Com. v. Chang, P. ( 2019 )

J-A04036-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
POK SUN CHANG :
:
Appellant : No. 248 EDA 2018
Appeal from the Judgment of Sentence November 8, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008605-2016
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 26, 2019
Pok Sun Chang appeals from the judgment of sentence, imposed in the
Court of Common Pleas of Philadelphia County, after being convicted,
following a bench trial, of promoting prostitution and conspiracy.1 For the
reasons set forth herein, we vacate Chang’s judgment of sentence.
On August 17, 2016, Chang was arrested by Philadelphia police at the
“Pink Spa,” located at 1207 Race Street in Philadelphia, and charged with the
aforementioned offenses.2 On November 21, 2016, Chang filed a motion to
suppress, challenging her arrest as violative of the Fourth Amendment of the
U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.
____________________________________________
1 18 Pa.C.S.A. §§ 5902(b)(1) and 903, respectively.
2 Chang was also initially charged with solicitation, 18 Pa.C.S.A. § 902. At a
hearing on October 27, 2016, the trial court granted Chang’s motion to quash
this charge.
* Retired Senior Judge assigned to the Superior Court.
J-A04036-19
The suppression court held a hearing on the motion to suppress on June 19,
2017, at the conclusion of which it denied relief.
Trial occurred on August 31, 2017. Philadelphia Police Officer James
Kearney testified that, on August 16 or 17, 2016, he visited the Backpage
website and saw an advertisement for massage services at the Pink Spa. N.T.
Trial, 8/31/17, at 9-12, 24. The advertisement included a phone number,
photographs of young Asian women in lingerie, and a photograph of a sign
that said “Pink, ring bell.” Id. at 12-14; Commonwealth Ex. C-1. Officer
Kearney testified that, based on his eleven years of experience working in the
vice unit on numerous prostitution investigations, he believed this
advertisement was for prostitution services. N.T. Trial, 8/31/17, at 8-9, 15.
Officer Kearney testified that he called the telephone number on the
online advertisement and spoke to a woman who informed him that no
appointment was necessary and he could come in anytime. Id. at 16. On
August 17, 2016, Officer Kearney went to the Pink Spa and rang a bell next
to the “Pink, ring bell” sign, which was identical to the sign in the
advertisement. Id. at 16-17. Chang opened the door and asked Officer
Kearney if he had ever been to the establishment before. Id. at 17. Officer
Kearney stated that he did not believe that he had previously been there, and
Chang then led Officer Kearney through the “living room area” towards a room
marked number 5. Id.
Officer Kearney testified that he then asked Chang “[h]ow much is it,”
without specifying any particular type of massage or other service. Id. at 17,
-2-
J-A04036-19
20. Chang responded $160. Id. at 17. Officer Kearney asked if he should
pay Chang, and Chang responded “no” and that he should give the money to
“the girl.” Id. at 18. Officer Kearney asked if there was more than one girl
to choose from, and Chang then presented him with two young women, Miss
An and Miss Kim.3 Id. Officer Kearney selected Miss An, who led him into
room number 5. Id.
Officer Kearney testified that, once inside the room, Miss An informed
him “it was $160” and told him to get undressed. Id. Officer Kearney paid
Miss An $160 and she then left the room for several minutes; when she
returned she asked Officer Kearney if he wanted a table shower. Id. Officer
Kearney responded in the affirmative. Id. Officer Kearney testified that Miss
An led him into the shower room, where she took off her lingerie top and gave
him a “full body shower head to toe.” Id. at 19. Officer Kearney testified that
once the shower was completed, she dried him off and led him back into room
number 5, where she told him to lay down on his stomach. Id. Miss An then
rubbed his back for several minutes before asking him to roll over. Id. At
this point, which was approximately 20 to 30 minutes into their interaction,
Officer Kearney asked Miss An “are we going to have sex now,” to which Miss
An responded yes. Id. at 19, 45. Officer Kearney then asked Miss An “[d]o I
have to give you any[ ]more money,” to which Miss An responded no. Id.
Officer Kearney then informed Miss An that he would need to use the
____________________________________________
3 Miss An and Miss Kim were not identified by their full names at trial.
-3-
J-A04036-19
bathroom, at which point he surreptitiously notified his backup officers to
enter the Pink Spa and arrest Chang and Miss An. Id. at 19, 46.
At the conclusion of trial, the trial court found Chang guilty of promoting
prostitution and conspiracy. On November 8, 2017, following a hearing, the
trial court sentenced Chang to five years of probation on the promoting
prostitution charge and no further penalty as to the conspiracy charge. Chang
filed a post-sentence motion, which the trial court denied on December 14,
2017. This timely appeal follows.4
Chang challenges the sufficiency of the evidence supporting her
convictions for promoting prostitution and conspiracy. Our standard of review
when considering a challenge to the sufficiency of the evidence is well-settled:
A claim challenging the sufficiency of the evidence presents a
question of law. We must determine “whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt.” We “must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and accept
as true all evidence and all reasonable inferences therefrom upon
which, if believed, the fact finder properly could have based its
verdict.”
