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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDDIE A. JOHNSON

                            Appellant                  No. 2190 EDA 2014


             Appeal from the Judgment of Sentence June 20, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008364-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 30, 2015

        Appellant, Eddie A. Johnson, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

trial conviction for statutory sexual assault.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.2

At approximately 11:00 p.m. on Friday, September 28, 2012, the victim was

walking home in West Philadelphia. The victim was fifteen years old at the
____________________________________________


1
    18 Pa.C.S.A. § 3122.1(b).
2
   The facts are derived from the transcripts of Appellant’s jury trial.
Appellant was tried with two codefendants, whose cases are separately on
appeal with this Court, but only one set of transcripts was produced. The
transcripts were included in the certified record for Appellant’s case only, but
the Delaware County Clerk’s Office indicated the transcripts are for use in all
three appeals of Appellant and his two codefendants.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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time. At one point, a car pulled up in front of her. The victim claims thirty-

seven year old Appellant and codefendant Alfred Kulah emerged from the

vehicle and physically forced her into the car.       Codefendant Mortimah

Kesselly was the driver. Appellant and codefendants took the victim to their

apartment in Upper Darby, where all three men took turns having sex with

her. On the following day, September 29, 2012, Mr. Kesselly took the victim

to another apartment, where she took a shower. Afterwards, Mr. Kesselly

drove the victim to McDonald’s to get food before returning to Appellant and

codefendants’ apartment.     The victim said that back at the apartment,

Appellant and Mr. Kesselly had sex with her again. The victim claimed all of

the sexual activity with Appellant and codefendants was against her will. On

the morning of September 30, 2012, Mr. Kesselly was watching television in

the same room as the victim. Mr. Kesselly then left the room. The victim

said it was the first time Appellant and codefendants left her alone since

they had abducted her.     The victim claims she waited approximately five

minutes before she ran out of the apartment and called her father, who

ultimately found the victim and brought her to a hospital.

      The Commonwealth charged Appellant in its amended information with

with rape, statutory sexual assault, kidnapping, and conspiracy.    Following

trial, a jury convicted Appellant of one count of statutory sexual assault and

acquitted him of all other charges.    On April 28, 2014, Appellant filed a

motion “in limine”/motion for judgment of acquittal, which the court denied


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on May 16, 2014.3 On June 20, 2014, the court sentenced Appellant to a

term of incarceration of one (1) year less one (1) day to two (2) years less

one (1) day, followed by seven (7) years of probation.         Appellant filed a

timely notice of appeal on July 15, 2014. The court ordered Appellant to file

a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b).     After the court granted multiple extensions, Appellant timely

complied.

       Appellant raises the following issues for our review:

           WHETHER THE COMMONWEALTH FAILED TO PRESENT
           SUFFICIENT EVIDENCE OF THE ELEMENTS OF THE CRIME
           OF STATUTORY SEXUAL ASSAULT WHERE THERE WAS NO
           EVIDENCE OF SEXUAL INTERCOURSE AS DEFINED BY THE
           CRIMES CODE.

           WHETHER THE TRIAL COURT ERRED IN DENYING
           APPELLANT’S MOTIONS FOR JUDGMENT OF A[C]QUITTAL
           WHERE THE COMMONWEALTH PRODUCED NO EVIDENCE
           OF A REQUIRED ELEMENT OF THE CHARGE OF STATUTORY
           SEXUAL ASSAULT.

(Appellant’s Brief at 7).

       In his issues combined, Appellant argues the Commonwealth failed to

present any evidence that the sexual activity between Appellant and the

victim involved penetration. Appellant asserts the victim merely testified in

broad terms that Appellant “had sex” with her.         Appellant contends the

victim’s statements in two police reports were admitted for impeachment
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3
  Appellant also filed a motion for judgment of acquittal at the conclusion of
the Commonwealth’s case-in-chief on April 1, 2014, which the court denied.



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purposes only and cannot be used as substantive evidence that Appellant

and the victim had statutorily defined sexual intercourse.             Appellant

concludes the evidence was insufficient to support his conviction for

statutory sexual assault. We disagree.

      The following principles of review apply to a challenge to the

sufficiency of evidence:

          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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Crimes Code sets forth the elements of first-degree felony

statutory sexual assault as follows:

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         § 3122.1. Statutory sexual assault

                                 *    *    *

         (b) Felony of the first degree.—A person commits a
         felony of the first degree when that person engages in
         sexual intercourse with a complainant under the age of 16
         years and that person is 11 or more years older than the
         complainant and the complainant and the person are not
         married to each other.

18 Pa.C.S.A. § 3122.1(b). The Crimes Code defines “sexual intercourse” as

follows: “In addition to its ordinary meaning, includes intercourse per os or

per anus, with some penetration however slight; emission is not required.”

Id. § 3101. The term “sexual intercourse” encompasses vaginal, oral, and

anal sex. Commonwealth v. Kelley, 569 Pa. 179, 186-88, 801 A.2d 551,

555-56 (2002). Further, “circumstantial evidence may be used to prove the

element of penetration.” Commonwealth v. Stambaugh, 512 A.2d 1216,

1219 (Pa.Super. 1986).

      Instantly, at the time of the events in question, Appellant was thirty-

seven years old and the victim was fifteen years old.    At trial, the victim

testified as follows:

         Q.    Okay.   If you can, why don’t you tell us what
         [Appellant and Mr. Kulah] were doing when Mr. Kesselly
         took your pants off?

         A.    It was like get ready, like prepping theirselves for—
         but they got me on the bed and stuff. The guy with the
         white, he started having sex with me.

         Q.   What were the other two doing, were they still in the
         room?


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          A.     Yes.

          Q.   When the guy in the white[4] was finished, what
          happened?

          A.     They took their turns.

          Q.     How many of the three had sex with you?

          A.     All of them.

(N.T. Trial, 3/27/14, at 43.) The victim testified that on the following day,

Appellant “made [the victim] have sex with him again.”      Id. at 52.   The

victim also stated that on that day, Mr. Kesselly “tried to make [her] have

oral sex with him,” but when she resisted, they instead had “regular sex.”

Id. at 52-53. The victim was seventeen years old at the time of trial, she

differentiated between “oral sex” and “regular sex,” and no evidence

suggested she did not understand the common meaning of the term “sex.”

The jury could reasonably infer that the victim’s straightforward use of the

term “sex” referred to sexual intercourse. Additionally, Detective Brad Ross,

who interviewed Appellant following the incident, testified that Appellant

described his interaction with the victim on the night of September 28,

2012, as follows: “I went back into the bedroom. [The victim] was naked.

She grabbed my shirt. I told her I did not want—I did not bring you here for

that because you don’t—but you don’t look bad. We eventually had sex….”

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4
 The victim’s testimony confirmed that “the guy in the white” referred to Mr.
Kesselly.



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(N.T. Trial, 3/31/14, at 94.) Detective Ross further testified that Appellant

said he did not wear a condom. Id. at 94-95. The testimony of the victim

and Detective Ross was sufficient for the jury to conclude that Appellant’s

sexual activity with the victim resulted in “penetration, however slight.” See

18 Pa.C.S.A. § 3101; Jones, supra.      Therefore, Appellant’s conviction for

statutory sexual assault was supported by sufficient evidence. Based on the

foregoing, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




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