J-A24009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
               Appellee                  :
                                         :
                   v.                    :
                                         :
CARLOS J. F. FIGUEROA-FAGOT,             :
                                         :
               Appellant                 : No. 1270 EDA 2014


       Appeal from the Judgment of Sentence Entered April 4, 2014,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0009312-2012

BEFORE:    PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED DECEMBER 14, 2015

     Carlos Figueroa-Fagot (Appellant) appeals from the judgment of

sentence after being convicted of criminal attempt - kidnapping, unlawful

contact with a minor, interference with custody of children, corruption of

minors, indecent assault, and simple assault.      Upon review, we vacate

Appellant’s judgment of sentence, reverse Appellant’s convictions for

unlawful contact with a minor, indecent assault, and corruption of minors,

and remand for proceedings consistent with this memorandum.1

     The incident giving rise to these charges occurred on July 17, 2012 at

approximately 4:00 p.m. V.P., a ten-year-old girl at the time, along with her

one-year-old brother, went to Tony’s Market to get chocolate water ice. The


1
  The Commonwealth has filed a Motion to Complete the Record Pursuant to
Pa.R.A.P. 1926. We grant the motion and have obtained the surveillance
video of the incident.

*Retired Senior Judge assigned to the Superior Court.
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two then were walking to the home of V.P.’s father when V.P. saw Appellant

sitting in a white, four-door car with the door open. V.P. then “turned the

corner and saw [Appellant] running behind [her], and he tried to grab

[her].” N.T., 9/9/2013, at 30. V.P. testified that Appellant grabbed her and

had “his hand over [her] mouth and one [of] his arm[s] under [her] leg.” Id.

V.P. testified that she was “screaming and kicking” and “bit his finger” while

he was grabbing her. Id. at 31. She further testified that she did not hear

Appellant say anything and that she was scared for both herself and her little

brother. Appellant finally dropped V.P. and ran back to his car.

        V.P. ran to her house, told her mother about the incident, and her

mother called police. Police Officer Edward Lichtenhahn was assigned to the

case.    He conducted a neighborhood survey, which included obtaining a

video recovered “from a private residence showing the actual attack that had

taken place.” N.T., 9/10/2013, at 16.

        Appellant appeared voluntarily at the police station accompanied by

his pastor the following day.2 Police showed him the video of the incident,

and Appellant told police it was his car in the video. Id. at 38. Police then

2
   In conjunction with their investigation, police put out a bulletin with
Appellant’s basic description as well as a description of the vehicle, and
offered a reward for information. Appellant told police that after seeing the
bulletin on the news, a family member accused Appellant of being the
person involved and planned to report Appellant to collect the reward
money. Thus, Appellant went voluntarily to the police to say that he was not
involved in the case.



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read Appellant his Miranda3 rights, and Appellant agreed to speak

voluntarily with police.    Appellant admitted that the person in the video

“looks like” him, but he does not “remember.” Id. at 45.

        Appellant was charged with the aforementioned crimes, as well as

false imprisonment and unlawful restraint, and proceeded to a jury trial.

The jury found Appellant guilty of attempted kidnapping, unlawful contact

with a minor, interference with the custody of children, corruption of minors,

indecent assault, and simple assault.4      On April 4, 2014, the trial court

conducted a hearing to determine if Appellant was a sexually violent

predator (SVP) and to sentence Appellant.       The trial court concluded that

Appellant was an SVP and sentenced Appellant to an aggregate term of 17

to 34 years of incarceration.5 Appellant did not file a post-sentence motion,

but did file timely a notice of appeal.     Both Appellant and the trial court

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




3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
    Both unlawful restraint and false imprisonment were nolle prossed.
5
  The sentence was broken down as follows: 1) attempted kidnapping, 10 to
20 years of incarceration; 2) unlawful contact with a minor, 3½ to 7 years of
incarceration; 3) interference with custody of children, 3½ to 7 years of
incarceration; 4) corruption of minors, 2½ to 5 years of incarceration; 5)
indecent assault, 2½ to 5 years of incarceration; and 6) simple assault, 2½
to 5 years of incarceration. The first three sentences run consecutively to
each other; the second three sentences run concurrently to the first three
and to one another.


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      On appeal, Appellant challenges the sufficiency of the evidence to

sustain three of his convictions: corruption of minors, indecent assault by

forcible compulsion, and unlawful contact with minors. We address all three

issues mindful of our well-settled standard of review.

      The standard we apply in reviewing the sufficiency of 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 that of
      the fact-finder. … 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)

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

(citations omitted)).

