J. S66038/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ERNEST PORTER A/K/A                    :
KEVIN ERNEST PORTER,                   :         No. 2771 EDA 2017
                                       :
                       Appellant       :


           Appeal from the Judgment of Sentence, July 25, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0000143-2016


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 21, 2018

     Ernest Porter, a/k/a Kevin Ernest Porter, appeals from the July 25,

2017 aggregate judgment of sentence of 3 to 6 years’ imprisonment,

followed by 9 years’ probation, imposed after a jury found him guilty of

aggravated indecent assault, indecent assault, unlawful contact with a

minor, and corruption of minors.1     Contemporaneously with this appeal,

counsel has requested leave to withdraw in accordance with Anders v.

California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981), and their progeny.     After careful review, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.




1 18 Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), 6318(a)(1), and 6301(a)(1)(i),
respectively.
J. S66038/18

      The trial court summarized the relevant facts and procedural history of

this case as follows:

            At trial, the Commonwealth presented the following
            testimony:      the complainant, S.B. (defendant’s
            niece); K.F. (S.B.’s friend); Lila Corgan (S.B.’s
            teacher); [L.B.] (S.B.’s mother and [appellant’s]
            sister-in-law); Philadelphia Police Detective Manuel
            Gonzalez; and Philadelphia Children’s Alliance
            Forensic     Interview   Specialist,  Maylis   Feliz.
            [Appellant] presented the testimony of [L.B.-P.]
            ([appellant’s] wife and S.B.’s biological aunt).
            Viewed in the light most favorable to the
            Commonwealth as the verdict winner, the evidence
            established the following.

            On November 1, 2015, the complainant, thirteen-
            year-old, S.B., was in her bedroom, in her home in
            Philadelphia, when her uncle, [appellant] entered the
            room. [Appellant] laid across S.B.’s bed and began
            to ask her “weird” questions, such as, “Do you love
            me?” and “Do you miss me?” He then went over to
            where S.B. was fixing her hair and pushed her
            against the wall. He proceeded to kiss her and stick
            his hand under her clothes to touch her breasts,
            buttocks, and vagina. He then digitally penetrated
            her vagina. During the act, [appellant] told S.B. that
            it was supposed to make her feel good and that she
            could not tell anyone because they would both get
            into trouble and therefore, they had to take it to
            their graves.

            After the incident, [appellant] left S.B.’s bedroom
            and went to the bathroom to wash his hands. Once
            [appellant] left, S.B. texted her best friend, K.F., “I
            think my uncle just sexually assaulted me.” K.F.
            encouraged S.B. to tell someone about what had
            happened. The next day, at school, S.B. reported
            the incident to a teacher, Lila Corgan. Corgan called
            S.B.’s mother, [L.B.], and the incident was reported
            to the Philadelphia Police.




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Trial court opinion, 10/31/17 at 2-3 (citations to notes of testimony and

footnote omitted).

        Appellant was subsequently arrested and charged with aggravated

indecent assault and related offense in connection with this incident.           On

January 18, 2017, appellant proceeded to a jury trial and was found guilty of

aggravated indecent assault, indecent assault, unlawful contact with a

minor, and corruption of minors, following a two-day trial.            On June 15,

2017, the trial court sentenced appellant to an aggregate term of 3 to

10 years’ imprisonment, followed by 5 years’ probation. On June 22, 2017,

appellant filed a motion for reconsideration of sentence, which was granted

by the trial court on July 25, 2017.            That same day, the trial court

resentenced appellant to an aggregate term of 3 to 6 years’ imprisonment,

followed by 9 years’ probation. This timely appeal followed on August 23,

2017.

