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[U] Commonwealth v. Ricard

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TEASON RICARD, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered February 12, 2013 in the Court of Common Pleas of Philadelphia County, Criminal Court, at No(s): CP-51-CR-0003949-2012

BEFORE: BENDER, P.J.E., WECHT, J. and STRASSBURGER, [*] J.

MEMORANDUM

STRASSBURGER, J.

Teason Ricard (Appellant) appeals from her judgment of sentence following her conviction for promoting prostitution.[1] We affirm.

The trial court aptly set for the relevant factual and procedural history of this case as follows.

Police Officer Joseph Ferraro testified that on January 5, 2012 at approximately 12:00 a.m., his tour of duty took him to the area of 247 North Juniper Street in the city and county of Philadelphia. Officer Ferraro went to that location in response to a complaint by the Easy Park Corporation. Officer Ferraro testified that while in plain clothes, he went to 247 North Juniper Street. He described the structure as a building with no signs indicating whether [it is] a business or residence. There were two doors at the entrance, an outer door then a small vestibule with an inner door. He went in the first outer door which was open and then rang the door bell to the inner door. Officer Ferraro looked up and there was a camera inside the small vestibule. The Officer was able to see [] Appellant in the camera. Appellant answered the door and asked Officer Ferraro if he had been there before. Officer Ferraro said yes, and Appellant granted him access into the building.
Once Officer Ferraro entered, he saw a small room almost set up like a living room with two couches and a television. He could see an opening with a door with a long hallway that goes down the building. Appellant asked him if he liked American girls and said she had a Spanish girl working that day. Appellant then yelled down the hallway for the girl. A Hispanic female, Ms. Muldinado, came into the small living room area wearing a robe. Appellant yelled at Ms. Muldinado, "Get naked." Ms. Maldinado took off her robe, wearing nothing but a bra and panties. Appellant asked the officer if he liked Ms. Muldinado and then Appellant led him down the hallway into a room. The room contained a bed that took up most of the room and a small table with a small light with very dim lighting. Once in the room, Appellant told Officer Ferrero there was a $60 house fee. The officer understood this to mean that he would have to pay Appellant $60 to spend time with Ms. Muldinado. Appellant offered no services to the Officer, other than Ms. Maldinado. At that point, the doorbell rang and Appellant exited the room to go answer the door while Officer Ferraro remained in the room with Ms. Muldinado. Officer Ferraro testified that he asked Ms. Muldinado if he should give her the $60 house fee. Ms. Maldinado told him, no, that he would have to give her a fee of $100 for full service. The officer understood this to mean intercourse. At that point, Officer Ferraro identified himself as a police officer and arrested Ms. Muldinado and brought her out to the small living room where his partner Officer David Blackburn was with the Appellant. Police Officer Ferraro arrested Appellant.
Officer Blackburn testified that after he had dropped off Officer Ferraro at that location, he waited about ten minutes then went to the door and rang the doorbell. Appellant answered the door. Officer Blackburn received a call from Officer Ferraro which was a sign that a deal was made. Officer Blackburn pulled out his badge and identified himself as a police officer to the Appellant. After the arrests, the search of the Appellant did not recover any money and a search of the property recovered a credit card machine. Officer Ferraro testified that Appellant told the officers that they had just opened back up for business.

Trial Court Opinion, 8/8/2013, at 2-3 (unnumbered).

Appellant was convicted, following a non-jury trial, of the aforementioned offense and was sentenced to three years of probation. No post-sentence motions were filed. On February 28, 2013, Appellant filed a timely notice of appeal with this Court. Both Appellant and the trial court complied with the provisions of Pa.R.A.P. 1925.

Appellant raises two issues on appeal.

I. Was the evidence insufficient to sustain [] Appellant's conviction for promoting prostitution?

II. Was the verdict of guilty of the charge of promoting prostitution against the weight of the evidence?

Appellant's Brief at 3 (capitalization omitted).

The standard we apply in reviewing the sufficiency of the 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 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. Knox, 50 A.3d 749, 754 (Pa.Super. 2012) (quoting Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa.Super. 2011) (en banc)).

The crime of promoting prostitution is defined as follows.

b) Promoting prostitution.--A person who knowingly promotes prostitution of another commits a misdemeanor or 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;
(2) procuring an inmate for a house of prostitution or a place in a house of prostitution for one who would be an inmate;
(3) encouraging, inducing, or otherwise intentionally causing another to become or remain a prostitute;
(4) soliciting a person to patronize a prostitute;
(5) procuring a prostitute for a patron;
(6) transporting a person into or within this Commonwealth with intent to promote the engaging in prostitution by that person, or procuring or paying for transportation with that intent;
(7) leasing or otherwise permitting a place controlled by the actor, alone or in association with others, to be regularly used for prostitution or the promotion of prostitution, or failure to make reasonable effort to abate such use by ejecting the tenant, notifying law enforcement authorities, or other legally available means; or
(8) soliciting, receiving, or agreeing to receive any benefit for doing or agreeing to do anything forbidden by this subsection.

18 Pa.C.S. § 5902(b).

In her first argument, Appellant contends that the Commonwealth failed to prove that she was guilty of promoting prostitution because there was no evidence presented at trial that Appellant knew the employee would be offering sexual services to the undercover officer and no sexual activity took place between the officer and the employee. Appellant's Brief at 5.

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." 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. at 417. About a month later, the undercover detective returned to the fitness center for a massage. On that occasion, the detective asked a second masseuse whether other sexual acts were available during a massage. That masseuse indicated that it was the "house rule" that hand releases were the only sexual act performed on massage customers. Id.

Following these incidents, a female undercover officer interviewed with DeStefanis for a position as a masseuse at the fitness center. During her interview she was instructed 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 417-418. DeStefanis further indicated that masseuses kept their own tips and that he did not "touch" that money. Id. A month after the interview, DeStefanis was arrested for promoting prostitution. Following a guilty verdict, DeStefanis appealed to this Court, claiming that the evidence was insufficient to sustain his convictions. We agreed, 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. Additionally, the Court emphasized 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.

The instant case is readily distinguishable from DeStefanis. The business at issue herein was not a legitimate massage business with a store front or advertising. Instead, it was run out of a non-descript building with Appellant granting access to clients via closed circuit camera. The testimony of Officer Ferraro supports the conclusion that the business was being run solely for sexual purposes: Appellant indicated to the officer that a Spanish girl was working that day and presented the nearly-naked girl to him for approval before leading them down the hallway to a small room with a bed. Before leaving the room to answer the doorbell, Appellant explained that there was a $60 house fee. While she was away, her employee gave the detective the price for "full service." This evidence is sufficient to support Appellant's conviction for the crime of promoting prostitution. Moreover, contrary to Appellant's argument, 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).

In her second claim, Appellant argues that her convictions are against the weight of the evidence. It is well-settled that "a weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing". Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011). "Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion." Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009). Here, Appellant did not file a post-sentence motion, nor did she present an oral or written post-sentence motion. Accordingly, we are constrained to find her weight of the evidence claim waived.

Judgment of sentence affirmed.

Judgment Entered.


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