J-S23020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SOON O. LEE,

                            Appellant                 No. 1221 EDA 2014


         Appeal from the Judgment of Sentence Entered April 1, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013080-2012


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 29, 2015

       Appellant, Soon O. Lee, appeals from the judgment of sentence

entered following her convictions of promoting prostitution and conspiracy.

We affirm.

       The trial court summarized the factual history of this case as follows:

             The evidence from trial, viewed in the light most favorable
       to the Commonwealth as the verdict winner, established the
       following facts. On May 4, 2012, Philadelphia Police Officer
       Thomas McHale was involved in an undercover prostitution
       investigation with the Philadelphia Police Department, Citywide
       Vice Unit. See Notes of Testimony (“N.T.”), March 31, 2014 at
       p. 9. The Unit was investigating complaints of prostitution at the
       Happiness Spa (“Spa”), located at 1812 Ludlow Street in
       Philadelphia.   Id. at 10.    The Spa advertised its massage
       services on the back pages of newspapers, specifically
       Philadelphia Weekly. Id. at 11; 16.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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             On May 4, 2012, around 11:00 a.m., Officer McHale
       entered the Spa’s front foyer and rang the doorbell to a second
       entrance, as the sign in the foyer instructed. Id. at 17. Officer
       McHale was met by an older woman, later identified as
       [Appellant]. Id. [Appellant] started talking to Officer McHale
       and began touching and patting [the officer’s] waist area. Id.
       [Appellant] then took Officer McHale by the hand and led him to
       the second floor, where he was introduced to Minju Je (“Je”).
       Id.

             After a brief conversation with [Appellant] in Korean, Je
       took Officer McHale to a bedroom where she asked him for $180.
       Id. at 19. Officer McHale handed Je $200 in prerecorded buy
       money. Id. at 19. Je instructed Officer McHale to take his
       clothes off and put a towel on as she left the room with the
       $200. Id. at 20. Je returned to the room and escorted Officer
       McHale back down to the first floor shower room, where he
       received a table shower.[1] Id. at 20.

             Following the table shower, Je dried Officer McHale off with
       a towel and escorted him back to the second-floor bedroom,
       where she instructed him to remove his towel and lie down on
       the bed completely nude. Id. at 21. There were no massage
       tables in the bedroom, only a bed. Id. at 21. Je took an open
       condom wrapped in a tissue, placed it on the bed next to Officer
       McHale, took hold of his penis, and attempted to perform
       “manual masturbation” on him. Id. at 21-23. Officer McHale
       immediately stopped Je from proceeding and notified his backup
       team, who was waiting outside. Id. at 23, 25. Officer McHale
       heard his backup team knock and announce their presence.
       Approximately fifteen to thirty seconds later, after no one from
       the Spa answered the door, the backup team broke through the
       entrance. Id. at 23. Once inside, Officer McHale and his backup
       team secured the property and the five individuals inside. Id. at
       24; 44.


____________________________________________


1
  When asked to describe a “table shower” for the trial court, Officer McHale
stated that “[i]t’s literally just a table, like a massage table, where you lay
down and they put soap on you and they throw buckets of hot water on
you.” N.T., 3/31/14, at 20.



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             Officer McHale, along with Philadelphia Police Officer James
      Scott and other officers executed a search warrant at the Spa at
      2:50 p.m. on May 4, 2012, in [Appellant’s] presence. Police
      officers recovered ninety-one condoms; four cameras; two
      televisions; three sex toys; a clipboard; four receipt rolls; six
      radios; one laptop; four phones; one credit card machine; nude
      gel; Vaseline; one bill; a masseuse license in [Appellant’s]
      name; mail addressed to [Appellant]; a business privilege
      license; numerous towels; two bottles of lubricants; six
      containers of powder; seven bottles of alcohol; seven bottles of
      oil; and $8,646.00 in United States currency. Id. at 37. These
      items were placed on property receipts, which were introduced
      at trial as exhibits C-3 and C-4. After the execution of the
      search warrant, [Appellant] and Je were placed under arrest.

Trial Court Opinion, 8/15/14, at 2-3.

      Appellant was charged with promoting prostitution and conspiracy. On

March 4, 2013, Appellant filed a motion to suppress physical evidence, which

was denied on September 9, 2013. On April 1, 2014, following a nonjury

trial, Appellant was convicted of both crimes. That same day, the trial court

sentenced Appellant to serve concurrent terms of probation of two years for

each conviction.   This appeal followed.   Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

            Whether the evidence was insufficient as a matter of law to
      sustain the convictions for promoting prostitution and
      conspiracy.

