Com. v. Luksik, J. ( 2022 )

J-S34037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JAMES ERNEST LUKSIK : No. 329 MDA 2021
Appeal from the Order Entered February 11, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005712-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 01, 2022
The Commonwealth appeals from the order entered in the Dauphin
County Court of Common Pleas dismissing some charges, pertaining to two
victims, against James Ernest Luksik (Appellee).1 The Commonwealth
challenges the trial court’s conclusion that it did not establish a prima facie
case for one count each of indecent assault without consent, indecent assault
(victim under 16 years), and harassment, and two counts each of institutional
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1 The Commonwealth averred the trial court’s order is appealable because it
“will terminate or substantially handicap the prosecution” pursuant to
Pa.R.A.P. 311(d) (“[T]he Commonwealth may take an appeal as of right from
an order that does not end the entire case where the Commonwealth certifies
in the notice of appeal that the order will terminate or substantially handicap
the prosecution.”). Commonwealth’s Notice of Appeal, 3/17/21.
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sexual assault (schools) and corruption of minors.2 After careful review, we
affirm.
Appellee was 67 years old at the time of the alleged underlying
incidents. See Criminal Docket, 5/3/21, at 2. The underlying facts and
procedural history of the case are as follows:
On March 25, 2019, [Appellee] was a teacher at Bishop Carroll
[H]igh [S]chool in Ebensberg, PA. On that date, [Appellee]
chaperoned a group of ninth grade students during a tour of the
[capitol] building in Harrisburg, PA. During this trip, it is alleged
by the Commonwealth that [Appellee] touched the backside area
of two of the [minor] students, K.L. and H.H.
On August 12, 2019, [Appellee] was charged with [the same
five3]criminal counts as to [each alleged victim]: 1) [Institutional
Sexual Assault (Schools)]; [2]) Corruption of Minors; [3])
Indecent Assault; [4]) Indecent Assault Person Less than 16 Years
[of] Age; and [5]) a summary charge of Harassment.
Following a November 8, 2019[,] Preliminary Hearing [ ], at
which none of the alleged victims testified, all [of the above listed]
charges . . . were bound over for trial as to both of the alleged
victims.
After [Appellee’s] preliminary hearing . . . , but before [his]
trial [ ], the Pennsylvania Supreme Court handed down a ruling
. . . that hearsay evidence alone cannot be used to establish all
elements of all crimes for the purpose of establishing a prima facie
case [ ] at a preliminary hearing. Commonwealth v.
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2 18 Pa.C.S. §§ 3126(a)(1), (a)(8), 2709(a)(1), 3124.2(a.2)(1),
6301(a)(1)(ii), respectively. We note the trial court referred to the
institutional sexual assault (schools) offenses as “sexual contact with a
student.”
3 The Commonwealth also charged Appellee with two counts of unlawful
contact with a minor, 18 Pa.C.S. § 6318(a)(1). However, the trial court
dismissed both of these counts after the preliminary hearing. The
Commonwealth raises no challenge concerning these two counts.
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McClelland, 233 A.3d 717,734 (Pa. 2020). Given this ruling, and
the fact that the Commonwealth’s prima facie case against
[Appellee] had been solely based on hearsay, [Appellee] filed an
Omnibus Pretrial Motion in the nature of a habeas corpus Petition,
seeking to dismiss the charges against him.
Trial Ct. Op., 4/20/21, at 1-2 (footnotes omitted and paragraph break
inserted).
On January 27, 2021, the trial court held a hearing, allowing the
Commonwealth to supplement the record with K.L.’s and H.H.’s testimony.
Both girls were 17 years old at the time of the hearing. K.L. testified that on
March 25, 2019, she was in the 9th grade at Bishop Carroll High School where
Appellee was her teacher. N.T., McClelland H’rg, 1/27/21, at 26-27. On that
day, K.L. attended a field trip to the Harrisburg Capitol Building. Id. at 27.
