J. S06040/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
XIAOTING SUN,                            :         No. 1546 EDA 2018
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, December 11, 2017,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0009247-2016


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 02, 2019

        Xiaoting Sun appeals from the December 11, 2017 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following her conviction in a waiver trial of promoting prostitution, criminal

solicitation, and criminal conspiracy.1 The trial court imposed an aggregate

sentence of three years’ reporting probation, which consisted of three

concurrent three-year probationary terms. Because the trial court improperly

convicted appellant of and sentenced appellant for two inchoate offenses in

violation of 42 Pa.C.S.A. § 906, we reverse appellant’s criminal solicitation

conviction and vacate appellant’s judgment of sentence for criminal




1   18 Pa.C.S.A. §§ 5902(b), 902(a), and 903, respectively.
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solicitation.   We affirm appellant’s judgments of sentence for promoting

prostitution and criminal conspiracy.

      The record reflects that on August 5, 2016, Police Officer Yun-Taek Yim

of the Philadelphia Police Department was following up on numerous

complaints of prostitution occurring at 1123 Race Street in Philadelphia.

(Notes of testimony, 12/11/17 at 6-7.) In so doing, Officer Yim “did a check

on Backpage” and “found numerous ads with the phone number 215-500-

1077.” (Id. at 7.) Officer Yim explained that backpage.com is a website that

contains an advertisement section for those offering escort and massage

services. (Id. at 8.)

      While searching the above telephone number on backpage.com,

Officer Yim found 25 posted advertisements for the three-day period

commencing on August 3, 2016 and ending on August 5, 2016. (Id. at 7.)

All of the advertisements included pictures of scantily clad Asian females and

offered massage services with “[y]oung Asian girls.” (Id. at 8-9.) Some of

the advertisements showed the females posed on beds. (Id. at 8.)

      Officer Yim then ran a property check on 1123 Race Street and

discovered that it was not owned by appellant. (Id.) The property check also

revealed that the Philadelphia Police Department’s vice unit had made at least

15 arrests for prostitution-related activities at the address. (Id. at 9.)

      On August 5, 2016 at approximately 9:00 p.m., Officer Yim called the

number listed in the backpage.com advertisements.               (Id. at 9-10.)



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Officer Yim testified that an “Asian female answered the phone who was later

identified as [appellant].” (Id. at 10.) Appellant then provided the 1123 Race

Street address to Officer Yim and told him that “we have young Asian girls

working today.” (Id.)

      Officer Yim and the vice unit then traveled to 1123 Race Street to

investigate. (Id.) While the vice unit stayed in the vicinity, Officer Yim, who

was investigating undercover, “went up to the front door of this location, went

inside the first door and there was another second door which [was] locked.”

(Id. at 10-11.) Officer Yim observed a surveillance camera above the door.

(Id. at 10.) After he rang the doorbell, appellant, dressed in pants and a

shirt, opened the door. (Id. at 11.) Another female who was wearing only a

bra and underwear was with appellant. Officer Yim was invited inside. (Id.

at 12.)

      Once inside, Officer Yim observed what he described as a “waiting area”

furnished with sofas and chairs. (Id.) Appellant then instructed Officer Yim

to follow her. Officer Yim recognized appellant’s voice as that of the woman

who answered the phone connected to the backpage.com advertisements.

(Id. at 17) As Officer Yim followed appellant, he observed a long hallway that

stretched to the rear of the property. (Id. at 12.) Officer Yim testified that:

            on the right side, there is approximately four to five
            partitioned off rooms which these rooms only have a
            bed. They have a nightstand table and on top of the
            nightstand table, they would have a very dimly lit
            lamp with some massage oils and tissues and towels.
            On the right side of the room, there is a shower room


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            which is a large room that has a table inside of this
            room where they give table showers to customers that
            frequent there or as a customer. There’s a bathroom.
            And there’s a sleeping area for all the females that
            work there in one of the rooms in the back, and there
            is a kitchen in the back of this property.

Id. at 12-13.

      Appellant led Officer Yim to Room No. 2. (Id. at 12.) Once inside the

room, appellant asked Officer Yim if he had been to 1123 Race Street before.