Our Supreme Court has instructed: [T]he 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. Moreover, in
____________________________________________
4 The trial court did not request that Chang file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 20,
2018, the trial court informed this Court that the judge who presided over the
trial and sentencing was no longer a sitting judge and, therefore, no opinion
would be issued.
-4-
J-A04036-19
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
In addition, “[t]he Commonwealth may sustain its burden by
means of wholly circumstantial evidence, and we must evaluate
the entire trial record and consider all evidence received against
the defendant.”
Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa. Super. 2014), quoting
Commonwealth v. Williams, 73 A.3d 609, 617 (Pa. Super. 2013).
Chang was convicted of promoting prostitution and conspiracy. Section
5902(b)(1) of the Crimes Code provides:
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 . . . 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)(1). A “house of prostitution” is defined by the statute
as “[a]ny place where prostitution or promotion of prostitution is regularly
carried on by one person under the control, management or supervision of
another.” 18 Pa.C.S.A. § 5902(f) (emphasis added). While not defined in the
statute, this Court has previously characterized a “prostitution business” as
one that involves the payment of money in exchange for sexual stimulation.
See Commonwealth v. DeStefanis, 658 A.2d 416, 420 (Pa. Super. 1995)
(“[I]n order for there to be prostitution, there must not only be sexual activity
-5-
J-A04036-19
. . ., but a payment of money as well, in other words, “a prostitution
business.”).
Criminal conspiracy requires proof that a person: (1) entered into an
agreement to commit or aid in an unlawful act with another person or persons;
(2) with a shared criminal intent; and (3) that an overt act was done in
furtherance of the conspiracy. Commonwealth v. Johnson, 719 A.2d 778,
785 (Pa. Super. 1998) (en banc). A conspiracy may be established with
circumstantial evidence, such as the interaction between the parties and the
context of their actions. Commonwealth v. Bricker, 882 A.2d 1008, 1017
(Pa. Super. 2005). This Court has identified factors to be considered when
analyzing whether a conspiracy has been proven:
Among the circumstances which are relevant, but not sufficient by
themselves, to prove a corrupt confederation are: (1) an
association between alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene of the crime;
and (4) in some situations, participation in the object of the
conspiracy. The presence of such circumstances may furnish a
web of evidence linking an accused to an alleged conspiracy
beyond a reasonable doubt when viewed in conjunction with each
other and in the context in which they occurred.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)
(citations omitted).
Chang argues that the Commonwealth did not establish that prostitution
was “regularly carried on” at the Pink Spa such that it could be considered a
“house of prostitution” as defined in section 5902. Chang asserts that the
Commonwealth also failed to prove that there was a “prostitution business”
-6-
J-A04036-19
under the statute because any understanding between Miss An and Officer
Kearney that they would have sex was separate and apart from the service
purchased and ancillary to the actual business of the Pink Spa. Chang further
argues that the evidence showed that she was a low-level employee at the
Pink Spa rather than the owner or manager of the establishment.
In support of her claim, Chang relies on DeStefanis, supra, and
Commonwealth v. Blankenbiller, 524 A.2d 976 (Pa. Super. 1987). In
DeStefanis, a male undercover officer went to a fitness center and paid for a
body massage, at the conclusion of which the massage therapist asked him if
he wanted a “hand release,” which he understood to be a manual stimulation
of the genitals. DeStefanis, 658 A.2d at 417. The officer inquired as to the
price of a hand release and was informed that “a tip would be appreciated.”
Id. The same officer returned again and asked another therapist for other
sexual services and was informed that there was a house rule that only hand
releases were available. Id. Several months later, a female undercover
officer interviewed for a massage therapist position with DeStefanis, the
owner of the fitness center. Id. The female officer asked DeStefanis if “he
had a problem with” her performing a hand release during a massage, and
DeStefanis stated it was up to her if she wanted to make more money, but he
did not think “anybody’s doing that.” Id. at 417-18. DeStefanis also
reiterated numerous times during the interview that no sexual intercourse was
permitted and he would be monitoring her closely. Id. at 418.
-7-
J-A04036-19
We concluded in DeStefanis that there was insufficient evidence of a
prostitution business to support the defendant’s conviction for promoting
prostitution because no price was attached to the hand release and the only
discussion of compensation for this service was the vague statement that a
tip would be appreciated. Thus, there was no basis for a conclusion that the
hand release was included in the price of the massage. We further determined
that DeStefanis’ statement to the female officer posing as a job applicant that
she could perform hand releases for extra tips did not establish that the
defendant was engaged in the “business” of prostitution. Finally, we stated
that, even assuming there was a prostitution business, there was no evidence
that the defendant promoted that business because there was no evidence
that he received income from such a business.