Initially, on direct examination, K.L. stated Appellee “accidentally brushed up”
against her “low back, kind of like toward [her] butt[.]” Id. at 29. The contact
lasted “not even [2] seconds[.]” Id. at 32. K.L. “didn’t think it was a big
deal” and again stated it was an “accident.” Id. at 29.
However, on cross examination, K.L. said at the time of the incident,
she “thought it was [her] brother behind her,” but “once she told somebody,
they were . . . trying to make it sound like it was [Appellee].” N.T.,
McClelland H’rg, at 33. K.L.’s “friends made [her] think it was [Appellee.]”
Id. at 39. Prior to this conversation with classmates, K.L. did not think
Appellee had been the one to “brush” up against her. Id. at 33. Ultimately,
K.L. testified she did not know who touched her. Id. at 34 (in response to
Appellee’s counsel asking if it was “possible that it was actually” K.L.’s brother
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who touched her, she responded, “I don’t know,” several times and “Yeah,
maybe.”), 39 (responding she “wasn’t sure” if Appellee touched her), 41
(stating “it might not have been [Appellee]. It could have been someone else.
But how do I know[?]”).
K.L. further testified that after the field trip, Brandy Eckly questioned
her about the incident.4 N.T., McClelland H’rg, at 34. K.L. felt pressured by
Eckly “when [she was] being asked about what happened[.]” Id. at 36. K.L.
described,
I kind [of] felt like pressured that I should say that more than like
what I even thought was, like, kind of bad. I didn’t think it was
bad at all, but I felt like the first time at school when [Eckly] talked
to us that I should have, like, made it sound bad kind of[. sic]
Id.
K.L. also testified she participated in an interview at the Child Advocacy
Center. N.T., McClelland H’rg, at 36. During this interview, K.L. stated that
she did not “know exactly” where she was touched because “people just
always go like that to [her. sic.]” Id. at 37. During the hearing, she explained,
“[P]eople accidentally brush up against me. That’s what I meant for that.
Like at home, at school, like when I did have a job[,]” and what she
experienced that day “was just kind of what [she] experienced [with a]nybody
else.” Id. at 38.
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4It is not apparent from the testimony whether Eckly is a Bishop Carroll High
School employee, nor when Eckly questioned K.L. regarding the incident.
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H.H. testified that on March 25, 2019, she was also in the 9th grade at
Bishop Carroll High School where Appellee was her teacher. N.T., McClelland
H’rg, at 5, 7. H.H. stated that at school, Appellee would make “weird jokes”
about “hot blonds[,] tight sweaters[,] tight skirts[,] and short skirts . . . that
all the girls [at her school] were creeped out by.” [sic]. Id. at 8. During the
field trip to the Capitol Building, H.H. was “just walking through [the building]
and [Appellee] was telling [the students] to move on and tapped [H.H.’s] butt”
for “a second” while she walked by him. Id. at 11-12, 16. After the incident,
H.H. told her friend what happened. H.H. stated that, generally, “everyone
was just kind of bothered by” Appellee’s behavior that day. Id. at 9.
“Everywhere [H.H. and her friends] looked[, Appellee] was there.” Id. While
H.H. “didn’t think that was weird” at first, after speaking to her friends, she
thought “[e]veryone felt [uncomfortable] and awkward that day.” Id.
On February 11, 2021, the trial court dismissed all five charges that
pertained to K.L.: indecent assault without consent, indecent assault (victim
under 16 years), harassment, institutional sexual assault (schools), and
corruption of minors. With respect to H.H., the trial court dismissed the
charges of institutional sexual assault (schools) and corruption of minors,
finding “the Commonwealth [ ] failed to set forth a prima facie case[.]” Order,
2/11/21. However, the trial court held over for trial the remaining charges
with respect to H.H.: indecent assault without consent, indecent assault
(victim under 16 years), and harassment. The Commonwealth filed this
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appeal and timely filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).5
The Commonwealth raises the following issue on appeal:
Whether the trial court erred in granting Appellee’s petition for
writ of habeas corpus where the Commonwealth presented
sufficient evidence to establish a prima facie case to support all
charges?[6]
Commonwealth’s Brief at 5 (capitalization omitted).
