Com. v. Guerra, J. ( 2019 )

J-S78023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN C. GUERRA :
:
Appellant : No. 3438 EDA 2017
Appeal from the Judgment of Sentence Entered May 4, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011956-2014
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 08, 2019
John C. Guerra appeals from the judgment of sentence entered following
his convictions for numerous charges relating to his running a prostitution ring
involving adult women and a minor. Guerra argues the evidence presented at
trial was insufficient to support the convictions, that the trial court abused its
discretion in allowing the Commonwealth to admit certain evidence, and that
the court abused its discretion in sentencing Guerra. We affirm.
In December 2010, the Commonwealth filed charges against Guerra. He
evaded arrest until his apprehension in August 2014. Guerra waived his right
to a jury trial, and proceeded to a bench trial in June 2016.
The trial court thoroughly recounted the evidence presented at Guerra’s
bench trial. See Trial Court Opinion, filed 4/11/18, at 1-7. In short, the
Commonwealth presented evidence that between 2008 and 2010, Guerra
recruited young women to work for him as prostitutes, and assisted them in
______________________________________
* Former Justice specially assigned to the Superior Court.
J-S78023-18
posting advertisements online to solicit customers for sex. He also provided
cell phones for the women to use to contact customers, and hotel rooms;
received money the customers paid the women in exchange for sex; and
provided the women with drugs and money. Guerra knew the women were
addicted to drugs, and he supplied them with large amounts of crack cocaine
and heroin. He made the women work for days at a time without sleep, used
violence and sexual violence to keep them from leaving or withholding money,
and prohibited them from seeking medical attention. Several other men
assisted Guerra, including Elton Cromwell, Eddie Mendez, and Dwayne
Thomas.
Three victims, M.S., T.W., and A.H., testified at trial. Of note, A.H.
testified that she was a minor when she began working for Guerra, and that
when Cromwell and Guerra discovered she was a minor, she stayed at
Guerra’s family home until Guerra made the decision that she would continue
working. A.H. also testified that Cromwell went to her parents’ house after
charges were filed against him, and that this made her feel scared.
The Commonwealth also presented the testimony of Detective Derrick
Stigerts, whom the Commonwealth offered as an expert in human trafficking,
and Trooper Michael Peterson. Trooper Peterson testified that during the
course of his investigation, he viewed the contents of a laptop found at the
hotel where A.H. was found, which contained images and advertisements,
some of which were introduced into evidence. Trooper Peterson said he
interviewed five women who had worked for Guerra in two different hotel
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rooms, including M.S., T.W., and A.H. Trooper Peterson stated that, through
the investigation, he was able to identify the extent of Guerra’s involvement
in trafficking and prostitution, as well as the three other men in the
organization. Trooper Peterson testified that based upon his investigation, he
had concluded that Guerra “was in charge of an illegal, corrupt
organization[.]” N.T., 6/29/16, at 97.
Guerra objected on the basis that the testimony was a legal conclusion.
The court agreed that the ultimate issue was for the court, but stated it would
allow Trooper Peterson to testify as to the basis for his conclusion. Id. at 97-
98. Trooper Peterson testified that “through interviewing witnesses that
testified and did not testify, all of their statements were clearly identifying
each individual’s roles in this organization. Some ladies put [Guerra] at the
top of the pyramid.” Id. at 98. Trooper Peterson stated he “concluded that
[Guerra’s] role was a leader of a corrupt organization, including prostitution.”
Id. Guerra again objected, and the court overruled the objection. Id. at 99.
The Commonwealth confirmed that it was not offering Trooper Peterson as an
expert witness. Id. The prosecutor then asked Trooper Peterson about his
training and experience in the Organized Crime Unit, and his opinion as to why
there was no financial trail implicating Guerra in the crimes. Trooper Peterson
answered, “The head[s] of corrupt organizations always attempt to insulate
themselves from their underlings . . . because they don’t want to be implicated
as being the ring leader.” Id. at 101.
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Guerra presented the testimony of M.T. and R.H., the mothers of
children by Guerra and Cromwell, respectively, who had worked as prostitutes.
Both women testified that A.H. had worked for Cromwell, and not Guerra; that
Guerra had never threatened or assaulted any of the women working for him;
and that Guerra did not force anyone to stay against their will. M.T. further
testified that Guerra and Cromwell were friends, but did not work together or
share employees, computers, phones, or money, and that M.S. would steal
from Guerra to support her drug habit.
Guerra testified in his own defense. He admitted he had sex with A.H.
on the first night of her arrival, but denied that A.H. had ever worked for him,
and asserted that A.H. had worked for Cromwell, who had decided to take her
back to work after discovering her minor status. Guerra denied working jointly
with Cromwell or anyone else. He admitted that T.W. and M.S. had both
worked for him, and that he would buy drugs in bulk to supply to his
employees. But he denied that he had forced any of the women to work, or
had threatened them. He denied that he was violent toward T.W. or had raped
M.S., and stated that he had only slapped M.S. with an open fist on one
occasion, because she owed him money.
The trial court convicted Guerra of trafficking of a minor, trafficking of
persons, conspiracy to traffic persons, corrupt organizations, promoting
prostitution, sexual exploitation of a child, unlawful contact with a minor,
corruption of a minor, simple assault, criminal use of a communication facility,
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and possession of a controlled substance with intent to distribute. 1 The court
sentenced Guerra to an aggregate of 37 to 74 years’ confinement, with
sentences on seven charges running consecutively, and four charges running
concurrently.
Guerra filed a post-sentence motion. The motion was denied by
operation of law in September 2017, and Guerra filed a timely notice of appeal.
Guerra raises the following issues:
1. Did the Commonwealth present sufficient evidence to find
[Guerra] guilty beyond a reasonable doubt?
2. Did the [c]ourt abuse its discretion in [s]entencing [Guerra] to
an aggregate period of 37 to 74 years?
3. Did the [c]ourt [err] in permitting the investigating officer to
testify as to his opinion that [Guerra] was the head of a corrupt
organization thereby depriving [Guerra] of a fair trial?
4. Did the [c]ourt [err] in allowing testimony, elicited by the
Commonwealth, involving an alleged threat by Elton Cromwell
against a witness testifying against [Guerra] without establishing
any connective link to [Guerra]?
Guerra’s Br. at 4.
I. Sufficiency of the Evidence
In his first issue, Guerra argues that the evidence was insufficient to
support his convictions. Specifically, related to the charge of corrupt
organizations, Guerra argues that there was insufficient evidence that he was
involved in an enterprise. Guerra asserts that the trial testimony established
____________________________________________
1 18 Pa.C.S.A. §§ 3002(b), 3002(a), 903, 911(b)(1), 5902(b)(1), 6320(a),
6318(a)(5), 6301(a)(1)(i), 2701(a), 7512(a) and P.S. § 780-113(a)(30),
respectively.
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that he operated separately from Cromwell, Mendez, and Thomas. Guerra also
argues that there was no evidence establishing that income he earned from
trafficking persons or distributing drugs was reinvested in that pursuit, such
as financial records showing Guerra paid for hotel rooms, telephones, or online
advertisements.
Guerra also argues that there was insufficient evidence he committed
sexual exploitation of a child, unlawful contact with a minor, or trafficking of
a minor. Guerra asserts A.H. testified she worked exclusively for Cromwell;
there was no testimony or forensic computer evidence indicating that Guerra
took photographs of A.H. or posted her advertisements; and there was no
evidence that Guerra conspired with Cromwell to traffic A.H.
Regarding trafficking of the other two women, Guerra contends that
M.S. testified she came to Philadelphia seeking to work as a prostitute. After
voluntarily working for Guerra, she started working for Guerra’s brother,
Jason, after Jason threatened Guerra by showing him a firearm. Guerra
contends that the testimony indicates he hit M.S. not to prevent her from
leaving his employment, but in response to her stealing money to feed her
drug habit.
Guerra argues that T.W. testified that she autonomously worked for
Mendez, and then for Guerra, and then for Guerra’s brother, Jason. Guerra
asserts that T.W. testified that Guerra was only violent towards her during the
times she was working for one of the other men. Guerra adds that defense
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witnesses testified that he did not force any of the women to work for him,
and that they could come and go as they pleased.
Guerra further argues that as he did not engage in trafficking, no
conspiracy to commit trafficking existed.
Upon a challenge to the sufficiency of the evidence, “we must determine
whether, when viewed in a light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
beyond a reasonable doubt.” Commonwealth v. Green, 2019 PA Super 39(Feb. 12, 2019). “The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Id. (citation omitted).
The trial court discussed the elements of the contested charges, and the
evidence presented by the Commonwealth that met each element of those
crimes. See Tr. Ct. Op. at 12-18 (corrupt organizations); 18-23 (conspiracy
to traffic persons); 23-25 (sexual exploitation of a child); 30-32 (corruption
of minors); 33-38, 44-45 (trafficking of a minor); 33-35, 38-45 (trafficking of
persons); 45-50 (unlawful contact with a minor). After a review of the record,
the applicable law, and the parties’ briefs, we affirm on the basis of the well-
reasoned opinion of the Honorable Sean F. Kennedy, which we adopt and
incorporate herein. See id.-7-
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II. Sentencing
Guerra argues that the court abused its discretion in sentencing him to
an aggregate period of 37 to 74 years’ incarceration. As Guerra challenges
discretionary aspects of his sentence, we must first determine whether we will
allow the appeal. Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa.Super.
2017), appeal denied, 181 A.3d 1078 (Pa. 2018). We will only do so if: (1)
the appeal is timely; (2) the issue was preserved; (3) the brief includes a
Pa.R.A.P. 2119(f) statement; and (4) the statement raises a “substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code.” Id. at 271-72 (quoting Commonwealth v. Moury, 992
A.2d 162, 170 (Pa.Super. 2010)). “A substantial question exists only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. White, 193 A.3d 977, 982 (Pa.Super. 2018)
(quoting Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013)).
In his Rule 2119(f) statement, Guerra argues that the court’s sentence
was contrary to fundamental sentencing norms because (1) the sentence was
excessive, and the court stated at sentencing that it did not find any evidence
supported a mitigated sentence, even though Guerra presented mitigating
evidence, and (2) the trial court erred when it calculated Guerra’s prior record
score. See Guerra’s Br. at 14-15.
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Guerra’s appeal is timely. Guerra preserved the claim that his sentence
was excessive because the court failed to consider mitigating evidence, as he
raised that issue in his post-sentence motion, in which he contended that his
sentence was excessive and highlighted reasons supporting a mitigated the
sentence. We have previously held that an excessive sentence claim in
conjunction with an assertion that the court failed to consider mitigating
factors raises a substantial question. White, 193 A.3d at 983 (quoting
Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa.Super. 2015) (en
banc)).2 Guerra has therefore raised a substantial question warranting our
review, and we will allow the appeal.
However, in relation to Guerra’s claim that the sentencing court abused
its discretion by employing an incorrect prior record score when calculating
the Sentencing Guidelines ranges, we find the claim to be waived. In his Rule
1925(b) statement of errors raised on appeal, Guerra framed his sentencing
issue simply as, “Whether the Court abused its discretion in Sentencing the
Defendant to an aggregate period of incarceration of 37 to 74 years.” Pa.R.A.P.
1925(b) Statement, 11/27/17, at 2 (unpaginated). Although in its Rule
1925(a) opinion, the trial court acknowledged that it departed from the
Sentencing Guidelines when sentencing Guerra, and that it calculated the
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2 We have also noted that “prior decisions from this Court involving whether
a substantial question has been raised by claims that the sentencing court
‘failed to consider’ or ‘failed to adequately consider’ sentencing factors has
been less than a model of clarity and consistency.” White, 193 A.3d at 983
(quoting Caldwell, 117 A.3d at 769-70).
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Guidelines ranges based on a prior record score of 5, the court did not address
Guerra’s claim that the prior record score was incorrect.
We conclude that the trial court’s failure to address the calculation of
Guerra’s prior record score was a direct result of Guerra’s failure to specify
that issue in his Rule 1925(b) statement. When a vague Rule 1925(b)
statement leaves a trial court to speculate as to the bases for relief, a finding
of waiver is warranted. Commonwealth v. Hodges, 193 A.3d 428, 432
(Pa.Super. 2018); see also Commonwealth v. Pukowsky, 147 A.3d 1229,
1236 (Pa.Super. 2016) (“A Rule 1925(b) statement ‘which is too vague to
allow the court to identify the issues raised on appeal is the functional
equivalent of no [Rule 1925(b)] Statement at all,’ and will result in waiver”)
(citation omitted). The absence of the trial court’s opinion on the issue has
hindered our review, and therefore we will not consider the waived issue of
Guerra’s prior record score.
Returning to Guerra’s preserved sentencing issue, Guerra argues that
his sentence of 37-74 years’ incarceration, consisting of consecutive sentences
above the Guidelines ranges, was excessive in light of the mitigating evidence,
which the court ignored. Specifically, Guerra contends that the following
factors should have mitigated his sentence: he chose to be tried without a
jury; he admitted to committing several of the crimes charged, “essentially
only contesting his involvement in a corrupt organization and his involvement
with the minor victim”; and, during allocution, he took responsibility for his
actions and apologized for being short-sighted and selfish, and stated that he
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completed the WINGS program while in prison. Guerra’s Br. at 43. Guerra also
argues that the sentence is excessive because its length “will ensure the
likelihood that [Guerra will] probably never be released from incarceration.”
Id. at 41.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge.” Commonwealth v. Peck, 2019 PA Super 8 (Jan. 8, 2019) (quoting
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008)). The
Sentencing Guidelines offer recommended ranges for sentence lengths, and a
court may depart from the sentence recommended by the Guidelines if
necessary. Id. An appellate court must vacate a sentence outside the
Guidelines if the sentence is “unreasonable.” Id.; see also 42 Pa.C.S.A. §
9781(c)(3).
In its opinion, the court stated that it explained on the record at the
time of sentencing its reasons for sentencing Guerra above the Guidelines,
including the effect of the crimes on the victims, the danger Guerra poses to
the community, and Guerra’s four-year flight from police. See Tr. Ct. Op. at
61 (quoting N.T., 5/4/17 (Sentencing), at 28-29). The court further
commented that it considered all relevant factors in imposing an above
Guidelines sentence, including Guerra’s personal characteristics, such as his
contrition and potential for rehabilitation; the court specifically noted Guerra’s
laughter during the testimony of a Commonwealth witness. Id. at 63. The
court also reviewed the gravity of the offenses, and explained that it
purposefully sentenced Guerra to consecutive sentences, as Guerra was not
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entitled to a “volume discount” for the quantity of crimes he committed. Id.
at 61-62, 64-65. Moreover, the trial court had the benefit of a pre-sentence
investigation report at the time of sentencing. See Commonwealth v.
Finnecy, 135 A.3d 1028, 1038 (Pa.Super. 2016) (we presume court was
aware of relevant sentencing information when it had the benefit of a
presentence investigation report).
We therefore find no basis to Guerra’s claim that his sentence was
excessive or that the court failed to consider mitigating evidence. We perceive
no abuse of discretion or unreasonableness in the court’s sentence, and affirm
on the basis of the trial court opinion. See Tr. Ct. Op. at 58-65.
III. Trooper Peterson’s Testimony
In his third issue, Guerra argues that the court erred in overruling his
objection when Trooper Peterson testified he believed Guerra was the head of
an organization. Guerra’s Br. at 47. Guerra points out that the Commonwealth
asked Trooper Peterson about his training and experience in the Organized
Crime Unit before asking his opinion as to why there was no financial trail
implicating Guerra in the crimes. According to Guerra, Trooper Peterson’s
testimony was not sufficient to allow a lay person to conclude that Guerra was
the head of an organization, but was instead based on the Trooper’s
specialized knowledge, and therefore constituted impermissible expert
testimony. Id.“A trial court has broad discretion to determine whether evidence is
admissible and a trial court's ruling on an evidentiary issue will be reversed
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only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa.Super. 2013) (quoting Commonwealth v. Cook, 676 A.2d 639,
647 (Pa. 1996). We do not disturb a ruling admitting evidence “unless that
ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support to be clearly erroneous.” Id. (quoting
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our
scope of review over an evidentiary question is plenary, we may review the
ruling within the context of the entire record. Id.Here, the trial court admitted the evidence because it was “rationally
based on the witness’s perception” rather than his technical knowledge. Tr.
Ct. Op. at 67 (quoting Pa.R.E. 701(a)). The court likened the case to
Commonwealth v. Blessitt, 852 A.2d 1215 (Pa.Super. 2004) (en banc),
overruled on other grounds by Commonwealth v. O’Berg, 880 A.2d 597(Pa. 2005). In Blessitt, a Pennsylvania State Trooper who purchased drugs
from the defendant in a controlled drug purchase opined at trial that the
defendant had handed off the purchase-money to another individual before
being arrested, because in the trooper’s experience with controlled drug
purchases, an individual selling drugs only “sometimes” still has that money
when he is arrested. Id. at 1218. On appeal, we affirmed the admission of the
lay testimony regarding controlled drug purchases. Id.
While a lay witness may not testify based on scientific, technical, or
other specialized knowledge beyond that of a layperson, see Pa.R.E. 701, 702,
“[a] witness may state relevant facts known to him, because of experience,
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even though he is not regarded as an expert whose opinion would be
admissible on a hypothetical inquiry.” Commonwealth v. Bennett, 370 A.2d
373, 375 (Pa. 1977); see, e.g., Commonwealth. v. Grabowski, 549 A.2d
145, 151 (Pa.Super. 1988) (holding lay witness who operated auto body shop
competent to testify to his conclusion drawn from personal experience
operating a body shop).
We agree with the trial court that Trooper Peterson’s testimony did not
rely on specialized or technical knowledge, and was within the realm of
understanding of a layperson. Trooper Peterson’s opinion that Guerra was the
head of an organization was rationally based on his interviews with five women
who had worked for Guerra, three of whom testified at trial. Likewise, his
testimony that a head of an organization would not leave a financial trail was
based on his personal experience, rather than technical knowledge.
We note Guerra has not appealed on the basis that Trooper Peterson’s
testimony was based in part upon inadmissible hearsay. Regardless, we
presume that a judge, sitting as finder of fact in a non-jury trial, disregards
inadmissible hearsay testimony. Commonwealth v. Dent, 837 A.2d 571,
582 (Pa.Super. 2003). We therefore affirm the trial court’s ruling on Guerra’s
objection to Trooper Peterson’s testimony.
IV. Testimony that Cromwell Threatened A.H.
In his final issue, Guerra argues the court erred in admitting A.H.’s
testimony that Cromwell threatened her. Guerra’s Br. at 50. While A.H. did
not testify to any specific statements made by Cromwell, Guerra complains
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that A.H. testified that Cromwell visited her parents, which scared her. Guerra
contends that the testimony about Cromwell’s actions was inadmissible
because it was not relevant to the charges against Guerra, as there was no
evidence establishing any conspiracy between Guerra and Cromwell existed
at the time. Guerra also argues that A.H’s testimony constituted double
hearsay.
Guerra has waived review of this issue by failing to make a timely
objection to the testimony at the time of trial. See Pa.R.E. 103(a)(1);
Commonwealth v. Bryant, 855 A.2d 726, 740 (Pa. 2004). Were the issue
not waived, we would agree with the trial court’s analysis that the statements
were properly admitted as statements by a co-conspirator in furtherance of a
conspiracy. See Tr. Ct. Op. at 68-72. We add that A.H.’s testimony did not
contain hearsay, as she did not testify as to any direct statements, or even
the content of the statements, made by Cromwell to her parents. In addition,
A.H.’s testimony was cumulative of the testimony of Trooper Peterson, who
testified regarding Cromwell’s visit to A.H.’s parents, testimony which Guerra
does not challenge. See N.T., 6/29/16, at 76-77, 81-82, 91-93.
