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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 26, 2019

        Pok Sun Chang appeals from the judgment of sentence, imposed in the

Court of Common Pleas of Philadelphia County, after being convicted,

following a bench trial, of promoting prostitution and conspiracy.1    For the

reasons set forth herein, we vacate Chang’s judgment of sentence.

        On August 17, 2016, Chang was arrested by Philadelphia police at the

“Pink Spa,” located at 1207 Race Street in Philadelphia, and charged with the

aforementioned offenses.2 On November 21, 2016, Chang filed a motion to

suppress, challenging her arrest as violative of the Fourth Amendment of the

U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.

____________________________________________


1   18 Pa.C.S.A. §§ 5902(b)(1) and 903, respectively.
2 Chang was also initially charged with solicitation, 18 Pa.C.S.A. § 902. At a
hearing on October 27, 2016, the trial court granted Chang’s motion to quash
this charge.


*    Retired Senior Judge assigned to the Superior Court.
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The suppression court held a hearing on the motion to suppress on June 19,

2017, at the conclusion of which it denied relief.

       Trial occurred on August 31, 2017. Philadelphia Police Officer James

Kearney testified that, on August 16 or 17, 2016, he visited the Backpage

website and saw an advertisement for massage services at the Pink Spa. N.T.

Trial, 8/31/17, at 9-12, 24. The advertisement included a phone number,

photographs of young Asian women in lingerie, and a photograph of a sign

that said “Pink, ring bell.”   Id. at 12-14; Commonwealth Ex. C-1.          Officer

Kearney testified that, based on his eleven years of experience working in the

vice   unit   on   numerous    prostitution   investigations,   he   believed   this

advertisement was for prostitution services. N.T. Trial, 8/31/17, at 8-9, 15.

       Officer Kearney testified that he called the telephone number on the

online advertisement and spoke to a woman who informed him that no

appointment was necessary and he could come in anytime. Id. at 16. On

August 17, 2016, Officer Kearney went to the Pink Spa and rang a bell next

to the “Pink, ring bell” sign, which was identical to the sign in the

advertisement.     Id. at 16-17.    Chang opened the door and asked Officer

Kearney if he had ever been to the establishment before. Id. at 17. Officer

Kearney stated that he did not believe that he had previously been there, and

Chang then led Officer Kearney through the “living room area” towards a room

marked number 5. Id.

       Officer Kearney testified that he then asked Chang “[h]ow much is it,”

without specifying any particular type of massage or other service. Id. at 17,

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20. Chang responded $160. Id. at 17. Officer Kearney asked if he should

pay Chang, and Chang responded “no” and that he should give the money to

“the girl.” Id. at 18. Officer Kearney asked if there was more than one girl

to choose from, and Chang then presented him with two young women, Miss

An and Miss Kim.3 Id. Officer Kearney selected Miss An, who led him into

room number 5. Id.

        Officer Kearney testified that, once inside the room, Miss An informed

him “it was $160” and told him to get undressed. Id. Officer Kearney paid

Miss An $160 and she then left the room for several minutes; when she

returned she asked Officer Kearney if he wanted a table shower. Id. Officer

Kearney responded in the affirmative. Id. Officer Kearney testified that Miss

An led him into the shower room, where she took off her lingerie top and gave

him a “full body shower head to toe.” Id. at 19. Officer Kearney testified that

once the shower was completed, she dried him off and led him back into room

number 5, where she told him to lay down on his stomach. Id. Miss An then

rubbed his back for several minutes before asking him to roll over. Id. At

this point, which was approximately 20 to 30 minutes into their interaction,

Officer Kearney asked Miss An “are we going to have sex now,” to which Miss

An responded yes. Id. at 19, 45. Officer Kearney then asked Miss An “[d]o I

have to give you any[ ]more money,” to which Miss An responded no. Id.

Officer Kearney then informed Miss An that he would need to use the

____________________________________________


3   Miss An and Miss Kim were not identified by their full names at trial.

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bathroom, at which point he surreptitiously notified his backup officers to

enter the Pink Spa and arrest Chang and Miss An. Id. at 19, 46.

