Com. v. Cerco, G. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GAVIN JOSEPH CERCO
Appellant No. 895 MDA 2013
Appeal from the Judgment of Sentence April 17, 2013
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000844-2012
BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 26, 2014
Appellant, Gavin Joseph Cerco, appeals from the April 17, 2013
judgment of sentence of three to 18 months’ imprisonment, following his
conviction by a jury of corrupting the morals of a minor.1 After careful
review, we affirm.
Based on our review of the certified record, we summarize the factual
and procedural history of this case as follows. On April 5, 2012, Detective
Christopher Kolcharno, supervisor of the Special Victims Unit in the criminal
division of the Lackawanna District Attorney’s Office, charged Appellant with
one count of corruption of the morals of a minor. The charge arose from a
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 6301(a)(1)(i).
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series of Facebook text messages between Appellant and V.M., a 12-year-old
girl whom Appellant coached as the only female player on a middle school
baseball team. Appellant initiated the Facebook communication, despite a
school district policy prohibiting such social media contact. The series of
text message exchanges took place between March 28 and April 3, 2012.
The substance of the communications contained regular references to V.M.’s
baseball practice and training, but increasingly centered on what she wore to
practice, girl’s clothing in general, Appellant’s penchant for wearing women’s
clothing and some of his experiences with the same, and progressed to his
inquiring about more intimate wear, offering to send pictures of himself in
various outfits, and requesting to borrow various items of clothing to try on.
N.T., 1/22/13, at 84-116. V.M. gradually became more and more
uncomfortable with the content of the communications and reported them to
a teacher. The school personnel contacted the authorities and Detective
Kolcharno subsequently interviewed Appellant.
During the interview, Appellant confirmed his Facebook
communications with V.M. Appellant specifically related he had an interest
in wearing women’s clothing and discussed the same with V.M. because of
his embarrassment in publicly evidencing his interest. Appellant admitted he
contemplated sending photographs of himself wearing yoga pants to V.M.,
and suggested he would do so to her, but did not ultimately send any
pictures. Appellant was arrested following his interview.
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The Commonwealth alleged, “[Appellant] did engage in inappropriate
conversation with the victim, V.M., a 12 year-old female, did solicit various
items of clothing and undergarments, and did offer to send pictures of
himself wearing these items to her.” Criminal Information, 5/2/12, at 1.
The matter proceeded to a two-day jury trial on January 22-23, 2013. At
trial, V.M. testified and the entire series of Facebook texts were admitted
into evidence. The Superintendent for Abington Heights School District, Dr.
Michael Mahon, testified about the school district’s policy prohibiting staff
and volunteers from communicating with students through social media,
except through certain school-sanctioned accounts. Appellant testified on
his own behalf and presented several character witnesses.
At the conclusion of the trial, the jury found Appellant guilty of the sole
count of corrupting the morals of a minor. On April 17, 2013, the trial court
imposed a sentence of three to 18 months’ incarceration. Appellant did not
file any post-sentence motion. Appellant filed a timely notice of appeal on
May 16, 2013.2
On appeal, Appellant raises a single issue for our consideration.
I. Whether, where [Appellant] spoke to a twelve
year old girl about his cross-dressing, offered
to send her fully clothed pictures of himself in
women[’]s clothing, and asked to borrow her
clothing, specifically yoga pants, to try on, the
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Commonwealth offered sufficient evidence to
prove defendant guilty of corruption of minors?
Appellant’s Brief at 7.3
“A claim impugning the sufficiency of the evidence presents us with a
question of law.” Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.
Super. 2014) (citation omitted), appeal denied, --- A.3d ---, 126 MAL 2014
(Pa. 2014). Our standard and scope of review are well settled.
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
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3
In his Rule 1925(b) statement, Appellant also raised a challenge to the
weight of the evidence. Although Appellant occasionally couples the terms
“weight” and “sufficiency” in his appellate brief, he does not advance a
separate argument on appeal that the verdict is against the weight of the
evidence. In any event, we agree with the Commonwealth and the trial
court that such a challenge has been waived since Appellant failed to raise
the issue before the trial court. See Pa.R.Crim.P. Rule 607(A), (providing
that a claim the verdict was against the weight of the evidence must be
raised in a motion for new trial made before or at sentencing or in a post-
sentence motion).
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record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] 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. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)
(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of
such volume and quality as to overcome the
presumption of innocence and satisfy the jury of an
accused’s guilt beyond a reasonable doubt. The trier
of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on
suspicion will fail even under the limited scrutiny of
appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation
omitted).
The crime of corrupting the morals of a minor is defined by statute as
follows.
§ 6301. Corruption of minors
(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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The parties agree that the evidence did not suggest that Appellant’s
conduct enticed or encouraged V.M. in the commission of a crime or to
violate a court order. Appellant’s Brief at 15; Commonwealth’s Brief at 11.
The operative element at issue in this case is whether Appellant’s conceded
acts “corrupt[ed] or tend[ed] to corrupt the morals of” V.M. 18 Pa.C.S.A.
§ 6301(a)(1)(i). We have defined this element in the following manner.
“Actions that tend to corrupt the morals of a minor are those that ‘would
offend the common sense of the community and the sense of decency,
propriety and morality which most people entertain.’” Commonwealth v.
Snyder, 870 A.2d 336, 351 (Pa. Super. 2005), quoting Commonwealth v.
DeWalt, 752 A.2d 915, 918 (Pa. Super. 2000). “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[, and they] cover a
broad range of conduct.” Commonwealth v. Decker, 698 A.2d 99, 101
(Pa. Super. 1997), appeal denied, 705 A.2d 1304 (Pa. 1998), quoting
Commonwealth v. Todd, 502 A.2d 631, 635 n. 2 (Pa. Super. 1985).