As none of Guerra’s issues merit relief, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/19
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Circulated 03/29/2019 11:27 AM
IN THE COURT OF COMMON PLEAS
FILEO
PHILADELPHIA COUNTY 2018 APR I I PH 3: 04
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA OFFICE OF ,J!JOIGlAL RECORDS
CRIMINAL DIVISION CRIMJiili.L O!VfSiON
FIRST JiJ01Cl1\L DISTRICT
OF PtNNSYLYAWA
COMMONWEAL TH OF PENNSYLVANIA
CP-51-CR-11956-2014
vs.
CP-51-CR-0011956-2014 Comm. v Guerra. John C.
Opinion
JOHN GUERRA
IIIIIII Ill 111111111111111
8094386261
OPINION
KENNEDY, SEAN F., J. April 11, 2018
John Guerra ("the Appellant") appeals from a judgment of sentence entered in the
Philadelphia County Court of Common Pleas, following his convictions for Trafficking of
Persons - Minor (18 Pa.C.S.A. § 3002(a)); Trafficking of Persons (18 Pa.C.S.A. 3002(a));
Criminal Conspiracy to Traffic Persons (18 Pa.CS.A. § 903); Sexual Exploitation of a Child (18
Pa.C.S.A. § 6320(a)); Corrupt Organizations (18 Pa.C.S.A. § 91 l(b)(l)); Sexual Abuse of a
Child (18 Pa.C.S.A. § 6318(a)(5)); Promoting Prostitution - Own House of Prostitution (18
Pa.C.S.A. § 5902(b)(l); Possession with Intent to Distribute (35 Pa.C.S.A. § 780-113(a)(30));
Criminal Use of a Communication Facility (18 Pa.C.S.A. § 7512(a)); Corruption of a Minor (18
Pa.C.S.A. § 6301(a)(l)(i)); and Simple Assault (18 Pa.C.S.A.§ 2701(a)). The relevant facts and
procedural history are as follows.
FACTS
In February of 2009, information was provided to the Pennsylvania State Police by law
enforcement officials in Montgomery County, Maryland regarding a prostitution ring that was
being operated within their jurisdiction. After investigating, the Pennsylvania State Police began
an investigation into the activities of John Guerra. The Appellant recruited young, vulnerable
women from areas within the City and County of Philadelphia for the purpose of engaging in
prostitution.
M.S. left Pittsburgh for Philadelphia and was approached by another girl en route. N.T.
6/28/2016 at 54. This girl stated that M.S. should come with her and brought M.S. to a home in
Philadelphia where she met the Appellant. The first night that M.S. met the Appellant, she
informed him that she was addicted to crack cocaine. Id at 58. The Appellant approached M.S.
with the proposition that she could work from him performing "dates" by posting advertisements
online soliciting customers for sex. Id at 57. M.S. made it clear to The Appellant that she needed
crack cocaine to survive daily and The Appellant responded that she could obtain narcotics
through him. Id at 59.
The next day after their first meeting, The Appellant brought M.S. shopping for the
purpose of purchasing clothing for the photos to be used in the advertisements. N.T. 6/28/2016 at
60. the Appellant and another girl took photos of M.S. and posted the advertisements to
Craigslist. Id. M.S. was then brought to a hotel in Northeast Philadelphia to perform "dates." Id
at 62. The advertisements that were posted contained a phone number for a phone that was given
to M.S. by the Appellant for the purpose of scheduling "dates." Id at 68.
M.S. was earning upwards of $1,000 per day from sexual services that she advertised on
Craigslist. M.S. did not keep this money and it was immediately given to the Appellant. N.T.
6/28/2016 at 67. In the initial stages of working for the Appellant, there was only one other man
working with the Appellant, but as time went on the Appellant brought other people from New
York to assist and expand the operation. Id at 71. These persons included Elton Cromwell, Eddie
Mendez and Dwayne Thomas. Id. M.S. witnessed the Appellant giving narcotics to Cromwell
2
and after she performed dates would purchase more crack cocaine from Cromwell. Id at 75. M.S.
also stated that the Appellant himself collected money after "dates" and distributed narcotics. Id
at 76.
the Appellant engaged in a pattern of violence towards M.S. to keep her under his
control. On the night of her 22nd birthday, M.S. had been awake for three straight days
performing "dates" and was under the influence of crack cocaine. N.T. 6/28/2016 at 82. M.S.
owed money to the Appellant from the previous three days. After she had been missing, the
Appellant found M.S. in a hotel and severely beat M.S. in one hotel room and then brought her
across the hall into the bathroom of a second hotel room where the beating continued. Id at 83.
On another occasion, after the Appellant found M.S. in possession of missing money, he chased
her around a hotel room with an extension cord and attempted to beat her with it. Id at 86. After
catching M.S., the Appellant had forcible anal sex with M.S. and gave her heroin after the attack.
Id at 86-87. M.S. was also sold to Jason the Appellant to work for him for some amount of time
because Jason Guerra was having money problems and the Appellant was teaching Jason how to
traffic girls. Id at 89.
In June 2008, victim T.W. encountered ex-boyfriend Eddie Mendez in a Target parking
lot in Philadelphia. N.T. 6/29/2016 at 6-7. T.W. agreed to accompany Mendez back to a hotel
room and entered his vehicle. Id at 7. While en route to the hotel, Mendez stopped and picked up
John the Appellant. Id. Mendez brought T. W. to the Roosevelt Inn on Roosevelt Boulevard in
the City and County of Philadelphia. Id at 8. Upon entering the room and observing two other
girls, Mendez approached T.W. and sought to recruit her to work as a prostitute. Id at 9. The
Appellant informed T.W. of the prices that she was to charge each customer for her sexual
service and stated that she must "check in" with him before and after each customer. Id at 10.
3
The Appellant also provided T. W. with a pre-paid cellular phone for use to receive calls from
customers. Id at 12.
The Appellant took pictures of T.W. for the purpose of creating advertisements to be
placed on Craigslist and Backpage to solicit customers. N.T. 6/29/2016 at 13. After these
pictures were taken, the Appellant posted the advertisements on Craigslist and Backpage. Id at
14. The online advertisements contained a picture of T.W. along with a phone number- for the
phone given to T. W. by the Appellant - for the exclusive purpose of getting customers for her
sexual services. At this time, the Appellant was renting two hotel rooms and would sleep in the
hotel rooms with the girls that he had recruited. Id at 15. For her services, T.W. was never
provided cash. Id at 43. Instead, she was taken to the mall each Sunday and permitted to spend
$600 on items there. Id.
Like M.S., T. W. was victim to a pattern of physical abuse meant to instill compliance.
One on occasion, the Appellant assaulted T.W. so severely that he left a bruise in the shape of his
hand on T.W.'s face. N.T. 6/29/2016 at 28. The reason for this assault was because T.W. had left
and attempted to work for the Appellant's brother. Id. After trying to leave the Appellant, T.W.
was assaulted by the Appellant with such severity that T. W. had bruises that were visible around
her ribs, experienced painful breathing and had a lump visible from these assaults. Id at 29 T.W.
"wasn't allowed" to seek any medical treatment for these injuries. Id. Mendez and the Appellant
would not allow T.W. to take days off from working. Id at 19.
On July 30, 2008, the minor victim - A.H. - was approached by the Appellant in a
vehicle with Elton Cromwell in the Kensington neighborhood of Philadelphia. N.T. 6/28/2016 at
145. A.H. was a runaway that was homeless and living on the streets when approached by the
Appellant. Id. The two men asked her which drugs she used and A.H. responded that she used
4
cocaine. Id at 148. After the Appellant promised her a place to stay, A.H. entered the vehicle and
was taken to motel room. Once A.H. was brought to the hotel room and she observed it was
occupied by multiple girls that she believed to be involved with prostitution. Id at 151, 15 7. The
girls that had been present in the room exited the room upon their arrival and both Cromwell and
the Appellant had sexual intercourse with the minor A.H. Id at 152. After A.H. had sexual
intercourse with both the Appellant and Cromwell, they explained to A.H. that they would an
advertisement for her and she would have to begin posting advertisements on Craigslist to solicit
customers for sexual services. Id at 159. A.H. was provided a cellular telephone, for which she
did not pay, whose number was placed into the Craigslist advertisements. Once A.H. began
posting advertisements, she performed 10 to 15 dates per day, seven days per week, awake for
multiple days at time from cocaine use and could never refuse customers. Id at 166-171. A.H.
used a laptop that the Appellant stated was his laptop to make these postings. N.T. 6/29/2016 at
171. Initially, A.H. used a picture of herself from a MySpace account, but then used pictures that
were taken of her by Cromwell. N.T. 6/28/2016 at 191. If one of the dates was to be performed
off site from the hotel, A.H. was driven by a member of the organization. Id at 176.
A.H. would post multiple advertisements per day on websites to solicit customers. N.T.
6/28/2016 at 161. There were approximately ten other girls that were staying in two rooms that
were rented by the Appellant. Id at 164. After performing sexual acts in exchange for money,
A.H. would immediately give the money received to another member of the Appellant's
organization. Id at 167. A.H. was never allowed to keep the money, but instead would receive
crack cocaine; she used approximately $500 worth of crack cocaine per day in exchange for
performing "dates." Id at I 66. A.H. testified that she would receive the crack cocaine from either
Cromwell or Eddie Mendez. Id at 168. A.H. was subjected to acts of violence to keep her in line;
5
this included punches to the upper torso called "ribshots." Id at 172-73. A.H. witnessed acts of
violence by the Appellant towards other women and was scared of him. Id at 180. A.H.
witnessed the Appellant hit another victim that worked for him and heard him viciously assault
another taking place in the hotel room above hers. Id at 174, 176.
At one point, it was soon discovered that A.H. was a minor during her work for the
Appellant. The girls that had been staying in the same hotel room with A.H., Cromwell and the
Appellant all packed their belongings. N .T. 6/28/2016 at 182. A.H. was then taken to the
Appellant's family home on Tackawanna Street in Philadelphia while waiting for a decision on
how to proceed. Id at 183. The decision was ultimately left to the Appellant whether or not A.H.
would come back and continue working as a prostitute. Id at 196. The Appellant decided to allow
A.H. to continue working, and after a few days at his family's home, picked up A.H. and brought
her back to the hotel. Id at 184. A.H. continued working for the Appellant and he made no effort
to contact A.H's family or tell A.H. to no longer prostitute herself.
The Appellant was the head of an organization that recruited and preyed upon vulnerable
girls. The girls were forced to perform upwards of ten to fifteen dates per day. N.T. 6/28/2016 at
171. The organization included at least three other persons identified as Elton Cromwell, Eddie
Mendez and Dwayne Thomas. There existed a structure within the organization with Cromwell
and Mendez described as puppets and taking orders from the Appellant. N.T. 6/29/2016 at 19-20.
Mendez was also a driver for all the girls within the organization and drove them to meet
customers for sexual services when the encounters did not take place at the hotel. N.T. 6/28/2016
at 187. Early in the organization's history the Appellant would collect the money the girls made
himself; however, as time moved forward and other people became involved in the organization
the the Appellant employees collected the money instead. Id at 80. The Appellant was directly
6
responsible for distributing narcotics to these vulnerable girls. The Appellant was fully aware
these girls suffered from substance abuse issues because the girls were asked about their drug use
within minutes of encountering him. N.T. 6/28/20.16 at 59, 148. The Appellant supplied these
girls with large amounts both crack cocaine and heroin. N.T. 6/29/2016 at 184. One victim that
did not use narcotics was permitted to spend $600.00 every Sunday at the mall, but was never
permitted to hold the cash or be paid in cash. N.T. 6/29/2016 at 43. The Appellant headed an
organization that preyed on vulnerable girls, demanded behavior consistent with his expectations
or face violence and had multiple employees working for him to oversee and control the
operation.
PROCEDURAL HISTORY
The Appellant was charged in December, 2010 as the result of an investigation being
submitted to the Statewide Investigating Grand Jury. The Appellant then became a fugitive from
justice until his apprehension by troopers from the Pennsylvania State Police Organized Crime
Unit in August, 2014. On October 21, 2014, a preliminary hearing was held, at which his charges
were held for court. On November 11, 2014, he was formally arraigned on his charges.
The Appellant remained in custody until his bench trial began on June 28, 2016 before
the Honorable Sean F. Kennedy. On June 29, 2016, he was convicted at his bench trial of all
thirteen counts. On May 4, 2017, the Appellant was sentenced by the Honorable Sean F.
Kennedy to a total term of 37-74 years confinement. On May 5, 2017, the Appellant filed a
timely post-sentence motion. On September 5, 2017, the Appellant's post-sentence motion was
denied by operation oflaw. On September 29, 2017, he filed a timely Notice of Appeal to the
Superior Court of Pennsylvania.
7
MATTERS COMPLAINED ON APPEAL
The Appellant's l 925(b) asserts:
1. Whether the evidence was sufficient to find Appellant guilty of Possession with Intent to
Distribute in violation of35 Pa.C.S.A. § 780-l 13(a)(30); Corrupt Organization in
violation of 18 Pa.C.S.A. § 91 l(b)(l); Conspiracy-Trafficking of Persons in violation of
18 Pa.C.S.A. § 903; Sexual Exploitation of Children in violation of 18 Pa.C.S.A. §
6320(a); Criminal Use of a Communication Facility in violation of 18 Pa.C.S.A. §
7512(a); Promoting Prostitution - Own House of Prostitution in violation of 18 Pa.C.S.A.
§ 5902 (b)(l); Corruption of Minors in violation of 18 Pa.C.S.A. § 630l(a)(l)(i); Simple
Assault in violation of 18 Pa.C.S.A. § 2701(a); Trafficking of Persons (2 counts) in
violation of 18 Pa.C.S.A. § 3002(a); and Sexual Abuse of a Minor in violation of 18
Pa.C.S.A. § 63 l 8(a)(5) beyond a reasonable doubt.
2. Whether the verdict was against the weight of the evidence.
3. Whether the Court abused its discretion in Sentencing the Appellant to an aggregate
period of 37 to 74 years.
4. Whether the Court erred in permitting the investigating officer to testify as to his opinion
that the Appellant was the head of a corrupt organization thereby depriving Appellant of
a fair trial. ·
5. Whether the Court erred in allowing testimony elicited by the Commonwealth involving
an alleged threat by Elton Cromwell against a witness testifying against the Appellant
without establishing any connective link to the Appellant.
6. Whether the Court erred in allowing testimony from Commonwealth's witness (M.S.) to
testify as to uncharged conduct, specifically, that the Appellant anally raped her and
strangled her without providing defense counsel with prior Notice of Intent to Admit
Prior Bad Acts pursuant to PA Rule of Evidence 404(b) thereby depriving the Appellant
of a fair trial.
7. Whether the Court erred in allowing testimony from Commonwealth's witness (A.H.) to
testify as to uncharged conduct, specifically, that the Appellant raped her knowing that
she was a minor without providing defense counsel with prior Notice of Intent to Admit
Prior Bad Acts pursuant to PA Rule of Evidence 404(b) thereby depriving Appellant of a
fair trial.
DISCUSSION
I. Sufficiency Claim - The evidence presented at trial was sufficient to find guilt
beyond a reasonable doubt on all charges.
In his first principle point of appeal, the Appellant incorrectly asserts that the evidence
was insufficient to sustain his convictions on all counts. For myriad of reasons, the sufficiency
claims asserted by Mr. the Appellant as to all charges are without merit. The trial court will
8
discuss the evidentiary sufficiency for each conviction. The appellate scope of review of a
challenge to the sufficiency of the evidence is well-established. The appellate court must review
the evidence in the light most favorable to the verdict winner to determine whether there is
sufficient evidence to allow a jury to find every element of a crime beyond a reasonable doubt.
The Superior Court has further held that:
In applying the above test, [the appellate court] may not weigh the
evidence and substitute [its] judgment for the fact-finder. In addition, [the
appellate court] notes 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 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. Tejada, 107 A.3d 788, 792-93 (Pa. Super. 2015). The facts and circumstances
established by the Commonwealth need not "be absolutely incompatible with the defendant's
innocence." See Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000). Where no
single bit of evidence "will by itself conclusively establish guilt, the verdict will be sustained
where the totality of the evidence supports the finding of guilt." Commonwealth v. Thomas, 561
A.2d 699, 704 (Pa. 1989).
Thus, our appellate courts have recognized that proof of guilt may be inferred entirely
from evidence of circumstances that attended the commission of the crime. See Commonwealth
v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). The "fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not preclude a conviction where the
evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of
9
innocence." Id. Nevertheless, the requirement of the law remains that in order to secure a
conviction, the "facts and circumstances proved must be of such a character as to produce a
moral certainty of the guilt of the accused beyond any reasonable doubt." Commonwealth v.
Bybel, 611 A.2d 188, 189 (Pa. 1992). Finally, an appellate court will review the entire trial
record, even evidence which is impermissibly introduced, when evaluating a sufficiency claim.
See Commonwealth v. Sanders, 42 A.3d 325, 329 n.1 (Pa. Super. 2012).
The trial court believes the entire record more than adequately meets the necessary
threshold to establish each element of every charged offense has been proven beyond a
reasonable doubt. For reasons that follow, the claims by the Appellant fail and each is without
merit.
a. Possession with Intent to Deliver
The Appellant first raises the claim that the evidence was insufficient to sustain his
conviction for Possession with Intent to Deliver. The trial court disagrees. To sustain a
conviction for PWID, the Commonwealth "must prove both the possession of the controlled
substance and the intent to deliver the controlled substance." Commonwealth v. Lee, 956 A.2d
l 024, l 028 (Pa. Super. 2008). At trial, there was extensive testimony presented from victim M.S.
where she stated that she received crack cocaine directly from Mr. the Appellant and would
receive disproportionately low amounts of narcotics compared to the money she had paid. N.T.
6/28/2016 at 74-75. For instance, M.S. testified that she if she paid $120 to the Appellant, she
would only receive $20 of crack cocaine in return. Id at 75. This would, in turn, force M.S. to
work more frequently, or have more "dates," for the Appellant in order to satisfy her daily drug
habit.
10
Perhaps the most convincing testimony supporting the sufficiency of the evidence for the
PWID conviction comes from the Appellant himself. The Appellant stated that around the time
of the charged events he sold both crack cocaine and heroin. N.T. 06/29/2018 at 184. The
Appellant admitted that he "started picking [narcotics] up in large quantities so that it would be
cheaper." Id. The Appellant then testified he would purchase approximately $500 worth of
heroin at a time, break it down and sell to the girls and make a profit. Id at 185-86. The
Appellant also testified that he would purchase approximately $100 of crack cocaine for
distribution amongst the girls he had in his employ. Id at 186. The Appellant plainly stated he
"would go down to Kensington and buy it ... So [the Appellant] would go down to Kensington
Ave and get it. [The Appellant would] come back up, you know. And then when [he] g[a]ve it to
them, they g{a]ve [the Appellant] the money that they ha[d]." N.T. 06/29/2016 at 173.
Alternatively stated, the Appellant would purchase illegal narcotics and sell the controlled
substances to the girls working for him at the hotels.
The Appellant attempts justification for his distribution of controlled substances to the
victims through claims he was attempting to protect the girls from the dangers of the streets.