Officer Yim responded that he had been there “about a year ago.” Appellant

then told Officer Yim that she would “bring a nice girl” for him. (Id.)

      After momentarily leaving Room No. 2, appellant returned with a

woman dressed only in a black bra and black underwear who was later

identified as Faye Hung Wang.2 (Id. at 13.) Officer Yim then asked appellant

if he had his choice of girls. Appellant responded that all of the girls were

presently with other customers. Officer Yim then stated that Ms. Wang would

be “fine.” (Id. at 14.) Officer Yim testified that during this conversation with

appellant, he had observed two other women, dressed only in their bras and

underwear, walking back and forth.3 (Id. at 13-14.)




2 The record indicates that Ms. Wang was also charged with prostitution-
related crimes in connection with the August 5, 2016 undercover investigation
of 1123 Race Street in Philadelphia. (Notes of testimony, 12/11/17 at 13.)

3 Officer Yim indicated that in addition to appellant, the August 5, 2016
undercover investigation of 1123 Race Street in Philadelphia resulted in the
arrests and prosecutions of three other women, which included Ms. Wang.
(Notes of testimony, 12/11/17 at 13-14.)


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        Appellant then exited Room No. 2, and Ms. Wang entered, closing the

door behind her. (Id. at 14.) Ms. Wang asked Officer Yim if he wanted to

take a shower. He said that he did. Ms. Wang then asked Officer Yim for

$160.     Officer Yim handed Ms. Wang $160 in pre-recorded U.S. currency.

Ms. Wang then handed Officer Yim a towel and instructed him to remove his

clothing.   Ms. Wang exited the room with the currency.      Officer Yim then

removed his clothing. Moments later, Ms. Wang returned to Room No. 2 and

escorted Officer Yim to the shower room where there was a table. Ms. Wang

instructed Officer Yim to lay on the table. Officer Yim complied. Ms. Wang

proceeded to give Officer Yim “a shower while [he] was laying down, front and

back.” (Id. at 15.)

        After the shower, Ms. Wang took Officer Yim back to Room No. 2 and

instructed him to lay on the bed on his stomach. (Id.) Officer Yim complied.

Ms. Wang proceeded to give Officer Yim a full-body massage.        During this

time, Officer Yim testified that he could hear “beds creaking in the other

rooms.” (Id.)

        After the massage, Ms. Wang instructed Officer Yim to lay on his back.

(Id.) Officer Yim complied. Ms. Wang massaged his chest and then removed

her bra and underwear.        She then attempted to place a condom on

Officer Yim’s penis. Officer Yim asked if he could “use the bathroom before

[they had] sex.”      (Id. at 15-16.)    Ms. Wang said, “okay.”   (Id. at 16.)




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Officer Yim then went into the bathroom, at which time he contacted backup

officers. (Id.)

      After the backup officers arrived, they served and executed a search

warrant. (Id. at 26.) The backup officers, along with Officer Yim, went into

all of the rooms inside 1123 Race Street, which were occupied by naked male

customers and naked females.      (Id. at 15.)   During the search, officers

recovered, among other things, $8,499 in U.S. currency from appellant’s

person; $3,958 in U.S. currency, described as “house money,”4 which included

the pre-recorded U.S. currency that Officer Yim had given to Ms. Wang; one

box of condoms containing 1,008 condoms; a half of a box of small condoms;

K-Y liquids and lubricants, including Astroglide; cellphones; customer logs;

cameras; and a video recorder. (Id. at 17, 18, and 26-28.) The record further

reflects that a cellphone recovered near appellant was the cellphone connected

to the number listed in the backpage.com advertisements. (Id. at 17.)

      Following appellant’s convictions of the above crimes, the trial court

imposed judgment of sentence.         Appellant received three concurrent

three-year probationary terms for each conviction, which resulted in an

aggregate probationary term of three years. Following imposition of sentence,

appellant filed a timely post-sentence motion, which was denied by operation


4 Officer Stanley Kaluza explained that if police “cannot determine whose it
is[, the police] call it house money and that is usually also defined as the
proceeds that are given to the house as well. But because also there is no
determination of who actually has this money, it’s called house money.”
(Notes of testimony, 12/11/17 at 27.)


