J-S67010-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
JJ JOHN WHIPKEY,                          :
                                          :
                  Appellant               : No. 43 WDA 2014

        Appeal from the Judgment of Sentence December 20, 2013,
               Court of Common Pleas, Washington County,
            Criminal Division at No. CP-63-CR-0003170-2012

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED FEBRUARY 4, 2015

      Appellant, JJ John Whipkey (“Whipkey”), appeals from the judgment of

sentence entered on December 20, 2013 by the Court of Common Pleas,

Washington County, following a conviction of false imprisonment of a minor,

18 Pa.C.S.A. § 2903(b), and criminal attempt at indecent assault of a child

less than 13 years of age, 18 Pa.C.S.A. § 901(a); 18 Pa.C.S.A. § 3126(a)(7).

For the reasons set forth herein, we affirm.

      The trial court provided the following summary of the facts and

procedural history:

            On November 4, 2012, Michelle Clark [(“Clark”)]
            went to the home of Patty Brodak [(“Brodak”)] on
            Allison Avenue in the city of Washington, Washington
            County.    Clark provided care for James McCave
            [(“McCave”)], who rented a room from Brodak but
            needed housekeeping and caretaking services
            because he was elderly. On that date Clark was
            accompanied by her two children, five-year-old



*Former Justice specially assigned to the Superior Court.
J-S67010-14


            [A.H.] and three-year-old [C.H.]. [Whipkey’s] room
            was located on the second floor of Brodak’s home.
            At some point during the visit [Whipkey] isolated
            [C.H.] in his room, stuffed a towel in her mouth
            causing her lip to bleed, and undressed her on his
            bed. While Clark was downstairs she could hear
            [C.H.] yelling for her from upstairs, and her son
            [A.H.] also came downstairs to summon Clark
            upstairs because he became aware that [C.H.] was
            crying and locked in [Whipkey’s] room.

            Clark ran upstairs and could hear her daughter
            crying for her from inside [Whipkey’s] room. Clark
            pounded on the door of [Whipkey’s] room, but he
            refused to open the door.        During this time,
            [Whipkey] moved [C.H.] from his bed to his closet
            and restrained her there. The door was locked and
            Clark attempted to kick the door down but was
            unable to do so. Unable to gain entry into the room,
            Clark told [Whipkey] that she was going to call the
            police. While Clark ran downstairs to call the police,
            Brodak went upstairs and successfully kicked in the
            door to [Whipkey’s] room.

            Clark ran back upstairs and entered [Whipkey’s]
            room. She found [C.H.] behind the bedroom door
            with only her underpants on, and [Whipkey] putting
            a shirt on her.        Clark removed [C.H.] from
            [Whipkey’s] room and brought her downstairs. As
            police arrived [Whipkey] ran through the kitchen and
            out the back door. Clark, McCave, and Brodak tried
            to physically restrain [Whipkey] but could not reach
            him, and responding officers pursued [Whipkey]
            without success.        [C.H.] was transported to
            Washington      Hospital    for  examination     and
            interviewing purposes.

Trial Court Opinion, 5/8/14, at 3-5.

      Whipkey was subsequently located in Pittsburgh and charged with one

count of false imprisonment of a minor, 18 Pa.C.S.A. § 2903(b), and one




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count of indecent assault of person less than 13 years of age, 18 Pa.C.S.A. §

3126(a)(7). On September 13, 2013, at the conclusion of a nonjury trial,

the trial court found Whipkey guilty of false imprisonment and criminal

attempt to commit indecent assault.        The trial court sentenced him on

December 20, 2013, to an aggregate sentence of seven and one half years

to fifteen years of incarceration. Whipkey did not file post sentence motions.

      On January 3, 2014, Whipkey filed a timely appeal.               On appeal,

Whipkey raises the following issues for our review, which we have reordered

for ease of disposition:

            1. Did the Commonwealth present sufficient
            evidence, as a matter of law, of each of the counts:
                  A.   False imprisonment; and
                  B.   Criminal attempt to commit indecent
                       assault.

            2. Did the [t]rial [c]ourt abuse its discretion in
            finding the juvenile victim/witness competent to
            testify?

Whipkey’s Brief at 4.

