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HomeMy WebLinkAboutCP-21-CR-1584-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. KENNY JOHNSON NO. CP-21-CRIMINAL 1584 - 2004 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., August , 2005 The defendant was charged with numerous crimes as a result of his sexual misconduct while on duty as a Middlesex Township Police Officer. After hearing several days of testimony, the jury was asked to consider three counts of rape, 1 two counts of involuntary deviate sexual intercourse2 three counts of sexual assault,3 three counts of prostitution,4 four counts of bribery in official and political matters,S two counts of official oppression,6 two counts of obstructing administration of law or other governmental function,7 two counts of tampering with public records,8 and one count of criminal attempt to prostitution.9 He was acquitted of all charges except for two counts of bribery. 10 He was sentenced to serve not less than 9 nor more than 23 months in the county prison on one count and to serve a consecutive period of intermediate punishment on the other. He has filed this timely appeal in which he challenges the sufficiency of the 1 18Pa. C.S.A. ~ 3121 (2). 218 Pa. C.S.A. ~ 3123 (a) (2). 318pa. C.S.A. ~ 3124.1. 4 18 Pa. C.S.A. ~ 5902 (b) (3). 5 18 Pa. C.S.A. ~ 4701. 6 18 Pa. C.S.A. ~ 5301. 7 18 Pa. C.S.A. ~ 5101. 8 18 Pa. C.S.A. ~ 4911 (a) (2). 9 18 Pa. C.S.A. ~ 901 and 903. 10 18 Pa. C.S.A. ~ 4701. CP-21-CRIMINAL 1584 - 2004 evidence and the effectiveness of his trial counsel. 11 We will address each issue in the opinion that follows. Sufficiency of the Evidence Section 4701 of the Crimes Code provides as follows: A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another. (1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient; (2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or (3) any benefit as consideration for a violation of a known legal duty as public servant or party official. 18 Pa. C.S.A. S 4701 (a) (1) - (3). The information filed by the Commonwealth charged the defendant under all three subsections. However, at the request of the Commonwealth, only subsection (1) was submitted to the jury for consideration. 12 The standard of review in assessing a sufficiency of the evidence challenge is well settled and was recently articulated by the Superior Court as follows: The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is a sufficient evidence to enable the fact finder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Heberling, 451 Pa.Super. 119,678 A.2d 794,795 (Pa.Super. 1996) (citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). In applying [the above] test, we may not weigh the evidence and substitute our judgment for that of the fact finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact 11 See Concise Statement of Matters Complained of on Appeal 12 See Commonwealth's Proposed Points for Charge VII. 2 CP-21-CRIMINAL 1584 - 2004 may be drawn from the combined circumstances. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (Pa.Super. 1995) (citations omitted). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt b y 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 trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part of none of the evidence. Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548 549 (1992) (citations and quotation marks omitted). Commonwealth v. Marinez, 777 A.2d 1121, 1126 Pa.Super. (2001), quoting from Commonwealth v. Vetrini, 734 A.2d 404,406-7, Pa.Super. (1999) (emphasis added). Applying this standard to the current case, we were satisfied that the evidence was sufficient to sustain the verdicts. We will start by recounting the evidence in the light most favorable to the Commonwealth. Middlesex Township is teeming with truck stops, motels and prostitutes. As a patrol officer, the defendant often took women into custody who were suspected of prostitution. Rather than charging the women, he would engage in oral andlor vaginal sex with them. 13 The defendant was convicted of bribery as a result of his encounters with Ms. S and Ms. C. The encounter with Ms. S. took place after the police responded to a noise complaint at a local motel. When they entered her room, Ms. S. was naked with a man she had just met. 14 After being taken into custody by the other officers, she was interviewed by the defendant at the police station. He let her know that he found her to 13 Four women testified at trial regarding such encounters with the defendant. The defendant acknowledged the encounters in all but one instance. He characterized his conduct as an error in judgment. 