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of law pursuant to Pa.R.Crim.P. 720(B)(3)(c). Appellant then filed a timely

notice of appeal.    The trial court did not order appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court did not file an opinion. By correspondence dated June 11, 2018,

the Court of Common Pleas of Philadelphia County informed this court that

because the trial court in this case, the Honorable Pamela Dembe, “is no longer

sitting as a judge in Philadelphia County,” the “file is being forwarded . . .

without an opinion.”      (Correspondence to Superior Court of Pennsylvania

Prothonotary, 6/12/18.)

      Appellant raises the following issues for our review:

            [1.]    WAS THE EVIDENCE INSUFFICIENT TO
                    SUSTAIN THE PROMOTING PROSTITUTION
                    CHARGE?

            [2.]    WAS THE EVIDENCE INSUFFICIENT TO
                    SUSTAIN THE SOLICITATION TO PROMOTE
                    PROSTITUTION OR THE CONSPIRACY TO
                    PROMOTE PROSTITUTION CHARGES?

Appellant’s brief at 3.

            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


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            of law no probability of fact may be drawn from the
            combined circumstances. The Commonwealth may
            sustain its burden of proof 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 the evidence actually received must be
            considered. Finally, the trier 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      The Crimes Code defines the crime of promoting prostitution, in relevant

part, as follows:

            (b)     Promoting prostitution.--A person who
                    knowingly promotes prostitution of another
                    commits a misdemeanor or felony as provided
                    in subsection (c) of this section. The following
                    acts shall, without limitation of the foregoing,
                    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.A. § 5902(b)(1).

            In order to sustain a conviction of promoting
            prostitution, this Court must determine that there is
            sufficient evidence to convince the [fact finder]
            beyond a reasonable doubt that the Commonwealth
            proved: (1) the existence of a prostitution business;
            and (2) that the accused actively participated in the
            “running, control, supervision or keeping of the
            prostitution business.”



                                      -8-
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Commonwealth v. Dobrinoff, 784 A.2d 145, 147-148 (Pa.Super. 2001),

quoting Commonwealth v. Blankenbiller, 524 A.2d 976 (Pa.Super. 1987).

Our supreme court has defined “prostitution” as “sexual relations for hire.”

Dobrinoff, 784 A.2d at 148, quoting Commonwealth v. Miller, 364 A.2d

886, 887 (Pa. 1976).      Furthermore, it is well established that in order to

sustain a conviction for promoting prostitution, “[t]here was no need for the

officer to participate in the sexual activity to the extent of having intercourse.”

Commonwealth v. Danko, 421 A.2d 1165, 1171 (Pa.Super. 1980).

      Here, appellant claims that the evidence was insufficient to sustain her

conviction for promoting prostitution because it merely demonstrated that she

was employed as a receptionist by a licensed massage parlor and that she was

not present during Ms. Wang’s interaction with Officer Yim which was

independent of the legitimate operations of the licensed massage parlor. (See

appellant’s brief at 15-22.)

      Our review of the record, however, reveals that appellant answered the

phone connected to the backpage.com advertisements, which advertisements

included pictures of scantily clad women, some of whom were posed on beds.

Additionally, appellant controlled Officer Yim’s entry into 1123 Race Street.

While appellant was taking Officer Yim to Room No. 2, the two passed other

rooms, each of which contained a bed – not a massage table.             They also

passed a shower room. Appellant told Officer Yim that she would bring him a

“nice girl”.   To that end, she brought him Ms. Wang who was dressed in



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nothing else but a black bra and black underwear, as were two other women

who were walking back and forth in the hallway. As appellant, Officer Yim,

and Ms. Wang stood in the bedroom referred to as “Room No. 2,” neither

appellant nor Ms. Wang asked Officer Yim what kind of massage he wanted

and neither provided him with massage-service options; in fact, the record

demonstrates that massages were never discussed.           After appellant left

Ms. Wang and Officer Yim in the bedroom referred to as “Room No. 2,”

Ms. Wang showered Officer Yim, had him lay on the bed, removed her clothes,

and then attempted to place a condom on his penis. Additionally, after backup

arrived, the officers’ search of the property resulted in the confiscation of,

among other things, more than 1,000 condoms, together with a variety of

lubricants.