      For his first issue on appeal, Whipkey argues that the Commonwealth

failed to present sufficient evidence to convict him of false imprisonment and

criminal attempt to commit indecent assault. Id. at 10-12. Our standard of

review in assessing the sufficiency of the evidence is well settled:

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all of 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



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            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 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. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing

Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)).

      We first address Whipkey’s claim that the evidence was insufficient to

convict   him   of   false   imprisonment.    Whipkey    asserts   that   “[t]he

Commonwealth was unable to meet its burden of proving that [he]

restrained C.H. unlawfully so as to interfere substantially with her liberty.”

Whipkey’s Brief at 10. Whipkey specifically argues that “while [his] actions

were suspicious, being locked in a bedroom with a child for a few minutes

falls short of the crime of false imprisonment.” Id.

      The Pennsylvania Crimes Code defines false imprisonment as follows:

“[i]f the victim is a person under 18 years of age, a person who is not the

victim’s parent commits a felony of the second degree if he knowingly



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restrains another unlawfully so as to interfere substantially with [her]

liberty.”   18 Pa.C.S.A. § 2903(b).      “In determining the magnitude of

restraint necessary for false imprisonment, this Court has recognized that

false imprisonment covers restraints which are less serious than those

necessary for the offenses of kidnapping1 and unlawful restraint2.”     In re

M.G., 916 A.2d 1179, 1181-82 (Pa. Super. 2007) (footnotes in original).

       In the instant matter, the Commonwealth presented the testimony of

C.H., Clark, and McCave in support of its case. Clark testified that her son

ran to her and informed her that C.H. was locked in Whipkey’s room. N.T.,

9/13/13, at 32.    When she ran upstairs to Whipkey’s bedroom, she could

hear C.H. crying for her from the bedroom, but Clark could not open the

door because it was locked.     Id. at 32-33.   Clark began pounding on the

door and told Whipkey that she was calling the police. Id. at 34. McCave

corroborated Clark’s testimony, stating “I could hear [Clark and Brodak]

beating on the door, and I could hear [Clark] hysterically saying let me in.”

Id. at 48. Finally, C.H. testified that she could not open the door when Clark

was banging on the door because Whipkey held her down. Id. at 19. C.H.

also testified that Whipkey put gloves and towels in her mouth, causing her

lip to bleed, and hid her in the closet. Id. at 18, 20-21.




1
    18 Pa.C.S.A. § 2901(a).

2
    18 Pa.C.S.A. § 2902(a).


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      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the evidence is sufficient to sustain

Whipkey’s conviction for false imprisonment of C.H.       It is undisputed that

C.H. is under eighteen years of age and that Whipkey is not a parent to C.H.

Moreover,   the   evidence   presented at   trial   establishes   that   Whipkey

restrained C.H. by locking her in the bedroom, hiding her in the closet,

holding her down, and preventing her from going to the door to open it.

      The short duration of the restraint is immaterial. In In re M.G., the

appellant entered the victim’s bedroom after she finished showering and

closed and locked the door behind them.      In re M.G., 916 A.2d at 1180.

The appellant ignored the victim’s request for him to leave her room, and

instead, reached under the victim’s towel and “touched her ‘private area.’”

Id. The victim pushed the appellant and began yelling at him to leave. Id.

The victim’s sister began banging on the bedroom door, at which time, the

appellant opened the door and left. Id. After the trial court adjudicated him

delinquent on one count of false imprisonment, the appellant appealed,

arguing that his interference with the victim’s liberty “was not ‘substantial’

since the incident lasted, at most, two minutes.” Id. at 1183. This Court

rejected the appellant’s argument stating, “[t]he record is quite clear that

Appellant’s restraint of [the victim] was unexpectedly ‘cut short’ when [the

victim’s] older sister tried to enter the bedroom. The fact Appellant’s assault




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was thwarted sooner than he may have desired does not require a different

result in this case.” Id.

      In this case, similar to the situation presented in In re M.G., the

record establishes that Whipkey’s attempt to restrain C.H. was cut short

when Brodak successfully opened Whipkey’s locked door. Thus, just as this

Court held in In re M.G., the short duration of Whipkey’s restraint of C.H.

does not compel a different result in this case.   Accordingly, we conclude

that the evidence was sufficient to sustain Whipkey’s conviction of false

imprisonment.

      Whipkey also argues that the evidence was insufficient to convict him

of criminal attempt to commit indecent assault. Whipkey’s Brief at 11-12.

