J-S59005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LUIS R. QUINONES,

                            Appellant                  No. 804 EDA 2016


         Appeal from the Judgment of Sentence Entered March 4, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009610-2014


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 25, 2017

        Appellant, Luis R. Quinones, appeals from the judgment of sentence of

an aggregate term of 5 years’ probation, and a lifetime registration

requirement under the Sexual Offender Registration and Notification Act

(SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, imposed after he was convicted

of corruption of a minor, 18 Pa.C.S. § 6301(a)(1)(i), and indecent assault by

forcible compulsion, 18 Pa.C.S. § 3126(a)(2).            On appeal, Appellant

challenges the sufficiency of the evidence to sustain his indecent assault

conviction, as well as the legality of his lifetime SORNA registration

requirement. After careful review, we reverse in part, and affirm in part.

        The trial court summarized the facts of Appellant’s case, as follows:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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            The Complainant, B.F., knew [Appellant] for a couple of
     years as his godfather. Notes of Testimony (“N.T.”) Aug. 7,
     2015, at 9. [Appellant] and B.F.’s mother were close friends.
     Id. [Appellant] would often sleep over [at] B.F.’s house where
     he shared a room with B.F.[,] who was eleven years old[,] and
     B.F.’s younger brother[,] who was four years old. Id. at 10, 39.
     Usually, when [Appellant] slept over at the house, if B.F. was
     sleeping in the bed, [Appellant] would nudge him to wake him
     up. Id. at 10-11. B.F. would then move from the bed and sleep
     on the sofa bed in the same room. Id. at 11. [Appellant] would
     sleep on the bed. Id.

           On or about Father’s Day [of] 2014, B.F. went to sleep in
     his bed at around 9:30 p.m. Id. at 9. … At approximately one
     or two in the morning, B.F. felt a hand rubbing around his
     buttocks and testicles under his pants, but over his underwear.
     Id. at 9. He woke up and saw [Appellant] lying next to him with
     his eyes closed. Id. B.F. told [Appellant] he was going to tell
     his mom. Id. at 12. [Appellant] then got up and ran out of the
     house. Id. B.F. then went to his mother’s bedroom and told her
     what happened. Id. B.F.’s mother was in a very deep sleep and
     thought it was a dream. Id. at 23. The next morning[,] she
     asked B.F. about what he told her the night before. Id. at 12.
     B.F. told her again what happened and she called the police. Id.
     [Appellant] was arrested on June 30, 2014 and charged with
     unlawful contact with a minor, corruption of a minor, and
     indecent assault.

Trial Court Opinion (TCO), 11/10/16, at 2-3 (footnote omitted).

     On August 11, 2015, Appellant proceeded to a nonjury trial, at the

close of which the court convicted him of corruption of a minor and indecent

assault by forcible compulsion. Sentencing was deferred for the preparation

of a presentence report and an evaluation by the Sexual Offenders

Assessment Board (SOAB).        On November 17, 2015, Appellant was

determined not to be a sexually violent predator, and he was sentenced to

concurrent terms of five years’ probation for his two convictions. The court

also imposed a lifetime reporting requirement under SORNA.

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      Appellant filed a timely post-sentence motion, which the court denied.

He then filed a timely notice of appeal, and he also complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement.           Herein, Appellant

presents two issues for our review:

      [I.] Was the evidence insufficient to sustain a conviction of
      indecent assault?

      [II.] Did the court err in requiring Appellant to register as a Tier
      III offender under 42 Pa.C.S.[] [§] 9799.15(a)(3)?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      Appellant first challenges the sufficiency of the evidence to sustain his

conviction of indecent assault. To begin, we note our standard of review of

a challenge to the sufficiency of the evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Here, Appellant was convicted of indecent assault under 18 Pa.C.S. §

3126(a)(2), which states:

      (a) Offense defined.--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


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      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

         …

         (2) the person does so by forcible compulsion[.]

Additionally, ‘forcible compulsion’ is defined as “[c]ompulsion by use of

physical, intellectual, moral, emotional or psychological force, either express

or implied. This term includes, but is not limited to, compulsion resulting in

another person’s death, whether the death occurred before, during or after

sexual intercourse.” 18 Pa.C.S. § 3101.

      Appellant contends that in this case, the Commonwealth failed to

demonstrate the forcible compulsion element of indecent assault under

section 3126(a)(2). Appellant premises his argument on the fact that B.F.

was sleeping at the time of the assault, averring that he could “not induce

B.F. to submit to his wishes where B.F. was fast asleep.” Appellant’s Brief at

9. Appellant contrasts the facts of his case with Commonwealth v. Price,

616 A.2d 681 (Pa. Super. 1992). There, the victim testified that Price began

raping her when she was asleep, but she “woke up while Price was having

intercourse with her[,]” and she immediately “screamed at Price and told

him to ‘get off’ of her.”   Id. at 683.    “Despite [the victim’s] immediate

protest, Price continued penetration” and “[a] physical struggle ensued.” Id.