Perhaps, the Appellant fails to consider the possibility he is one very such danger from which he
sought to protect the girls. The Appellant stated that it was "safer for them to stay at the hotel
room." N.T. 6/28/2016 at 187. However, in the same breath, the Appellant stated that he "wasn't
making money off of crack from giving it to them. I was making money off the dope." and that
the girls did not want to procure narcotics themselves from certain areas because "people get
locked up and you get beat up. You know, they got robbed." Id. The trial court duly notes the
seemingly personal hardship he must have endured in only profiting from the sales of one
controlled substance to the victims. However, in his quest for benevolence, the Appellant meets
11
the two necessary elements for conviction of PWID through his possession of a controlled
substance and the intent to distribute the controlled substance. Therefore, the trial court did not
err in finding there was sufficient evidence to prove the two elements needed for conviction
beyond a reasonable doubt.
b. Corrupt Organizations
The Appellant next challenges the sufficiency of the evidence supporting his conviction
for corrupt organizations. To secure a conviction under the charged subsection of the Corrupt
Organizations Act, the Commonwealth must prove a defendant received income, either directly
or indirectly, from a pattern of racketeering activity in which the defendant participated as a
principal to use or invest, directly or indirectly, any part or proceeds of such income in the
acquisition of any interest in, or the establishment or operation of, any enterprise. 18 Pa.C.S.A. §
911 (b )( 1 ). A pattern of racketeering activity is defined as a "course of conduct requiring two or
more acts of racketeering activity." 18 Pa.C.S.A. § 91 l(h)(4). A non-exhaustive list of
racketeering activity, in relevant part, can include acts indictable under Chapter 30, relating to
human trafficking, of the Crimes Code; an offense indictable under section 13 of the act of April
14, 1972, known as The Controlled Substance, Drug, Device, and Cosmetic Act (relating to the
sale and dispensing of narcotic drugs; or a conspiracy to commit any of the offenses set forth in
subparagraph (i) or (ii). 18 Pa.C.S.A. § 91 l(h)(l)(i)-(iii). Further, an enterprise is defined as any
"individual, partnership, corporation, association or other legal entity, and any union or group of
individuals associated in fact although not a legal entity, engaged in commerce and includes
legitimate as well as illegitimate entities and governmental entities." 18 Pa.C.S.A. § 911 (h)(3).
First, the Appellant engaged in a pattern of racketeering activity. Again, racketeering
activity is defined as "any offense indictable under Chapter 30 of Title 18 (relating to human
12
trafficking)." 18 Pa.C.S.A. § 91 l(h)(l)(i). Racketeering activity as also defined as "any offense
indictable under [the Controlled Substances Act]." 18 Pa.C.S.A. § 911 (h)(l )(ii). Racketeering
activity also occurs where there is any conspiracy to commit any of the offenses set forth at
subsections (i) and (ii). The trafficking of persons, both of adults and a minor in this case, is
indictable under Chapter 30 of the Crimes Code; consequently, the trafficking of persons is
"racketeering activity." The Appellant trafficked in one minor person, A.H., and at least two
persons over age 18, M.S. and T.W. Likewise, the possession with the intent to distribute
narcotics is indictable under the Controlled Substances Act; thus, also making such an offense
"racketeering activity." By his own admission, the Appellant possessed controlled substances
with the intent to distribute the narcotics. N.T. 6/29/2016 at 173. Further, a conspiracy to commit
any offense set forth in subparagraphs (i) or (ii) of the Corrupt Organizations Act constitutes
racketeering activity. The Appellant's involvement in the conspiracy to traffic persons is
considered "racketeering activity." All of these acts constitute a "pattern of racketeering activity"
pursuant to the definition provided in the Corrupt Organizations Act.
The Commonwealth is also required to establish that the Appellant received income from
his pattern ofracketeering. The first "racketeering activity" from which the Appellant drew
income stemmed from his trafficking of persons through forced labor. The trial court will later
discuss in greater detail the specifics of his engaging in trafficking of persons. However, for the
purposes of demonstrating the Appellant drew a profit from trafficking of persons through forced
labor, the very poignant testimony of T.W. demonstrates how the Appellant drew his income
from the forced labor: .
13
Commonwealth: And after each date, were you directed to something specific
with the money that you got?
T.W.: Either hand it to whichever guy was in the room- it would either be [the
Appellant], Eddie or-when [Cromwell] came along, it would be [Cromwell].
Commonwealth: And so ... how much money would you estimate you were
making a day?
T.W.: About a thousand.
Commonwealth: Did you ever try to take any days off?
T.W.: You weren't allowed.
Commonwealth: When you say "you weren't allowed to," who wouldn't allow
you?
T.W.: Eddie or [the Appellant] wouldn't allow you to.
N.T. 6/29/2016 at 19. T.W. further stated that both Eddie Mendez and Elton "Marvin" Cromwell
took orders directly from the Appellant. Id at 20. The minor victim, A.H., also offered similar
testimony that she would give her money to the driver that brought her to a location and the
drivers subsequently gave that money to the Appellant. N.T. 06/28/2016 at 204. The record
reflects that: (1) the Appellant, and not the girls themselves, drew the income from the sexual
encounters the girls earned; and (2) the fact he did not "allow" the girls days off epitomizes the
concept of forced labor. Therefore, it can be concluded that the Appellant received income
through the "racketeering activity" of trafficking in persons.
The next "racketeering activity" from which the Appellant drew income was through his
possession of a controlled substance with the intention to distribute it. One victim, M.S., testified
at trial how after performing a date she would pay $120 for crack cocaine, but would just receive
around $20 worth of the controlled substance. N.T. 6/28/2016 at 75. M.S. further testified that
she witnessed Elton Cromwell and other persons getting the crack cocaine to be sold to them
from the Appellant. Id at 74. The minor victim, A.H., testified that she received crack cocaine
14
from Cromwell after each date and purchased around $500 of crack cocaine per day. Id at 166.
The next logical step given this testimony from A.H. is provided by M.S. that she witnessed the
Appellant giving controlled substances to Cromwell for distribution and sale among the girl. It
follows that the crack cocaine purchased from Cromwell by A.H. likely came from the
Appellant. Finally, the testimony from the Appellant himself points towards his making a profit
through his distribution of controlled substances. The Appellant testified that around the time of
the charged events he sold both crack cocaine and heroin. N.T. 06/29/2018 at I 84. The Appellant
admitted that he "started picking [narcotics] up in large quantities so that it would be cheaper."
Id. The Appellant then testified he would purchase approximately $500 worth of heroin at a time,
break it down and sell to the girls and make a profit. Id at 185·86. In short, the Appellant plainly
admits to making a profit from the distribution of narcotics. Therefore, it can be concluded that
the Appellant received income through the "racketeering activity" of possessing a controlled
substance with the intention to distribute the controlled substance.
Second, having concluded that the Appellant engaged in a pattern racketeering activity,
the trial court next turns to the question of whether an enterprise existed within the meaning of
the Corrupt Organizations Act. The Appellant's organization was formed for the purpose of
trafficking persons and providing sexual services at the behest of his victims constitutes an
"enterprise," which is defined as any "individual, partnership, corporation, association ... and
any union or group of individuals associated in fact although not a legal entity, engaged in
commerce and includes legitimate as well as illegitimate entities." 18 Pa.C.S.A. § 91 l(h)(3).
Trooper Michael Peterson described the Appellant's operation as "organized crime." N.T.
6/29/2016 at 103. There was, in fact, an organized effort in the Appellant's management of his
criminal enterprise, with himself at the top. Investigation revealed that he had at least three other
'
15
people working for him in this enterprise: Elton "Marvin" Cromwell, Eddie Mendez, and
Dwayne Thomas. Id at 65. The victims working for the Appellant also confirmed this command
structure. There exists little dispute that Eddie worked as a driver for the Appellant by
transporting girls to meet customers. The minor victim, A.H., testified that Eddie worked for the
Appellant and drove her to meet customers. N.T. 6/28/2016 at 187. Victim M.S. also testified
that Eddie drove her places. Id at 126. The Appellant himself admitted that he paid Eddie
Mendez $50 each time he drove one of the girls to meet a customer. N.T. 6/29/2016 at 202. M.S.
testified that she believed the Appellant was in charge of Cromwell, Eddie Mendez and Dwayne
Thomas. N.T. 6/28/2016 at 72. The minor victim, A.H., also testified that Dwayne Thomas
worked for the Appellant. Id at 188. A.H. also testified that she witnessed Cromwell taking
orders from the Appellant. Id at 196. Thus, there was a group of individuals engaged in
commerce, providing forced sexual labor, whose sole purpose was to generate income from the
victims.
Third, the trial court is required to determine whether the income from the Appellant's
"pattern of racketeering activity" was used in the establishment or operation of the enterprise.
The trial court has little doubt the income received from the "racketeering activity" was used to
establish or maintain the enterprise. For example, nothing in the record states that the Appellant
had any type of legitimate employment during this time. However, there is testimony from the
Appellant stating that he paid rent for two homes; one home was rented for $500 per month and
the second was rented for $650 per month. N.T. 6/29/2016 at 175. One of the homes, the one
located on Tackawanna Street, was the home to which A.H. was brought after the Appellant
discovered her true age. The Appellant further testified that he "always had girls at the hotel
ready. So if you wanted to be at the house, you could be at the house. If you wanted to go to the
16
hotel, you'd go to the hotel." Id at 176. Regarding the house, he stated that the girls "needed a
place to stay when they wasn't working. So they asked if I could get a house and stuff like that.
That was the purpose behind that." Id at 175.
Next, M.S. testified that Cromwell, Dwayne "D-Boy" Thomas, and Eddie "were like [the
Appellant's] people, and, like, [the Appellant] came and brought them down there so, like, they
could make money and, like, expand ... I mean the more you branch out and like have more
girls." N.T. 6/28/2016 at 73. M.S. testified that in the beginning there was only the Appellant and
another man, named Dre, but slowly "other people were coming down from New York. And
then, like, they would end up with like a girl. Like, [the Appellant] would put them somewhere
in the hotel with us." Id at 71. The Appellant started with a small number of people and as his
enterprise grew, he reinvested the money collected from the trafficked victims to bring additional
persons and recruiting more victims.
There are expenses that come with the operation of a human trafficking ring: the costs to
post advertisements on line, the renting of hotel rooms, payment for food and other goods for the
girls. T.W. testified that early in the operation she did not post, or pay for, the advertisements
online herself; rather, T.W. testified that the Appellant was responsible for the payment and
posting of advertisements. N.T. 6/28/2016 at 14. M.S. testified that all money was eventually
given to the Appellant and that if she "wanted to eat or like food was to be ordered, like, that
never came out of my own pocket because, like, I never had my own cash ... Because it was
given to [the Appellant]. Like if I needed to do something or wanted to go do something, like get
my nails done," then M.S. was required to ask the Appellant or one of his employees. Id at 66-
67. The Commonwealth expert on trafficking in persons, Detective Stigerts, stated that the
"business end of it is the girls make the money through their prostitution acts, and they provide
17
the money actually to the traffickers. The traffickers take care of all their expenses." Id at 36.
Detective Stigerts testified that these expenses included posting the advertisements) renting hotel
rooms, travel, food, drugs, and getting hair and nails done for the girls. Id.
There was sufficient testimony presented at trial to convict the Appellant on the charge of
Corrupt Organizations. The Appellant engaged in a pattern of racketeering activity through his
trafficking in persons and delivering controlled substances. There existed an enterprise, although
illegitimate, through a group of persons whose objective was to engage in commerce. The
income received from the pattern of racketeering activity was used to establish and maintain the
enterprise. In fact, the testimony of the Commonwealth expert unsurprisingly struck very close to
the behavior exhibited by the Appellant and he opined that the ultimate concerns of such
traffickers are "making money and how much money can the girls make for them." N.T.
6/28/2016 at 3 5. The trial court is inclined to agree and, therefore, found the evidence presented
at trial sufficient to convict the Appellant for Corrupt Organizations.
c. Conspiracy - Trafficking Persons
The Appellant next contends that there was insufficient evidence to support his
conviction for conspiracy. The Appellant was charged by the Commonwealth with conspiracy
under three alternative theories: (1) conspiracy to traffic a minor person; (2) conspiracy to traffic
persons; and (3) conspiracy for promoting prostitution. N.T. 06/29/2016 at 217. To sustain a
conviction for criminal conspiracy, the Commonwealth must prove beyond a reasonable doubt
that the defendant: (1) entered into an agreement to commit or aid in a criminal act with another
person or persons; (2) with a shared criminal intent; and that (3) an overt act was done in
furtherance of the conspiracy. 18 Pa.C.S.A. § 903; See Commonwealth v. Devine, 26 A.3d I 139,
1147 (Pa. Super.2011). The overt act necessary to establish criminal conspiracy need not be
18
committed by the defendant; it need only be committed by a co-conspirator. See Commonwealth
v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006). The conduct of the alleged parties and the
circumstances surrounding such conduct may create a web of evidence linking the accused to the
alleged conspiracy beyond a reasonable doubt. Id. The conspiratorial agreement "can be inferred
from a variety of circumstances including, but not limited to, the relation between the parties,
knowledge of and participation in the crime, and the circumstances and conduct of the parties
surrounding the criminal episode." Id.Here, the Commonwealth charged the Appellant with criminal conspiracy. Regarding the
charge of criminal conspiracy in particular, the Superior Court reiterated the following precepts:
An explicit or formal agreement to commit crimes can seldom, if ever, be proved
and it need not be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities." Commonwealth v.
Johnson, 719 A.2d 778, 785 (Pa. Super. 1998) (en bane), appeal denied, 739 A.2d
1056 (1999) (citations omitted). Therefore, where the conduct of the parties
indicates that they were acting in concert with a corrupt purpose in view, the
existence of a criminal conspiracy may properly be inferred. Commonwealth v.
Snyder, 483 A.2d 933, 942 (Pa. Super. 1984). This court has held that the
presence of the following non-exclusive list of circumstances when considered
together and in the context of the crime may establish proof of a conspiracy: (1)
an association between alleged conspirators, (2) knowledge of the commission of
the crime, (3) presence at the scene of the crime, and (4) participation in the
object of the conspiracy. Commonwealth v. Swerdlow, 636 A.2d 1173, 1177 (Pa.
Super. 1994).
Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014). The trial court will address the
conspiracy to traffic a minor as this was the conspiracy charge under which the Appellant was
sentenced.
Although an explicit or formal agreement can seldom be proved, direct testimony was
presented at trial that illuminates the existence of such an agreement. For instance, at trial,
witness M.S. gave the following testimony:
19
Defense Counsel: Did you ever hear [the Appellant] and [Cromwell] agree
to any kind of criminal enterprise?
M.S.: Yes. Like, he showed [Cromwell] - like, Here's this girl, like, and
this is what we're doing down here and like, now, you're in on it and, like,
this is what we do. Yes.
N .T. 06/28/2016 at 124. This testimony in itself vocalizes, and demonstrates, the existence of a
conspiracy. The testimony from M.S. provides evidence of a conspiracy to traffic persons in a
formal agreement. However, further discussion is required to ascertain the true depths of the
conspiracy- namely, whether the parties acted in concert with one another to traffic a minor, had
the shared criminal intent and committed an overt act.
Regarding the minor, A.H., there was extensive testimony at trial to implicate the
Appellant in a conspiracy to traffic a minor. Initially, when A.H. first came into contact with
Cromwell and the Appellant, she was walking down Kensington Avenue when she was
approached by both men riding in the same car. Id at 147. After A.H. got into the vehicle, she
was asked what drugs she used and told them she used cocaine. Id at 148. After getting into the
vehicle, the Appellant and Cromwell brought A.H. to a room at the Ramada Inn on Roosevelt
Boulevard that was occupied by a number of girls, who A.H. understood to be prostitutes, who
left upon their arrival. Id at 150. Afterwards. A.H. had sexual intercourse with both the Appellant
and Cromwell while the other remained in the room. Id at 157. Shortly thereafter, A.H. began
working as a prostitute and used cocaine in between dates. A.H. stated that while she would have
solicitors for her services come to her hotel room, Cromwell would go to the Appellant's room to
wait while she finished. Id at 164. A.H. testified during trial that although she usually gave the
money she earned from dates to Cromwell, or Elton Cromwell, there may have been occasion
she "maybe" witnessed Cromwell giving the money to the Appellant. N. T. 06/28/2016 at 167. At
another point in her testimony, A.H. stated that she witnessed the "drivers" give money to the
20
Appellant and that Cromwell used the same driver as the Appellant. Id at 204. Further, A.H.
testified that she witnessed Cromwell taking orders from the Appellant. Id at 196.
Perhaps the most cogent argument to inculpate the Appellant in the conspiracy to traffic a
minor comes after his discovery of her true age. There appears to be no factual dispute that until
a certain time, A.H. had misrepresented her age until her minor status was discovered. At that
time, A.H. directly informed the Appellant that she was, in fact, a minor and his response was to
tell A.H. to "pack up [her] stuff and [the Appellant] was going to let [A.H.] stay at his wife's
house for a couple days." N.T. 06/28/2016 at 182. A.H. further stated that while she, the
Appellant and Cromwell were in the hotel room after the discovery of her age she
"remember[ed] it being left up to John whether they [the Appellant and Cromwell] were going to
keep me after finding out how old I was." Id at 197. After the Appellant took A.H. to his wife's
house, he did not tell A.H. that he wanted nothing to do with an underage prostitute, did not tell
A.H. that she should return home, and did not try to contact A.H. 's parents. Id at 195.
Alternatively stated, the Appellant did nothing to prevent A.H. from continuing work for him
and failed to tell A.H. to cease working for him. Subsequent to A.H. having spent time at the
Appellant's home on Tackawanna Street, A.H. was picked up from the residence and driven
back to a hotel by both Cromwell and the Appellant. N.T. 06/28/2016 at 184.
Addressing the four factors laid out in Kinard, the Appellant participated fully in the
commission of conspiracy to traffic a minor. One victim, A.H., described the Appellant and
Cromwell as being "good friends," and operated what could be labeled a business. N.T.
06/28/2016 at 186, 195. Mr. Cromwell was known to take orders from the Appellant. Id at 196.
Under the second factor present in Kinard, the Appellant had full knowledge about the crime.
The Appellant made the decision, after allowing A.H. to stay at his home, to return A.H. to the
21
hotel with Cromwell under the assumption she would begin working again. In fact, Cromwell
looked to the Appellant to make a decision on how to handle the situation after discovering that
A.H. was a minor.
The basic elements for conviction of Criminal Conspiracy under 18 Pa.C.S.A. § 903
require a demonstration that two or more persons: (1) entered into an agreement to commit or aid
in a criminal act with another person or persons; (2) with a shared criminal intent; and that (3) an
overt act was done in furtherance of the conspiracy. The Commonwealth proved the existence of
an agreement beyond a reasonable doubt. The Commonwealth had one witness, M.S., present
when such an agreement was made. However, inferences to the Appellant's agreement to
commit the criminal act may also be drawn from the Appellant's presence at the hotel, his
presence when recruiting victims to be trafficked and his position as the head of the organization.