        On August 24, 2017, the trial court directed appellant to file a concise

statement     of   errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b). Robert Marc Gamburg, Esq. (hereinafter “counsel”), filed

a timely Rule 1925(b) statement on appellant’s behalf on September 12,

2017.    The trial court filed its Rule 1925(a) opinion on October 31, 2017.

Thereafter, on April 11, 2018, counsel filed a petition and brief to withdraw

from representation pursuant to Anders/McClendon. On May 4, 2018, we

issued a per curiam order directing counsel to forward a letter to appellant



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advising him of his right to retain new counsel, proceed pro se, or raise any

additional points that he deems worthy of this court’s attention.      Counsel

complied on May 9, 2018. Appellant did not respond to counsel’s petition to

withdraw.

      In his Anders brief, counsel argues on appellant’s behalf that there

was insufficient evidence to sustain appellant’s convictions for aggravated

indecent assault, indecent assault, unlawful contact with a minor, and

corruption of minors. (Anders brief at 8-10.)

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.

2010) (citation omitted).        In order to withdraw pursuant to Anders,

“counsel must file a brief that meets the requirements established by our

Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)

(parallel citation omitted). Specifically, counsel’s Anders brief must comply

with the following requisites:

             (1)   provide a summary of the procedural history
                   and facts, with citations to the record;

             (2)   refer to anything in the record that counsel
                   believes arguably supports the appeal;

             (3)   set forth counsel’s conclusion that the appeal is
                   frivolous; and




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              (4)   state counsel’s reasons for concluding that the
                    appeal is frivolous. Counsel should articulate
                    the relevant facts of record, controlling case
                    law, and/or statutes on point that have led to
                    the conclusion that the appeal is frivolous.

Id. (citation omitted).

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client.”     Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief

must be accompanied by a letter that advises the client of the option to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court[‘]s

attention in addition to the points raised by counsel in the Anders brief.”

Id.   “Once counsel has satisfied the above requirements, it is then this

[c]ourt’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.”   Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.

2007) (en banc) (citation and internal quotation marks omitted).

      Instantly, we conclude that counsel has satisfied the technical

requirements of Anders and Santiago. Counsel has identified the pertinent

factual and procedural history and made citation to the record. Counsel has

also raised sufficiency of the evidence claims that could arguably support an

appeal, but ultimately concludes that the appeal is wholly frivolous. At our



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direction, counsel sent a letter to appellant that he attached to his petition,

which satisfied the notice requirements of Millisock.       Accordingly, we will

proceed to conduct an independent review of the record to determine

whether this appeal is wholly frivolous.

      Appellant contends there is insufficient evidence to sustain his

convictions for aggravated indecent assault, indecent assault, unlawful

contact with a minor, and corruption of minors. (See Anders brief at 8-11.)

For the following reasons, we disagree.

      Our standard of review in assessing whether there was sufficient

evidence to sustain appellant’s convictions is well settled.

            In reviewing the sufficiency of the evidence, we must
            determine whether the evidence admitted at trial
            and all reasonable inferences drawn therefrom,
            viewed in the light most favorable to the
            Commonwealth as verdict winner, is sufficient to
            prove every element of the offense beyond a
            reasonable doubt. As an appellate court, we may
            not re-weigh the evidence and substitute our
            judgment for that of the fact-finder. Any question of
            doubt is for the fact-finder unless the evidence is so
            weak and inconclusive that as a matter of law no
            probability of fact can be drawn from the combined
            circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

      Viewing   the   evidence    in   the   light   most      favorable   to   the

Commonwealth, the verdict winner, we find that there was sufficient

evidence from which the jury could conclude that appellant was guilty of



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both aggravated indecent assault and indecent assault. Section 3125 of the

Crimes Code defines the offense of aggravated indecent assault, in relevant

part, as follows:

            (a)     Offenses defined.--Except as provided in
                    sections 3121 (relating to rape), 3122.1
                    (relating to statutory sexual assault), 3123
                    (relating   to   involuntary deviate    sexual
                    intercourse) and 3124.1 (relating to sexual
                    assault), a person who engages in penetration,
                    however slight, of the genitals or anus of a
                    complainant with a part of the person’s body
                    for any purpose other than good faith medical,
                    hygienic or law enforcement procedures
                    commits aggravated indecent assault if:

            ....

