Com. v. Onesko, P. ( 2019 )

J-A12006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
PATRICK I. ONESKO,
Appellant No. 494 WDA 2018
Appeal from the Judgment of Sentence Entered March 1, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005351-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 03, 2019
Appellant, Patrick I. Onesko, appeals from the judgment of sentence of
an aggregate term of incarceration of 1 year (less one day) to 2 years (less
two days), followed by 5 years’ probation, imposed after a jury convicted him
of criminal solicitation to commit involuntary deviate sexual intercourse
(hereinafter, “solicitation”),1 unlawful contact with a minor (hereinafter,
“unlawful contact”),2 and two counts of corruption of minors.3 On appeal,
Appellant challenges the sufficiency of the evidence to sustain his convictions
for solicitation and unlawful contact. After careful review, we affirm.
The trial court summarized the facts of this case, as follows:
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1 18 Pa.C.S. § 902(a); 18 Pa.C.S. § 3123(a).
2 18 Pa.C.S. § 6318(a)(1).
3 18 Pa.C.S. § 6301(a)(1)(ii).
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During the months of January and February 2017,
Appellant, … who was 27 years of age at the time, contacted A.G.,
and T.S. (collectively, the “victims”), ages 14 and 15, through a
social media platform known as Snapchat. A.G. and T.S. are
friends who were aware Appellant was contacting both of them at
the same time. Appellant went by the username “[alaina]bp5”
and claimed to be a 15 year-old female from Bethel Park High
School. During his conversations with the victims, Appellant later
claimed to be two different teenage boys from the victims’ school,
South Fayette High School. Appellant would frequently initiate
conversations with the victims, despite the victims[’] repeatedly
referring to Appellant as a “pedophile[,]” … indicating that they
suspected Appellant was not being truthful[, and] repeatedly
requesting a photograph of Appellant. Later, Appellant admitted
to his true identity, a 2[7] year-old former assistant football coach
at South Fayette High School, identifying himself as “Coach O”
and subsequently sending a photograph of himself. Appellant
requested the victims not go to the police[,] and [he] also
requested A.G. to text him outside of Snapchat to confirm his
(Appellant’s) identity. Throughout his conversations with the
victims, Appellant requested that A.G. describe his genitals,
asking A.G. what his penis “was like” and further asking if he
(Appellant) could guess the size of it. Additionally, Appellant
propositioned T.S. with oral sex, writing to the minor[,] “I will suck
your cock.” Appellant also told T.S. that he had a photograph of
T.S.’s older brother’s genitals. Once the conversations became
sexually explicit, the victims alerted their parents who then
notified the police.
Trial Court Opinion (TCO), 8/2/18, at 2-3.
Based on this evidence, a jury convicted Appellant of the above-stated
offenses. On June 5, 2018, the court sentenced him to the aggregate term of
incarceration and probation set forth supra. Appellant filed a timely post-
sentence motion seeking, inter alia, judgment of acquittal for his solicitation
and unlawful contact convictions, which the court denied on March 8, 2018.
Appellant then filed a timely notice of appeal, and he also timely complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
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complained of on appeal. The trial court filed a Rule 1925(a) opinion on
August 2, 2018. Herein, Appellant presents three issues for our review:
1. To convict [Appellant] of [s]olicitation…, the Commonwealth
was required to establish that [he] “commanded,” “encouraged,”
or “requested” T.S. to engage in specific conduct, namely, oral
sex. It failed to do so. Was the evidence insufficient to support
[Appellant’s] [s]olicitation conviction?
2. To convict [Appellant] of [s]olicitation…, the Commonwealth
was also required to establish that [Appellant] acted with the
“intent of promoting or facilitating” the crime of [involuntary
deviate sexual intercourse (IDSI)]. It failed to do so. Was the
evidence insufficient to support [Appellant’s] [s]olicitation
conviction for this reason?
3. To convict [Appellant] of [u]nlawful contact…, the
Commonwealth was also required to establish that [he] contacted
T.S. for the purpose of engaging in “unlawful sexual contact
including criminal solicitation for the crime of” IDSI. It failed to
do so. Was the evidence likewise insufficient to support
[Appellant’s] [u]nlawful contact conviction?