Next, the Commonwealth demonstrated a shared criminal intent when the Appellant, with Elton
Cromwell, picked up A.H. from his family home and brought her back to the hotel to continue
her work in prostitution. The shared criminal intent may also be inferred from the distribution of
narcotics that the Appellant picked up for use by other victims that the Appellant claims does not
work for him. Finally, the overt act done in furtherance of the conspiracy was completed when
the Appellant picked up A.H. for the first time and recruited her for prostitution; or alternatively,
the overt act can be inferred from when he brought A.H. back to the hotel for the express purpose
of continuing her work in prostitution. There existed a network designed and operated by the
Appellant that included drivers for transporting A.H., and other trafficking victims, to other
locations to meet customers for sexual services. Within the network and organization headed by
the Appellant, there were individuals assigned to collect money from the trafficking victims after
"dates" and for the distribution of narcotics. A.H. was exposed to - and worked within the
22
conspiracy headed by the Appellant - the drivers, the individuals who collected her money, gave
her narcotics, provided her cellular phones, and provided money for A.H. to post advertisements.
Here, the entire record more than adequately supports a finding that the evidence was
sufficient at trial to sustain a conviction for conspiracy to traffic a minor. It would be orthogonal
to logic and reason to find the Appellant was somehow insulated or unaware of the victim's
minority status. After a brief respite at his home, A.H. was returned to the hotel to continue the
work for which she was recruited. Therefore, the Commonwealth presented sufficient evidence
to prove each required element of Criminal Conspiracy beyond a reasonable doubt.
d. Sexual Exploitation of Children
The Appellant next contends the evidence presented at trial was insufficient to sustain a
conviction for sexual exploitation of children. The crime of Sexual Exploitation of Children is
defined in the Crimes Code as:
§ 6320. Sexual Exploitation of Children.
(a) Offense Defined - A person commits the offense of sexual
exploitation of children if he procures for another person a child
under 18 years of age for the purpose of sexual exploitation.
(c) Definitions -As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
"Procure." To obtain or make available for sexual
exploitation.
"Sexual Exploitation." Actual or simulated sexual activity
or nudity arranged for the purpose of sexual stimulation or
gratification of any person.
18 Pa.C.S.A. § 6320(a)(c). Therefore, the Commonwealth must prove that a defendant: (1)
obtained or made available a person under 18 years of age; (2) for the purpose of any actual or
simulated sexual activity for the purpose of sexual stimulation or gratification of any person.
23
Here, there is sufficient evidence in the record to support the Appellant's conviction for
sexual exploitation of children. The first night that the Appellant and Cromwell encountered
A.H., a person under 18 years of age, they "told [A.H.] that they would post an ad for me and
that I could work for them to stay there." N.T. 6/28/2016 at 159. A.H. further clarified and stated
that the advertisements would be posted on Craigslist for erotic services. Id. A.H. defined erotic
services as having sexual intercourse with customers in exchange for money. Id. These Craigslist
and Backpage advertisements were posted multiple times per day with photographs of A.H. and
included a phone number for customers to contact A.H. for her sexual services. Id at 161. M.S.
testified that she knew A.H., a minor, was performing sex acts for money. N.T. 6/28/2016 at
133-34. M.S. further testified that she witnessed A.H. giving the money earned from these sex
acts to Cromwell. Id at 134. There was testimony that Cromwell may have turned this money
over to the Appellant. Id at 167.
Further, there is more than adequate testimony to support the Appellant's conviction for
sexual exploitation of children corresponding to his actions after finding out A.H.' s true age.
The Appellant told A.H. to "pack up [her] stuff and [the Appellant] was going to let [A.H.] stay
at his wife's house for a couple days." N.T. 06/28/2016 at 182. After allowing a short number of
days to pass, A.H. was picked up from the residence and driven back to a hotel by both
Cromwell and the Appellant. Id at 184. A.H. returned to the hotel and continued to post
advertisements online in soliciting customers to have sexual intercourse in exchange for
currency. N.T. 6/29/2016 at 22. The Appellant did not tell A.H. that he wanted nothing to do
with an underage prostitute, did not tell A.H. that she should return home, and did not try to
contact A.H. 's parents. Id at 195. The conclusion that is drawn from these actions is that the
Appellant had knowledge that A.H. was soliciting customers for sexual services in the hotel prior
24
to her stay at his home, and that without any intervention such conduct would continue after her
return to the same hotel.
The Appellant made a minor available through posting her photograph in online
advertisements with a phone number included through which customers contacted her. There
may also be argument made that the Appellant made A.H. available for sexual exploitation
through the rental of hotel rooms for A.H. to complete sexual acts with customers. A.H. was
procured or made available "for another person" within the meaning of§ 6320 because the
online advertisements were directed towards any person who came upon A.H.'s advertisement
on Craigslist or Backpage. There can be little dispute that the advertisements were for the
purpose of "sexual exploitation" within the meaning of the statute. Again, sexual exploitation is
defined as actual or simulated sexual activity for the sexual stimulation or gratification of another
person. 18 Pa.C.S.A. § 6320(c). A.H. explicitly stated that the purpose of the advertisements was
to solicit customers for sexual intercourse in exchange for money. N.T. 6/28/2016 at 159. These
other persons contacted A.H. and subsequently had sexual intercourse with her. Therefore, the
evidence is sufficient to sustain the Appellant's conviction for sexual exploitation of children.
e. Criminal Use of a Communication Facility
In his fourth point of appeal concerning the sufficiency of the evidence, the Appellant
contends the evidence was insufficient to sustain a conviction for criminal use of a
communication facility. In addressing the Appellant's conviction of criminal use of a
communication facility, the crime is defined in relevant part as follows:
A person commits a felony of the third degree if that person uses a
communication facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony under this title []. Every
instance where the communication facility is utilized constitutes a separate
offense under this section.
25
18 Pa.C.S.A. § 7512(a). A "communication facility" includes both a computer connected to the
internet and telephones. 18 Pa.C.S.A. § 7512(c). Thus, to sustain a conviction under 18
Pa.C.S.A. § 7512, the Commonwealth must prove that a defendant intentionally, knowingly, or
recklessly used a communication facility, and that, in doing so, the defendant intentionally,
knowingly, or recklessly facilitated the commission or attempted commission of the underlying
felony. See Commonwealth v. Moss, 852 A.2d 374, 381 (Pa. Super. 2004). Here, the Appellant
testified during trial and admitted to several underlying felonies that would provide sufficient
evidence to find the Appellant used a communication facility to facilitate the commission of an
underlying felony. The trial court will discuss the Appellant's use of a communication facility as
it relates to his conviction for the felony § 5902(b )(1) prostitution charge.
Here, there was extensive testimony from multiple witnesses, including the Appellant, at
trial that inculpated the Appellant in the use of an internet connected computer and telephones to
facilitate prostitution. One victim, M.S., testified that the Appellant took explicit photographs of
her and posted her pictures on Craigslist, one prominent website used to draw customers, in
advertisements to "get the phone calls." N.T. 6/28/2016 at 61. M.S. further testified that the
Appellant is the person responsible for taking pictures, creating the advertisements, placing
M. S. 's telephone number in the Craigslist advertisement to draw customers and making sure that
M.S. answered these phone calls for potential dates. Id at 68.
In the next instance, another victim, T.W., testified to her experience with the Appellant
and his facilitation of prostitution through a communication facility. T.W. explained that she was
given a prepaid cellular phone by the Appellant and this phone number was placed into Craigslist
advertisements by the Appellant for the purpose of organizing "dates" for T. W. N.T. 6/29/2016
at 12. The victim, T. W., also testified that the Appellant "took photos of [T.W.] and then put
26
them up [on Craigslist]." Id. The photographs that the Appellant took of T.W. at the Roosevelt
Inn for the Craigslist advertisement were clearly for the purpose of drawing customers for sexual
encounters as T. W. was "bent over the bed, and, like [her] backside towards the photos where
[T.W.] was poking [her] butt out and leaning against the door." Id at 14. Thus, a second witness
testified that the Appellant took explicit photographs of T.W. and was responsible for posting
advertisements on Craigslist, embedded with the phone number for the prepaid phone provided
by the Appellant, for the purpose of securing customers for T.W.
The third instance of the Appellant facilitating the commission of a felony, promoting
prostitution, through a communication facility comes, once again, from the Appellant himself.
The Appellant does not deny that victims M.S. and T.W. worked for him as prostitutes. N.T.
6/28/2016 at I 66. The Appellant admits that he would direct the victims under his employment
to post advertisements to websites soliciting customers; especially in cases where the girls may
owe money to him. Id at I 72. The Appellant also admits during his testimony that he took
pictures of girls for the purpose of posting the picture on Craigslist and Backpage. Id at 200.
Therefore, the Appellant admits to taking the photographs knowing that these photos would be
used to solicit customers.
The elements for criminal use of a communication facility require the Commonwealth to
prove the defendant used a communication facility to facilitate the commission of the underlying
felony. Here, there was direct testimony from witnesses who confirmed that the Appellant was
the person responsible for taking their pictures and using the provocative photographs in
advertisements to seek customers for his escort service. Even under the defense theory that the
Appellant himself did not post the advertisements, a theory which the trial court does not find
credible, he still made laptops and cellular phones available to the girls to post advertisements for
27
their services. N.T. 6/29/2016 at 12, 171. There exists little doubt, clarified from the Appellant's
own testimony, that the Appellant promoted prostitution. For instance, defense counsel concedes
in closing that the defense has no argument to the felony prostitution charge. Id at 218.
Additionally, defense counsel stated that there is no argument against the criminal use of
communication facility with prostitution as the underlying felony. Id. Accordingly, there was
sufficient evidence presented at trial that the Appellant facilitated the commission of a felony
through a communication facility. Therefore, the trial court did not err in finding sufficient
evidence was presented at trial to prove the elements of criminal use of a communication facility
beyond a reasonable doubt.
f. Promoting Prostitution - Own House of Prostitution
The Appellant, in his fifth point of appeal contests the sufficiency of the evidence for his
conviction of Promoting Prostitution - Owning a House of Prostitution. In relevant part, the
crime of promoting prostitution in the Crimes Code is defined as:
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;
18 Pa.C.S.A. § 5902(b)( l ). Regarding the elements of the crime of promoting prostitution, the
Superior Court has stated that to sustain a conviction of promoting prostitution, the
Commonwealth must prove beyond a reasonable doubt: ( 1) the existence of a prostitution
business; and (2) that the accused actively participated in the "running, control, supervision, or
keeping of the prostitution business." See Commonwealth v. Dobrinoff, 784 A.2d 145, 147·148
(Pa. Super. 2001). Prostitution is defined as "sexual relations for hire." Dobrinoff, 784 A.2d 148.
28
Furthermore, the appellate courts have found that a "business" is "a commercial activity engaged
in for gain." Commonwealth v. Potts, 460 A.2d 1127, 1135 (Pa. Super. 1983) ( defendant who
agreed to engage in sexual activity and accepted an advance payment of $140 was engaged in
prostitution as a business). Additionally, ownership and control of the building are not essential
to a conviction; only the use of the building for the purpose of prostitution is required.
Commonwealth v. Michaelangelo, 5 Pa. D. & C.2d 92, 94 (Pa. Beaver C. 1955).
Here, there was sufficient evidence to support the conviction of promoting prostitution
beyond a reasonable doubt. The first element of the offense requires the existence of a
prostitution business. The Appellant states that he was a pimp. N.T. 6/29/2016 at 166. He admits
that he had upwards of eight women working for him as prostitutes. Id at 189. The Appellant
admits that T.W. and M.S. worked as prostitutes for him. Id at 166. Two victims, M.S. and T.W.,
testified that they worked for the Appellant as prostitutes. This represents, for all intents and
purposes, the existence of a prostitution business.
The second element of the offense requires that the Commonwealth prove that the
Appellant participated in the "running, control, supervision, or keeping of the prostitution
business." T.W. testified that the Appellant placed the advertisements online, took photos to
place in the advertisements, gave her telephones to receive phone calls from customers, collected
money from the victims after their "dates," and was in charge of the group including Eddie
Mendez and Elton Cromwell. Id at 11, 13, 19, 32. M.S. testified that the first night she met the
Appellant that she was told by the Appellant that she could work for him as a prostitute. N.T.
6/28/2016 at 57. M.S. testified that there were at least six girls working for the Appellant, that
M.S. gave the money to the Appellant after each date and that he brought in additional persons to
help expand the number of girls working for him Id at 65, 67, 73.
29
Given that the Appellant himself admits that he ran a prostitution business and was a
pimp, it would appear logical to conclude that there existed a prostitution business and that the
Appellant was involved in the management of the prostitution business. The testimony from
victims M.S. and T.W. only serve as further evidence that the Appellant formed the prostitution
ring and actively participated in the management of the business. Therefore, there was sufficient
evidence presented at trial to support the Appellant's conviction for promoting prostitution
beyond a reasonable doubt.
g. Corruption of Minors
The Appellant asserts that the evidence presented by the Commonwealth at trial was
insufficient to prove the necessary elements for conviction of Corruption of Minors beyond a
reasonable doubt. The Appellant was convicted of Corruption of Minors defined in the Crimes
Code as:
§ 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. The Pennsylvania Superior Court in Commonwealth v. Leatherby, 116
A.3d 73, 82 (Pa. Super. 2015), expounded on the definition of the corruption of minors, holding,
"[actions that] would offend the common, sense of the community and the sense of decency,
propriety and morality, which most people entertain," are those which shall be considered
corrupting a minor. Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. 1989),
quoting Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957).
30
Here, the Appellant was charged and convicted under§ 630l(a)(l)(i). The first part of
subsection ( a)( 1 )(i) requires the defendant to perform any act "that "corrupts or tends to corrupt
the morals of any minor less than 18 years of age." 18 Pa.C.S.A. § 6301(a)(l)(i). The
requirement under § 6301 ( a)(l )(i) requires only the performance of any single act that corrupts
or tends to corrupt a minor, and does not require more than a single act for conviction under this
subsection. See Commonwealth v. Kelly, 102 A.3d 1025, 1033 (Pa. Super. 2014). The Appellant
recruited the minor, A.H., for the purpose of engaging in prostitution. There was evidence
presented at trial that the Appellant and Cromwell, while operating a vehicle, approached A.H.
on Kensington Avenue and asked her to get into their car. N.T. 6/28/2016 at 147. A.H. was asked
which drugs she used and upon informing the two that she used cocaine, she got into the car was
transported to the Ramada Inn on Roosevelt Boulevard. Id at 148. The Appellant and Cromwell,
after telling A.H. they had a place for her to stay, took her to a room filled with multiple girls
where A.H. "realized what they had going on there" and the girls were "prostituting." Id at 150-
51. A.H. then testified that the Appellant informed her that they would post online
advertisements for A.H. so that she could exchange sexual intercourse with customers for
money. Id at 159. A.H. then testified that she performed 10 to 15 "dates" per day exchanging
money for sexual intercourse. Id at 168. A.H. further testified that if she did not feel like doing a
"date" on a certain day, she could not refuse and knew there would be consequences for such a
refusal. Id at 171. Therefore, the Appellant recruited A.H. for the purpose of prostitution and
required her to perform sexual acts in exchange for money.
The trial court found that A.H. worked as a prostitute for the Appellant and his
organization while under the age of 18. Forcing a child to work as a prostitute "would offend the
common sense of the community and the sense of decency, propriety and morality, which most
31
people entertain." Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. I 989). The trial
court found there was sufficient evidence that the Appellant did traffic the minor, A.H.
Accordingly, there was sufficient evidence to conclude that exposure to such a lifestyle would
tend to corrupt a minor. Therefore, there was sufficient evidence to convict the Appellant of
Corruption of a Minor.
h. Simple Assault
The Appellant next contends that the evidence was insufficient to sustain his conviction
for simple assault. Pursuant to 18 Pa.C.S.A. § 2701, a person "is guilty of assault ifhe: (1)
attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another." I 8
Pa.C.S.A. § 270l(a). Bodily injury is defined as "[i]mpairment of physical condition or
substantial pain." 18 Pa. C.S .A. § 230 I. A person acts intentionally with respect to a material
element of an offense when "it is his conscious object to engage in conduct of that nature or to
cause such a result." 18 Pa.C.S.A. § 302(b)(l)(i). As intent is a subjective frame of mind, it "is of
necessity difficult of direct proof." See Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa.
2005). Intent can be proven by "direct or circumstantial evidence; it may inferred from acts or
conduct or from the attendant circumstances." Id.Here, the evidence is more than sufficient to sustain the Appellant's conviction for
Simple Assault. It was well within the province of the factfinder to conclude the Appellant
intended to cause bodily injury to the victim. The victim, M.S., testified at length about the
multiple times that she was beaten at the hands of the Appellant. M.S. testified that on one
occasion, on her birthday, the Appellant found the victim after she had not returned to her room
and took her into the bathroom and punch the "shit out of me in my rib or like whatever ... Like,
I got beat up." N.T. 06/28/2016 at 83-84. The victim testified at length about receiving "punches
32
to the ribs" called "ribshots," from the Appellant and received "ribshots" on the evening of her
birthday. Id. M.S. then testified to another occasion after trying to leave the Appellant where she
was beat up by "G" and it was extremely painful. Id at 91. In perhaps the most chilling episode,
M.S. testified that she was attacked by the Appellant and three other persons in a room at the
Roosevelt Inn in Philadelphia so severely that she suffered blows to the head, broken ribs,
labored breathing, and severe bruising. Id at 92-94. The response by the Appellant and his
cohorts was to supply M.S. with heroin and have her perform four "dates." Id at 95. Another
victim, A.H., testified to being in a hotel room directly above M.S. and the Appellant and hearing
through the floor M.S. scream as the Appellant assaulted her. Id at 174-75.
The Appellant testified in his own defense and stated during cross-examination that "I
smacked [M.S.]," and that he smacked her a "couple of times" with an open hand and with
enough force to give the victim a black eye. N.T. 06/29/2016 at 177-78, 180. There is little room
for doubt that the Appellant intended to cause substantial pain to the victim through his action of
striking M.S. in the face and upper torso. During closing argument, defense counsel stated to the
simple assault charge that the defense had "no argument." Id at 219. The testimony of victims,
the admission by the Appellant of assaulting M.S. and all other relevant factors lead to a
conclusion that the evidence is beyond sufficient to prove beyond a reasonable doubt that the
Appellant is guilty of simple assault.
i. Trafficking of Persons
Next, the Appellant argues that the Commonwealth's evidence was insufficient to prove
the elements of Counts Fifteen and Sixteen, Trafficking of Persons. The trial court first notes that
the Appellant was convicted under the previous Pennsylvania human trafficking statute. The
Appellant was convicted of two separate counts under this statute. The first conviction is a first
33
degree felony under§ 3002(b) because one victim was under age 18. The second conviction is a
second degree felony because the victim was not a minor. The former 18 Pa.C.S.A. § 3002
defined trafficking of persons as:
§ 3002. Trafficking of persons.
(a) Offense defined.-- A person commits an offense if the person
knowingly traffics or knowingly attempts to traffic another person,
knowing that the other person will be subjected to forced labor or
services.
(b) Grading.>- An offense under subsection (a) shall be graded a felony of
the second degree unless the other person suffers bodily injury or the other
person is an individual under 18 years of age, in which case it shall be
graded as a felony of the first degree.
18 Pa.C.S.A. § 3002. Under this Section, traffic is defined as "recruits, entices, harbors,
transports or provides or obtains by any means." 18 Pa.C.S.A § 3001. Additionally, under this
Section, forced labor has been defined as:
Labor or services that are performed or provided by another person which
are obtained or maintained when a person:
(1) attempts to cause, causes or by threat of physical menace puts
another person in fear of bodily injury;
(2) physically restrains or threatens to physically restrain another
person unlawfully;
(3) abuses or threatens to abuse the law or legal process;
(4) possesses except as required by Federal immigration law or
regulation, destroys, conceals, removes or confiscates any actual or
purported passport or other immigration document of another
person, or any other actual or purported government identification
document of another person;
(5) engages in criminal coercion of another person.