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We concluded that this evidence was “sufficient to allow a factfinder to find

forcible compulsion beyond a reasonable doubt.”1 Id.

        We agree with Appellant that the present case is easily distinguishable

from Price. Appellant’s assault of B.F. immediately ceased once B.F. awoke,

as demonstrated by the following exchange during the cross-examination of

B.F.:

        [Defense Counsel:] Just going back to the way you were
        sleeping…[,] were you facing the wall?

        [B.F.:] Yes.

        [Defense Counsel:] And your back [was] turned then to
        [Appellant], right?

        [B.F.:] Yes.

        [Defense Counsel:] Okay. And when you feel something, you
        can’t see who it is initially, right?

        [B.F.:] No.

        [Defense Counsel:] You just felt a hand?

        [B.F.:] Yeah.

        [Defense Counsel:] Okay. And his hand never went underneath
        your underwear, right?

        [B.F.:] No. It was under my pants.

        [Defense Counsel:] And you felt it for a split second?

____________________________________________


1 While in Price, we were assessing whether there was forcible compulsion
to sustain Price’s rape conviction under 18 Pa.C.S. § 3121, the term ‘forcible
compulsion’ is defined the same for both the offenses of rape and indecent
assault. See 18 Pa.C.S. § 3101 (presenting one definition for ‘forcible
compulsion’ for all sexual offenses set forth in Chapter 31 of the Crimes
Code).



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      [B.F.:] No. Like when I woke up, I felt it, and it was like two
      seconds. I didn’t know what it was. That’s when I woke up, and
      I seen [sic] his hand down my pants. I got up, looked at him.
      He banged his head on the wall and pretended he was sleeping.
      His eyes were flickering. Then that’s when I went to the door,
      [and] said, “I’m telling my mom, you psycho,” or something like
      that. Right when I went to my mom’s door, he ran out.

N.T. Trial, 8/7/15, at 18-19.

      B.F.’s testimony demonstrates that he was asleep when Appellant

assaulted him, and that the assault stopped immediately when B.F. woke up.

Moreover, as soon as B.F. showed resistance by getting up from the bed and

saying that he was going to tell his mother what Appellant had done,

Appellant fled. Based on this evidence, we conclude that Appellant did not

use “physical, intellectual, moral, emotional or psychological force” in

assaulting B.F. See 18 Pa.C.S. § 3101 (defining ‘forcible compulsion’).

      We also cannot agree with the trial court that the trust B.F. had in

Appellant, and the fact that they knew each other well, was sufficient

evidence to demonstrate forcible compulsion.       See TCO at 6.     The court

stresses that Appellant used his relationship of trust with B.F. to sleep in the

same bed with B.F., where the assault then occurred. Id. However, section

3126(a) requires the use of forcible compulsion in committing the act of

‘indecent contact’; here, the ‘indecent contact’ was Appellant’s fondling

B.F.’s buttocks and testicles, not Appellant’s sleeping in the same bed as

B.F. Therefore, even if Appellant took advantage of his relationship with B.F.

to gain access to B.F.’s bed, Appellant did not utilize that relationship to

compel B.F. to succumb to Appellant’s assaultive touching. Instead, B.F. did


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not resist that indecent contact because he was completely asleep at the

time it occurred.     Once B.F. awoke, the assault ended and Appellant fled.

Under these facts, we must agree with Appellant that no forcible compulsion

was demonstrated.

       Consequently, we reverse Appellant’s conviction for indecent assault,

and vacate his 5-year term of probation for that offense.        We also vacate

Appellant’s lifetime reporting requirement under SORNA, which was imposed

for his conviction of indecent assault.2         However, as Appellant does not

challenge his conviction for corruption of a minor, we affirm his conviction

and judgment of sentence for that offense.            We need not remand for

resentencing, as our disposition has not impacted Appellant’s aggregate

term of five years’ probation.3

       Judgment of sentence reversed in part, affirmed in part. Jurisdiction

relinquished.




____________________________________________


2 We note that the trial court concedes that it erred by imposing a lifetime
registration requirement for Appellant’s indecent assault conviction pursuant
to section 3126(a)(2), as that crime constitutes a Tier II sexual offense
under SORNA and carries only a 25-year registration requirement. See TCO
at 8.

3 Appellant’s conviction of corruption of minors under 18 Pa.C.S. §
6301(a)(1)(i) does not require him to register under SORNA.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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