Appellant’s Brief at 3.
Appellant’s issues challenge the sufficiency of the evidence to support
his convictions for solicitation and unlawful contact.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
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First, we address Appellant’s sufficiency arguments regarding his
solicitation conviction. That offense is defined as follows:
(a) Definition of solicitation.--A person is guilty of solicitation
to commit a crime if with the intent of promoting or facilitating its
commission he commands, encourages or requests another
person to engage in specific conduct which would constitute such
crime or an attempt to commit such crime or which would
establish his complicity in its commission or attempted
commission.
18 Pa.C.S. § 902(a).
Appellant first avers that the Commonwealth failed to prove that he
commanded, encouraged, or requested that the victim, T.S., engage in
conduct constituting IDSI. Specifically at issue is Appellant’s statement, “I
will suck your cock[,]” which Appellant made to the victim, T.S., during a
conversation on a social media website. According to Appellant, this
statement did not command, or order, T.S. to do anything. Appellant also
insists that his statement does not meet the common definition of
“encourage,” as it did not “persuade” or “urge” T.S. to engage in any act, nor
was it a “request” because his statement to T.S. was not a question. See
Appellant’s Brief at 16-17. Relying on the admitted transcription of his
conversation with T.S.,4 Appellant contends that the Commonwealth’s
evidence was “largely devoid of context” for the statement and, from what
____________________________________________
4 The transcribed conversation is not contained in the certified record, but the
Commonwealth concedes that the exhibits attached to Appellant’s reproduced
record are authentic copies of the transcripts that were introduced at trial.
See Commonwealth’s Brief at 14 n.8; Appellant’s Reproduced Record at 419-
21 (Exhibit 6).
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context was apparent, it was obvious that T.S. interpreted the remark as a
joke. Appellant also stresses that it was clear that T.S. “wasn’t interested in
any relationship” with Appellant and, thus, Appellant had to have been “aware
that any efforts to initiate sexual contact with T.S. would be fruitless.” Id. at
18. Consequently, he maintains that the Commonwealth failed to prove the
actus reus element of the offense of solicitation.
Appellant’s argument is unconvincing. Initially, neither T.S.’s
interpretation of Appellant’s statement, nor the likelihood that T.S. was going
to actually participate in a sex act with Appellant, are elements required to
establish the offense of solicitation under section 902(a). Additionally, those
factors do not demonstrate that Appellant did not command, encourage, or
request that T.S. engage in IDSI. Although phrased as a statement, the jury
could reasonably infer that Appellant’s remark, “I will suck your cock,” was
intended to encourage and/or request that T.S. engage in oral sex with him.
This interpretation stems not only from the words used by Appellant, but also
from the fact that Appellant — a 27-year-old man — repeatedly communicated
with A.G. and T.S. — 14 and 15-year-old children, respectively — over the
course of several weeks; he initially told the victims that he was a 15-year-
old girl from a neighboring school before admitting that he was “Coach O”; he
asked A.G. to describe his genitals; he told T.S. he had a photograph of the
genitals of T.S.’s older brother, who had played football while Appellant
coached the team; and Appellant declared he was “just being honest” when
T.S. questioned if he was joking after stating he would perform oral sex on
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T.S. Contrary to Appellant’s argument on appeal, these circumstances,
considered together, provided context for his statement, “I will suck your
cock,” and made it reasonable for the jury to conclude that, by making the
statement, Appellant was encouraging and/or requesting that T.S. engage in
oral sex with him.
We also find that Appellant’s reliance on Commonwealth v. Bohonyi,
900 A.2d 877 (Pa. Super. 2006), is misplaced. There, we affirmed Bohonyi’s
conviction for solicitation to commit IDSI where he “persistently described for
[the victim] both the mechanics of and the sensual gratification to be derived
from their anticipated mutual genital stimulation[,]” and Bohonyi had met with
the victim on a specific date and at a specific time. Id. at 882. This evidence,
we concluded, was sufficient to prove that Bohonyi had encouraged the victim
to engage in IDSI.