Appellant’s Brief at 7.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

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to be drawn from the evidence.      Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).     “Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.”    Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)).      However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, this Court may

not substitute its judgment for that of the fact finder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented.    Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

      Initially, Appellant challenges her conviction of promoting prostitution.

Appellant’s Brief at 9-15. Appellant contends that the evidence reflects that

she was simply an employee of the business and that she was not present

when the interaction between the masseuse and the undercover officer took

place and therefore, she did not actively participate in the running of the

business.

      The crime of promoting prostitution is defined in the Crimes Code, in

relevant part, as follows:

      b) Promoting prostitution.-- A person who knowingly
      promotes prostitution of another commits a misdemeanor or

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      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. § 5902(b)(1).

      Regarding the elements of the crime of promoting prostitution, we

have stated the following:

            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.”

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

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

1987)).   Prostitution is defined 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 “[t]here was no need

for the officer to participate in the sexual activity to the extent of having

intercourse” in order to sustain a conviction for promoting prostitution.

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

      Here,    the   trial   court   offered   the   following   analysis    regarding

Appellant’s challenge to the sufficiency of the evidence relevant to the

conviction of promoting prostitution:

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            [Appellant] argues that there is insufficient evidence to
      establish the charge of promoting prostitution . . . .

            In the case at bar, the evidence was sufficient to establish
      beyond a reasonable doubt that the Spa was being used to
      house a prostitution business (i.e., wherein individuals would
      engage in sexual activity as a business).             The Spa’s
      advertisement depicts a young woman in the nude and promises
      to treat each customer like a “king.” See Trial Exhibit C-1.3
      After Officer McHale paid $200, Je led him to a bedroom, told
      him to disrobe and put a towel on, escorted him downstairs and
      gave him a “table shower,” took him back upstairs and directed
      him to lie on a bed in the nude, placed an open condom beside
      his waist, and then proceeded to attempt to perform “manual
      masturbation” on him. Moreover, in addition to the condom
      recovered from the bed on which Officer McHale was lying,
      ninety other condoms, as well as multiple sex toys, were
      recovered from the Spa. This evidence, as well as all reasonable
      inferences drawn therefrom, was sufficient to prove that a
      prostitution business was operating from the Spa.
            3
              The Spa’s advertisement appears among other
            provocative advertisements for “phone sex” and
            spas.

              The evidence at trial also established beyond a reasonable
      doubt that [Appellant] ran, controlled, or supervised the
      prostitution business operating out of the Spa: the masseuse
      license was in [Appellant’s] name; [Appellant] had the authority
      to control who entered the premises; and she was the one who
      initially greeted Officer McHale, patted him down, and then led
      him to Je. The court reasonably inferred from this evidence that
      [Appellant] was in control of and/or supervised the Spa
      operation. Therefore, sufficient evidence was presented at trial
      for the court to find [Appellant] guilty of promoting prostitution.

Trial Court Opinion, 8/15/14, at 4-5.

      Our review reflects that Appellant controlled the entry of the

undercover officer into the establishment and conducted a pat down search

of the officer.   N.T., 3/31/14, at 17, 29.   Although there was a masseuse


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license recovered in Appellant’s name, Appellant did not provide a massage.

Rather, Appellant took the officer by the hand to an upstairs bedroom and

introduced the officer to the prostitute.   Id. at 29.   Appellant then had a

conversation with the prostitute in a foreign language, left the room, and the

prostitute then quoted the officer a price of $180.00.    Id. at 19, 30. The

officer also testified that there was no massage table in the bedroom. Id. at

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

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

Appellant committed the crime of promoting prostitution.

      We observe that in support of her argument, Appellant relies on this

Court’s decision in Commonwealth v. DeStefanis, 658 A.2d 416 (Pa.

Super. 1995).    In DeStefanis, an undercover detective went to a fitness

center and paid for a massage.      At the completion of the massage, the

masseuse asked if the detective wanted a “hand release.” Id. at 417. The

detective declined, but confirmed that a “hand release” was in fact “manual

stimulation of the genitals,” and while the masseuse did not charge for this

service, she indicated that a tip would be appreciated. Id. Several weeks

later the detective returned and received a massage. On that occasion, the

detective inquired about “the availability of specific sexual acts other than a

hand release.”   Id.   The second masseuse indicated the “house rule” was

that only hand releases would be performed. Id.