18 Pa.C.S.A. § 3001. Therefore, for conviction, the Crimes Code requires the Commonwealth to
prove: (1) that the Appellant "did traffic or knowingly attempt to traffic another person;" and (2)
that the Appellant "knew that the other person would be subjected to forced labor or services."
The trial court first heard extensive testimony from an expert witness, Detective Derrick
Stigerts, a member of the FBI Crimes Against Children Task Force. The expert witness cast
34
considerable light upon the methods employed by traffickers to recruit and maintain control over
vulnerable girls for the singular purpose of employing the victims as sex workers. Detective
Stigerts stated that traffickers will recruit victims, and often minors, from "places where
runaways are in an attempt to recruit them." N.T. 6/28/2016 at 31. The recruiting starts with the
the traffickers "talking to the girls and trying to find out what the vulnerabilities are of the
women and girls. And by vulnerabilities, I mean anything from they're runaways, they don't
have a place to stay, to they don't have any family structure." Id. After the trafficker has
identified the vulnerability, the trafficker "preys[s] on the vulnerabilities. They provide those
things for the victim for the victims that they're actually recruiting." Id. The testimony from
Detective Stigerts provided a frame of reference for the behavior that is commonplace among
human traffickers and is conduct that matches that of the Appellant.
1. Minor Victim - A.H.
The Appellant contends that there was insufficient evidence presented by the
Commonwealth at trial to sustain the conviction for Trafficking of Persons - Minor. The trial
court disagrees. A thorough review of the record establishes that sufficient evidence was
presented to meet the necessary thresholds to sustain the Appellant's conviction.
a. Element One - Did Knowingly Traffic
The first element in trafficking of persons requires the Commonwealth to prove beyond a
reasonable doubt that the defendant did knowingly or attempted to traffic another person. By
definition, a person traffics another when a person recruits, entices, harbors or transports another.
Here, the Appellant and Cromwell, while operating a vehicle, approached A.H. on Kensington
Avenue and asked her to get into their car. N.T. 6/28/2016 at 147. A.H. was asked which drugs
she used and upon informing the two that she used cocaine, she got into the car and was
35
transported to the Ramada Inn on Roosevelt Boulevard. Id at 148. The Appellant and Cromwell,
after telling A.H. they had a place for her to stay, took her into a room filled with multiple girls
where A.H. "realized what they had going on there" and the girls were "prostituting." Id at 150-
51. Thus, the first element required for proving trafficking is sufficiently proven through the
Appellant's recruitment and enticing of A.H. through offering her narcotics, offering her a place
to stay knowing that she was homeless and would accept his offer. Likewise, the Appellant
further trafficked A.H. because he transported A.H. initially to the Ramada Inn for the explicit
purpose of A.H. becoming a prostitute.
The second instance in which �he record sufficiently demonstrates the Appellant
trafficked A.H. within the scope of this Section comes through his conduct after the discovery of
her minor status. In that instance, the Appellant told A.H. to "pack up [her] stuff and [the
Appellant] was going to let [A.H.] stay at his wife's house for a couple days." N.T. 06/28/2016 at
182. After a few days at the Appellant's home, A.H. was picked up from the residence and
driven back to a hotel by both Cromwell and the Appellant. N.T. 06/28/2016 at 184. At that time,
the Appellant did not tell A.H. to stop performing work as a prostitute. Id at 195. The Appellant
did not attempt to contact A.H. 's parents or otherwise intervene. The only likely conclusion to be
drawn from the Appellant transporting A.H. back to a hotel, after she had spent the several
previous months living and working as a prostitute in hotels, is that A.H. would continue to
support herself by means of prostitution for Cromwell and the Appellant. Therefore, the
Appellant transported - and trafficked - A.H. from his home on Tackawanna Street in
Philadelphia to a motel for the purpose of being subjected to forced labor.
b, Element Two -Trafficked Knowing Other Person Would Be Subjected to
Forced Labor
36
The second element in trafficking of persons requires the Commonwealth to prove
beyond a reasonable doubt that the defendant trafficked the person knowing the other person
would be subject to forced labor. Forced labor, in relevant part here, is defined as labor or
services that are performed or provided by another person which are obtained or maintained
when a person: ( 1) attempts to cause, causes or by threat of physical menace puts another person
in fear of bodily injury. 18 Pa.C.S.A. § 3001. The trial court will first address A.H.'s fear of the
Appellant and the result this had in her conduct and forced labor. As a secondary matter, given
the Appellant was convicted of conspiracy to traffic persons, and his co-conspirator Elton
Cromwell pled guilty to the charge, the trial court will address the second element within a frame
of one conspirator's conduct in furtherance of the conspiracy being attributable to co-
conspirators. Under either theory, there is sufficient evidence to prove beyond a reasonable doubt
that the Appellant trafficked A.H. knowing she would be subject to forced labor.
Forced labor results when a person attempts to cause, causes or threatens physical harm
to another person to obtain or maintain services from that other person. One of the hallmarks of
forced labor under§ 3002 is whether the fear of physical harm induces the service. The service
she was forced to perform included sexual intercourse for money, also called "dates." A date is
the actual act of prostitution between the customer and the prostitute. N.T. 6/28/2016 at 26. A.H.
testified at trial that she was "afraid" of the Appellant because he was more intimidating than
Cromwell or the others because "he was more violent towards the girls that worked for him." Id
at 180. Under this logic, if A.H. did work for the Appellant, then he would not be violent towards
her nor would she have reason to fear violence from the Appellant. A.H. stated that she saw the
Appellant at the hotel "every day, every couple of days." Id at 173. During this time, A.H.
testified that she was witness to the Appellant's acts of violence towards the other girls on
37
numerous occasions. Id. One such incident that A.H. heard was the beating of one victim, M.S.,
through the ceiling of her hotel room who was in the room directly above with the Appellant.
A.H. heard screaming from M.S. and an elevated voice from the Appellant and later saw M.S.
being helped walking to a car by several men. Id at 176. A.H. testified that she was the subject of
violence at the hands of Elton Cromwell, an individual who worked as a "puppet" for the
Appellant. N.T. 6/28/2016 at 180; N.T. 6/29/2016 at 19-20. A.H. further testified that if she did
not feel like doing a "date" on a certain day, she could not refuse and knew there would be
consequences for such a refusal. Id at 171. The fact A.H. could not refuse a "date" only further
illustrates that she felt compelled, or forced, to perform labor within the meaning of the statute.
Therefore, there was sufficient evidence presented at trial to prove that the Appellant personally,
and as a co-conspirator, trafficked a minor person.
2. Adult Victim - M.S.
The Appellant next contends that there was insufficient evidence presented at trial to
prove his guilt beyond a reasonable doubt for Trafficking of Persons. For reasons that follow,
there was more than sufficient evidence presented to demonstrate that the Appellant did
knowingly traffic a person and trafficked such person knowing the victim, M.S., would be
subjected to forced labor.
a. Element One - Did Knowingly Traffic
The first element in trafficking of persons requires the Commonwealth to prove beyond a
reasonable doubt that the defendant did knowingly or attempted to traffic another person. By
definition, a person traffics another when a person recruits, entices, harbors or transports another.
Here, there was sufficient evidence presented at trial to demonstrate the Appellant did knowingly
traffic the adult victim, M.S., within the meaning of the statute. The first method through which
38
he trafficked the adult victim, M.S., was through his enticement of controlled substances. M.S.
testified that during a Greyhound bus trip from Pittsburgh to Philadelphia she encountered a girl
named "Star" who told her that she should come with her because M. S.' s destination was unsafe,
according to an assessment by Star. N.T. 6/28/2016 at 54-55. Star brought M.S. to a row-home in
Philadelphia that was occupied by five or six other girls and the Appellant. Id at 56-57. M.S.
flatly told The Appellant that she was addicted to crack cocaine. Id at 59. It was during this first
encounter with the Appellant that he provided her free crack cocaine and offered her the
opportunity to work for him doing "dates" and have a constant supply for controlled substances.
Id at 57-59, 62. The Appellant recruited M.S. to provide sexual services through the internet,
enticed her with the promise of drugs and harbored M.S. by paying for hotel rooms in which
M.S. would stay during her employment with the Appellant. The Appellant preyed upon the
vulnerability of a young woman's drug addiction for his financial interest and treated her
accordingly.
The second manner in which the Appellant trafficked a person within the statutory
meaning of the first element required for conviction is through the Appellant's passage of M.S.
to his brother, Jason Guerra. Under this Section, trafficking of a person includes "providing" any
person to another person for the purpose of forced labor. 18 Pa.C.S.A. § 3001. The victim, M.S.,
testified at trial that Jason Guerra was "having problems like where he was living and, like
needed help, and that was the solution." N.T. 6/28/2016 at 89. M.S. testified that the Appellant
essentially stated to his brother that Jason should "come up here [Philadelphia] and I'll show you
how to do this and like, you can get some money." Id. M.S. further testified that her
understanding of why she was going with Jason Guerra was simply to make money for Jason
39
Guerra. Id. The Appellant had every intention of teaching his brother, Jason, how to make money
through prostituting vulnerable women, and his first victim was M.S.
b. Element Two - Trafficked Knowing Other Person Would Be Subjected to
Forced Labor
The second element the Commonwealth is required to prove to support a conviction for
Trafficking of Persons is that a defendant trafficked a person knowing the other person would be
subject to forced labor. Forced labor results when a person attempts to cause, causes or threatens
physical harm to another person to obtain or maintain services from that other person. One of the
hallmarks of forced labor under § 3002 is whether the fear of physical harm induces the service.
18 Pa.C.S.A. § 3001. At trial, there was more than sufficient evidence to conclude beyond a
reasonable doubt that the Appellant trafficked victim M.S. with the knowledge that she would be
subject to forced labor; with much of that forced labor originating from the Appellant himself.
The record is littered with instances in which M.S. was subject to forced labor. As an
initial matter, the trial court is swayed by the testimony given by M.S. regarding the violence she
endured at the hands of the Appellant. M.S. testified that she was the victim of a beating by four
persons - led by the Appellant - that saw her suffer broken ribs. N.T. 6/28/2016 at 94. After
asking members of the group to be brought to a hospital for medical attention, M.S. was
informed she "had to do four dates before anything." Id. The victim, after having just been
beaten by a group of four individuals, is forced to perform sexual services with four customers
before being granted the ability to seek medical help. M.S. described another occasion during
which she was chased through a hotel room by the Appellant wielding an extension cord and
when caught she was forcibly anally raped by the Appellant. Id at 86-87. On yet another
occasion, M.S. testified that after the Appellant found her in a hotel hallway, after not being able
to locate her because she was hiding, began beating her in one hotel room and proceeded to a
40
second hotel room where she was beaten in that room's bathroom. Id at 81-83. There appears to
be no shortage of conduct by the Appellant that would qualify as actual bodily injury required
under the definition of forced labor.
However, the trial court also notes the inability of M.S. to freely leave the Appellant.
M.S. testified directly that she did not think she could leave him. N.T. 6/28/2016 at 88. On one
particular occasion, M.S. recounted how she had attempted to leave the Appellant and went to
"another room ... farther down on Roosevelt Boulevard ... And like, he came and [the
Appellant] came and got me and I got beat up." Id at 90. M.S. testified that she often received
ribshots - punches to the upper torso area - from the Appellant to maintain compliance with his
wishes. Id at 84. The reason that M.S. cites for these "ribshots" is that she "may or may not have
like disappeared or like tried to leave and like go to another hotel or something." Id. M.S. was in
constant fear that the Appellant would come and find her during the times she attempted to leave.
Id. The trial court believes the fear M.S. experienced, along with her various failed efforts to
leave, qualify as forced labor. Therefore, the evidence submitted at trial was more than sufficient
to prove the required elements of Trafficking of Persons beyond a reasonable doubt.
3. Adult Victim -T.W.
The Appellant contends that there was insufficient evidence presented at trial to prove his
guilt beyond a reasonable doubt for Trafficking of Persons. The trial court has addressed the
sufficiency of the evidence for one adult victim, M.S. However, in an abundance of caution, the
trial court will also address the Trafficking of Persons claim at it relates to a second adult victim
that testified at trial, T.W. For reasons that follow, there was more than sufficient evidence
presented to demonstrate that the Appellant did knowingly traffic T. W. and trafficked such
person knowing the victim, T.W., would be subjected to forced labor.
41
a. Element One - Did Knowingly Traffic
The first element in trafficking of persons requires the Commonwealth to prove beyond a
reasonable doubt that the defendant did knowingly or attempted to traffic another person. By
definition, a person traffics another when a person recruits, entices, harbors or transports another.
Here, there was sufficient evidence presented at trial to demonstrate the Appellant did knowingly
traffic the adult victim, T.W., within the meaning of the statute. T.W. testified that in June, 2008
she ran into Eddie Mendez at a Target in the City of Philadelphia, at which time Mendez invited
T.W. to get into his car and visit a hotel with him. N.T. 6/29/2016 at 6-7. On the way to the hotel,
Mendez stopped the car and picked up the Appellant who both traveled with T. W. to the
Roosevelt Inn on the Roosevelt Boulevard. Id at 8. Upon entering the hotel room, T.W. saw
other girls in the room and was almost immediately propositioned to begin prostituting. Id. the
Appellant personally informed T.W. about the prices she was to charge for her services and that
T.W. was to "check in with either [the Appellant] or Eddie" each time a customer arrived and
left. Id at 10. The Appellant gave T. W. a phone to receive calls for sexual services - from
Craigslist - and stated that the Appellant posted the advertisements on Craigslist for her. Id at 12,
14. T. W. further testified that the Appellant would pay for hotel rooms and stay in the hotel
rooms with the victims. Id at 15.
The second method in which T.W. was trafficked was, similar to M.S., through her
eventual transfer by the Appellant to work for Jason Guerra. T. W. testified that although she was
not present for the conversation between the Appellant and Jason Guerra, some arrangement had
been made at the hotel by the airport that provided for her transfer to Jason Guerra. Id at 23. This
testimony is consistent with the version provided by M.S. during her testimony about M.S.'s own
transfer to Jason Guerra. The instructions that T.W. received from Jason Guerra were duplicative
42
of those by the Appellant: that "the same rules that apply with [the Appellant] apply with me." Id
at 25. These rules would include how much to charge customers for sexual services, how to
handle money and the requirement to check in with Jason Guerra. Therefore, T.W., was
recruited, enticed and transferred within the meaning of "trafficked" to satisfy the first element
beyond a reasonable doubt.
b. Element Two -Trafficked Knowing Other Person Would Be Subjected to
Forced Labor
The second element the Commonwealth is required to prove to support a conviction for
Trafficking of Persons is that a defendant trafficked a person knowing the other person would be
subject to forced labor. Forced labor results when a person attempts to cause, causes or threatens
physical harm to another person to obtain or maintain services from that other person. One of the
hallmarks of forced labor under § 3002 is whether the fear of physical harm induces the service.
18 Pa.C.S.A. § 3001. At trial, there was more than sufficient evidence to conclude beyond a
reasonable doubt that the Appellant trafficked victim T.W. with the knowledge that she would be
subject to forced labor; with much of that forced labor originating from the Appellant himself.
T.W. testified that on one occasion, after she had gone to work for his brother, the
Appellant severely beat her. T.W. stated that she "had [the Appellant's] handprints bruised on
the side of my face. J still have a cracked rib to this day. [The Appellant] would punch on me,
slap me, whatever he felt like doing at the time." N.T. 6/29/2016 at 28. The Appellant had
slapped T.W. with such force that "he left his fingerprints bruised to the side of [her] face." Id at
30. T.W. testified that the Appellant assaulted her on another occasion when she tried to leave
working for him. Id. T.W. had bruises that were visible around her ribs, experienced painful
breathing and had a lump visible from these assaults. Id at 29. Perhaps most tellingly, T.W.
stated that she "wasn't allowed" to seek any medical treatment for these injuries. Id. T. W. further
43
testified that Mendez and the Appellant would not allow T.W. to take days off from working. Id
at 19. T.W. also testified she was the victim of assaults from Mendez, a lower member of the
Guerra organization. Id at 28. Summarily, T.W. stated that she stayed because "you either lose
your life or stay. I'm not willing to lose my life." Id at 47. The Appellant indoctrinated into his
victims an intense fear for the consequences of leaving or non-compliance through actual and
physical harm. This fear and pattern of physical assaults more than meets the required definition
of forced labor. Therefore, there is sufficient evidence in the record to demonstrate the
Commonwealth proved the second element, that T.W. was trafficked knowing she would be
subjected to forced labor, beyond a reasonable doubt.
4. Conclusion
Here, the Commonwealth was required to prove two elements beyond a reasonable doubt
to secure a conviction for Trafficking of Persons: (1) that the defendant did knowingly traffic or
attempted to traffic another person; and (2) that a defendant trafficked a person knowing the
other person would be subject to forced labor. The Commonwealth brought two charges against
the Appellant for Trafficking of Persons; the first for trafficking a minor and the other for
trafficking an adult. More than sufficient evidence has been presented that the Appellant
recruited the minor, A.H., and enticed her within the meaning of "knowingly traffic" required in
the first element. The record also supports that the Appellant trafficked A.H. knowing that she
would be subjected to forced labor. The Commonwealth also presented sufficient evidence that
the Appellant trafficked both adults, M.S. and T.W., within the meaning of the statute. The
Commonwealth also presented sufficient evidence that the Appellant trafficked both M.S. and
T.W. knowing that both would be subject to forced labor. Therefore, the trial court believes that
44
sufficient evidence supports the convictions on both counts and that the Commonwealth proved
all required elements beyond a reasonable doubt.
j. Unlawful Contact with a Minor - Sexual Abuse
The Appellant next contends that the evidence presented at trial is insufficient to sustain
his conviction for Unlawful Contact with a Minor- Sexual Abuse in violation of 18 Pa.C.S.A. §
6318(a)(5). The offense of Unlawful Contact with a Minor is defined in the Crimes Code as:
§ 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:
(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse
of children).
18 Pa.C.S.A. § 6318(a)(5). The grading under subsection (b) of§ 6318 provides that a violation
of subsection (a) is: (1) an offense of the same grade and degree as the most serious underlying
offense in subsection (a) for which the defendant contacted the minor; or (2) a felony of the third
degree. The underlying charge rises out of§ 6312( c) - Sexual Abuse of Children through
dissemination of photographs, videotapes, computer depictions and films. However, our
Supreme Court has held that § 6318 does not require that a defendant be convicted of the
substantive offense for which he contacted the minor, let alone be charged with it.
Commonwealth v. Reed, 9 A.3d I 138, I 146 (Pa. 2010).
Although the Commonwealth need not prove the substantive offense, a brief discussion
of the underlying offense remains useful. The underlying charge for the Appellant was sexual
abuse of children under 18 Pa.C.S.A. § 6312(c). This subsection, in relevant part, states that:
any person who knowingly sells, delivers, disseminates, transfers, displays, or
exhibits to others, or who possesses for the purpose of sale, distribution, delivery,
45
transfer, display or exhibition any book, magazine, pamphlet, slide, photograph,
film, videotape, computer depiction or other material depicting a child under the
age of 18 years engaging in a prohibited sexual act or in the simulation of such act
commits an offense.