       At the conclusion of trial, the trial court found Chang guilty of promoting

prostitution and conspiracy. On November 8, 2017, following a hearing, the

trial court sentenced Chang to five years of probation on the promoting

prostitution charge and no further penalty as to the conspiracy charge. Chang

filed a post-sentence motion, which the trial court denied on December 14,

2017. This timely appeal follows.4

       Chang challenges the sufficiency of the evidence supporting her

convictions for promoting prostitution and conspiracy. Our standard of review

when considering a challenge to the sufficiency of the evidence is well-settled:

       A claim challenging the sufficiency of the evidence presents a
       question of law. We must determine “whether the evidence is
       sufficient to prove every element of the crime beyond a
       reasonable doubt.” We “must view evidence in the light most
       favorable to the Commonwealth as the verdict winner, and accept
       as true all evidence and all reasonable inferences therefrom upon
       which, if believed, the fact finder properly could have based its
       verdict.”
       Our Supreme Court has instructed: [T]he 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.            Moreover, in

____________________________________________


4  The trial court did not request that Chang file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 20,
2018, the trial court informed this Court that the judge who presided over the
trial and sentencing was no longer a sitting judge and, therefore, no opinion
would be issued.

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      applying the above test, the entire record must be evaluated and
      all 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.
      In addition, “[t]he Commonwealth may sustain its burden by
      means of wholly circumstantial evidence, and we must evaluate
      the entire trial record and consider all evidence received against
      the defendant.”

Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa. Super. 2014), quoting

Commonwealth v. Williams, 73 A.3d 609, 617 (Pa. Super. 2013).

      Chang was convicted of promoting prostitution and conspiracy. Section

5902(b)(1) of the Crimes Code provides:

      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 . . . 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). A “house of prostitution” is defined by the statute

as “[a]ny place where prostitution or promotion of prostitution is regularly

carried on by one person under the control, management or supervision of

another.” 18 Pa.C.S.A. § 5902(f) (emphasis added). While not defined in the

statute, this Court has previously characterized a “prostitution business” as

one that involves the payment of money in exchange for sexual stimulation.

See Commonwealth v. DeStefanis, 658 A.2d 416, 420 (Pa. Super. 1995)

(“[I]n order for there to be prostitution, there must not only be sexual activity




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. . ., but a payment of money as well, in other words, “a prostitution

business.”).

      Criminal conspiracy requires proof that a person: (1) entered into an

agreement to commit or aid in an unlawful act with another person or persons;

(2) with a shared criminal intent; and (3) that an overt act was done in

furtherance of the conspiracy. Commonwealth v. Johnson, 719 A.2d 778,

785 (Pa. Super. 1998) (en banc).     A conspiracy may be established with

circumstantial evidence, such as the interaction between the parties and the

context of their actions. Commonwealth v. Bricker, 882 A.2d 1008, 1017

(Pa. Super. 2005). This Court has identified factors to be considered when

analyzing whether a conspiracy has been proven:

      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)

(citations omitted).

      Chang argues that the Commonwealth did not establish that prostitution

was “regularly carried on” at the Pink Spa such that it could be considered a

“house of prostitution” as defined in section 5902. Chang asserts that the

Commonwealth also failed to prove that there was a “prostitution business”



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under the statute because any understanding between Miss An and Officer

Kearney that they would have sex was separate and apart from the service

purchased and ancillary to the actual business of the Pink Spa. Chang further

argues that the evidence showed that she was a low-level employee at the

Pink Spa rather than the owner or manager of the establishment.

     In support of her claim, Chang relies on DeStefanis, supra, and

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

DeStefanis, a male undercover officer went to a fitness center and paid for a

body massage, at the conclusion of which the massage therapist asked him if

he wanted a “hand release,” which he understood to be a manual stimulation

of the genitals. DeStefanis, 658 A.2d at 417. The officer inquired as to the

price of a hand release and was informed that “a tip would be appreciated.”

Id. The same officer returned again and asked another therapist for other

sexual services and was informed that there was a house rule that only hand

releases were available.   Id.   Several months later, a female undercover

officer interviewed for a massage therapist position with DeStefanis, the

owner of the fitness center. Id. The female officer asked DeStefanis if “he

had a problem with” her performing a hand release during a massage, and

DeStefanis stated it was up to her if she wanted to make more money, but he

did not think “anybody’s doing that.”     Id. at 417-18.     DeStefanis also

reiterated numerous times during the interview that no sexual intercourse was

permitted and he would be monitoring her closely. Id. at 418.




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        We concluded in DeStefanis that there was insufficient evidence of a

prostitution business to support the defendant’s conviction for promoting

prostitution because no price was attached to the hand release and the only

discussion of compensation for this service was the vague statement that a

tip would be appreciated. Thus, there was no basis for a conclusion that the

hand release was included in the price of the massage. We further determined

that DeStefanis’ statement to the female officer posing as a job applicant that

she could perform hand releases for extra tips did not establish that the

defendant was engaged in the “business” of prostitution. Finally, we stated

that, even assuming there was a prostitution business, there was no evidence

that the defendant promoted that business because there was no evidence

that he received income from such a business.