Appellant contends that, as part of its burden to prove Appellant
engaged in conduct tending to corrupt V.M., the Commonwealth needed to
“present evidence that there is a nexus between [Appellant’s] action and a
delinquency of the minor or potential delinquency of the minor[, or] must
show that the welfare or safety of the minor is threatened in some manner.”
Appellant’s Brief at 15. Appellant asserts no such evidence was submitted.
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The Information in this matter alleged three different
instances of conduct underlying the Corruption of
Minors charge: (1) that [Appellant] engaged in
inappropriate conversation with [V.M.]; (2) that
[Appellant] solicited various items of clothing and
undergarments from [V.M.]; and (3) that [Appellant]
offered to send pictures of himself wearing these
items of clothing to her. Non[e] of these charged
actions gives rise to the instant charge because none
of this conduct, as proven at trial[,] would tend to
corrupt the morals of a minor, contribute to the
delinquency of a minor, or threaten the safety of a
minor.
Id. at 17 (citation omitted). Appellant further asserts that “[t]he issue[]
boils down to whether cross-dressing is immoral. If it is, then discussing it
would tend to corrupt the morals of a minor. If it is not immoral, the
conviction in this matter cannot stand.” Id. at 21.
We resist Appellant’s attempt to frame the dispositive issue in this
case in terms of whether his cross-dressing interests, and his communication
of those interests to V.M., satisfy the element of corrupting or tending to
corrupt the morals of a minor. Viewing the evidence in this case in the light
most favorable to the Commonwealth as the verdict winner, we conclude
there are other aspects of Appellant’s communications with V.M. that amply
support the jury’s verdict.
In Commonwealth v. Barnette, 760 A.2d 1166, 1172-73 (Pa. Super.
2000), appeal denied, 781 A.2d 138 (Pa. 2001), this Court determined that
the appellant’s act of having a minor sign for a package containing
contraband supported his conviction under 18 Pa.C.S.A. § 6301(a)(1), even
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though the minor was unaware of the content of the package such that the
minor’s actions could not be deemed delinquent. The Barnette panel
concluded that the appellant’s “duplicitous” involvement of a minor in his
own wrongdoing was sufficient to “offend[] the common sense of the
community, as well as the sense of decency, propriety and the morality that
most people entertain.” Id. at 1173.
Here, Appellant testified he knew his contacts with V.M. were a
violation of school policy.
[Assistant District Attorney]. Okay. So you
and I could agree that at the time you sent [V.M.] a
Facebook message you knew that, at the very least,
you were breaking school policy?
[Appellant]. At that time, yes, ma’am.
N.T., 1/22/13, at 155. His importunate requests of V.M. not to tell anyone
about their communication made her a party to his violation of that policy.
Id. at 84, 87, 90, 99, 102. At trial, V.M. testified that these requests made
her feel pressured.
Q. Okay. You said you felt a little
uncomfortable. Did you tell anybody about the
messages from that day?
A. No.
Q. Do you know why?
A. Because he was a coach of mine. And I
felt like he was going to put me in a position for
baseball, and I felt that he had a lot of power for
that and if I said something that he told me not to
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say, which he had a lot, then it would affect where I
would play in the field.
Q. Okay. And when you said he told you
not to a lot, are you referring to the times within the
messages where he says, [d]on’t tell anybody?
A. Yes.
Id. at 88. Accordingly, we conclude a jury could have determined that
Appellant’s knowing involvement of V.M. in his violation of school policy
prohibiting his social media contact with students tended to corrupt her
morals even though her actions did not themselves constitute a wrongful
act.
Additionally, this Court has recently held that a charge of corrupting
the morals of a minor may be supported by an act inducing a minor to
disobey or deceive an authority figure. Commonwealth v. Slocum, 86
A.3d 272, 274-275 (Pa. Super. 2014). As made clear by this Court in
Slocum, the predicate act of a defendant is not confined to an act defined
as criminal. Id. at 279-280. Similarly, a defendant’s conduct need not
encourage specifically delinquent or criminal conduct from a minor, but need
only tend to corrupt the minor victim. Id. Thus, in Slocum, evidence of
Slocum’s conduct, through Facebook exchanges, in encouraging a minor’s
disobedience of parental authority was held to be sufficient to support a
conviction under 18 Pa.C.S.A. § 6301(a)(1)(i). Id. at 280-281.
Here, Appellant importuned V.M. to lend him some of her clothing to
try on, and instructed her, “Just don’t tell anyone.” N.T., 1/22/13, at 98-99,
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115. Appellant also included instructions on how to surreptitiously exchange
the borrowed clothes. Id. at 107, 113-115. Thus, Appellant’s conduct was
not confined to merely confiding in V.M. about his personal proclivities and
asking her to keep them private. Rather, he encouraged V.M. to perform
specific actions he had reason to know those in authority over her would not
permit, and urged her to keep those actions secret. Instantly, we perceive
no material difference between Slocum’s encouragement of a minor to be
overtly disobedient, and Appellant’s encouragement of V.M. to engage in
secretive acts, which he had reason to know would otherwise be prohibited
by her parents and school authorities.
Based on the foregoing, we discern no merit to Appellant’s challenge
to the sufficiency of the evidence supporting the jury’s verdict in this case.
Specifically, we conclude the evidence was sufficient to establish that
Appellant’s conceded conduct could tend to corrupt the morals of V.M. by
involving her in communication in violation of school policy and in enticing
her into lending her clothing to a grown man in the absence of parental
knowledge or consent. Accordingly, we affirm the April 17, 2013 judgment
of sentence.
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Judgment of sentence affirmed.
Justice Fitzgerald joins the memorandum.
Judge Wecht files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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