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      Over three months later, a female undercover officer interviewed with

DeStefanis for a position as a masseuse at the fitness center. DeStefanis,

658 A.2d at 417. During the interview, which was taped with a recording

device, the officer asked if she was permitted to provide a hand release to

customers as an option to make more money. Id. at 417-418. DeStefanis

indicated nine times during the taped conversation that the house rules

included no sexual intercourse, but that she was permitted to offer a hand

release for an additional tip, although, to his knowledge, none of the other

masseuses offered the service.     Id. at 418.    DeStefanis further indicated

that masseuses kept their own tips and that he did not “touch” that money.

Id. About a month after the interview, DeStefanis was arrested. Id. A jury

convicted DeStefanis of two counts of promoting prostitution and one count

of conspiracy.   Id.   On appeal, DeStefanis argued that the evidence was

insufficient to sustain his convictions.   We agreed with DeStefanis, holding

that the fitness center was not a “prostitution business” as defined by 18

Pa.C.S. § 5902, nor were the masseuses who offered hand releases doing so

as part of the business. Id. at 420.

      Specifically, we stated the following:

            Detective Carroll’s testimony reveals that the fitness center
      charged $60.00 - $65.00 up front for a legitimate massage. The
      evidence further revealed that, after the completion of his first
      massage, Detective Carroll was made aware that a hand release
      was available by [the first masseuse]. When Detective Carroll
      inquired about the price of a hand release, the vague response
      was, “a tip would be appreciated.” Arguably, when a client does
      not agree to pay for a sexual service up front, the ensuing act

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     constitutes sexual activity between two consenting adults. [The
     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 [the second
     masseuse] 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. No price was
     discussed with [the second masseuse]. The fact that DeStefanis
     indicated to [the undercover officer] that providing hand releases
     was an acceptable way to make “tips” is not probative of a
     prostitution “business,” nor are the admissions of [the first
     masseuse] and [the second masseuse] that they gave hand
     releases to some of their customers. This evidence, even when
     viewed in the light most favorable to the Commonwealth, is not
     sufficient to establish the “business” element of the prostitution
     statute beyond a reasonable doubt, specifically, that there
     existed “a commercial activity engaged in for gain.”          . . .
     Because no underlying “prostitution business” has been
     established, DeStefanis cannot be said to have promoted
     prostitution under section 5902(b) and, therefore, his conviction
     must be reversed.

DeStefanis, 658 A.2d at 420. In addition, although admittedly in dicta, the

Court noted that there was no evidence that DeStefanis was receiving

income from any sexual acts performed by masseuses, particularly in light of

his statements that he did not think any employees were engaging in sexual

activity and that he did not share in any portion of the employees’ tips. Id.

at 421.

     Likewise, Appellant directs our attention to this Court’s decision in

Blankenbiller. Blankenbiller was an officer in companies that owned both a

restaurant and a café. Blankenbiller, 524 A.2d at 977. He had sponsored

a softball team by paying for their uniforms. Id. A party was held at the

restaurant in order to raise additional funds for the softball team. Id. The


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$15.00 ticket price for admission to the party entitled each purchaser to

beer, snacks, and a go-go-dancer show. Id. Two undercover state troopers

attended the party after purchasing tickets to the event at the café.        Id.

During the party, announcements were made over a speaker system

indicating that sex was available for money, and Blankenbiller was in the

vicinity of the loud speaker system.       Id.   The woman who ran a booking

agency for the go-go dancers testified that she had hired four female

dancers at $150 each and that she was paid $100 for making the

arrangements and acting as a hostess. Id. at 977-978. The booking agent

also testified that she brought four other women along for purposes of

prostitution.   Id. at 978.   One of the prostitutes testified that she was

responsible for collecting a certain amount of proceeds from the other girls,

that the money was used to benefit the softball team, and that she did not

know who Blankenbiller was. Id. Blankenbiller was convicted of promoting

prostitution under 18 Pa.C.S. § 5902(b)(1). On appeal, Blankenbiller argued

that the evidence was insufficient to sustain his conviction in light of the fact

that he was merely present at the scene.          Id. at 978.   We agreed with

Blankenbiller, stating the following:

            It is unreasonable to infer, from the fact that he either had
      allowed the party organizers to sell tickets at the restaurant or
      had allowed the use of the property for the party, that
      [Blankenbiller] ran, controlled, supervised, or kept a prostitution
      business at the party. The Commonwealth did not produce any
      evidence that [Blankenbiller] told anyone that prostitutes would
      be available at the event. Nor has it been shown that he
      personally made any of the “arrangements” with the women in

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      question. The Commonwealth also failed to demonstrate that he
      took part in any way in the illicit activities on the day of the
      party. The evidence shows only that [Blankenbiller] was present
      while the crimes took place and that he had helped promote the
      party. These facts do not make him criminally responsible for
      everything that occurred at the event. [M]ere presence does not
      establish guilt.