        In Blankenbiller, a fund-raising party was held at a recently closed

restaurant to benefit the restaurant’s softball team. A $15 ticket was required

for admission and entitled the purchaser to beer, snacks and a go-go dancer

show.      During the party, regular announcements were made “to the effect

that sex was available for money.”         Blankenbiller, 524 A.2d at 977.

Testimony elicited at trial indicated that four prostitutes were performing

“tricks” during the party and $5 per trick was collected from the prostitutes,

which money also went to benefit the softball team. The evidence presented

against Blankenbiller, the defendant charged with promoting prostitution, was

that he: was the president of the company that owned the restaurant; had

financially supported the softball team; had promoted the party; had sold at

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least one ticket; and was seen in close proximity to the speaker system when

the announcements were made that sex was available for money.

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

business was operating during the party, the Commonwealth had not

established that the defendant had any involvement in promoting it.           In

particular, we noted that there was no evidence presented that Blankenbiller

received any income from the business, told anyone that prostitutes would be

available at the party, or arranged for the prostitutes to be present at the

party.

         In light of DeStefanis and Blankenbiller, we are constrained to agree

with Chang that the Commonwealth failed to present sufficient evidence to

prove, beyond a reasonable doubt, that Pink Spa was a prostitution business

or that Chang had a connection with the running, control, supervision or

keeping of such a business. As in DeStefanis, there was no price attached

to the sexual activity and Chang, herself, never discussed sexual activity with

Officer Kearney. As we noted in DeStefanis:

         Arguably, when a client does not agree to pay for a sexual service
         up front, the ensuing act constitutes sexual activity between two
         consenting adults. Ms. Grama, Detective Carroll’s second
         masseuse, did not even make Detective Carroll an offer of any
         type of sexual activity; it was not until the massage was
         completed and Detective Carroll initiated inquiries to Ms.
         Grama about sexual options that she spoke about hand
         releases. There can be no assumption, therefore, that a hand
         release was included in the price of the massage.

DeStefanis, 658 A.2d at 420 (emphasis added).



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       Here, no sexual activity was discussed until Officer Kearney raised the

topic with Miss An, approximately 20 to 30 minutes into his visit. As such,

there is no basis to assume that sex was included in the original price of the

massage.      Nor, on the evidence presented at trial, is there any basis to

conclude that Chang knew that Miss An would agree to provide sexual services

to Officer Kearney.

       Even if Miss An could be considered to have been engaged in the

business of prostitution, there was no proof that Chang was involved in the

“owning, controlling, managing, supervising or otherwise keeping” of the

business. The Commonwealth presented no evidence that Chang knew of Miss

An’s activities or benefitted financially from them. Indeed, Chang declined to

accept payment from Officer Kearney and, instead, directed him to pay Miss

An.5 The Commonwealth also failed to produce any evidence that Chang had

an ownership interest in the business, or that she controlled its operations, or

even that she was an employee of the business.6          Rather, the evidence

adduced at trial demonstrated merely that Pink Spa advertised massage

____________________________________________


5 The pre-recorded money Officer Kearney paid to Miss An was never
recovered, either in Chang’s possession or otherwise.
6 In DeStefanis, the Commonwealth presented evidence that the defendant
set the “rules” for masseuses, did not object to his employees providing “hand
releases,” and was responsible for hiring decisions. Nevertheless, despite the
existence of substantially more evidence than that presented in the instant
matter, this Court found the evidence insufficient to prove DeStefanis had a
connection with running, controlling, supervising, or otherwise keeping a
prostitution business, especially given the lack of evidence that he received
income from such business. See DeStefanis, 658 A.2d at 420-21.

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services on the internet, that Chang admitted Officer Kearney to the premises

and introduced him to Miss An, and that Officer Kearney received massage

services up until the moment that he—not Miss An and certainly not Chang—

raised the topic of sexual activity. This evidence was simply insufficient to

satisfy the Commonwealth’s heavy burden of demonstrating guilt beyond a

reasonable doubt.

       The Commonwealth argues that “Officer Kearney’s testimony that Ms.

An agreed to have sex with him after accepting money was sufficient to

establish the existence of a prostitution business.”7 Brief of Appellee, at 12.