                    (8)   the complainant is less than
                          16 years of age and the person is
                          four or more years older than the
                          complainant and the complainant
                          and the person are not married to
                          each other.

18 Pa.C.S.A. § 3125(a)(8).

      A person will be found guilty of indecent assault:

            if the person has indecent contact with the
            complainant . . . for the purpose of arousing sexual
            desire in the person or the complainant and . . . the
            complainant is less than 16 years of age and the
            person is four or more years older than the
            complainant and the complainant and the person are
            not married to each other.

18 Pa.C.S.A. § 3126(a)(8). 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.


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      Instantly, our review of the testimonial evidence presented in this

matter established that appellant held the 13-year-old victim, S.B., against

the wall, kissed her without her consent, fondled her breasts and buttocks,

and reached into her underwear before digitally penetrating her vagina.

(Notes of testimony, 1/18/17 at 43-45.)      Additionally, both S.B.’s friend,

K.F., and her teacher, Lila Corgan, corroborated S.B.’s version of events

after she confided in them about the incident. (Id. at 65-72, 80-85.) Our

supreme court has held that evidence that a defendant digitally penetrated a

victim’s vagina is sufficient to support a conviction for aggravated indecent

assault.   See Commonwealth v. Kelley, 801 A.2d 551, 557-558 (Pa.

2002). Moreover, we recognize that even the uncorroborated testimony of

the complainant alone “is sufficient to convict a defendant of sexual

offenses.” Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super.

2005) (citations and internal quotation marks omitted).

      Likewise, we find ample support to sustain appellant’s conviction for

unlawful contact with a minor pursuant to Section 6318 of the Crimes Code.

A person commits the offense of unlawful contact with a minor if,

            he is intentionally in contact with a minor, or a law
            enforcement officer acting in the performance of his
            duties who has assumed the identity of a minor, for
            the purpose of engaging in an activity prohibited
            under any of the following, and either the person
            initiating the contact or the person being contacted is
            within this Commonwealth:

            (1)   Any of the offenses enumerated in
                  Chapter 31 (relating to sexual offenses).


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18 Pa.C.S.A. § 6318(a)(1).

      As noted, the evidence in the case sub judice clearly established that

appellant engaged in multiple instances of unwanted sexual contact with

13-year-old S.B., informing her that it was supposed “to make [her] feel

good.”   (Notes of testimony, 1/18/17 at 45.)      This court has sustained a

conviction for unlawful contact with a minor where a defendant hugged a

victim, tried to pull her skirt up, and rubbed victim’s buttocks and private

areas while asking her if it felt good. See Commonwealth v. Leatherby,

116 A.3d 73, 80 (Pa.Super. 2015).

      Lastly, appellant’s actions in engaging in the sexual assault of a

13-year-old girl clearly satisfy the requisite elements for corrupting a minor

pursuant to Section 6301 of the Crimes Code, which provides, in relevant

part, as follows:

            (a)     Offense defined.--

                    (1)(i) Except as provided in subparagraph
                           (ii), whoever, being of the age of
                           18 years and upwards, by any act
                           corrupts or tends to corrupt the
                           morals of any minor less than
                           18 years of age, or who aids, abets,
                           entices or encourages any such
                           minor in the commission of any
                           crime, or who knowingly assists or
                           encourages such minor in violating
                           his or her parole or any order of
                           court, commits a misdemeanor of
                           the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i).


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      Based on the foregoing, we agree with counsel’s assessment that this

appeal is wholly frivolous and that appellant is entitled to no relief on his

sufficiency claims.   After our own independent review of the record, we

discern no additional issues of arguable merit.      Accordingly, we grant

counsel’s petition to withdraw and affirm the July 25, 2017 judgment of

sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/21/18




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