18 Pa.C.S.A. § 6312( c ). Under subsection (g) of Section 6312, a prohibited sexual act is defined
as sexual intercourse as defined in section 3101, masturbation, sadism, masochism, bestiality,
fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the
purpose of sexual stimulation or gratification of any person who might view such depiction. 18
Pa.C.S.A. § 6312(g). Therefore, a conviction may result under§ 6312(c) if a person knowingly
disseminates, transfer or displays any photograph or computer depiction of a child under 18
years of age engaged in the lewd exhibition of the genitals or nudity if the nudity is depicted for
the purpose of sexual stimulation of any person who might view such depiction.
The Appellant is charged with unlawful contact with a minor with sexual abuse of a child
as the substantive charge. Under Section 6318, a person commits an offense if he is intentionally
in contact with a minor for the purpose of engaging in the dissemination or transfer of any
photograph or computer depiction of a person under 18 years of age engaged in the lewd
exhibition of the genitals or nudity if the nudity is depicted for the purpose of sexual stimulation
of any person who might view such depiction.
Here, the Appellant and a group of others, by way of their relationship to each other,
agreed to commit a crime, and with shared intent, committed over acts in furtherance of the
conspiracy to traffic a minor person, promote prostitution and, by the nature of their business,
had unlawful with a minor. The Appellant may be held accountable under a theory of accomplice
liability or as a co-conspirator.
46
There was sufficient evidence in the record to support the Appellant's conviction for
unlawful contact with a minor under a theory of accomplice liability or as a co-conspirator.
Regarding accomplice liability, the Crimes Code states:
Liability for conduct of another; complicity
(a) General rule.-A person is guilty of an offense if it is committed by his own
conduct or by the conduct of another person for which he is legally accountable,
or both.
(b) Conduct of another.-A person is legally accountable for the conduct of
another person when:
(1) acting with the kind of culpability that is sufficient for the commission
of the offense, he causes an innocent or irresponsible person to engage in
such conduct;
(2) he is made accountable for the conduct of such other person by this
title or by the law defining the offense; or
(3) he is an accomplice of such other person in the commission of the
offense.
( c) Accomplice defined.-A person is an accomplice of another person in the
commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the
offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning
or committing it; or
(2) his conduct is expressly declared by law to establish his complicity.
(d) Culpability of accomplice.-When causing a particular result is an element of
an offense, an accomplice in the conduct causing such result is an accomplice in
the commission of that offense, if he acts with the kind of culpability, if any, with
respect to that result that is sufficient for the commission of the offense.
18 Pa.C.S.A. § 306. The evidence in this case, viewed in a light most favorable to the
Commonwealth as the verdict-winner, demonstrates the Appellant's active participation in the
contacting and recruitment of A.H., aiding and agreeing to aid Elton Cromwell in posting
advertisements of A.H. to solicit customers. The Appellant aided in the commission of the
offense through providing computers, transportation, and hotel rooms that permitted Cromwell to
commit the offense.
47
The Appellant is also liable as a co-conspirator. Accomplice liability and conspiracy are
not one and the same crime. Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa. Super.
2005). Conspiracy requires proof of an additional factor which accomplice liability does not: the
existence of an agreement. Commonwealth v. Murphy, 795 A.2d 1025 (Pa. Super. 2002). To
sustain a conviction for criminal conspiracy, the Commonwealth must establish that: (1) the
defendant entered into an agreement to commit or aid in an unlawful act with another person or
persons; (2) he did so with a shared criminal intent; and (3) an overt act was done in furtherance
of the conspiracy. Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). However,
an "explicit or formal agreement to commit the crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost invariably extracted from the circumstances
that attend its activities." Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008).
Circumstantial evidence may provide proof of the conspiracy. Commonwealth v. Greene, 702
A.2d 547, 554 (Pa. Super. 1997). The conduct of the parties and the circumstances surrounding
such conduct may create a web of evidence linking the accused to the alleged conspiracy. Id.Additionally, in respect to the overt act, it need "not be committed by the defendant; it
need only be committed by a co-conspirator." Commonwealth v. Hennigan, 753 A.2d 245, 253
(Pa. Super. 2000). The intent required for criminal conspiracy is "identical to that required for
accomplice liability. In both crimes a defendant must act with the intent of promoting or
facilitating the offense." Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa. Super. 2002).
The trial court will briefly revisit the existence of a conspiracy as it relates to this charge.
At trial, the Appellant was emphatic in his assertion that the minor, A.H., did not work for him.
He went through extreme lengths to distance himself from any activity that included A.H.
However, the trial court "while passing upon the credibility of witnesses and the weight of the
48
evidence produced, is free to believe all, part or none of the evidence." Commonwealth v.
Tejada, 107 A.3d 788, 792-93 (Pa. Super. 2015). The trial court heard from the investigating
officer of the Pennsylvania State Police that the "heads of corrupt organizations always attempt
to insulate themselves from their underlings ... because they don't want to be implicated as the
ring leader." N.T. 6/29/2016 at 101. During his testimony after discovering A.H. was a minor,
the Appellant stated that Cromwell "don't [sic] have no money" to get a hotel room for A.H. or
do anything with her. Id at 194. A.H. testified that the Appellant always had one or two hotel
rooms at any given time. N.T. 6/28/2016 at 164. Accordingly, the trial court found that the
Appellant was responsible for providing the hotel room after discovering her minor status that
allowed for the continued sexual abuse of a child and unlawful contact with a minor.
Regarding speci fie details of the transmission of the computer depictions of a minor there
is little doubt that such images were posted. Through all the denials of his involvement with
A.H., the trial court found salient one detail that the Appellant perhaps let slip during his
testimony. Regarding A.H., the Appellant unequivocally states that "she used my computer."
N .T. 6/29/2016 at 171. Trooper Peterson provided a forensic computer report at trial that
documented the retrieval of the Craigslist advertisements for erotic services and pictures of A.H.
used in the advertisements. Id at 62-64. There is no question that A.H. was under the age of 18 at
the time these postings were made to Craigslist. Id. A.H. testified that one picture was taken, by
Cromwell, at the Roosevelt Inn while she worked for Cromwell and the Appellant. N.T.
6/28/2016 at 191. The purpose of the pictures was to draw interest in A.H. from potential
customers, therefore such pictures would have been "the lewd exhibition of the genitals or nudity
if the nudity is depicted for the purpose of sexual stimulation of any person," as required under §
6312(c).
49
The "web of evidence" points to the existence of a conspiracy headed by the Appellant.
There is a chain of money that goes: (1) from a customer to the victims after a sexual encounter
in exchange for money; (2) from the victims to a driver or the person assigned to watch them; (3)
from the drivers or persons assigned to watch the victims to the Appellant. N.T. 6/28/2016 at
204. There is a common thread in which the victims, in only the first of several methods of
control, are supplied narcotics by the Appellant. M.S. testified that she witnessed the Appellant
giving narcotics to Cromwell for distribution to the victims. Id at 75-75. A.H. testified that it was
the Appellant's decision whether to continue to allow her working for the organization. There
was testimony that the Appellant brought Cromwell, Eddie Mendez and Dwayne Thomas into
the organization to help it expand. N.T. 6/28/2016 at 73. There exists in the record an explicit
reference that one victim, M.S., heard an agreement being made between Cromwell and the
Appellant regarding the criminal enterprise. Id at 124. Therefore, given the existence of a
conspiracy, the Appellant is responsible for the acts of his co-conspirators that further the
conspiracy. The unlawful contact with a minor charge is strongly supported with evidence
throughout the record that supports the Appellant is responsible both as a member of the
conspiracy and under accomplice liability. Therefore, there was sufficient evidence to support
the Appellant's conviction for Unlawful Contact with a Minor - Sexual Abuse.
II. Weight of the Evidence Claim -The verdicts were not against the weight of the
evidence.
In his second principle point of appeal, the Appellant claims that the verdict was against
the weight of the evidence. Pennsylvania Rule of Criminal Procedure 607 states that a "claim
that the verdict was against the weight of the evidence shall be raised with the trial judge in a
motion for new trial" in a written or oral motion before the court prior to sentencing, or in a post-
sentence motion. Pa.R.Crim.P. 607(a)(l-3). The comment to Rule 607 establishes that the
so
"purpose of this rule is to make it clear that a challenge to the weight of the evidence must be
raised with the trial judge or it will be waived." Pa.R.Crim.P. 607, comment. The failure to
challenge the weight of the evidence presented at trial in an oral or written motion prior to
sentencing or in a post-sentence motion will result in the waiver of the claim. Commonwealth v.
Bond, 985 A.2d 810, 820 (Pa. 2009). The Appellant filed a timely post-sentence motion and
raised claims that verdicts were against the weight of the evidence. However, the Appellant in
his post-sentence motion raised only claims that the verdicts for Trafficking of Persons (a Minor)
and Corrupt Organizations were against the weight of the evidence. Therefore, pursuant to
Pa.R.Crim.P. 607, the Appellant is deemed to have waived any weight of the evidence claims for
the other remaining convictions.
In reviewing a weight of the evidence claim, the appellate court focuses solely on
whether the trial court abused its discretion; it does not consider the underlying question of
whether the verdict itself was against the weight of the evidence. Commonwealth v. Widmer, 744
A.2d 745, 751 (Pa. 2000). The essence of appellate review for a weight claim appears to lie in
ensuring that the "trial court's decision has record support. Where the record adequately supports
the trial court, the trial court has acted within the limits of its discretion." Commonwealth v.
Clay, 64 A.3d 1049, 1054- 55 (Pa. 2013). Because the trial judge "has had the opportunity to
hear and see the evidence presented, an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing a trial court's determination
that the verdict is against the weight of the evidence. Commonweal!h v. Johnson, 910 A.2d 60(Pa. 2006). Rather, the role of the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice. Widmer, 744 A.2d at 745.
51
A weight claim actually concedes sufficiency of the evidence, as the appellate court is to
focus only on quality of the trial court's discretion. See Widmer, 744 A.2d at 751. Therefore, the
"test is not whether the court would have decided the case in the same way, but whether the
verdict is so contrary to the evidence as to make the award of a new trial imperative so that right
may be given another opportunity to prevail." Commonwealth v. Whiteman, 485 A.2d 459, 462
(Pa. 1984). The evidence must be "so tenuous, vague and uncertain that the verdict shocks the
conscience of the court." Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
Accordingly, in order to reverse a trial court's ruling on a weight of the evidence claim, it "must
determine that the verdict is so contrary to the evidence as to 'shock one's sense of justice."'
Commonweallh v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006).
a. Trafficking of Persons (Minor)
The Appellant first contends that his conviction for Trafficking of Persons - Minor was
against the weight of the evidence. However, there was ample support in the record to
demonstrate that the Appellant was properly convicted of 18 Pa. C.S .A. § 3002 and does not
shock one's sense of justice. The Appellant contended in his post-sentence motion that the
evidence was "not of sufficient weight to convict for Trafficking of Persons (a Minor) since the
minor testified that Petitioner was not her pimp and did not engage in any trafficking or
profiteering from said minor." Def. Post-Sent'g Mot. 4. The Appellant appears to conflate the
standard of review for weight of the evidence claims with that of sufficiency of the evidence.
The trial court previously addressed the sufficiency of the evidence for the Appellant's
Trafficking of Persons (Minor) conviction. However, in the interest of justice, the trial court
will address the weight of the evidence claim as it relates to the Trafficking of Persons (Minor)
conviction. Given that weight of the evidence claims are reviewed under an abuse of discretion
52
standard, the trial court does not believe that it abused its discretion in finding there was ample
support in the record to support the Appellant's conviction under 18 Pa.C.S.A. § 3002.
Under the Trafficking of Persons statute, the Commonwealth must prove: (1) that the
Appellant "did traffic or knowingly attempt to traffic another person;" and (2) that he "knew
that the other person would be subjected to forced labor or services." The record supports that
the Appellant did knowingly traffic another person. Traffic is defined as "recruits, entices,
harbors, transports or provides or obtains by any means." 18 Pa.C.S.A § 3001. The Appellant
and Cromwell, while operating a vehicle, approached A.H. on Kensington Avenue and asked
her to get into their car. N.T. 6/28/2016 at 147. A.H. was asked which drugs she used and upon
informing the two that she used cocaine, she got into the car was transported to the Ramada Inn
on Roosevelt Boulevard. Id at 148. The Appellant and Cromwell, after telling A.H. they had a
place for her to stay, took her into a room filled with multiple girls where A.H. "realized what
they had going on there" and the girls were "prostituting." Id at 150-51.
The second instance in which the Appellant "trafficked" A.H. is through his
transportation of A.H. from his home, after her true age was discovered, back to the hotel to
continue engaging in acts of prostitution. After finding out that she was a minor, the Appellant
told A.H. to "pack up [her] stuff and [the Appellant] was going to let [A.H.] stay at his wife's
house for a couple days." N.T. 06/28/2016 at 182. After a few days at the Appellant's home,
A.H. was picked up from the residence and driven back to a hotel by both Cromwell and the
Appellant. N.T. 06/28/2016 at 184. At that time, the Appellant did not tell A.H. to stop
performing work as a prostitute. Id at 195. There was direct testimony from witness T.W. that
after the Appellant brought her back to the hotel that she continued working as a prostitute for
the organization lead by the Appellant. N.T. 6/29/2016 at 22. Thus, the first element required
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for proving trafficking is sufficiently through the Appellant's recruitment and enticing of A.H.
through offering her narcotics, offering her a place to stay knowing that she was homeless and
would accept his offer.
The second element requires the Commonwealth to demonstrate that the Appellant knew
the person would be subject to forced labor. Forced labor is defined as services that are
performed or provided by another person which are obtained or maintained when a person: ( 1)
attempts to cause, causes or by threat of physical menace puts another person in fear of bodily
injury. 18 Pa.C.S.A. § 3001. A.H. testified at trial that she was "afraid" of the Appellant
because he was more intimidating than Cromwell or the others because "he was more violent
towards the girls that worked for him." N .T. 6/28/2016 at 180. The Appellant was found to be
the leader of the prostitution organization that included Eddie Mendez, Dwayne Thomas and
Elton Cromwell. Even if the Appellant himself did not commit acts of violence upon A.H., the
statute only requires that the Appellant have trafficked the minor knowing that she would be
subject to forced labor. A.H. never received money back from the sexual services she provided.
Id at 166. A.H. was the victim of violence at the hands of Cromwell. Id at 171- 72. A.H. further
testified that if she did not feel like doing a "date" on a certain day, she could not refuse and
knew there would be consequences for such a refusal. Id at 1 71. The second requiring that the
Appellant have knowledge A.H. would be subjected to forced labor is satisfied because the
Appellant, as head of the organization, knew the methods employed by those working for him
to gain compliance by victims through force and engaged in such conduct himself.
Here, the trial court heard extensive testimony about how the Appellant recruited, enticed
and transported girls. This meets the first requirement that the Appellant traffic the victim. The
trial court then heard testimony about how the Appellant ran his organization through both
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threats of violence and acts of violence. A.H. was frightened of the Appellant, and was
subjected to forced labor at the Appellant's hands and the acts of others in the organization.
There are numerous instances in the record which support both the Appellant trafficking the
minor and trafficking her with knowledge that she would be subject to forced labor. Despite the
Appellant's assertion in his post-trial motion, there is no requirement that the Commonwealth
present evidence of profits for conviction under the statute. Because there is ample support in
the record to support the conviction, the verdict does not "shock one's sense of justice."
Therefore, the trial court did not abuse its discretion in finding that the verdict was not against
the weight of the evidence.
b. Corrupt Organizations
The Appellant next contends that his conviction for Corrupt Organizations was against
the weight of the evidence. However, there was ample support in the record presented to
demonstrate that the Appellant was properly convicted of section 911 (b )( 1) of the Corrupt
Organizations Act and his conviction does not "shock one's sense of justice." In his post-
sentence motion, the Appellant argues his conviction for Corrupt Organizations was against the
"weight of the evidence because there were no details of necessary conspiracy, profits, and so
forth necessary to establish such a conviction." Def. Post-Sent'g Mot. 4. For reasons that follow,
the Appellant's conviction for Corrupt Organizations was not against the weight of the evidence.
As an initial matter, the Appellant claims in his post-sentence motion that his conviction
for Corrupt Organizations was against the weight of the evidence because there were no details
of a necessary conspiracy. After close reading of the subsection under which the Appellant was
convicted, 18 Pa.C.S.A. § 911 (b )(1 ), the trial court does not believe the Commonwealth was
required to prove a conspiracy as an element for conviction under 91 l(b)(l). Rather, the Corrupt
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Organizations Act lists the conspiracy to commit any offense set forth in subparagraphs (i), (ii),
and (v) of§ 91 l(h) as "racketeering activity" within the meaning of the Corrupt Organizations
Act. 18 Pa.C.S.A. § 91 l(h)(l)(iii). Thus, conspiracy is only one possible offense that may be
considered in determining whether a defendant engaged in "racketeering activity." This alone
does not make it an element of the crime. The Corrupt Organizations Act, in one element of the
crime, requires the finding beyond a reasonable doubt that a defendant engaged in a "pattern of
racketeering activity." As discussed at length previously, a "pattern of racketeering activity" is
two or more offenses laid out in§ 91 l(h)(l). The two offenses under§ 91 l(h)(l) through which
the trial court found the Appellant to have engaged in a "pattern of racketeering activity" are the
trafficking of persons(§ 91 l(h)(l)(i)) and the possession with intent to distribute a controlled
substance (§ 911 (h)(l )(ii)). Therefore, despite the Appellant having been convicted of
conspiracy, the Commonwealth was not required to prove the existence of a conspiracy for the
Corrupt Organizations charge.
The trial court disagrees with the Appellant that there was no discussion of profits
throughout his trial. Again recalling that one of the underlying "racketeering activities'' is the
trafficking of persons, here, the trial court will solely explore the trafficking of persons above the
age of 18 ( despite the Appellant having been convicted of trafficking both adults and a minor).
There was a network of victims that the Appellant trafficked and forced into labor. The trial
court heard testimony that there were perhaps as many as eight victims working for the
Appellant. N.T. 6/29/2016 at 215. The trial court heard testimony from two victims, that were
adults at the time they were trafficked by the Appellant, that stated they each earned upwards of
$1,000 per day from performing dates. N.T. 6/28/2016 at 69; N.T. 6/29/2016 at 19. The victims
also unequivocally stated that they attempted to leave multiple times, were found and brought
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back after physical assaults by the Appellant. N.T. 6/28/2016 at 96; N.T. 6/29/2016 at 28.
Detective Derrick Stigerts, the Commonwealth expert, testified that trafficking victims never
keep the money earned from their services. N.T. 6/282016 at 37.
The other avenue through which the Appellant drew a profit was from his distribution of
narcotics. The Appellant stated that around the time of the charged events he sold both crack
cocaine and heroin. N.T. 06/29/2018 at 184. The Appellant admitted that he "started picking
[narcotics] up in large quantities so that it would be cheaper." Id. The Appellant then testified he
would purchase approximately $500 worth of heroin at a time, break it down and sell to the girls
and make a profit. Id at 185-86. The Appellant also testified that he would purchase
approximately $100 of crack cocaine for distribution amongst the girls he had in his employ. Id
at 186. However, there is a contradiction in the Appellant's testimony because he later testified
that he sold M.S. $500, and not the $100 amount previously stated, worth of crack cocaine per
day. Id at 191. The trial court believes that the Appellant's own admission to making a profit
through the "racketeering activity" of distributing a controlled substance negates any inference
that profits were never discussed during the trial.
