of 13. As set forth supra, the Commonwealth introduced evidence that

Appellant, the victim’s uncle, lived with the victim’s grandmother, and that

the victim had a close relationship with both her grandmother and Appellant.

It also provided evidence that Appellant lured the victim to his bedroom,

touched her legs, vagina, and chest, and digitally penetrated her vagina before

placing the victim on his bed, and removing his pants. He then took out his

penis, grabbed the victim’s hand and made her touch his penis. The

Commonwealth’s evidence also showed that it was only because the victim’s

grandmother came out of a nearby room that Appellant stopped the assault.

      In explaining that the Commonwealth had presented sufficient evidence

to support Appellant’s Attempted Rape of a Child conviction, the trial court

compared the instant facts favorably to Commonwealth v. Moody, 441 A.2d

371 (Pa. Super. 2002). The trial court explained that, in Moody, this Court

affirmed a conviction of Attempted Rape of a Child where the defendant

fondled the victim’s genitalia and began to unzip his pants. Id. at 372. The

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trial court here concluded that the instant Appellant’s actions “surpass those

in Moody[]” because “Appellant penetrated [the victim’s ]vagina with his

finger after which he forced her to fondle his genitalia.” Trial Ct. Op., 5/30/19

at 5.4

         We are unpersuaded by Appellant’s argument and disagree with his

assertion that the Commonwealth presented evidence of “touching [the

victim] alone[.]”      Moreover, we find Appellant’s characterization of the

circumstances under which he ceased the assault as “voluntary” disingenuous,

and we reject his argument that the jury should have inferred from his

“voluntariness” that he had no intention of escalating the assault to rape.

Viewing the above evidence, and all reasonable inferences therefrom, in the

light most favorable to the Commonwealth as verdict winner, as we must, we

conclude that it was reasonable for the jury to infer that Appellant had

performed acts constituting a substantial step toward engaging in sexual

intercourse with the victim. Accordingly, Appellant is not entitled to relief on

this claim.




____________________________________________


4 In its Appellee’s brief, the Commonwealth now agrees with Appellant that it
failed to present sufficient evidence to sustain his Attempted Rape of a Child
conviction. Commonwealth’s Brief at 9-13. In particular, it argues that the
trial court’s reliance on Moody is misplaced because there were additional
facts and circumstances present in Moody and its progeny that led this Court
to affirm the defendants’ convictions. For the reasons stated above, we
disagree with the Commonwealth’s assessment.

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      EWOC

      In his second issue, Appellant claims that the Commonwealth failed to

adduce sufficient evidence to sustain his conviction of EWOC because it did

not demonstrate that he had a duty of care or supervision to the victim.

Appellant’s Brief at 3.   In particular, Appellant asserts that the victim’s

testimony that Appellant was her uncle, that she was close with him, and they

sometimes walked to the store together was insufficient to establish that he

exercised a duty of supervision or of care to her. Id. at 5. This is especially

true, he argues, in light of her testimony that Appellant’s presence at her

grandmother’s home was unpredictable, and her lack of testimony that they

were ever at home alone, which would have implied that he had a duty to

supervise her. Id.

      In support of his argument, Appellant compares the facts of this case

favorably to those in Commonwealth v. Halye, 719 A.2d 763 (Pa. Super.

1998), where this Court found that the Commonwealth failed to prove that

the defendant, who was a one-time visitor in the victim’s home, was in a

position of supervising the victim at the time of the assault. Id. at 765. He

distinguishes his case from Commonwealth v. Brown, 721 A.2d 1105 (Pa.

Super. 1998), where this Court concluded that the evidence was sufficient to

convict the defendant of EWOC because the victim lived with the defendant

who had supervisory duties when the abuse occurred. Id. at 1108.

      “A parent, guardian[,] or other person supervising the welfare of a child

under 18 years of age, or a person that employs or supervises such a person,

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commits an offense if he knowingly endangers the welfare of the child by

violating a duty of care, protection[,] or support.” 18 Pa.C.S § 4304(a)(1).

The Criminal Code defines a “person supervising the welfare of a child” as a

“person other than a parent or guardian that provides care, education,

training[,] or control of a child.” 18 Pa.C.S. § 4304(a)(3).

      The statue criminalizing EWOC is protective in nature, and we construe

it to “effectuate its broad purpose of sheltering children from harm.”

Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015). Not all adults who

reside with children have a duty of care, protection, or support to that child.

Brown, 721 A.2d at 1108.           To find a person liable of EWOC, the

Commonwealth must establish that the person had such a duty and violated

it. Id.

      Endangering the welfare of a child is a specific intent crime and the

intent element is a “knowing violation of a duty of care.” Lynn, 114 A.3d at

819. To prove knowing intent, the Commonwealth must prove that:

      (1) the accused is aware of his/her duty to protect the child; (2)
      the accused is aware that the child is in circumstances that could
      threaten the child’s physical or psychological welfare; and (3) the
      accused has either failed to act or has taken action so lame or
      meager that such actions cannot reasonably be expected to
      protect the child’s welfare.

Id.

      Instantly, the Commonwealth presented evidence that at the time of the

assault, Appellant had recently been released from prison and was living at

his mother’s home where the victim often stayed, sometimes for extended


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periods. Unlike the defendant in Halye, who was a one-time visitor to the

victim’s home and not previously known to the victim, Appellant and the victim

sometimes shared the victim’s grandmother’s home and had a close

relationship. Although the evidence did not show that Appellant ever babysat

or played with the victim, or performed any other quasi-custodial functions

like the defendant in Brown, it demonstrated that Appellant showed a special

interest in the care of the victim when they would walk to the store together

and talk about the victim’s life. In light of the broad purpose of the EWOC

statute and the foregoing evidence, we find that the jury reasonably concluded

that Appellant was guilty of the crime of EWOC.