In   support     of    that    contention,       the    Commonwealth         relies   upon

Commonwealth           v.   Chon,    983       A.2d    784   (Pa.   Super.   2009),    and

Commonwealth v. Potts, 460 A.2d 1127 (Pa. Super. 1983). In Potts, a

vice squad detective responded to an advertisement for “Companions for all

occasions” and requested the male on the other end of the line to send a girl

to his hotel room.       When the girl arrived, the detective requested sexual

intercourse and she quoted him a price. The transaction was aborted when

the detective was unable to produce his wallet. Approximately one week later,

the detective made a second call to the same number and again requested

the male on the other end of the line to send a girl to his hotel room. When

____________________________________________


7 The Commonwealth argues that the presence of “televisions, surveillance
cameras, a credit card machine, towels, lotions and oils” on the premises
supports an inference that prostitution was regularly conducted at Pink Spa.
Brief of Appellee, at 14 n.4. In fact, the presence of these items is no more
indicative of a prostitution business than they are of a massage spa.

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the girl, Potts, arrived at the room, she checked the detective’s identification.

After supplying the requested information, the detective asked Potts “what he

would get for his money;” she responded, “It will cost seventy dollars for the

escort service.” Potts, 460 A.2d at 1131. The detective then asked, “What

else do I get for my money?” Potts responded that, for another $70, he could

get “whatever he wanted,” including oral sex. Id. The detective paid Potts

and, once both of them had removed their clothing, revealed his true identity

and arrested her. She was subsequently charged and convicted of prostitution

and conspiracy.

      Potts is factually distinguishable from the instant matter. There, when

he asked what he would get for his money, the undercover detective was

explicitly told, prior to paying, that he would receive sexual services. In the

matter sub judice, there was no discussion of sex whatsoever until long after

Officer Kearney paid for the massage services advertised and received such

services. Only then did he request sex, for which Miss An did not charge an

additional fee. As in DeStefanis, there was no price attached to the sexual

services and there could be “no assumption, therefore, that [sex] was included

in the price of the massage.” DeStefanis, 658 A.2d at 420.

      Similarly, Chon is entirely inapposite. There, this Court addressed a

challenge by the Commonwealth to the trial court’s grant of a motion to

dismiss charges of prostitution and promoting prostitution due to outrageous

government conduct. Because of the procedural posture of the case, the Court

in Chon did not have occasion to consider the quantum or quality of evidence

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necessary   to   sustain   a   conviction   for   promoting   prostitution.   The

Commonwealth’s reliance on that case is limited to a single sentence of dicta,

excerpted from the trial court’s opinion, speculating that “[t]he mere

agreement to perform sexual acts for money would have satisfied the

statute[.]” Chon, 983 A.2d at 789. Even if that statement were not dicta, as

we have already discussed supra, instantly, there was no agreement to

perform sexual services for money.      Accordingly, Chon is of no moment.

     Finally, the Commonwealth relies on Commonwealth v. Dobrinoff,

784 A.2d 145 (Pa. Super. 2001), to support its assertion that the evidence

established that Chang promoted the prostitution business. In Dobrinoff, the

evidence established the following:

     [A]t Fantasies, a club owned by Appellant, sex was occurring in
     the back room. For example, Detective Garver and Trooper
     Longenecker testified that sex was offered to them in the back
     room, and both officers indicated that the club manager was
     aware of the activity. Moreover, Trooper Longenecker testified
     that, while in Fantasies, he saw an advertisement for an exotic
     maid service, and the telephone number on the advertisement
     was registered to Appellant’s residence.        When Trooper
     Longenecker called the number, Appellant answered, indicated
     that he was the owner of the service, and quoted a price of
     $150.00 per hour plus tips.       Appellant then told Trooper
     Longenecker to pay at Fantasies, and, as a result of following
     Appellant’s dictates, Trooper Longenecker engaged in sexual
     activity with a prostitute.

Id. 148.

     Unlike in the instant matter, in Dobrinoff, the Commonwealth

demonstrated that the appellant actually owned one business enterprise—

“Fantasies”—in which sexual acts were being performed in exchange for

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money. In addition, the evidence showed that appellant also owned a second

enterprise—the “maid service”—from which the officer procured sex, and for

which payment was made at the appellant’s first business, “Fantasies.” In

contrast, here, the Commonwealth presented no evidence whatsoever

regarding the nature of Chang’s role at Pink Spa or that she benefitted

financially from the business.

      In sum, we conclude that the evidence presented by the Commonwealth

failed to establish either that Pink Spa was a prostitution business or that

Chang owned, controlled, managed, supervised or otherwise kept such a

business.       Because we determine that the Commonwealth presented

insufficient evidence to sustain Chang’s convictions, we need not consider the

remaining issues she has raised on appeal.

      Judgment of sentence vacated; appellant discharged.         Jurisdiction

relinquished.

      Judge Kunselman joins this Memorandum.

      Judge Colins files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/19




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