Com. v. Hacker

• Decision Date: 09 October 2008
• Docket Number: No. 1659 WDA 2007.,1659 WDA 2007.
• Citation: 2008 PA Super 239,959 A.2d 380
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lisa M. HACKER, Appellant.
• Court: Pennsylvania Superior Court

959 A.2d 380

2008 PA Super 239

COMMONWEALTH of Pennsylvania, Appellee v. Lisa M. HACKER, Appellant.

No. 1659 WDA 2007.

Superior Court of Pennsylvania.

Argued August 20, 2008.

Filed October 9, 2008.

Michael S. Marshall, DuBois, for appellant.

BEFORE: LALLY-GREEN, TAMILIA and COLVILLE^*, JJ.

OPINION BY COLVILLE, J.:

¶ 1 This case is a direct appeal from judgment of sentence. Appellant was convicted of one count of criminal solicitation (18 Pa.C.S.A. § 902(a)) with the intent of promoting or facilitating the rape of a child under thirteen (18 Pa.C.S.A § 3121(c), a felony of the first degree). This charge was based on the allegation that Appellant encouraged N.A. (a twelve-year-old girl) and C.G. (a thirteen-year-old boy) to engage in oral sex.

¶ 2 Appellant was also convicted of two counts of disseminating sexually explicit materials to minors (18 Pa.C.S.A. § 5903(c)(1), a felony of the third degree), the minors being N.A. and T.H. (a sixteen-year-old girl).

¶ 3 Finally, Appellant was convicted of four counts of corrupting the morals of minors (18 Pa.C.S.A. § 6301(a)(1), a misdemeanor of the first degree). Of the four corruption counts, two were based on the conduct underlying the allegation of solicitation involving N.A. and C.G. The other two were based on the dissemination of sexual materials to N.A. and T.H.

¶ 4 The issues are: (1) whether the evidence was insufficient to support the conviction for solicitation because C.G., being only thirteen, could not be convicted of raping a child by having consensual sex with that child (N.A.); (2) whether the evidence was insufficient to support Appellant's conviction for solicitation where the Commonwealth failed to prove she knew N.A. was under thirteen; (3) whether there was insufficient evidence to support the conviction for disseminating sexually explicit materials to minors where the Commonwealth failed to prove there was any dissemination; (4) whether there was a fatal variance between Counts 5 and 7 of the information (dissemination to T.H. and corruption of T.H. by virtue of that dissemination) and the proof offered at trial on those counts; (5) whether the court erred in failing to give certain jury instructions relating to solicitation; (6) whether the court erred by failing to sever, for trial, the charges of solicitation and corruption by virtue of solicitation (Counts 1, 3 and 4) from the charges of dissemination and corruption by virtue of dissemination (Counts 2, 5, 6 and 7); (7) whether the court erred by failing to sever, for trial, the charges involving T.H. (Counts 5 and 7) from the charges involving N.A. and C.G. (Counts 1, 2, 3, 4 and 6); and (8) whether the trial court erred in denying Appellant's motion for a mistrial after it appeared during trial that the incidents relating to T.H. (dissemination and corruption) occurred on dates different than those in the information.

¶ 5 Finding the evidence insufficient to support Appellant's conviction for solicitation, we reverse the conviction and judgment of sentence on that count. As to the remaining counts, we affirm Appellant's convictions. However, in light of the fact that our reversal of the solicitation count upsets the overall sentencing scheme, we vacate the judgments of sentence at the remaining counts and remand for resentencing on those counts.

Facts

¶ 6 The record reveals the following facts. During the summer of 2006, N.A. occasionally visited Appellant's apartment. On one such occasion, an evening, Appellant showed N.A. several sexually explicit images on a computer screen. The various images depicted Appellant engaged in sex at different points, with a man and a woman. N.A. was twelve years old during this incident.

¶ 7 Later that night, Appellant played a game of truth or dare with N.A., C.G. and other persons. N.A. testified that, during the game, Appellant dared N.A. to perform oral sex on C.G. Appellant, N.A. and C.G. then went to a bedroom. Initially, N.A. would not comply with Appellant's dare, but Appellant threatened to tell N.A.'s mother that she was being bad. At some point, Appellant led N.A. by the hand, seating her next to C.G. N.A. then performed oral sex on C.G. C.G. would later testify at trial that someone dared N.A. and him to go into a bedroom and that the person who did so said, "Go to the room and have sex." N.T., 04/05/07, at 85.

