Opinion
J-S52027-16 No. 1958 EDA 2015
11-22-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. CUONG PHAM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0014307-2011 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Cuong Pham, appeals from the March 23, 2015 judgment of sentence imposing six to twelve months of county incarceration for patronizing a prostitute (18 Pa.C.S.A. § 5902(e)). We affirm.
The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion:
On December 9, 2010, at about 12:30 a.m., Philadelphia Police officer Stephanie Rosenbaum and other officers were in the 1800 block of East Sergeant Street investigating activity related to prostitution because of a string of murders of prostitutes in the area. Officer Rosenbaum's role was to act as a decoy. While doing so, a brown Nissan Maxima pulled up to her and the driver, the Appellant herein, told the officer that he wanted a "blowjob." Officer Rosenbaum asked Appellant how much he was willing to pay and he said, "$20.00." Officer Rosenbaum contacted members of her back up team who placed then [sic] Appellant then [sic] arrest.
Appellant testified in his own defense. He stated that the night of the incident he intended to visit a Vietnamese handyman who he wanted to hire to remove Appellant's property. According to Appellant, while looking for a parking spot, a woman approached and asked him what he wanted and if he had any money. He asked her what she wanted and told her to leave. Appellant denied that he was looking for oral sex that night or that he asked the officer for a blowjob, adding that his wife was in the car when the officer approached but had exited to meet the handyman before he was arrested.Trial Court Opinion, 1/21/16, at 2-3 (record citations omitted).
Jane Huynh, Appellant's wife, also testified in his defense. She indicated that on the night of her husband's arrest, she drove to the area where the incident occurred to meet her husband who was planning to meet with a handyman. When Appellant arrived, she entered the passenger side back seat of Appellant's car, which had a large coffee pot and tools partially obscuring her. While her husband was searching for a parking spot, a woman approached the car and said something to Appellant.
Appellant's case proceeded to a two-day jury trial concluding on June 6, 2012. The trial court imposed six to twelve months of county incarceration, and Appellant appealed. The Commonwealth conceded that a new trial was appropriate given the prosecutor's comments on Appellant's post-arrest silence. After a March 23, 2015 bench trial, the trial court found Appellant guilty of patronizing a prostitute and once again sentenced him to serve six to twelve months of county incarceration. In this timely appeal, Appellant challenges the weight and sufficiency of the evidence supporting his conviction. Appellant also argues the prosecutor committed misconduct by misrepresenting several facts during closing argument.
The following standard governs our review of the sufficiency of the evidence:
Our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence[.] [...] Significantly, [we] may not substitute [our] judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed.Commonwealth v. Brewer , 876 A.2d 1029, 1032 (Pa. Super. 2005) (internal citations and quotation marks omitted), appeal denied, 887 A.2d 1239 (Pa. 2005).
Section 5902 defines the offense of patronizing a prostitute as follows:
(e) Patronizing prostitutes.--A person commits the offense of patronizing prostitutes if that person hires a prostitute or any other person to engage in sexual activity with him or her or if that person enters or remains in a house of prostitution for the purpose of engaging in sexual activity.18 Pa.C.S.A. § 5902(e).
Officer Rosenbaum's testimony clearly establishes that Appellant asked Officer Rosenbaum for oral sex and offered to pay her $20.00. Appellant argues that Officer Rosenbaum's testimony is not sufficient because both Appellant and his wife testified that he did not solicit oral sex. Appellant's argument is a challenge to Officer Rosenbaum's credibility, a matter strictly within the province of the finder of fact. Commonwealth v. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). Furthermore, a challenge to witness credibility goes to the weight rather than sufficiency of the evidence. Id. We reject Appellant's sufficiency of the evidence claim for the reasons stated in the trial court's January 21, 2016 opinion.
The Dissent argues that Appellant's offer of $20.00 for oral sex was not legally sufficient to constitute a violation of § 5902(e). We conclude Appellant has not preserved that issue. In arguing that he did not "hire" a prostitute, Appellant invites this Court to credit his testimony over that of Officer Rosenbaum. Appellant's brief does not address the proper construction of § 5902(e) as applied to the facts found by the jury. That is, he does not offer legal analysis of whether an offer of money for sex is a "hire" under § 5902(e). We decline to address an issue of statutory construction—and possibly an issue of first impression—without advocacy from Appellant. We are not free to reverse the trial court sua sponte on non-jurisdictional grounds. In re Smith , 874 A.2d 131, 137 n.5 (Pa. Super. 2005) ("We may not, with limited exceptions not applicable herein, sua sponte address issues not raised by the parties."). In finding this issue preserved, the Dissent relies on portions of Appellant's brief in which Appellant argues that no "hire" occurred under Appellant's version of the facts. These arguments however, attempt to argue credibility that does not preserve the issue of statutory construction for our review.
Next, Appellant challenges the weight of the evidence. Rule 607 of the Pennsylvania Rules of Criminal Procedure requires an appellant to preserve this issue in a timely motion either prior to or post-sentence. Pa.R.Crim.P. 607(A). Appellant concedes that he failed to preserve his weight of the evidence argument in accordance with Rule 607. Appellant's brief at 24. We therefore will not address this issue on the merits.
Finally, Appellant argues the prosecutor engaged in misconduct by mischaracterizing some of Appellant's testimony.
Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion. In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one.Commonwealth v. Solomon , 25 A.3d 380, 383 (Pa. Super. 2011) (internal citations and quotation marks omitted), appeal denied, 40 A.3d 1236 (Pa. 2012). Appellant's argument consists of a single paragraph unsupported by citation to the record or governing legal precedent, in violation of Pa.R.A.P. 2119(b) and (c). Appellant's Brief at 38-39. Regardless of this deficiency, we conclude Appellant's argument lacks merit for the reasons stated in the trial court's January 21, 2016 opinion. In particular, the trial court noted that the alleged misconduct did not prejudice Appellant. "This Court submits that it did not give much, if any, credence to the arguments here complained of because Appellant presented plausible explanations for the apparent inconsistencies in his testimony at both of his trials and therefore, it is suggested that no relief be granted with respect to this claim."
[A] prosecutor's arguments to the jury are [generally] not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict.
A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present [his] arguments with logical force and vigor. The prosecutor is also permitted to respond to defense arguments. Finally, in order to evaluate whether the comments were improper, we do not look at the comments in a vacuum; rather we must look at them in the context in which they were made.
We have concluded that each of Appellant's arguments is lack in merit or waived. We therefore affirm the judgment of sentence. We direct that a copy of the trial court's January 16, 2016 opinion be filed along with this memorandum.
Judgment of sentence affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
Judge Strassburger files a dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/22/2016
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