      This evidence, viewed in the light most favorable to the Commonwealth

as the verdict winner, was sufficient to prove beyond a reasonable doubt that

appellant committed the crime of promoting prostitution.5

      Appellant next contends that the evidence was insufficient to convict her

of conspiracy to promote prostitution because it failed to show that she




5 We note that contrary to appellant’s assertion, the facts of this case are not
analogous to those in Commonwealth v. DeStefanis, 658 A.2d 416
(Pa.Super. 1995), wherein we found the evidence insufficient to sustain
defendant’s promoting prostitution conviction because it demonstrated that a
legitimate massage was given for a stated price and that one masseuse
offered a “hand release” for an additional tip. Here, the record demonstrates
that no massage was offered for any price and no “hand release” was offered
for an additional tip.


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solicited Ms. Wang and/or Officer Yim to engage in a sex act for money; it

failed to establish that she ever discussed prostitution with either one of them;

and that if any act of prostitution was committed, it was Ms. Wang’s

independent act. (See appellant’s brief at 22-26.)

      Pursuant to the Crimes Code, conspiracy is defined as follows:

            § 903. Criminal conspiracy

            (a)   Definition of conspiracy.--A person is guilty
                  of conspiracy with another person or persons to
                  commit a crime if with the intent of promoting
                  or facilitating its commission he:

                  (1)    agrees with such other person or
                         persons that they or one or more of
                         them will engage in conduct which
                         constitutes such crime or an
                         attempt or solicitation to commit
                         such crime; or

                  (2)    agrees to aid such other person or
                         persons   in   the    planning  or
                         commission of such crime or of an
                         attempt or solicitation to commit
                         such crime.

18 Pa.C.S.A. § 903(a).

            A conviction for criminal conspiracy, 18 Pa.C.S.A.
            § 903, is sustained where the Commonwealth
            establishes that the defendant entered an agreement
            to commit or aid in an unlawful act with another
            person or persons with a shared criminal intent and
            an overt act was done in furtherance of the
            conspiracy.

            The essence of a criminal conspiracy is the common
            understanding that a particular criminal objective is to
            be accomplished.       Mere association with the
            perpetrators, mere presence at the scene, or mere


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           knowledge of the crime is insufficient. Rather, the
           Commonwealth must prove that the defendant shared
           the criminal intent, i.e., that the Appellant was “an
           active participant in the criminal enterprise and that
           he had knowledge of the conspiratorial agreement.”
           The defendant does not need to commit the overt act;
           a co-conspirator may commit the overt act.

           A conspiracy is almost always proved through
           circumstantial evidence. “The conduct of the parties
           and the circumstances surrounding their conduct may
           create ‘a web of evidence’ linking the accused to the
           alleged conspiracy beyond a reasonable doubt.” The
           evidence must, however, “rise above mere suspicion
           or possibility of guilty collusion.”

                 Among the circumstances which are
                 relevant, but not sufficient by themselves,
                 to prove a corrupt confederation are:
                 (1) an association between alleged
                 conspirators; (2) knowledge of the
                 commission of the crime; (3) presence at
                 the scene of the crime; and (4) in some
                 situations, participation in the object of
                 the conspiracy. The presence of such
                 circumstances may furnish a web of
                 evidence linking an accused to an alleged
                 conspiracy beyond a reasonable doubt
                 when viewed in conjunction with each
                 other and in the context in which they
                 occurred.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super.2002)

(en banc) (citations omitted). See also Commonwealth v. Finnegan, 421

A.2d 1086 (Pa. Super. 1980) (affirming conviction of conspiracy where the

defendant arranged the meeting of an undercover officer with a prostitute).