The Crimes Code provides the following definition of indecent assault of a

person less than 13 years of age:

            A person is guilty of indecent assault if the person
            has indecent contact with the complainant, causes
            the complainant to have indecent contact with the
            person or intentionally causes the complainant to
            come into contact with seminal fluid, urine or feces
            for the purpose of arousing sexual desire in the
            person or the complainant and:

            (7) the complainant is less than 13 years of age.

18 Pa.C.S.A. § 3126(a)(7). Indecent contact is defined as “[a]ny touching of

the sexual or other intimate parts of the person for the purpose of arousing

or gratifying sexual desire, in either person.” 18 Pa.C.S.A. § 3101. Thus, in

order to sustain a conviction for criminal attempt to commit indecent



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assault, the Commonwealth was required to establish that Whipkey, with

intent to commit indecent assault, engaged in “any act which constitutes a

substantial step toward the commission of that crime.” See 18 Pa.C.S.A. §

901(a) (“A person commits an attempt when, with intent to commit a

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

the commission of that crime.”).

      At trial, C.H. testified that while she was in Whipkey’s bedroom,

Whipkey took her clothes off. N.T., 9/13/13, at 15-16. The Commonwealth

also presented the testimony of Clark, who testified that when she finally

gained access to Whipkey’s bedroom, she saw her daughter crying, wearing

just a pair of underwear, and Whipkey helping her put her shirt back on.

N.T., 9/13/13, at 35. At that point, C.H.’s shirt was “just over her head” and

did not cover her chest at all.     Id.   McCave similarly testified that he

witnessed Whipkey helping C.H. put her shirt back on, and that the shirt was

“on her head but not over her chest.” Id. at 49, 53.

      Whipkey does not contest the evidence presented. Instead, Whipkey

asserts that “while [his] behavior and actions arouse suspicions as to what

he attempted or maybe even did, a criminal prosecution may not be based

upon mere suspicion and speculation, even where the acts appear to run

afoul of mature, responsible and moral behavior.”      Whipkey’s Brief at 11.

Whipkey further alleges that “[e]ven when applying logical inferences to the




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facts we know, one cannot conclude that sufficient evidence of an attempted

indecent assault was offered.” Id. at 12. We disagree.

      This Court previously rejected the notion that “the character of an

indecent assault depends entirely on its degree of success achieved by the

attacker.”    Commonwealth v. Capo, 727 A.2d 1126, 1128 (Pa. Super.

1999) (stating “[the appellant’s] inability to achieve more intimate contact

than was in fact accomplished does not make that assault equivocal or

lessen its indecency.”). Rather, it is well settled that “[t]he Commonwealth

may sustain its burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence.” Helsel, 53

A.3d at 918.

      In Commonwealth v. White, 335 A.2d 436 (Pa. Super. 1975), this

Court upheld the appellant’s conviction of attempted indecent assault,

concluding:

              the appellant’s act of carrying the complainant to the
              back of an abandoned house; holding her shoulders,
              threatening to grab her, and lifting her skirt up
              approximately six inches, all of which occurred
              against the complainant’s will, demonstrates that the
              appellant had the requisite intent to commit, at the
              minimum, an indecent assault and, furthermore, had
              taken substantial steps towards the completion of
              the reprehensible act.

Id. at 181.

      Moreover, in Commonwealth v. Vosburg, 574 A.2d 679 (Pa. Super.

1990), this Court concluded that the Commonwealth presented sufficient



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evidence to prove beyond a reasonable doubt that the appellant committed

indecent assault on an eight-year-old girl by pulling on her underwear while

she lay in bed. Id. at 682 (stating, “the eight-year-old victim testified that

she had felt someone pulling on her underwear while she lay in bed. This

was sufficient evidence for the jury to conclude, beyond a reasonable doubt,

that an indecent assault occurred[.]”).

      Thus, viewing the     evidence in a light most favorable to the

Commonwealth as verdict winner, we conclude that           Whipkey’s acts of

locking C.H. in his bedroom and removing C.H.’s clothing are sufficient to

prove that Whipkey took a substantial step toward having indecent contact

with C.H., who is less than thirteen years of age.             Accordingly, the

Commonwealth presented sufficient evidence to prove each element of

criminal attempt to commit indecent assault.