14 According to Ms. S. she was simply having "a discreet one-night affair with a man I met earlier that evening." Trial Transcript, Vol. 2, p. 5. 3 CP-21-CRIMINAL 1584 - 2004 be very attractive. 15 He also suggested that if she had "some kind of sexual contact" with him, he would forego the filing of drug charges against her. 16 Because of a prior drug charge, Ms. S. "was very worried."17 The following excerpts from her testimony describe what next occurred: Q. So what was the agreement, that you were going to have sex right there in the station? What was the agreement? A No. The agreement was that he was going to take me back to my vehicle. Q. Where was your vehicle? A It was still at the Holiday Inn. Then after that, he was going to follow me to my home. Q. And did he do that? A Yes. Q. What happened at your home? AWe both got out of the car, and we go into my town house. We just sat there. Passes were being made. I was extremely worried about the charges being filed. He was trying to reassure me that this was only going to be a misdemeanor charge against me. I don't need another felony charge on my record, and we had intercourse. Q. T ell me about the intercourse. What type of intercourse, oral or vaginal? A Both. Q. Nancy, why did you have sex with him that night? A Because I didn't want to be charged with another felony cocaine charge. Even though he knew that the men I was with admitted to having that cocaine, he still was going to give me a ticket for . h 18 cocame c arges. No charges were ever filed against Ms. S.19 Ms. C. works by day as a Dauphin County Probation Officer. She was recruited by Cumberland County Detectives to participate in an undercover operation. She and 15 Trial Transcript, Vol. 2, p. 11. 16 Cocaine had been found in the room. Trial Transcript, Vol. 2, pp. 10 - 13. 17 Trial Transcript, Vol. 2, p. 13. 18 Trial Transcript, Vol. 2, pp. 14 -17. 19 The defendant admits to the sexual encounter as described by Ms. S. However, he described it as completely consensual without any quid pro quo, claiming that he had already decided to withdraw the charges before they had sex. See Trial Transcript, Vol. 3, pp. 154 - 157. 4 CP-21-CRIMINAL 1584 - 2004 another undercover operative checked into a room at a Middlesex Township motel. They were posing as a prostitute and her "John". The room had been wired for both audio and video. Defendant was directed by county dispatch to respond to the motel to investigate "a blonde running around the hallway in her panties and her bra.,,20 The defendant arrived at Ms. C.' s room to investigate. He instructed the "John" to accompany him into the hallway. The witness then went on to tell what occurred: He wanted me to explain how I met the young lady in the hotel room. I told him that a friend of mine told me that you can meet girls at the Flying J, that they were easy to pick up and so forth and so on. I told him that I made contact, eye contact, with the young lady in the parking lot area. The next thing we know, we were here at the hotel room. He further asked me how much money was involved. I told him $40.00 for oral 21 sex. After receiving the above information from the "John", the defendant told him to leave.22 The defendant then went back into the hotel room to interview Ms. C. She admitted that she was working as a prostitute to help support her young child and she begged the defendant not to arrest her. 23 The defendant's initial response was: "I'm gonna have to arrest yoU.,,24 Ms. C.'s willingness to do "whatever I need to do" eventually changed the defendant's mind.25 It is clear that the defendant intended to avail himself of Ms. C.' s professional services as consideration for not arresting her. The following exchange shed light on those intentions: 20 Trial Transcript, Vol. 3, p. 82. 21 Trial Transcript, Vol. 3, pp. 62 - 63. 22 Trial Transcript, Vol. 3. p. 65. 23 Commonwealth Exhibit 33, p. 5 - 6. 24 Commonwealth Exhibit 33, p. 6. 25 Commonwealth Exhibit 33, p. 7. 