Last, the trial court heard testimony from an expert witness about the structure of such
organizations. The Commonwealth's expert witness, Detective Stigerts, explained that traffickers
command obedience through force and that there is a family structure within the organization.
N.T. 6/28/2016 at 31, 38. The trial court heard testimony from the investigating officer that the
Appellant was the principal of the organization involving Elton Cromwell, Eddie Mendez and
Dwayne Thomas. N.T. 6/292016 at 101-103. The trial court heard testimony from victims that
Mendez, Thomas and Cromwell, all members of the organization, took orders from the
Appellant. N.T. 6/28/2016 at 71, 196; N.T. 6/29/2016 at 56. There was testimony that these
57
members of the organization would collect the money from the victims. N.T. 6/28/2016 at 79-80.
There was also extensive testimony that members of the organization, and the conspiracy, were
receiving narcotics from the Appellant for distribution and "all the money is filtering back in." Id
at 73. This testimony indicates that there was an "enterprise" as required within the statute.
Here, the trial court heard extensive testimony how: (1) the Appellant received income
from a "pattern of racketeering activity; (2) the existence of an "enterprise" within the meaning
of the Corrupt Organizations Act; and (3) the Appellant used the income received from the
"pattern of racketeering" in the establishment or operation of the enterprise. The trial court's
decision had more than sufficient support within the record. The evidence presented at trial, and
the Appellant's conviction for Corrupt Organizations, does not shock one's sense of justice.
Therefore, the trial court did not err in finding the verdict was not against the weight of the
evidence.
III. Unreasonable Sentence Claim -The trial court did not err in denying the
Appellant's Motion to Reconsider Sentence and gave a reasonable sentence.
The Appellant was found guilty on eleven counts and sentenced to a total term of 37 to
74 years confinement. For his conviction of Possession of with Intent to Deliver (35 Pa.C.S.A. §
780-113(a)(30)), the Appellant was sentenced to one to two years confinement. For his
conviction on Corrupt Organization (18 Pa.C.S.A. § 91 l(b)(l)), a felony of the first degree, the
Appellant was sentenced to three years and six months to seven years confinement. For his
conviction of Criminal Conspiracy (18 Pa.C.S.A. § 903), a felony of the first degree, the
Appellant was sentenced to nine years to eighteen years confinement. For his conviction of
Sexual Exploitation of Children (18 Pa.C.S.A. § 6320), a felony of the second degree, the
Appellant was sentenced to five years to ten years incarceration. For his conviction of Criminal
Use of a Communication Facility (18 Pa.C.S.A. § 7512(a)), a felony of the third degree, the
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Appellant was sentenced one year to two years confinement. For his conviction of Promoting
Prostitution (18 Pa.C.S.A. § 5902(b)(l)), a felony of the third degree, the Appellant was
sentenced to one year and six months to three years confinement. For his conviction of
Corruption of Minors (18 Pa.C.S.A. § 630l(a)(l)(i)), a misdemeanor of the first degree, the
Appellant was sentenced to one year to two years confinement. For his conviction of Simple
Assault (18 Pa.C.S.A. § 2701(a)), a misdemeanor of the second degree, the Appellant received a
sentence of one to two years confinement. For his conviction on Trafficking of Persons - Minor
(18 Pa.C.S.A. §3002), a felony of the first degree, the Appellant was sentenced to nine years and
six months to nineteen years confinement. For his conviction of Trafficking of Persons (18
Pa.C.S.A. § 3002), a felony of the second degree, the Appellant received a sentence of five to ten
years confinement. For his conviction of Unlawful Contact with a Minor (18 Pa.C.S.A. §
63 l 8(a)(5)), a felony of the third degree, the Appellant was sentenced to a term of two years and
six months to 5 years confinement. The sentencing court ordered all sentences run consecutively
with the exception of the PWID sentence; Simple Assault sentence; Corruption of Minors
sentence; and Criminal Use of a Communication Facility sentence, which were all to run
concurrently with the first degree felony Trafficking of Persons-Minor (9.5 to 18 years)
sentence.
Through the Sentencing Code, the General Assembly enacted the process by which
defendants are to be sentenced. In making a determination of the appropriate sentence for a
defendant, the Sentencing Code offers general standards which require the trial court to impose a
sentence that is "consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the rehabilitative needs
of the defendant." 42. Pa.C.S. § 972l(b). The appellate court shall vacate the sentence and
59
remand the case to the sentencing court with instructions if it finds: "the sentencing court
sentenced outside the sentencing guidelines and the sentence is unreasonable. In all other cases
the appellate court shall affirm the sentence imposed by the sentencing court." Commonwealth v.
Walls, 926 A.2d 957, 963 (Pa. Super. 2007). The sentencing court "is in the best position to
determine the proper penalty for a particular offense based upon an evaluation of the individual
circumstances before it." Commonwealth v. Jones, 613 A.2d 1242, 1243 (Pa. 1990). The
sentencing court enjoys an institutional advantage to appellate review "bringing to its decisions
an expertise, experience, and judgment that should not be lightly disturbed." See Walls, 926 A.2d
at 961.
In reviewing Appellant's sentencing claim, this court has determined that the sentence
was sound, reasonable, and within the proper legal discretion of the court. In making an inquiry
into the "unreasonableness" of a sentence, the General Assembly has set forth factors that an
appellate court is to consider: (1) The nature and circumstances of the offense and the history and
characteristics of the defendants; (2) the opportunity of the sentencing court to observe the
defendant, including any presentence investigation; (3) the findings upon which the sentence was
based; and (4) the guidelines promulgated by the commission. Commonwealth v. Walls, 926
A.2d 957, 963 (Pa. Super. 2007). When reviewing these factors, the court will not be found to
have abused its discretion unless the record can show the judgment imposed was "manifestly
unreasonable" or the result of prejudice, bias, or ill-will. Commonwealth v. Hermanson, 674
A.2d 281 (Pa. 1996).
Also, in evaluating a claim of this type, an appellate court must remember that the
sentencing guidelines are merely advisory, and the sentencing court may sentence a defendant
outside of the guidelines so long as it places its reasons for the deviation on the record. See
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Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 200,2). Our Supreme Court has
indicated that "if the sentencing court proffers reasons indicating that its decision to depart from
the guidelines is not unreasonable, we must affirm a sentence that falls outside those
guidelines." Commonwealth v. Davis, 737 A.2d 792, 798 (Pa. Super. 1999). The sentencing court
"is not required to parrot the words of the Sentencing Code, stating every factor that must be
considered under Section 972l(b)." Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super.
2008). Here, the sentencing court stated on the record the reasons for its departure from the
guidelines. The sentencing court noted how the Appellant preyed upon, and essentially held
captive, the most vulnerable in our society. The sentencing court also stated:
Before I sentence you, I want to put on the record, as the law requires me to do,
why I'm going to impose upon you an aggravated sentence ... I find you have
been the head of that organization, which ran over several years ... where you
preyed upon what I would call "damaged young women" who had drug
addictions, who were runaways ... The fact that one victim was actually a minor
just aggravates the circumstances even more, but the women I heard testify, you
could hear the pain in their voice, and they will never be the same again ... Your
prior record, the fact I find you to be a danger to the community, the fact you fled
and was a fugitive for four years. When I look at this case, I find absolutely
nothing to mitigate, but everything to aggravate your sentence that I'm going to
impose upon you.
N.T. 5/4/2017 at 28-29. The sentencing court stated specifically on the record its reasons for
aggravating the Appellant's sentence. Additionally, with respect to consecutive versus
concurrent sentences, long standing precedent of our appellate courts recognizes that 42
Pa.C.S.A. § 9271 "affords the sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to sentences already
imposed." See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010). It
should also be noted that the defendant is not entitled to a "volume discount" for his or her
crimes. See Commonwealth v. Hoag, 665 A.2d 1212, 1215 (Pa. Super. 1995). Therefore, with
61
sufficient reasons for departure from the guidelines placed on the record, the sentencing court did
not abuse its discretion in its departure from the guidelines or imposition of consecutive
sentences for the Appellant.
The Appellant contends that the sentencing court erred in failing to address the norms of
sentencing, deviates from the guidelines, imposes multiple statutory maximum sentences, and is
an effective life sentence without proper justification on the record. More specifically, in his
post-sentence motion, the Appellant states the sentencing court did not justify its sentence
because a lower/guideline sentence or concurrent sentence would protect the public and would
serve the Appellant's needs. The Appellant presented at sentencing with a prior record score of
5; the Appellant had prior convictions for felony possession of crack cocaine; hindering
apprehension or prosecution; felony drug possession (cocaine); unlawful possession of a
handgun; and a prostitution charge. In the instant case, given the plethora of charges of which the
Appellant was convicted, and the offense gravity scores of those offenses which ranged from 4
(Corruption of a Minor) through 12 (Trafficking of Persons - Minor and Criminal Conspiracy to
Traffic Persons - Minor), the sentences imposed by this court were reasonable.
The sentencing court disagrees with the defense contention that the court did not address
the norms of sentencing. The court specifically stated that the sentences requested by the
Commonwealth were "well beyond even the aggravated range of the guidelines. So, I want you
to give me some clarity on why you think the guidelines call for almost ten years, you asked for
twenty on some of these charges." N.T. 5/04/2017 at 14. The sentencing court stated on the
record an acknowledgement of the sentencing norms through the guidelines and requested
further statements from the Commonwealth on why the sentences should be aggravated.
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A sentencing court has broad latitude to inquire into the personal character and
circumstances of the defendant. Commonwealth v. Riggins, 453 A.2d 140 (Pa. 1977). In
particular, a sentencing court may properly consider a defendant's potential for rehabilitation.
Commonwealth v. Kostka, 379 A.2d 884 (Pa. 1977). One factor in gauging a defendant's
potential for rehabilitation is his or her manifestation of social conscience and responsibility
through contrition, repentance and cooperation with law enforcement agencies. Roberts v. United
States, 445 U.S. 552 (1980); Commonwealth v. Gallagher, 442 A.2d 820 (Pa. 1982). The
sentencing court found the Appellant lacked personal characteristics that would make him
suitable for rehabilitation. For instance, the court was forced to admonish the Appellant for
laughing during the testimony of one Commonwealth witness. The trial court had to interrupt
testimony and state "Counsel, I would direct your client not to laugh during the course of
testimony." N.T. 6/28/2016 104. The simple fact that the Appellant found anything elicited
during testimony as humorous resonates as nothing short of chilling.
Speaking to the sentencing court's needs to protect the public, the sentencing court does
not believe a lower or guideline sentence or concurrent sentences would sufficiently protect the
public. One reason the Appellant fails to make a suitable candidate for rehabilitation and remains
a threat to community safety is due to his flight from justice after becoming aware of the charges
stemming from this case. The Appellant alleges that he became aware of these charges at some
point during 2012. N.T. 6/29/2016 at 204. After he became aware of these charges, the Appellant
actively avoided the police and moved throughout different jurisdictions including Philadelphia,
New York City and New Jersey. Id at 205. The Appellant then admits, upon his return to
Philadelphia, in order to support himself he "sold drugs" and once again worked as a pimp. Id at
206. Here, the court was presented with a defendant who became a fugitive from justice for four
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years, moved throughout multiple jurisdictions-and then engages in the same conduct that
produced these charges. The sentencing court reasonably believed that the Appellant was beyond
rehabilitation and posed a continued threat to community safety.
One of the enumerated factors in § 9721 (b) to be considered during sentencing is "the
gravity of the offense as it relates to the impact on the life of the victim and on the community."
42. Pa.C.S. § 972l(b). The sentencing court heard extensive testimony about the impact of the
offense as it relates to the impact on the victims and on the community. Perhaps the most notable
aspect of the Appellant's offenses is his predation upon those who are most vulnerable within
our community. The sentencing court was afforded a presentence report and also underwent an
evaluation to consider whether the Appellant was a Sexually Violent Predator ("SVP"). When a
sentencing judge had the benefit of a presentence report, it will be presumed that he was aware of
relevant information regarding defendant's character and weighed those considerations along
with mitigating statutory factors. See Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super.
1995). Although the SVP analysis did not conclude the Appellant qualified as a sexually violent
predator, it did reinforce the extreme level of dangerousness that the Appellant posed. This is
reflected in two ways: first, through the manner in which he treated his victims; and second, how
he exploited victims and the risk to the community through these methods.
The sentencing court would be remiss if it did not at least consider the nature of the
offense itself. Although not the only factor considered in crafting his sentence, the egregious
nature of the conduct also reflects upon the Appellant's potential for rehabilitation. The
Appellant preyed upon, what the court at sentencing described as, "damaged young women, who
had drug addictions, who were runaways, [and] lured them into what they believed was ...
somebody was trying to help them." N.T. 5/4/2017 at 29. The Appellant "locked them in hotel
64
rooms, fed them drugs, had lines out the door for men to come in and have sex with them. They
were not allowed to leave. They were threatened that if they left, that you were going to inflict
bodily injury upon them." Id. The Appellant had full knowledge that many of the victims had
substance abuse problems and exploited this knowledge through limiting their access and supply
to narcotics. The victims did not feel safe during their time under the Appellant and were
exposed to physical assaults and rape. The sentencing court found that "the abuse [the Appellant]
inflicted upon these women was just beyond [] imagination." Id at 28. The sentencing court
determined that the Appellant forever changed the lives of his victims and posed a continuing
threat to society at large. Id at 29.
Therefore, there is sufficient evidence in the record to support that the sentencing court
provided an individualized sentencing that took into account the rehabilitative needs of the
defendant. Accordingly, the sentence imposed was fair, impartial, and absent of any bias. This
judgment was made in accordance with the applicable guidelines and with careful consideration
of all the factors to be considered under Pennsylvania law.
IV. Witness Testimony -The trial court properly admitted evidence from the
investigating officer that was rationally based upon his perception.
The Appellant next asserts the trial court erred in permitting the investigating officer to
testify to his opinion that the Appellant was the head of a corrupt organization and thereby
deprived the Appellant of a fair trial. The admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing that the trial court clearly abused its
discretion. See Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super. 2015). Accordingly, a
ruling admitting evidence "will not be disturbed on appeal unless that ruling reflects manifest
65
unreasonableness, or partiality, bias, or ill-will, or such lack of support to be clearly erroneous."
Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013).
Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook, 952
A.2d 594, 612 (Pa. 2008). Evidence is considered relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808 A.2d
893, 904 (Pa. 2002). The Pennsylvania Rules of Evidence state that any evidence that is not
relevant is not admissible. Pa.RE. 402. In addition, the court may exclude relevant evidence if
its "probative value is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence." Pa.RE. 403.
Pennsylvania Rule of Evidence 701 addresses the admission of opinion testimony by lay
witnesses and provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Pa.R.E. 701. Generally, lay witnesses may express personal opinions related to their observations
on a range of subject areas based on their personal experiences that are helpful to the factfinder.
See Commonwealth v. Davies, 811 A.2d 600, 602 (Pa. Super. 2002). Further, pursuant to
Pennsylvania Rule of Evidence 104(a), the trial court exercises its discretion to determine
whether such a lay opinion is helpful to the factfinder, which is the touchstone of its
admissibility. See Pa.R.E. 104(a); Lewis v. Mellor, 393 A.2d 941, 948-49 (Pa. Super. 1978).
66
Lay witnesses are permitted to give testimony in the form of their opinions or inferences
that are rationally based on their perception. For example, in Commonwealth v. Blessitt, 852
A.2d 1215 (Pa. Super. 2004 ), a Pennsylvania State Police trooper performed an undercover drug
purchase from a defendant and handed the defendant a marked twenty-dollar bill. The
undercover trooper radioed ahead to a marked patrol vehicle which subsequently stopped the
defendant and, upon arrival on the scene, the undercover trooper was not able to locate the
marked bill used in the transaction. On cross-examination, defense counsel raised questions
about whether suspects always have the marked bill on their person at the time of arrest. On
redirect examination, the prosecutor asked the trooper his opinion as to what happened to the
marked $20 bill, to which the trooper offered that it was probably handed off to another
individual. The Superior Court found the trial court had not abused its discretion in permitting
the admission of this testimony because the trooper's testimony was limited to expressing an
opinion that was rationally based upon his perception. See Blessitt, 852 A.2d at 1218.
Here, the trial court did not abuse its discretion in permitting the investigating officer to
testify to his opinion that the Appellant was the head of a corrupt organization. The
Commonwealth stated that the trooper was "not being offered as an expert." N.T. 06/29/2016 at
99. Similar to the officer in Blessitt, Trooper Peterson expressed only an opinion that was
rationally based on his perception. Having investigated this case for "years," the trooper was
uniquely qualified to offer his rational perception about the case. Id at 68. Trooper Peterson's
testimony about the Appellant's position within the organization did not prejudice the Appellant.
Under Rule 401, the evidence being offered - whether the Appellant was the head of the
conspiracy - offered the tendency to make the fact more or less probable and the fact is of
consequence in determining the action. Under the Rule 403 balancing test, the trial court does
67
not believe unfair prejudice to the Appellant outweighed the probative value of the relevant
evidence.
Courts are not required to sanitize the trial to eliminate all unpleasant facts from a fact-
finder's consideration when those facts are relevant to the issues at hand and form part of the
history and natural development of the events and offenses for which the defendant is charged.
See Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014). Rather, the testimony of
Trooper Peterson shed light upon the history and natural development of the events and offenses
for which the Appellant was charged - trafficking of persons, conspiracy, sexual exploitation of
children and corrupt organizations among several others. Therefore, the trial court properly
admitted the testimony of Trooper Peterson in giving his opinion that was rationally based upon
his perception.
V. Witness Testimony - The trial court properly admitted evidence involving an
alleged threat Elton Cromwell because a connective link to the Appellant was
established.
The Appellant next asserts the trial court erred in allowing testimony elicited by the
Commonwealth involving an alleged threat by Elton Cromwell against a witness testifying
against the Appellant without establishing any connective link to the Appellant. The standard of
review relative to the admission of evidence is for an abuse of discretion. Commonwealth v.
Cain, 29 A.3d 3 (Pa. Super. 2011). For reasons that follow, the trial court did not err in allowing
testimony involving an alleged threat by Elton Cromwell against a witness.
Pennsylvania Rule of Evidence 801(c) defines hearsay as a statement, other than one
made by a declarant while testifying at a trial or hearing, offered to prove the matter asserted in
the statement. Statement is further defined by this Rule as either an oral or written assertion.
Pa.R.E. 801(a). Thus, a statement is hearsay when it is a "statement, other than one made by the
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declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter
asserted." See Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005). However, statements
which are not admitted for the truth of the matter asserted, but for some other purpose, do not
qualify as hearsay and are freely admissible. Commonwealth v. Cassidy, 462 A.2d 270, 272 (Pa.
Super. 1983). The admission of extrajudicial statements to demonstrate the existence of a
conspiracy is one such non-hearsay purpose. See Cassidy, 462 A.2d at 272.
There are also several exceptions to the hearsay rule. For instance, Pa.R.E. 803(25)(e)
permits the use of statements of co-conspirators which were made during the course of the
conspiracy as an admission of that party. Because Pa.R.E. 803(25)(e) is based upon the
principles of agency, a statement of one co-conspirator is considered as an admission made by all
conspirators. See Commonwealth v. Johnson, 838 A.2d 663, 675 (Pa. 2003). The Pennsylvania
Superior Court has articulated the requisite standard for admitting a co-conspirator's hearsay
statement as follows:
To lay a foundation for the co-conspirator exception to the hearsay rule, the
Commonwealth must prove that: (1) a conspiracy existed between declarant and
the person against whom the evidence is offered and (2) the statement sought to
be admitted was made during the course of the conspiracy. In addition, there must
be evidence other than the statement of the co-conspirator to prove that a
conspiracy existed. Commonwealth v. Basile, 458 A.2d 587 (1983).