¶ 8 As to T.H., Appellant likewise showed her computer images of Appellant engaging in sex. This incident also occurred in 2006, probably in June, before the date of the game of truth or dare.¹ It appears T.H. saw two images that were later among those seen by N.A.

¶ 9 Following these incidents, the Commonwealth charged Appellant with the aforementioned criminal offenses. She proceeded to a jury trial and was convicted on all counts. At sentencing, the court imposed incarceration of not less than sixty and not more than one hundred twenty months on the solicitation charge. Appellant was also sentenced to six to twelve months' imprisonment on each of the remaining counts, concurrent with each other and concurrent with the solicitation sentence.

¶ 10 Appellant filed a post-sentence motion raising various claims; the court denied that motion. Thereafter, Appellant filed this appeal.

Issue # 1

¶ 11 Appellant summarizes her first argument as to why the evidence was insufficient to support her conviction as follows:

C.G. could not commit the crime of [r]ape of a [c]hild by engaging in consensual sexual activity with N.A. because he was not significantly older than N.A. Therefore, [Appellant] cannot be guilty of soliciting C.G. to commit said offense.

Appellant's Brief at 10.

¶ 12 To support this argument, Appellant relies on In re B.A.M., 806 A.2d 893 (Pa.Super.2002). In that case, two eleven-year-old children engaged in sex with each other. As a result of their sexual contact, one of them was adjudicated delinquent for having committed rape (victim under thirteen) and involuntary deviate sexual intercourse (IDSI) (victim under thirteen).² On appeal, this Court reasoned the relevant statutes were intended to protect young children from victimization by significantly older teenagers and adults. Id. at 897-98. We similarly observed the Legislature did not seek to criminalize consensual sexual activity between peers. Id. at 897. Additionally, we pointed out the Legislature chose thirteen as the age of consent. Id. at 898. Thus, just as a child under thirteen was legally incapable of consenting to sex, such a child was equally incapable of being criminally liable for initiating sexual contact. Id. Based on the aforesaid reasoning we vacated the conviction of the eleven-year-old B.A.M. Id.

¶ 13 What mattered in B.A.M. was not just that the sexual partners were close in age but that the appellant, being under thirteen, was not liable for his conduct. Here, while the difference in age between N.A. and C.G. was not numerically significant, that difference was indeed legally significant. In particular, C.G., being thirteen, was legally capable of consenting to and initiating sex while N.A., being under thirteen, was not. As such, C.G. and N.A., while approximate chronological peers, were not legal peers.

¶ 14 Appellant has simply offered no authority persuading us of her premise that a thirteen-year-old child cannot be legally liable for a sex offense. Indeed, case law reveals that thirteen-year-old children have at times been held accountable for sex crimes. See In the Interest of J.R., 436 Pa.Super. 416, 648 A.2d 28 (1994) (discussing conviction of thirteen-year-old J.R. for indecent assault and IDSI). Because Appellant's argument is based on her unsubstantiated premise that N.A. could not commit the rape of a child, her argument fails.

Issue # 2

¶ 15 Appellant next argues she could not be convicted of soliciting the rape of a child because the evidence failed to establish she knew N.A. was under thirteen. As Appellant acknowledges, the underlying crime of rape of a child is a strict liability offense, thus imposing liability for one who engages in the prohibited conduct regardless of whether the offender knew the age of the victim. See Commonwealth v. Dennis, 784 A.2d 179, 181-82 (Pa.Super. 2001). However, Appellant argues the solicitation statute requires the specific intent to promote or facilitate the commission of a crime. Thus, according to Appellant, the Commonwealth needed to prove she had the specific intent to promote or facilitate the rape of a victim under thirteen.

¶ 16 The solicitation statute reads as follows:

§ 902. Criminal solicitation

(a) Definition of solicitation.—A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S.A. § 902.

¶ 17 The words of this statute clearly specify its intent requirement. To be guilty of the inchoate crime of solicitation, it is not enough that a person, such as Appellant, command, encourage or request another person, such as N.A. or C.G., to engage in specific conduct which would, in turn, constitute the crime in question. Rather, the person must do so while having the intent to promote or facilitate the commission of the crime. Thus, there must be a specific intent to accomplish the elements of that crime. Without evidence that Appellant knew N.A. was under thirteen, a jury could not conclude Appellant intended to promote or facilitate the rape of someone under thirteen.³

¶ 18 We are quite aware that the purpose or spirit underlying the choate crime of rape of a child is to protect children regardless of the specific knowledge or intent of the person engaging in the rape. See Dennis, 784 A.2d at 181-82. That purpose could be served by construing the solicitation statute...