In Blankenbiller, a fund-raising party was held at a recently closed
restaurant to benefit the restaurant’s softball team. A $15 ticket was required
for admission and entitled the purchaser to beer, snacks and a go-go dancer
show. During the party, regular announcements were made “to the effect
that sex was available for money.” Blankenbiller, 524 A.2d at 977.
Testimony elicited at trial indicated that four prostitutes were performing
“tricks” during the party and $5 per trick was collected from the prostitutes,
which money also went to benefit the softball team. The evidence presented
against Blankenbiller, the defendant charged with promoting prostitution, was
that he: was the president of the company that owned the restaurant; had
financially supported the softball team; had promoted the party; had sold at
-8-
J-A04036-19
least one ticket; and was seen in close proximity to the speaker system when
the announcements were made that sex was available for money.
We concluded that, while there was no question that a prostitution
business was operating during the party, the Commonwealth had not
established that the defendant had any involvement in promoting it. In
particular, we noted that there was no evidence presented that Blankenbiller
received any income from the business, told anyone that prostitutes would be
available at the party, or arranged for the prostitutes to be present at the
party.
In light of DeStefanis and Blankenbiller, we are constrained to agree
with Chang that the Commonwealth failed to present sufficient evidence to
prove, beyond a reasonable doubt, that Pink Spa was a prostitution business
or that Chang had a connection with the running, control, supervision or
keeping of such a business. As in DeStefanis, there was no price attached
to the sexual activity and Chang, herself, never discussed sexual activity with
Officer Kearney. As we noted in DeStefanis:
Arguably, when a client does not agree to pay for a sexual service
up front, the ensuing act constitutes sexual activity between two
consenting adults. Ms. Grama, Detective Carroll’s second
masseuse, did not even make Detective Carroll an offer of any
type of sexual activity; it was not until the massage was
completed and Detective Carroll initiated inquiries to Ms.
Grama about sexual options that she spoke about hand
releases. There can be no assumption, therefore, that a hand
release was included in the price of the massage.
DeStefanis, 658 A.2d at 420 (emphasis added).
-9-
J-A04036-19
Here, no sexual activity was discussed until Officer Kearney raised the
topic with Miss An, approximately 20 to 30 minutes into his visit. As such,
there is no basis to assume that sex was included in the original price of the
massage. Nor, on the evidence presented at trial, is there any basis to
conclude that Chang knew that Miss An would agree to provide sexual services
to Officer Kearney.
Even if Miss An could be considered to have been engaged in the
business of prostitution, there was no proof that Chang was involved in the
“owning, controlling, managing, supervising or otherwise keeping” of the
business. The Commonwealth presented no evidence that Chang knew of Miss
An’s activities or benefitted financially from them. Indeed, Chang declined to
accept payment from Officer Kearney and, instead, directed him to pay Miss
An.5 The Commonwealth also failed to produce any evidence that Chang had
an ownership interest in the business, or that she controlled its operations, or
even that she was an employee of the business.6 Rather, the evidence
adduced at trial demonstrated merely that Pink Spa advertised massage
____________________________________________
5 The pre-recorded money Officer Kearney paid to Miss An was never
recovered, either in Chang’s possession or otherwise.
6 In DeStefanis, the Commonwealth presented evidence that the defendant
set the “rules” for masseuses, did not object to his employees providing “hand
releases,” and was responsible for hiring decisions. Nevertheless, despite the
existence of substantially more evidence than that presented in the instant
matter, this Court found the evidence insufficient to prove DeStefanis had a
connection with running, controlling, supervising, or otherwise keeping a
prostitution business, especially given the lack of evidence that he received
income from such business. See DeStefanis, 658 A.2d at 420-21.
- 10 -
J-A04036-19
services on the internet, that Chang admitted Officer Kearney to the premises
and introduced him to Miss An, and that Officer Kearney received massage
services up until the moment that he—not Miss An and certainly not Chang—
raised the topic of sexual activity. This evidence was simply insufficient to
satisfy the Commonwealth’s heavy burden of demonstrating guilt beyond a
reasonable doubt.
The Commonwealth argues that “Officer Kearney’s testimony that Ms.
An agreed to have sex with him after accepting money was sufficient to
establish the existence of a prostitution business.”7 Brief of Appellee, at 12.