      For his second issue on appeal, Whipkey asserts that the trial court

abused its discretion in finding the four-year-old victim to be a competent

witness.   Whipkey’s Brief at 8-9.   “Our standard of review recognizes that

[a] child’s competency to testify is a threshold legal issue that a trial court

must decide, and an appellate court will not disturb its determination absent

an abuse of discretion. Our scope of review is plenary.” Commonwealth

v. Page, 59 A.3d 1118, 1126-27 (Pa. Super. 2013).

      In reviewing this issue, we note that in Pennsylvania,




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           [e]very witness is presumed competent. A party
           who challenges the competency of a minor witness
           must prove by clear and convincing evidence that
           the witness lacks the minimal capacity … (1) to
           communicate, (2) to observe an event and
           accurately recall that observation, and (3) to
           understand the necessity to speak the truth.

Id. at 1129 (quoting Commonwealth v. Pena, 31 A.3d 704, 706 (Pa.

Super. 2011)).

     In this case, the trial court engaged in the following inquiry to

determine C.H.’s competency:

           The Court: All right. What is your name?’
           [C.H.]: Caileigh.
           The Court: Do you have a last name?
           [C.H.]: No.
           The Court: How old are you?
           [C.H.]: Four.
           The Court: Do you know why you are here today?
           [C.H.]: Because I need to tell you what happened
           with [Whipkey].

                                  ***

           The Court: Do you know what it is to tell the truth?
           When you raise your right hand and swear to tell the
           truth?
           [C.H.]: Yes.

                                  ***

           The Court: When you are here today, do you
           understand that you have to tell me the truth? Do
           you know what the truth is?
           [C.H.]: Uh-huh.
           The Court: Do you know the difference between a
           truth and a lie?
           [C.H.]: Uh-huh.




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          The Court: Do you know that it’s good to tell the
          truth?
          [C.H.]: Uh-huh.
          The Court: Is it good or bad to tell a lie?
          [C.H.]: Good. If you lie, you won’t be in trouble.
          The Court: If you tell a lie you’ll be in trouble.
          [C.H.]: No.

                                  ***

          The Court: Have you ever told a lie?
          [C.H.]: Well, I lied to my parents one time but then I
          told them the truth. …
          The Court: When you told a lie, did you get in
          trouble?
          [C.H.]: No.
          The Court: Did your dad or mommy tell you not to lie
          again?
          [C.H.]: Yes. They told me not to lie anymore so I
          didn’t lie anymore.
          The Court: So you know not to lie; is that right?
          [C.H.]: Yes.

                                  ***

          The Court: If I told you this tie was purple, would
          that be true?
          [C.H.]: Yes.
          The Court: What color is this tie?
          [C.H.]: Yellow.
          The Court: If I told you it was purple, would that be
          a lie?
          [C.H.]: Yes.
          The Court: What color is your sweater?
          [C.H.]: Pink.
          The Court: If I told you that your sweater was white,
          would that be the truth?
          [C.H.]: No.
          The Court: Do you know the lady on your left over
          here?
          [C.H.]: Traci.
          The Court: She’s going to ask you some questions
          about what happened between you and –



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            [C.H.]: With [Whipkey]?
            The Court: Yes.     She’s going to ask you some
            questions about that, do you know that?
            [C.H.]: Yes.
            The Court: Will you tell us the truth about what
            happened?
            [C.H.]: Yes.

                                     ***

            The Court: After Traci asks you some questions, I
            might as you some questions and somebody else
            might ask you some questions and will you tell us
            the truth too?
            [C.H.]: Yes.
            The Court: Do you promise to do that?
            [C.H.]: Yes.
            The Court: Okay. Mr. Gorman, do you have any
            questions?
            Mr. Gorman: Hi. My name is Brian. Can you tell us
            what a lie is?
            [C.H.]: If you lie, you lie to your parents. If you lie,
            you lie to your mom and dad.
            Mr. Gorman: If you lie, you lie to your mom and dad,
            is that what a lie is?
            [C.H.]: Yes.

N.T., 9/13/13, at 8-12.

      Whipkey objected to C.H.’s competency based on her age and based

on the inconsistencies in her testimony regarding the difference between a

truth and a lie, stating:

            When the oath was administered, both hands were
            raised and no surname was given. There was an
            answer in the negative about swearing to tell the
            truth. There was an answer in the affirmative about
            whether it’s true that the tie was the wrong color.
            There were other answers that were inconsistent. At
            least one that I recorded that were inconsistent with
            knowing the difference between a truth and lie.