The order of proof is within the discretion of the lower court, which may, upon
only slight evidence of the conspiracy, admit such statements subject to later
proof of the conspiracy. Commonwealth v. Plusquellic, 449 A.2d 47 (Pa. Super.
1982).
Commonwealth v. Kersten, 482 A.2d 600, 603 (Pa. Super. 1984 ). The trial court need only slight
evidence of a conspiracy's existence for such testimony to become admissible. Given the
extensive prior discussion finding a conspiracy existed between the Appellant and Elton
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Cromwell, the only question factor remaining which permits the admission of such testimony is
whether the statement was made during the course of the conspiracy.
Our Supreme Court affirmed its approval of the use of evidence of a co-conspirator's
attempt to conceal evidence after the commission of a crime, finding that such acts "c[a]me
within the scope of the conspiracy to commit the crime." Commonwealth v. Evans, 413 A.2d
1025, l 028 (Pa. 1980). In doing so, the Evans court directed the following test be followed:
The duration of a conspiracy depends upon the facts of the particular case, that is,
it depends upon the scope of the agreement entered into by its members.
Generally, the conspiracy ends when its principal objective is accomplished
because no agreement to retain secrecy after the achievement of the unlawful end
can be shown or implied by mere "acts of covering up." Thus in Grunewald v.
United States, 353 U.S. 391 at 402, the Supreme Court stated, "Acts of covering
up, even though done in the context of a mutually understood need for secrecy,
cannot themselves constitute proof that concealment of the crime after its
commission was part of the initial agreement among the conspirators." But the
fact that the "central objective" of the conspiracy has been nominally attained
does not preclude the continuance of the conspiracy. Where there is evidence that
the conspirators originally agreed to take certain steps after the principal objective
of the conspiracy was reached, or evidence from which such agreement may
reasonably be inferred, the conspiracy may be found to continue. Atkins v. United
States, 307 F.2d 937, 940 (9th Cir. 1962).
Evans, 412 A.2d at 1028-29. The duration of the conspiracy, and whether the conspiracy endured
at the time statements were made depend upon the specific facts of the case. Other statutory
factors that may be considered in weighing the duration of the conspiracy include whether the
crime or crimes which are its object are committed or there is abandonment by the conspirators.
18 Pa.C.S.A. § 903(g).
Presently, the testimony in dispute arises from answers given by witness A.H. about
threats made Elton Cromwell. A.H. states that Cromwell attempted to contact her through her
parents. N.T. 6/28/2016 at 207. A.H. further testified that Cromwell showed up to her parents'
home located in Bucks County. Id at 145, 207. A.H. was not present at her parents' home when
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Cromwell attempted to visit, but A.H. testified that she was "scared" when she found out
Cromwell had showed up at parents' home and that she did not "know why he would do that." Id
at 207. Mr. Cromwell had never previously spoken with A.H.'s parents. Id at 208. A.H. also
further testified that Cromwell had a cellular phone while jailed in Baltimore, Maryland and
would call her cell phone from his cell phone while in jail. Id.
Here, the Appellant made several statements that could impute the conspiracy still existed
with Cromwell even after the Appellant was arrested. He was charged in the present case in
2010. The Appellant testified that he became aware of the charges from this case sometime in
2012. N.T. 6/29/2016 at 204. However, the Appellant admitted that after he became aware of the
charges, the Appellant still had spoken with Cromwell first on the phone and then received him
as a visitor into his home in the months before his 2014 arrest. Id. The Appellant then further
admitted that after fleeing the jurisdiction upon learning of the charges in 2012, that he returned
to Philadelphia and supported himself by "sell[ing] drugs" and was once again "working as a
pimp" and had "somebody working with [him]." Id at 206. The Commonwealth diligently sought
confirmation asking "Working with you or for you?" to which the Appellant asserted "With me."
Id. Further, the Appellant admitted that while incarcerated awaiting resolution of these charges,
he spoke with victim M.S. on the prison telephone and suggested she seek out Cromwell to help
her with problems she was having in renting a room. Id at 210. The record supports the
conclusion that the Appellant was still operating a prostitution ring with a partner after the
charges were filed, had been in contact with Cromwell before his arrest, and suggested M.S.
resolve a problem using Cromwell while incarcerated.
There is no evidence to suggest the conspiracy formed between the Appellant and Mr.
Cromwell had ever ceased. The scope of the original conspiracy was formed with the intention of
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running a prostitution ring in the Philadelphia area. Although a conspiracy ends when its
principal objective is achieved, there is no evidence in the record to support the Appellant's
conspiracy achieved its principal objective, thereby terminating the conspiracy. Rather, his
conduct of continuing a prostitution ring with an unnamed partner suggests the contrary. The
Appellant engaged in conduct that went beyond "mere acts of covering up." There was a
systematic method engaged by members of the conspiracy to avoid detection and allow the
conspiracy to endure. Such acts included telling the girls working for them to tell police they
worked by themselves if ever arrested.
In the alternative, the out-of-court statements made by Cromwell were not hearsay. When
an extrajudicial statement is offered for a purpose apart from proving the truth of its contents, it
is not hearsay and is not excluded under the hearsay rule. Commonwealth v. Darden, 457 A.2d
549, 551 (Pa. Super. Ct. 1983). The testimony elicited by the Commonwealth involving an
alleged threat by Elton Cromwell was not offered to prove the truth of the matter asserted, but
rather as circumstantial evidence of the existence of a conspiracy. "[O]ut-of-court statements of
conspirators are often admitted as circumstantial evidence of their participation in a conspiracy."
See Commonwealth v. Cassidy, 462 A.2d 270, 272 (Pa. Super. 1983) citing David F. Binder, The
Hearsay Handbook§ 5.2 (1982). The testimony concerning the alleged threat by Cromwell is not
being made to prove the truth of the matter asserted. The trial court did not abuse its discretion in
the admission of such testimony regarding alleged threats made by Cromwell. Additionally, the
Appellant did not suffer any prejudice from such admission because: (1) the testimony to prove
the existence of a conspiracy was cumulative in nature because other sufficient evidence was
admitted to establish such a conspiracy; and (2) all other properly admitted evidence of the
conspiracy was so overwhelming that the admission of this testimony regarding the threat by
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Cromwell could not have contributed to the verdict. Therefore, the trial court did not err in
permitting the testimony regarding a threat made by the Appellant's co-conspirator, Cromwell,
against a victim.
VI. Witness Testimony - The trial court properly admitted testimony from
Commonwealth witnesses M.S. and A.H.
In his final points of appeal, the Appellant contends that the trial court erred in the
admission of testimony from Commonwealth witnesses regarding uncharged conduct without
providing defense counsel prior Notice of Intent to Admit Prior Bad Acts pursuant to
Pennsylvania Rule of Evidence 404(b ). The Appellant makes this similar claim regarding the
testimony from two Commonwealth witnesses; although for differing reasons for each witness.
In the interest of judicial economy, the trial court will address both claims in one section. For
reasons that follow, the Commonwealth was not required to provide notice under Pa.R.E. 404(b).
The standard of review for claims of admissibility is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial court clearly abused its
discretion. Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). Admissibility depends
on relevance and probative value. Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact. Id. The accused is entitled to relief for an
erroneous ruling unless the court finds beyond a reasonable doubt that the error is harmless. See
Commonwealth v. Story, 3 83 A.2d 155 (Pa. 1978). The "harmless error doctrine, as adopted in
Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial."
Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa. Super. 2001. However,
It is well established that an error is harmless only if we are convinced beyond a
reasonable doubt that there is no reasonable possibility that the error could have
contributed to the verdict. The Commonwealth bears the burden of establishing
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the harmlessness of the error. This burden is satisfied when the Commonwealth is
able to show that: (1) the error did not prejudice the defendant or the prejudice
was de minimis,· or (2) the erroneously admitted evidence was merely cumulative
of other untainted evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial [ e ]ffect of the error so insignificant
by comparison that the error could not have contributed to the verdict.
Commonwealth v. Laich, 777 A.2d 1057, 1062-63 (Pa. 2001 ). A court sitting as trier of fact is
presumed to disregard inadmissible evidence and consider only relevant and competent evidence.
Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004). The Appellant was not harmed through
the admission of the testimony; however, even if such testimony were admitted in error, the
admission was harmless error and does not entitle the Appellant to relief.
As an initial matter, the Appellant argues that the testimony from M.S. regarding an anal
rape, breaking of ribs and a beating by four persons constituted prior bad acts which required
notice under Pennsylvania Rule of Evidence 404(b). N.T. 6//28/2016 at 141-42. The trial court
disagrees. Pennsylvania Rule of Evidence 404(b) prohibits admission of evidence of a "crime,
wrong, or other act ... to prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character." Pa.RE. 404(b)(l). Further,
Pennsylvania Rule of Evidence 404(b)(4) states that in criminal cases, the prosecution shall
"provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
Pa.R.E. 404(b)(4). The purpose of this rule "is to prevent unfair surprise, and to give the
defendant reasonable time to prepare an objection to, or ready a rebuttal for, such evidence."
Pa.R.E. 404(b ), cmt. However, there is no requirement that the "notice" must be formally given
or be in writing in order for the evidence to be admissible. See Commonwealth v. Mawhinney,
915 A.2d 107, 110 (Pa. Super. 2006).
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Review of the summary of the statement given by M.S. to the FBI on July 8, 2009 states
that M.S. "came back to [the Appellant]. Cromwell, B.O., and Dre held her down while [the
Appellant] beat her up. [The Appellant] messed up her face. Cromwell gave B.O. the okay to
rape [M.S.J." Def. D-1 at 5. This statement specifically references a beating by four persons and
a rape. A defendant has reasonable notice under Rule 404(b) when the Commonwealth has
provided the defendant with discovery containing evidence of the prior bad acts. See
Commonwealth v. Stallworth, 781 A.2d 110, 118, n.2 (Pa. 2001 ). The discovery containing the
evidence of prior bad acts, if such conduct is considered prior bad acts, was furnished to the
Appellant. Accordingly, the Appellant would be hard pressed to contend such material was never
provided during discovery because the FBI statement being referenced was submitted into
evidence by the defense itself N.T. 6/28/2016 at 140. Any inconsistencies between the submitted
FBI statement and the testimony of M.S. should have been borne out and addressed during cross-
examination. Therefore, a blanket statement that the Commonwealth failed to provide notice
regarding M.S. 's testimony is not persuasive.
The Appellant contends the trial court erred in the admission of testimony from both M.S.
and A.H. as to uncharged conduct without prior Notice of Intent to Admit Prior Bad Acts
pursuant to Rule of Evidence 404(b) and thereby deprived the Appellant of a fair trial. The
trial court does not believe that the testimony of M.S. regarding her anal rape and beatings by the
Appellant to qualify as "prior bad acts" within the meaning of Pa.R.E. 404(b )(2). Likewise, the
trial court does not believe that the Commonwealth was under a burden to produce such a notice
regarding the uncharged conduct of the rape because the conduct was not considered a "prior bad
act." When it became apparent to defense counsel that previous statements differed from the
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testimony presented at trial, regarding both M.S. and A.H, the proper remedy is to address such
deficiencies during cross-examination.
Pennsylvania courts have long permitted non-party witnesses, such as M.S. and A.H., to
be cross-examined on prior statements they have made when those statements contradict their in-
court testimony. These statements, known as prior inconsistent statements, are admissible for
impeachment purposes. Commonwealth v. Brady, 507 A.2d 66, 68 (Pa. 1986); Pa.R.E. 613(a).
Further, a prior inconsistent statement may be offered not only to impeach a witness, but also as
substantive evidence if the statement meets additional requirements of reliability.
Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992); Pa.RE. 803 .1. This test it a two-party
inquiry: (1) whether the statement is given under reliable circumstances; and (2) whether the
declarant is available for cross-examination. Commonwealth v. Brewington, 740 A.2d 247, 254
(Pa. Super. 1999). With respect to the first prong, that the statement is given under reliable
circumstances, our Supreme Court has deemed reliable only certain statements; a prior judicial
proceeding is one such circumstance. With respect to the second prong, the inconsistent
statement itself must be the subject of the cross-examination in order to satisfy the test.
Commonwealth v. Romero, 722 A.2d 1014, 1017 (Pa. 1999).
Regarding the first witness, M.H., the first prong of the test for reliability has been met.
M.H. gave a statement to the Federal Bureau oflnvestigation on July 8, 2009. This statement
was reduced to writing and effectively adopted by M.S. The FBI statement that was reduced to
writing did, in fact, actually mention a beating by four individuals and a rape. During trial, M.S.
testified about an anal rape that occurred, beating by four persons and injuries that she sustained.
The defense was provided the opportunity to cross-examine the witness about the inconsistencies
and did so during cross-examination. The inconsistent statement itself was the subject of cross-
76
examination when defense counsel asked whether M.S. "testified that [the Appellant] and four
other individuals punched you and broke your ribs, right?" and also "then [M.S.] testified that
my client forcibly anally raped you, right?" N.T. 6/28/2016 at 102. Therefore, both prongs of the
test were met and the Appellant had chance to cross-examine on prior statements.
Regarding the second witness, A.H., the first prong of the test for reliability has been met.
A.H. gave sworn testimony at the Appellant's preliminary hearing on October 21, 2014 in
Philadelphia Municipal Court. During trial, when defense counsel raised an objection to the
statement regarding sexual intercourse with his client stating that "this is the first time that this
has been mentioned." N. T. 6/28/2016 at 153. The Commonwealth explained that if defense
counsel "thinks that this particular witness didn't testify to this on the other occasions, or he
thinks that she didn't relay this during her previous statements, then those [are] questions that he
can ask her during cross-examination." Id. The trial court agreed with the Commonwealth and
overruled the objection. Id. However, despite a statement on the record advising defense counsel
to raise such questions during cross-examination, the defense failed to raise any questions to
A.H. about the sexual intercourse between her and the Appellant. The failure by defense counsel,
despite on-the-record direction on how to proceed, to raise such questions should not diminish
the reliability of the statement itself The failure to exercise the right to confrontation and
deprivation from the right to confrontation are two entirely distinguishable entities. Therefore,
the statement by A.H. should be considered reliable and considered as substantive evidence.
Finally, it is well established that to sustain a conviction the Commonwealth is required
to prove each element of a crime by relevant evidence beyond a reasonable doubt. See
Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976). Here, the Appellant was charged with two
counts of trafficking of persons - one first degree felony for trafficking a minor; the other a
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second degree felony for trafficking an adult. The previous statute, under which the Appellant is
charged, made it an offense for any person to traffic or knowingly attempts to traffic another
person, knowing that the other person will be subjected to forced labor or services. 18 Pa.C.S.A.
§ 3002. Forced labor, in relevant part under this Section, defines forced labor as labor or services
that are performed or provided by another person which are obtained or maintained when a
person: (1) attempts to cause, causes or by threat of physical menace puts another person in fear
of bodily injury; (2) physically restrains or threatens to physically restrain another person
unlawfully." 18 Pa.C.S.A. § 3001. The statute, by definition, as one of its elements has a
requirement that a person will be subjected to forced labor; which forced labor may come
through actual or threatened bodily injury. The trial court believes that such force, for instances
of trafficking in persons, is not limited to singular instances which would force debate
concerning whether conduct was within the scope of the offense. Rather all acts
contemporaneous to the Trafficking of Persons charge should be included under this umbrella
and not considered "prior bad acts."
The trial court does not believe the admitted testimony qualifies as prior bad acts that
would require such notice under 404(b)(3). Although not binding, this court believes Federal
Rule of Evidence 404(b) is instructive because Federal Rule 404(b) "does not extend to evidence
of acts which are 'intrinsic' to the charged offense." United States v. Cross, 308 F.3d 308, 320
(3d Cir. 2002) (quoting Advisory Committee Notes to Fed. R. Evid. 404(b)). When evidence is
intrinsic to proof of the crimes charged, "there is no other wrongful conduct at issue; the
evidence is admissible as part and parcel of the charged offense." Green, 617 F.3d at 245
(internal quotation marks omitted). Evidence is intrinsic if it directly proves the charged crime,
or if it is concerned with contemporaneous acts which facilitated the commission of a charged
78
offense. See Green, 617 F.3d at 248-49. Therefore, under the Federal rules, conduct that is
contemporaneous to the charged crime should not be excluded under Rule 404(b).
The trial court heard extensive testimony about the details of human trafficking through
Detective Derrick Stigerts, a Commonwealth witness. Detective Stigerts was asked about how
prostitutes are controlled by their traffickers, to which he stated that "the most prevalent
[method] that we see is the force, the fear, the violence to control the girls, to put some type of
fear in them to keep them working, to obey the pimp's rules, to keep doing what she's doing."
N.T. 6/28/2016 at 39. Detective Stigerts described how traffickers cultivate, or groom, the
victims of trafficking through developing a relationship with the victims in order to affect their
control. Simply stated, these acts, be it through violence or other means, to groom the victims of
trafficking are not isolated incidents limited in time or scope. These cumulative acts of violence
are designed to have the singular effect of controlling the behavior of trafficked girls. Like a
constellation in the starry skies, the many stars are brought together to form one singular
element. Here, the trial court believes the many separate acts of violence also constitute one
singular element: labor or services obtained through actual or threatened bodily injury.
Therefore, the trial court correctly held that such actions were not "prior bad acts" that required
notice under 404(b)(3).
The Appellant asserts that the trial court erred in permitting the admission of testimony
from Commonwealth witnesses M.S. and A.H. The admission of such testimony was not in error
because the uncharged conduct went to proving an element of the offense charged. The
Appellant was provided the necessary documents to prepare any rebuttal to such testimony at
trial. Further, the Appellant had full opportunity to cross-examine the witnesses about perceived
inconsistencies from the in-court testimony compared to previous statements. Likewise, if any
79
error had occurred in the admission of such testimony, the Commonwealth more than adequately
demonstrate such error was harmless because the Appellant was not prejudiced through such
evidence and proved the elements of the charged crimes beyond a reasonable doubt with the
other cumulative evidence. Therefore, the trial court did not err in the admission of such
testimony and the Appellant is not due relief from its admission.
CONCLUSION
The evidence presented at trial was sufficient to prove each element of every crime
charged by the Commonwealth beyond a reasonable doubt. Although there were numerous
charges, the pattern of conduct engaged by the Appellant made simple the task of recognizing the
required elements for each offense. Next, having waived his weight of the evidence claims for all
but two offenses, the trial court finds that the verdicts were not against the weight of the
evidence. The sentencing court did not abuse its discretion in imposing its sentence against
Appellant. The factual reasons for departure from the sentencing guidelines were placed on the
record and took into account all permissible factors. The trial court properly admitted the
testimony of the investigating officer regarding the Appellant's position within the organization
because it was rationally based upon his perception. The trial court properly permitted evidence
of a threat made by Elton Cromwell, a member of the conspiracy and corrupt organization.
Finally, the trial court properly admitted the testimony of two Commonwealth witnesses because
the defendant had prior notice of such conduct, had opportunity to cross-examine both witnesses
about such inconsistencies and the conduct was not considered "prior bad acts" that would
80
require such prior notice. Accordingly, the Trial Court respectfully requests that the sentence
imposed be affirmed on appeal.
\
SEAN F. KENNEDY, J.
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