      Incident Date

      In his final issue, Appellant claims that because the victim could not

provide any date or range of dates on which the assault occurred, the

Commonwealth’s evidence was insufficient to convict him of any of the

charges. Appellant’s Brief at 7-9 (citing Commonwealth v. Devlin, 333 A.2d

888 (Pa. 1975). He also complains that the Commonwealth’s failure to provide

a specific date or reasonable date range violated his due process rights

because it deprived him of the opportunity to raise competently an alibi

defense. Id. at 9.

      Although it “is the duty of the prosecution to fix the date when an alleged

offense occurred with reasonable certainty . . . the Commonwealth does not

always need to prove a single specific date of an alleged crime.”

Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. 2006) (citations

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omitted). The Commonwealth has the burden to prove “with a reasonable

certainty and being within the statutory period” the commission of the offense.

Commonwealth v. Levy, 23 A.2d 97, 99 (Pa. Super. 1941).

      With respect to allegations of child sexual abuse, we afford the

Commonwealth broad latitude when attempting to ascertain the date of the

incidents.   See Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa.

Super. 2007) (“Case law has established that the Commonwealth must be

afforded broad latitude when attempting to fix the date of offenses which

involve a continuous course of conduct.”); Commonwealth v. Groff, 548

A.2d 1237, 1241 (Pa. Super. 1998) (explaining that “the [C]ommonwealth

must be allowed a reasonable measure of flexibility when faced with the

special difficulties involved in ascertaining the date of an assault upon a young

child,” given that when the victim is a young child it can be almost impossible

to ascertain the exact date when a crime occurred); Commonwealth v.

Niemetz, 422 A.2d 1369, 1373 (Pa. Super. 1980) (concluding that time is not

of the essence in matters involving rape, IDSI, indecent assault of children,

and corruption of minors).

      Appellant relies on Devlin, supra, in support of his allegation that the

Commonwealth’s failure to give him sufficiently specific notice of when the

assaults occurred rendered him unable to prepare a defense. In Devlin, the

Commonwealth charged the defendant with sodomizing a mentally challenged

adult who had the mental ability of a first- or second-grade child and the

emotional stability of an even younger child. The Commonwealth alleged that

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the crime occurred at some unspecified time during a 14-month period. The

defendant argued that the Commonwealth’s allegation as to the time of the

crime was so vague that it precluded him from preparing an effective defense

to the charges, and our Supreme Court agreed. Importantly, however, the

Supreme Court declined to adopt a per se rule concerning the length of the

time-period in which the Commonwealth must establish that the defendant

had committed the crime. Devlin, 333 A.2d at 892. The Court emphasized

that a case-by-case inquiry, which considered the nature of the crime and the

age of the victim, was appropriate, and the Commonwealth must only fix the

date of the offense “with reasonable certainty.” Id. at 890-92.

     In this case, the trial court considered the facts and the controlling

authority and concluded that the Commonwealth had fixed the time frame of

the charged offenses with “reasonable certainty.” The court observed:

     There was sufficient evidence for the jury to conclude that the
     charged crimes occurred sometime after Appellant’s incarceration
     or subsequent hospital admission and before [the victim’s] tenth
     birthday. On the night of the incident, [the victim] stayed at her
     grandmother’s house after Appellant had been released from jail
     when she was either eight or nine years old, which would be either
     in 2008 or 2009. Appellant was incarcerated from March 3, 2007
     to August 10, 2009. He was a patient at Girard Medical Center on
     August 10, 2009 through October 9, 2009. Viewing the evidence
     in the light most favorable to the verdict[-]winner, the 3 to 5
     month period during which the incident could have occurred
     defeats Appellant’s insufficiency claim. Moreover, because time is
     not an essential element to any of the charges, Appellant’s
     insufficiency claim does not bar the conviction of Appellant on any
     of the charges.

     Appellant’s due process challenge on the basis that [the victim]
     did not provide a specific date or range of dates also fails because


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      [the victim] testified with a reasonable certainty that the incident
      occurred within a 3 to 5 month period.

                                      ***

      . . . The range of dates during which the incident could have
      occurred fell within the leeway courts have granted in cases
      concerning sexual offenses against children . . . Though Devlin
      established that there is no per se rule, this case nonetheless did
      not exceed the range in Devlin. Additionally, the following factors
      weigh against [] Appellant’s due process challenge: testimony that
      the offense occurred after Appellant had been released from jail,
      [the victim’s] young age, and her mother’s testimony noticing
      signs of distress when Appellant reappeared in grandmother’s life.
      Therefore, Appellant’s due process claim is meritless.

Trial Ct. Op., at 7-8 (citations to the Notes of Testimony omitted).

      Following our review, we conclude that, given the nature of the crimes,

the age of the victim, and the fact that the date of the offense is not an

element of the charged crimes, the testimony of the victim established the

range of dates in which the assault occurred with reasonable certainty. Thus,

Appellant’s due process challenge fails.

      Conclusion

      Having determined that sufficient evidence supports Appellant’s

convictions and his due process rights were not violated, we affirm his

Judgment of Sentence.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/21/2020




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