5 CP-21-CRIMINAL 1584 - 2004 MS. C. I'll do whatever I need to do not to go to jail, but please do not take me to jail. I can't go to jail. DEFENDANT: can do okay? MS. C. What do you have to check on? DEFENDANT: Well I still got this guy here going to my station. Well. . . alright, let me go get another patrol to meet him at the station, instead of me taking you over there okay. MS. C. You're gonna offer to take me over there? DEFENDANT: No. MS. C. Okay. DEFENDANT: I'm gonna work it out. MS. C. Okay. DEFENDANT: Okay. MS. C. Mm-hmm. Whatever I need to do I'll work it out. I can't go to jail. DEFENDANT: MS.C. DEFENDANT: Yeah, huh. Let me go check on something, I'll see what I You can't well we'll see. Should I just wait here? Yeah, yeah just wait here. (emphasis added).26 The defendant then left the room. He had no intention of checking on the "John" because he had previously sent him home. Rather, he intended to make himself available to spend time alone with Ms. C. He went to his patrol vehicle to advise county control that the call had been cleared and that he would be out of his vehicle on his pager. 27 He then "left" the motel, doubled back and parked in the rear where his car would not be visible from the road.28 Using her room key, he re-entered Ms. C.'s room, unobserved, through a back door of the motel. 29 After he returned to her room, the defendant told Ms. C. that the "John" had gone to the police station?O Ms. C. continued to beg the defendant not to arrest her, offering to 26 Commonwealth Exhibit 33, p. 8. 27 Trial Transcript, Vol. 3, p. 86. Basically, he went on break. 28 Trial Transcript, Vol. 3, p. 87. 29 Trial Transcript, Vol. 3, p. 87. 30 Commonwealth Exhibit 33, p. 9. 6 CP-21-CRIMINAL 1584 - 2004 do anything for him?l The defendant responded: "I'm just trying to figure out what I really want.,,32 The deal was concluded with the following exchange: MS.C. DEFENDANT: MS.C. DEFENDANT: MS.C. DEFENDANT: MS.C. DEFENDANT: MS.C. DEFENDANT: MS.C. DEFENDANT: Do you want a blow job before you go? No. No. Well I think that would be nice. Yeah. Actually I think I want a little more. How much more? A lot more. Now? Yeah. Right now? Uh-huh?3 As the defendant began undoing his trousers, Ms. C's back-up entered the room and placed him under arrest. The defendant argues that the acceptance of sexual favors in return for exercising his discretion not to arrest Ms. S. and Ms. C. is insufficient to sustain his convictions for bribery under Section 4701 (a) (1) of the crimes code. Specifically, he contends that sexual favors do not meet the Crimes Code definition of "pecuniary benefit". We disagree. The Crimes Code defines "pecuniary benefit" as "(b )enefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain". 34 Weare satisfied that the sexual favors bargained for in the instant case satisfy that definition. The defendant suspected that both Ms. S. and Ms. C. were 31 Commonwealth Exhibit 33, pp. 9 - 11. 32 Commonwealth Exhibit 33, p. 11. 33 Commonwealth Exhibit 33, p. 13. 34 18 Pa. C.S.A. ~ 4501. 7 CP-21-CRIMINAL 1584 - 2004 prostitutes.35 He bargained for services that had a clear financial value to them.36 As the record reflects, the going rate for those services ranged from $30 to $40 for oral sex and $50 for vaginal intercourse?7 He obtained both from Ms. S. and agreed to accept both from Ms. C. Under the peculiar facts of the case at bar, those services meet the definition of pecuniary benefit. Therefore, we are satisfied that the evidence was sufficient to support defendant's conviction for bribery under Section 4701 (a) (1) of the Crimes Code. Ineffectiveness of Trial Counsel We are somewhat perplexed by defendant's second assignment of error. He alleges that counsel was ineffective for failing to insist that we charge under 4701 (a) (3) rather than 4701 (a) (1). As he states "the jury should not have been allowed to consider an uncharged section of the statute with different e1ements.,,38 One need only read the information to see that the defendant was charged under all three Sections of 4701. DATE Edward E. Guido, J. Jaime Keating, Esquire Karl E. Rominger, Esquire 35 The fact that neither was in fact a prostitute is of no relevance. 36 Oral and vaginal sex are the stock in trade of the prostitutes working in the defendant's township. 37 Trial Transcript Vol. 1, p. 15; Volume 3 at 63, 66. 38 See "Concise Statement of Matters Complained of on Appeal, " para. 2. 8 CP-21-CRIMINAL 1584 - 2004 9