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             Some were consistent, some were inconsistent and
             that’s short of reliability so we would object.

Id. at 14.

      The trial court determined that C.H. understood the seriousness of the

circumstances and that she understood “that she is required to tell the truth

as to what happened[.]” Id. The trial court further concluded that C.H. was

competent to testify because “all of her answers in their entirety [gave the

trial c]ourt reason to believe that she can give truthful and honest

testimony.” Id. at 15.

      In our review of the record, we acknowledge that

             [a] competency hearing concerns itself with the
             minimal capacity of the witness to communicate, to
             observe an event and accurately recall that
             observation, and to understand the necessity to
             speak the truth.       A competency hearing is not
             concerned with credibility. Credibility involves an
             assessment of whether or not what the witness says
             is true; this is a question for the fact finder.

Commonwealth v. Moore, 980 A.2d 647, 650-51 (Pa. Super. 2009) (citing

Commonwealth v. Delbridge, 855 A.2d 27, 39-40 (Pa. 2003)).

      In this case, C.H. demonstrated an ability to understand the questions

asked by the trial court and communicate her responses to the questions.

Although C.H.’s testimony reflects some inconsistencies regarding her

understanding of the difference between the truth and a lie, we cannot

conclude that the inconsistencies in her testimony provide a sufficient basis

to disturb the trial court’s determination of competency.



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      This Court has established that

            [t]here is more to a child’s consciousness of the duty
            to speak the truth than being able to give a clear
            example of a lie or to understand the concept of an
            “oath.”    In fact, the trial judge’s opportunity to
            observe the demeanor, alertness, thoughtfulness,
            and sincerity of a child witness may be more
            informative than the answers the child gives to
            questions such as “What is a lie?” and “What will
            happen to you if you tell a lie?”

Commonwealth v. Payton, 392 A.2d 723, 725 (Pa. Super. 1978) (citing

Commonwealth v. Mangello, 378 A.2d 897, 899 (Pa. Super. 1977)).

      The trial court in the instant matter considered the totality of C.H.’s

testimony as well as her demeanor and concluded that she was “capable of

giving truthful and honest testimony” and therefore, was competent to

testify. Trial Court Opinion, 5/9/14, at 6; see also N.T., 9/13/13, at 14-15.

Based on our review of the record, despite the inconsistencies in C.H.’s

testimony, we discern no abuse of discretion by the trial court.

      Moreover, even if the trial court was incorrect in its conclusion that

C.H. was competent to testify, the error was harmless.      As this Court has

established,

            [a]n error will be deemed harmless where the
            appellate court concludes beyond a reasonable doubt
            that the error could not have contributed to the
            verdict. If there is a reasonable probability that the
            error may have contributed to the verdict, it is not
            harmless. In reaching that conclusion, the reviewing
            court will find an error harmless where the
            uncontradicted evidence of guilt is so overwhelming,
            so that by comparison the error is insignificant.



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Commonwealth v. Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013) (quoting

Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003)).

      As demonstrated in our analysis regarding Whipkey’s sufficiency claims

raised in his first issue on appeal, the evidence in this case was

overwhelming in establishing his guilt on both charges.     Even without the

testimony of C.H., the record is replete with support for the trial court’s

verdict. Both Clark and McCave testified that Whipkey locked C.H., who was

three years old at the time, in his bedroom and would not open the door.

N.T., 9/13/13, at 32-34, 48, 52.         When Brodak successfully opened

Whipkey’s bedroom door, Clark testified that C.H. was standing behind the

bedroom door, crying. Id. at 32-35. Clark and McCave’s testimony further

established that C.H. was partially undressed with her shirt just over her

head, but not covering her chest, and that Whipkey was helping her put her

shirt back on. Id. at 35-36, 49, 53. Clark also observed that C.H. had a

bloody lip.   Id. at 36.   This evidence, which Whipkey does not contest, is

sufficient to satisfy each element of the crimes with which he was charged.

As a result, we conclude that the uncontradicted evidence in this case is

overwhelming in establishing Whipkey’s guilt, such that, any error in the trial

court’s decision to deem C.H. a competent witness, is insignificant.

Whipkey’s second issue on appeal accordingly fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/2015




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