     Here, while Officer Yim may not have heard any direct communication

between appellant and Ms. Wang about engaging in sexual activity for profit,



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the conduct of appellant and Ms. Wang and the circumstances surrounding

their conduct created “a web of evidence” linking appellant to the conspiracy

to promote prostitution beyond a reasonable doubt. The association between

appellant and Ms. Wang was demonstrated by appellant’s bringing Ms. Wang,

dressed only in a bra and underwear, to Officer Yim, which came about as the

result of 25 advertisements placed in backpage.com over a 72-hour period

featuring scantily clad women, some posed on beds. Additionally, appellant’s

knowledge of the commission of the underlying crime of promoting

prostitution was established by, among other things, her answering the phone

connected with the backpage.com advertisements; her controlling appellant’s

entrance into the property; her taking appellant to a bedroom; her bringing

Ms. Wang, who was dressed in a bra and underwear, to Officer Yim; and her

failure to discuss legitimate massage services and corresponding prices with

Officer Yim.   Appellant was also present and working at 1123 Race Street

where the crime of promoting prostitution took place. Moreover, the seamless

nature of appellant’s conduct from the time she answered Officer Yim’s

telephone inquiry until the time she left Officer Yim in the bedroom with

Ms. Wang was circumstantial evidence of an agreement between appellant

and Ms. Wang that Ms. Wang would perform sexual activity for monetary

compensation. Therefore, the evidence was sufficient to find appellant guilty

of criminal conspiracy.




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      With respect to appellant’s conviction for criminal solicitation, the

Commonwealth notes that, although not raised by appellant,

            [appellant] should not have been sentenced for both
            conspiracy and solicitation stemming from “conduct
            designed to . . . culminate in the commission of the
            same crime.” 18 Pa.C.S.[A.] § 906. As [appellant’s]
            solicitation and conspiracy convictions both arise from
            her request that Ms. Wang have sex with Officer Yim,
            her [judgment] of sentence for solicitation should be
            vacated. See Commonwealth v. Kingston, 143
            A.3d 917, 923 (Pa. 2016) (explaining that when a
            solicitation evolves into a conspiracy, the defendant
            can be punished for only one).            But because
            [appellant] was sentenced to concurrent sentences for
            her conspiracy and solicitation convictions, no remand
            is necessary. See Commonwealth v. Woods, 575
            A.2d 601, 606 (Pa.Super. 1990) (vacating one of
            Woods’s inchoate convictions under Section 906, but
            declining to remand for resentencing because that
            conviction ran concurrently to his other inchoate
            conviction).

Commonwealth’s brief at 14.

      As noted by the Commonwealth, appellant did not raise this issue on

appeal. As the issue implicates the legality of appellant’s sentence, it is a

non-waiveable issue, and we may address it sua sponte. Commonweath

v. Springer, 961 A.2d 1262, 1264 n.3. (Pa.Super. 2008).

      Section 906 of the Crimes Code prohibits multiple convictions of

inchoate crimes. 42 Pa.C.S.A. § 906 (“[a] person may not be convicted of

more than one of the inchoate crimes of criminal attempt, criminal solicitation

or criminal conspiracy for conduct designed to commit or to culminate in the

commission of the same crime”).



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      Here, the trial court improperly convicted appellant of two inchoate

crimes; specifically, criminal solicitation and criminal conspiracy, the

underlying conduct of which was designed to promote prostitution. Therefore,

Section 906 permits only one of those convictions to stand. See 42 Pa.C.S.A.

§ 906. Pursuant to 42 Pa.C.S.A. § 706, we have the option to remand for

resentencing or to modify the sentence directly.     See 42 Pa.C.S.A. § 706

(“[a]n appellate court may affirm, modify, vacate, set aside or reverse any

order brought before it for review . . . .”). Because the trial court sentenced

appellant to three concurrent three-year probationary terms, we will amend

appellant’s sentence, as doing so will not upset the trial court’s sentencing

scheme. The judgment of sentence for criminal solicitation, which was to run

concurrently with the judgments of sentence for promoting prostitution and

criminal conspiracy, is vacated.

      Conviction of criminal solicitation reversed. Judgment of sentence for

criminal solicitation vacated.     Judgments of sentence for promoting

prostitution and criminal conspiracy affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/2/19




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