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5 Although the trial court dismissed five charges with respect to one victim,
and three charges against a second victim, the Commonwealth’s Rule 1925(b)
statement was broad and vague:
This Honorable Court erred in granting Appellee’s Petition
for Writ of Habeas Corpus where the Commonwealth presented
sufficient evidence to establish a prima facie case to support all
charges.
See Commonwealth’s Concise Statement of Errors Complained of on Appeal
Pursuant to Pa.R.A.P. 1925(b), 4/5/21. The statement did not identify any of
the dismissed counts, let alone any particular element of the offenses.
We remind the Commonwealth that when raising claims on appeal, it
must set forth the issues with “sufficient detail.” See Pa.R.A.P. 1925(b)(4)(ii)
(“The Statement shall concisely identify each error that the appellant intends
to assert with sufficient detail to identify the issue to be raised for the judge.”).
See also Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015)
(to preserve a claim that the evidence was insufficient, the Pa.R.A.P. 1925(b)
statement must specify the element(s) upon which the evidence was
insufficient, so that this Court can analyze that element; where a Rule 1925(b)
statement does not specify the allegedly unproven elements, the sufficiency
issue is waived for appeal).
6 The trial court did not specify in its February 11, 2021, order that it was
“granting” Appellee’s habeas corpus petition. Order, 2/11/21. Nevertheless,
this order ultimately gave Appellee some of the requested relief by dismissing
some of the charges. Id.-6-
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The Commonwealth argues the trial court erred in finding it did not
establish a prima facie case regarding each of the dismissed charges: one
count each of indecent assault without consent, indecent assault (victim under
16 years), and harassment, and two counts each of institutional sexual assault
(schools) and corruption of minors. The Commonwealth maintains K.L.’s and
H.H.’s testimony showed that when they were 15 years old, Appellee, their
teacher, “touched both of their butts.” Commonwealth’s Brief at 18. The
Commonwealth insists it proved Appellee’s “intent to arouse or gratify his
sexual desire . . . circumstantially through [testimony that he] has made
sexually explicit and inappropriate jokes to minor students.[7]” Id. We
conclude no relief is due.
Our standard of review of pre-trial habeas corpus petitions is limited:
We review a decision to grant a pre-trial petition for a writ
of habeas corpus by examining the evidence and reasonable
inferences derived therefrom in a light most favorable to the
Commonwealth. In Commonwealth v. Karetny, [ ] 880 A.2d
505 (Pa. 2005), our Supreme Court found that this Court erred in
applying an abuse of discretion standard in considering a pre-trial
habeas matter to determine whether the Commonwealth had
provided prima facie evidence. The Karetny Court opined, “the
Commonwealth’s prima facie case for a charged crime is a
question of law as to which an appellate court's review is plenary.”
Id. at 513[.] The [ ] Court in Karetny continued, “[i]ndeed, the
trial court is afforded no discretion in ascertaining whether, as a
matter of law and in light of the facts presented to it, the
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7 The Commonwealth also argues it presented circumstantial evidence that
Appellee “inappropriately touched other minor students” and “indicated [ ]
that he is attracted to them[.]” Commonwealth Brief’s at 18. However, our
review of the McClelland hearing testimony leads to a different conclusion.
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Commonwealth has carried its pre-trial, prima facie burden to
make out the elements of a charged crime.” [Id.] at 513. Hence,
we are not bound by the legal determinations of the trial court. .
..
A pre-trial habeas corpus motion is the proper means for
testing whether the Commonwealth has sufficient evidence to
establish a prima facie case. “To demonstrate that a prima facie
case exists, the Commonwealth must produce evidence of every
material element of the charged offense(s) as well as the
defendant’s complicity therein.” To “meet its burden, the
Commonwealth may utilize the evidence presented at the
preliminary hearing and also may submit additional proof.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1111-12 (Pa. Super. 2016)
(en banc) (some citations omitted).
The charges against Appellee are defined as follows:
§ 3126. Indecent assault.