In support of that contention, the Commonwealth relies upon
Commonwealth v. Chon, 983 A.2d 784 (Pa. Super. 2009), and
Commonwealth v. Potts, 460 A.2d 1127 (Pa. Super. 1983). In Potts, a
vice squad detective responded to an advertisement for “Companions for all
occasions” and requested the male on the other end of the line to send a girl
to his hotel room. When the girl arrived, the detective requested sexual
intercourse and she quoted him a price. The transaction was aborted when
the detective was unable to produce his wallet. Approximately one week later,
the detective made a second call to the same number and again requested
the male on the other end of the line to send a girl to his hotel room. When
____________________________________________
7 The Commonwealth argues that the presence of “televisions, surveillance
cameras, a credit card machine, towels, lotions and oils” on the premises
supports an inference that prostitution was regularly conducted at Pink Spa.
Brief of Appellee, at 14 n.4. In fact, the presence of these items is no more
indicative of a prostitution business than they are of a massage spa.
- 11 -
J-A04036-19
the girl, Potts, arrived at the room, she checked the detective’s identification.
After supplying the requested information, the detective asked Potts “what he
would get for his money;” she responded, “It will cost seventy dollars for the
escort service.” Potts, 460 A.2d at 1131. The detective then asked, “What
else do I get for my money?” Potts responded that, for another $70, he could
get “whatever he wanted,” including oral sex. Id. The detective paid Potts
and, once both of them had removed their clothing, revealed his true identity
and arrested her. She was subsequently charged and convicted of prostitution
and conspiracy.
Potts is factually distinguishable from the instant matter. There, when
he asked what he would get for his money, the undercover detective was
explicitly told, prior to paying, that he would receive sexual services. In the
matter sub judice, there was no discussion of sex whatsoever until long after
Officer Kearney paid for the massage services advertised and received such
services. Only then did he request sex, for which Miss An did not charge an
additional fee. As in DeStefanis, there was no price attached to the sexual
services and there could be “no assumption, therefore, that [sex] was included
in the price of the massage.” DeStefanis, 658 A.2d at 420.
Similarly, Chon is entirely inapposite. There, this Court addressed a
challenge by the Commonwealth to the trial court’s grant of a motion to
dismiss charges of prostitution and promoting prostitution due to outrageous
government conduct. Because of the procedural posture of the case, the Court
in Chon did not have occasion to consider the quantum or quality of evidence
- 12 -
J-A04036-19
necessary to sustain a conviction for promoting prostitution. The
Commonwealth’s reliance on that case is limited to a single sentence of dicta,
excerpted from the trial court’s opinion, speculating that “[t]he mere
agreement to perform sexual acts for money would have satisfied the
statute[.]” Chon, 983 A.2d at 789. Even if that statement were not dicta, as
we have already discussed supra, instantly, there was no agreement to
perform sexual services for money. Accordingly, Chon is of no moment.
Finally, the Commonwealth relies on Commonwealth v. Dobrinoff,
784 A.2d 145 (Pa. Super. 2001), to support its assertion that the evidence
established that Chang promoted the prostitution business. In Dobrinoff, the
evidence established the following:
[A]t Fantasies, a club owned by Appellant, sex was occurring in
the back room. For example, Detective Garver and Trooper
Longenecker testified that sex was offered to them in the back
room, and both officers indicated that the club manager was
aware of the activity. Moreover, Trooper Longenecker testified
that, while in Fantasies, he saw an advertisement for an exotic
maid service, and the telephone number on the advertisement
was registered to Appellant’s residence. When Trooper
Longenecker called the number, Appellant answered, indicated
that he was the owner of the service, and quoted a price of
$150.00 per hour plus tips. Appellant then told Trooper
Longenecker to pay at Fantasies, and, as a result of following
Appellant’s dictates, Trooper Longenecker engaged in sexual
activity with a prostitute.
Id. 148.
Unlike in the instant matter, in Dobrinoff, the Commonwealth
demonstrated that the appellant actually owned one business enterprise—
“Fantasies”—in which sexual acts were being performed in exchange for
- 13 -
J-A04036-19
money. In addition, the evidence showed that appellant also owned a second
enterprise—the “maid service”—from which the officer procured sex, and for
which payment was made at the appellant’s first business, “Fantasies.” In
contrast, here, the Commonwealth presented no evidence whatsoever
regarding the nature of Chang’s role at Pink Spa or that she benefitted
financially from the business.
In sum, we conclude that the evidence presented by the Commonwealth
failed to establish either that Pink Spa was a prostitution business or that
Chang owned, controlled, managed, supervised or otherwise kept such a
business. Because we determine that the Commonwealth presented
insufficient evidence to sustain Chang’s convictions, we need not consider the
remaining issues she has raised on appeal.
Judgment of sentence vacated; appellant discharged. Jurisdiction
relinquished.
Judge Kunselman joins this Memorandum.
Judge Colins files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/19
- 14 -