      We begin with Appellant’s corruption of minors conviction.           That

statute provides, in relevant part, as follows. “[W]hoever, 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 … commits a misdemeanor of the first

degree.” 18 Pa.C.S. § 6301(A)(1)(i).

      Corruption of a minor can involve conduct towards a child in an
      unlimited number of ways. The purpose of such statutes is
      basically protective in nature. These statutes are designed to
      cover a broad range of conduct in order to safeguard the welfare
      and security of our children. Because of the diverse types of



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      conduct that must be proscribed, such statutes must be drawn
      broadly. It would be impossible to enumerate every particular
      act against which our children need be protected.

Commonwealth v. Slocum, 86 A.3d 272, 278 (Pa. Super. 2014).

      We point out that “[t]ending to corrupt … is a broad term involving

conduct toward a child in an unlimited variety of ways which tends to

produce or to encourage or to continue conduct of the child which would

amount to delinquent conduct[.]” Commonwealth v. Meszaros, 168 A.2d

781, 782 (Pa. Super. 1961). Instantly, Appellant grabbed V.P. suddenly, in

front of her young brother, and attempted to kidnap her. Such conduct is

not the type that would tend to “produce” or “encourage” delinquent conduct

in V.P. Id.    Accordingly, we reverse Appellant’s corruption of minors

conviction.

      We now turn to Appellant’s convictions for indecent assault by forcible

compulsion pursuant to 18 Pa.C.S. § 3126(a)(2) and unlawful contact with a

minor pursuant to 18 Pa.C.S. § 6318. The trial court concluded that the

evidence was sufficient where Appellant “forcibly grabbed the victim,

covered her mouth, touched her in an intimate place, picked her up close to

his body, and attempted to abduct her.” Trial Court Opinion, 10/31/2014, at

14.

      With respect to unlawful contact with a minor, this Court has explained

that “[unlawful contact with a minor] is best understood as unlawful




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communication with a minor.” Commonwealth v. Leatherby, 116 A.3d

73, 79 (Pa. Super. 2015) (emphasis added).6 See Commonwealth v.

Velez, 51 A.3d 260 (Pa. Super. 2012) (holding that unlawful contact with a

minor can be inferred where the victim’s pants were removed and that could

not have occurred absent a verbal or physical directive from Velez).

       Instantly, the victim testified that she did not hear Appellant say

anything and the surveillance video indicates no nonverbal communication.

N.T., 9/9/2014, at 31. Thus, the evidence does not establish any verbal or

nonverbal communication as contemplated by the statute to convict

Appellant of unlawful contact with a minor.        Accordingly, we reverse

Appellant’s conviction on this charge.

      To sustain the conviction for indecent assault by forcible compulsion,

the perpetrator must have “indecent contact with the complainant … for the

purpose of arousing sexual desire in the [perpetrator] or the complainant

and … does so by forcible compulsion.” 18 Pa.C.S. § 3126(a)(2).

      In this case, the victim testified that Appellant “had his hand over

[her] mouth [and] his arm under [her] leg.” N.T., 9/9/2014, at 30. A review

of the video of the incident does not establish that Appellant touched the



6
  The statute provides, in relevant part, as follows. “A person commits an
offense if he is intentionally in contact with 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[.]” 18 Pa.C.S. § 6318(a).


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victim in “an intimate place” as the trial court suggests. Instead, the video

demonstrates that Appellant was trying to kidnap the victim by picking her

up and carrying her away while she was fighting against him. “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.”

Commonwealth v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (citation

omitted; emphasis added).      After a review of the video and the victim’s

testimony, this is the type of case where the evidence was so weak and

inconclusive that the jury’s verdict cannot be sustained on this charge

because it does not establish that Appellant had indecent contact with the

victim for the purpose of arousing his sexual desire. Accordingly, we reverse

Appellant’s conviction on this charge.

      Our     disposition   reversing     Appellant’s   convictions   on   the

aforementioned charges may upset the trial court’s sentencing scheme. See

Commonwealth v. Sutton, 583 A.2d 500, 502 n. 2 (1990) (citations

omitted) (“Where one, convicted of several crimes, successfully challenges

his judgment of sentence on appeal, remand for resentencing may be just

under the circumstances, as it may further the sentencing court’s plans for

protection of society from future criminal activity and rehabilitation of the




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criminal and reduce the possibility of disparate and irrational sentencing.”).

Accordingly, we remand this case for resentencing.

      Judgment of sentence vacated. Convictions reversed for corruption of

minors, indecent assault, and unlawful contact.         Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

      Judge Wecht joins the memorandum.

      Judge Panella files a concurring and dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 12/14/2015




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