(a) Offense defined — A person is guilty of indecent
assault if the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the person
or intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
(1) the person does so without the complainant’s
consent;
* * *
(8) the complainant is less than 16 years of age and
the person is four or more years older than the
complainant and the complainant and the person are not
married to each other.
18 Pa.C.S. § 3126(a)(1), (8).
§ 2709. Harassment.
(a) Offense defined — A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
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(1) strikes, shoves, kicks or otherwise subjects the
other person to physical contact, or attempts or
threatens to do the same[.]
18 Pa.C.S. § 2709(a)(1).
§ 3124.2. Institutional sexual assault.
(a.2) Schools.
(1) [A] person who is a volunteer or an employee of
a school or any other person who has direct contact with a
student at a school commits a felony of the third degree
when he engages in sexual intercourse, deviate sexual
intercourse or indecent contact with a student of the school.
18 Pa.C.S. § 3124.2(a.2)(1).
§ 6301. Corruption of minors.
(a) Offense defined
* * *
(ii) Whoever, being of the age of 18 years and
upwards, by any course of conduct in violation of Chapter
31 (relating to sexual offenses) 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 an offense under Chapter 31
commits a felony of the third degree.
18 Pa.C.S. § 6301(a)(1)(ii).
We agree with the trial court’s conclusion that, regarding K.L., the
Commonwealth did not establish a prima facie case “that a crime had been
committed” or that Appellee was the perpetrator. See Trial Ct. Op. at 4.
Although K.L. initially stated on direct examination that Appellee touched her,
she conceded, several times, that she did not know who touched her, and
furthermore, she believed any contact to be an “accident.” N.T., McClelland
H’rg, at 29, 34, 38-39, 41. After the incident, K.L. felt “pressured” by Eckly
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and was “persuaded” by fellow students to say Appellee touched her. Id. at
33, 36, 39; see Trial Ct. Op. at 3. Even considering the testimony in the “light
most favorable to the Commonwealth[,]” the evidence did not establish each
element of the charged offenses, nor did it demonstrate Appellee’s “complicity
therein.” See Dantzler, 135 A.3d at 1111-12.
Regarding the charges pertaining to H.H., we agree with the trial court’s
determination that the Commonwealth did not establish a prima facie case for
institutional sexual assault (schools) or corruption of minors. The trial court
reasoned:
H.H. clearly testified that [Appellee] tapped her on the butt.
As such, there was evidence to support some of the charges
against [him] with respect to H.H. However, the evidence showed
that this was a momentary tap on the butt that only lasted for a
second. It cannot be said that such a momentary contact would
tend to corrupt the morals of H.H. It also cannot be said that such
a momentary contact constitutes a felony. . . .
Trial Ct. Op. at 4 (footnotes omitted). This determination is supported by the
evidence. The Commonwealth did not present “evidence of every material
element of the [dismissed] offense(s) [or Appellee’s] complicity therein.” See
Dantzler, 135 A.3d at 1112 (citation omitted). We agree with the trial court’s
conclusion that “such a momentary contact” does not establish institutional
sexual assault (schools) or corruption of minors. Trial Ct. Op. at 4.
Lastly, we note that in Appellee’s brief, he raises arguments concerning
the admissibility of hearsay and Pa.R.E. 404(b) evidence presented by the
Commonwealth. Appellee’s Brief at 10-22. Appellee did not file a cross-
appeal, and thus, we are without jurisdiction to address these claims. See
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Commonwealth v. Moser, 476 A.2d 980, 982 (Pa. Super. 1984) (this Court
lacks jurisdiction to address additional claims from an appellee where they did
not file a cross-appeal).
We agree with the trial court’s determination that the Commonwealth
failed to establish, as a matter of law, the elements to the dismissed charges.
Accordingly, no relief is due. We reiterate that with respect to H.H., the
charges of indecent assault without consent, indecent assault (victim under
16 years), and harassment may proceed.
Order affirmed.
Judge Dubow has joined the Memorandum.
Judge McLaughlin files a Concurring/Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
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