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[U] Commonwealth v. Frazier

Superior Court of Pennsylvania

February 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
THADDEUS FRAZIER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence July 24, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000837-2010

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

GANTMAN, J.

Appellant, Thaddeus Frazier, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for unlawful contact with a minor, corruption of a minor, and indecent assault by forcible compulsion.[1] We affirm.

The trial court opinion fully sets forth the relevant facts of this case as follows:

On November 15th, 2009, F.J., the victim herein, was spending the day with his two cousins, K.F., age 16, and J.F., age 14, under the supervision of his aunt, [E.F.]. That evening, [Appellant] called [E.F.] and requested that K.F., J.F. and the victim accompany [Appellant] to the store. After [E.F.] agreed with this request, [Appellant] picked the three children up in his vehicle. After running a few errands, [Appellant] took the children back to his residence where the four of them would spend the night. The victim fell asleep on a couch in [Appellant's] living room at around 11:00 p.m. At about 2:00 a.m. of the next morning, the victim awoke in [Appellant's] bedroom where [Appellant] was in the process of removing the victim's pants. [Appellant] forced himself on top of the victim and attempted to kiss the victim on his lips and neck. [Appellant] then put his penis on the victim's thigh and sustained an erection. The victim struggled with [Appellant] for several minutes before freeing himself. The victim fled to the living room and attempted to wake K.F. When K.F. did not wake up, the victim went to sleep again in the living room. [Appellant] entered the living room, reached into the victim's underwear and touched his penis. [Appellant] repeatedly asked the victim to rejoin him in the upstairs bedroom, but the victim declined. The next morning, the victim informed [K.F.] of [Appellant's] actions, and [K.F.] told him that he and the victim needed to go home immediately. After returning to the supervision of [E.F.], the victim informed her of [Appellant's] conduct, after which [E.F.] contacted the police.

(Trial Court Opinion, filed February 15, 2013, at 1-2). Appellant timely filed a notice of appeal on August 1, 2012. On January 17, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b), and Appellant timely complied.[2]

Appellant raises the following issues for our review:

DID THE [TRIAL] COURT ERR WHEN IT FOUND THAT THERE WAS SUFFICIENT EVIDENCE TO PROVE, BEYOND A REASONABLE DOUBT, THE CRIMINAL OFFENSE OF INDECENT ASSAULT?
DID THE [TRIAL] COURT ERR WHEN IT FOUND THAT THERE WAS SUFFICIENT EVIDENCE TO PROVE, BEYOND A REASONABLE DOUBT, THE CRIMINAL OFFENSE OF UNLAWFUL CONTACT OR COMMUNICATION WITH MINOR?

(Appellant's Brief at 2).

When examining a challenge to the sufficiency of evidence, our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted…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 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

In his issues combined, Appellant argues the Commonwealth's evidence does not establish "indecent contact, " an element of the offense of indecent assault. Specifically, with respect to the first issue, Appellant contends the victim's thigh is not an intimate part of the body. Appellant next argues there was no evidence to demonstrate that he contacted the victim with the express purpose of engaging in an indecent assault, as no evidence demonstrated Appellant's purpose in requesting a visit with the victim. Appellant concludes the Commonwealth's evidence was insufficient to support these convictions. We disagree.

Section 3126(a)(2) of the Crimes Code defines indecent assault as follows:

§ 3126. Indecent assault
(a) Offense defined.—A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if:
* * *
(2) the person does so by forcible compulsion;

18 Pa.C.S.A. § 3126(a)(2). Section 3101 defines indecent contact as: "Any 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. Section 6318 in relevant part provides:

§ 6318. Unlawful contact with minor

(a) Offense defined.-A person commits an offense 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).
* * *
(c) Definitions.-As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
* * *
"Contacts." Direct or indirect contact or communication by any means, method or device, including contact or communication in person or through an agent or agency, through any print medium, the mails, a common carrier or communication common carrier, any electronic communication system and any telecommunications, wire, computer or radio communications device or system.

18 Pa.C.S.A. § 6318(a)(1), (c). This Court has held that certain nonverbal conduct qualifies as "contact" under Section 6318. See Commonwealth v. Oliver, 946 A.2d 1111, 1113 (Pa.Super. 2008) (holding defendant "contacts" victim where defendant, lying in bed, nudges victim in her back with his foot, pulls bedcovers below his bellybutton, points toward his penis, raises his eyebrows, and winks at victim). See also Commonwealth v. Velez, 51 A.3d 260, 267 (Pa.Super. 2012) (holding that contact element of unlawful contact with minor was met with reasonable inference that defendant directed nine year-old victim, either verbally or nonverbally, to unclothe and to position herself in sexual way).

Instantly, the trial court reasoned:

Indecent Assault-Forcible Compulsion is committed when a perpetrator has indecent contact with the victim and the perpetrator does so by forcible compulsion. 18 Pa.C.S. § 3126(a)(2). Indecent contact is defined as any touching of the sexual or other intimate parts of a person for the purpose of arousing or gratifying sexual desire. 18 Pa.C.S. § 3101.
Instantly, the evidence was more than sufficient to establish beyond a reasonable doubt that defendant had indecent contact with the victim. The victim testified that defendant attempted to kiss the victim on his lips and neck, and defendant used his hands to touch the victim's genital area. The victim testified further that defendant placed his penis on the victim's thigh and sustained an erection. This testimony established that defendant touched sexual and other intimate parts of the victim for the purpose of gratifying his sexual desire. Accordingly, it is suggested that no relief is due on this claim.

(Trial Court Opinion at 3-4) (internal citations to record omitted). Additionally, the trial court concluded the evidence was sufficient to establish unlawful contact with a minor. We agree.

The record more than establishes that Appellant had indecent contact with the victim in this case. The trial court found indecent contact based on Appellant's touching the victim's neck and genitals as well as his thigh. With respect to the unlawful contact with minor offense, the record establishes that Appellant called the victim's aunt to request a visit with the victim and misled the victim's aunt as to the purpose of the visit. Taken together with Appellant's repeated requests to the victim to rejoin Appellant in the upstairs bedroom, the record supports the unlawful contact with minor conviction as well. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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