Blankenbiller, 524 A.2d at 979.             The Court went on to mention the

following facts:

      The “hostess,” who knew [Blankenbiller] previously, stated that
      she had made the party arrangements with . . . the manager of
      the softball team. Both [the hostess and the prostitute] who
      testified stated that the girls themselves told the guests that sex
      was available, that [Blankenbiller] had not made any of the
      announcements on the public address system, and that none of
      the entertainment arrangements, including the prostitution
      arrangements, had been made with [Blankenbiller].

Id.

      Upon review of the certified record, we are left to conclude that

Appellant’s reliance upon DeStefanis and Blankenbiller is misplaced.

Indeed, the decisions in those cases relied upon the facts that the appellants

were not instrumental in organizing the illicit business between the

prostitutes and their clients. Instantly, however, the record reflects that the

undercover    officer’s   entry   into   the   establishment   was   controlled   by

Appellant, and Appellant conducted a pat-down search of the officer. N.T.,

3/31/14, at 17-18. Appellant then took the officer, by the hand, to a second

floor bedroom and introduced him to the prostitute, who was “scandalously

clad.” Id. at 17, 29. Appellant and the prostitute then had a conversation

in a foreign language, and Appellant left the officer alone with the prostitute.

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Id. at 19. Without discussion of services, the prostitute asked the officer for

$180, and the officer gave her $200.         Id.   The prostitute then took the

officer to be washed, and when the two returned to the bedroom, she placed

a condom at his waist and immediately proceeded to perform masturbation

upon him.   Id. at 21.   Thus, unlike the circumstances in DeStefanis and

Blankenbiller, the evidence in this case establishes that there was no

legitimate massage business being conducted at the Spa, but rather, this

was a venue for prostitution. Furthermore, Appellant was an integral part of

the business.   Thus, Appellant’s claim challenging the sufficiency of the

evidence to support her conviction of promoting prostitution lacks merit.

      In addition, Appellant argues that there was insufficient evidence to

support her conviction of conspiracy.     Appellant’s Brief at 15.    Appellant

contends that she was merely present at the business when the undercover

officer had an encounter with a prostitute.

      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.

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18 Pa.C.S. § 903(a).

     Moreover, we have explained the following:

           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 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

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

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

      In addressing this issue challenging the sufficiency of the evidence, the

trial court offered the following cogent analysis:

            [Appellant] also argues that there was insufficient evidence
      of a conspiracy to commit prostitution.

                                     ***

             The evidence proved beyond a reasonable doubt that
      [Appellant] was guilty of conspiring to commit prostitution.
      [Appellant] asserts that her “mere presence” at the Spa and
      possession of a license to run a massage parlor was insufficient
      to sustain the conspiracy conviction. See [Pa.R.A.P. 1925(b)]
      Statement at ¶ 2. While Officer McHale may not have heard or
      understood any direct communication between [Appellant] and
      Je about engaging in sexual activity for profit, there was
      sufficient circumstantial evidence to support the finding of a
      conspiracy. The silent exchange of money for the performance
      of sexual favors indicated that everything done to Officer McHale
      was done in the ordinary course of business. Neither [Appellant]
      nor Je asked Officer McHale what services he was seeking.
      Instead, [Appellant] patted him down, brought him to Je,
      engaged in a brief conversation with Je in Korean, and left. It
      was after this conversation with [Appellant] that Je quoted
      Officer McHale a price and had no further discussion with him,
      except to tell him to remove his clothing. The seamless nature
      in which these encounters and transactions took place was
      circumstantial evidence of an agreement between [Appellant]
      and Je that Je would perform sexual activity for monetary
      compensation. Therefore the evidence was sufficient to find
      [Appellant] guilty of conspiracy.

Trial Court Opinion, 8/15/14, at 5-6. We find this analysis by the trial court

to be persuasive and affirm the conviction of conspiracy on its basis.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015




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