According to Appellant, the evidence offered in Bohonyi is “materially
different than that offered against [him,]” as he “never described oral sex in
his communications with T.S.[,]” he “[n]ever asked T.S. to meet him in
person[,]” and he “[n]ever tried to meet T.S. in person.” Appellant’s Brief at
22. He maintains that here, the “level of evidence” did not rise to that
presented in Bohonyi and, therefore, the Commonwealth failed to establish
that he committed solicitation. In response, the Commonwealth contends that
Appellant is essentially
suggest[ing] that the facts in Bohonyi set forth necessary
elements to sustain a conviction for solicitation - [IDSI]. That
assertion is false. Just because the appellant in Bohonyi
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described in detail the sexual acts of oral sex that he wished to
engage in, asked the victim if she’d be willing to perform oral sex
and arranged to meet the victim at a specific date and time does
not mean that these facts are always required for such a
conviction. Rather, the Court in Bohonyi found those facts
sufficient to sustain a conviction for solicitation - [IDSI].
Commonwealth’s Brief at 15 (emphasis in original).
We agree with the Commonwealth. Despite the factual differences
between this case and Bohonyi, the evidence was sufficient to sustain
Appellant’s solicitation conviction. As discussed above, viewing the totality of
the circumstances in the light most favorable to the Commonwealth, with the
primary focus being on Appellant’s statement, “I will suck your cock,” we find
that it was reasonable for the jury to conclude that Appellant encouraged
and/or requested that T.S. allow Appellant to perform oral sex on him.
Therefore, the Commonwealth established the actus reus element of
solicitation.
Likewise, we conclude that the evidence was sufficient to prove the
mens rea element of that offense; specifically, that Appellant intended to
promote or facilitate the crime of IDSI with T.S. Again, Appellant claims that
the Commonwealth failed to establish the context of his statement to T.S. and,
thus, there was a “dearth of evidence corroborative of an intent to actually
consummate the crime of IDSI.” Appellant’s Brief at 23. Appellant further
insists that while it was “possible that [he] ultimately intended to try and
persuade T.S. to engage in oral sex, … it’s equally possible on this evidence
that [Appellant], while obviously engaging in inappropriate behavior, wasn’t
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to the point where he was committed to ever meeting T.S. in person.” Id. at
23-24.
In rejecting this argument, the trial court focused on the fact that, when
T.S. questioned whether Appellant was joking about performing oral sex on
T.S., Appellant responded, “No[,] just being honest[.]” TCO at 5. According
to the court,
Appellant’s intent is clear by his own words; Appellant’s statement
(“No[,] just being honest”) is evidence of his intent to facilitate
and commit the act. Furthermore, the facts establish that
Appellant was aware he was speaking with a minor child[,] as
Appellant himself initially pretended to be a 15-year-old girl as a
ruse to engage the boys to speak with him. Moreover, Appellant
continuously sent messages and contacted the two minors over
the course of two months[,] further showing his intent to facilitate
or promote the illicit conduct with T.S.
Id.
We agree with the trial court. If, as Appellant now claims, he did not
intend T.S. to take his offer of oral sex seriously, he could have clarified that
fact when T.S. questioned him. Appellant’s decision to instead affirm the
sincerity of his statement about performing oral sex on T.S. made it
reasonable for the jury to infer that he intended to facilitate or promote the
commission of that IDSI offense. Therefore, his second challenge to the
sufficiency of the evidence to sustain his solicitation conviction is meritless.
Finally, Appellant challenges the sufficiency of the evidence to sustain
his unlawful contact conviction.
(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
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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).
18 Pa.C.S. § 6318(a)(1).
Appellant does not present any argument regarding how the
Commonwealth failed to prove any specific element(s) of this offense.
Instead, he simply argues that because the evidence was insufficient to
sustain his solicitation conviction, it was also inadequate to support the “piggy-
back” offense of unlawful contact. Appellant’s Brief at 25. Because we find
Appellant’s challenge to his solicitation conviction meritless for the reasons set
forth supra, we likewise reject his argument that the evidence was insufficient
to sustain his unlawful contact conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2019
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