Com. v. Rose
| Decision Date | 20 October 2008 |
| Docket Number | No. 1966 WDA 2007.,No. 395 WDA 2007.,395 WDA 2007.,1966 WDA 2007. |
| Citation | 960 A.2d 149,2008 PA Super 249 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Thomas J. ROSE, Appellant. Commonwealth of Pennsylvania, Appellant v. Thomas J. Rose, Appellee. |
| Court | Pennsylvania Superior Court |
Anthony W. Forray, Assistant District Attorney and William R. Stoycos, Assistant District Attorney, Harrisburg, for Commonwealth.
¶ 1 Appellant Thomas J. Rose appeals from the judgment of sentence entered on January 27, 2007. The Commonwealth has filed a cross-appeal. We conclude that Rose's appeal lacks merit and that the Commonwealth's cross-appeal is meritorious. Thus, we affirm in part and remand for further proceedings.
¶ 2 The factual and procedural history of the case is as follows. Between September 9, 2005 and September 16, 2005, Rose engaged in eight instant message conversations and 32 off-line communications with a person whom he believed to be a 12-year-old girl. In fact, Rose was communicating with Agent Lisa Ceh of the Attorney General's Office. The communications were of a sexual nature. At trial, Agent Ceh testified that these conversations ultimately led to Rose proposing a meeting. Rose and the "girl" agreed to a meeting place and time. Rose drove to that meeting place with condoms in his car, and upon arrival was arrested.
¶ 3 A jury found Rose guilty of attempted unlawful contact with a minor ("attempted unlawful contact" or "count 1")1 and criminal use of a communication facility ("communication facility" or "count 2").2 The trial court then set aside the jury's verdict of guilt on count 2. The court reasoned that the verdict was inconsistent with some of the jury's factual findings as expressed on the special interrogatory verdict slip. The court then sentenced Rose only on count 1.3 Rose appeals from the judgment of sentence on count 1. The Commonwealth cross-appeals from the trial court's decision to set aside the verdict on count 2.4
¶ 4 We begin with Rose's appeal. He raises the following issues:
1. Does Pennsylvania statute of Unlawful Communication with a Minor violate the Dormant Commerce Clause in the United States Constitution?
2. Is the Pennsylvania Statute of Unlawful Communication with a Minor unconstitutionally vague and violative of Appellants' due process rights under the Pennsylvania and United States Constitution?
3. Did the Court err in not granting a mistrial when the Commonwealth explicitly stated their opinion as to the guilt and credibility of the Appellant?
¶ 5 First, Rose argues that 18 Pa.C.S.A. § 6318, which prohibits "unlawful contact with a minor," unconstitutionally regulates interstate commerce over the internet. Rose invokes the dormant Commerce Clause of the United States Constitution. U.S. Const. art. I, § 8. Specifically, Rose argues that the statute could violate the dormant Commerce Clause by ensnaring an out-of-state resident. Rose's claim has two sub-components: (1) the out-of-state resident may not know that the person he is communicating with is a Pennsylvania minor; and (2) the out-of-state resident may not know that his internet activity is illegal in Pennsylvania.
¶ 6 Rose raises questions of law. Commonwealth v. Meals, 590 Pa. 110, 912 A.2d 213, 218 (2006). Our scope of review is plenary and our standard of review is de novo. Id. Before directly addressing Rose's first issue on appeal, we will generally examine the statute, and then address the Commonwealth's assertion that Rose lacks standing to raise his constitutional claim.
¶ 7 The crime of unlawful contact with a minor is defined in relevant part as follows:
§ 6318. Unlawful contact with a minor
(a) Offense defined. — A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (). [These offenses include: rape, statutory sexual assault, involuntary deviate sexual intercourse, sexual assault, institutional sexual assault, aggravated indecent assault, indecent assault, and indecent exposure.]
¶ 8 Even though the statute is titled "unlawful contact with a minor," it is best understood as "unlawful communication with a minor." By its plain terms, the statute prohibits the act of communicating with a minor for enumerated sexual purposes. The communication may take place in person, on the telephone, via a computer, or in other ways. 18 Pa.C.S.A. § 6318(c). Because the crime is complete as of the moment of communication, it is not necessary for the defendant to take any further affirmative steps to have physical contact with the minor, such as driving to a hotel.7 Commonwealth v. Morgan, 913 A.2d 906 (Pa.Super.2006), appeal denied, 592 Pa. 788, 927 A.2d 623 (2007).
¶ 9 We now turn to the Commonwealth's argument that Rose lacks standing to raise his dormant Commerce Clause claim. "The core concept in any standing analysis is that a person who is not adversely affected in any way by the matter he seeks to challenge is not `aggrieved' thereby and has no standing to obtain a judicial resolution of his challenge." Soc'y Hill Civic Ass'n v. Pa. Gaming Control Bd., 593 Pa. 1, 928 A.2d 175, 184 (2007). Generally, in order to have standing a person must have a "substantial, direct, and immediate interest" in the outcome of the litigation. Id. A person does not have a direct interest if he has not been harmed by the specific constitutional concern at issue. Id.; see also Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172, 1177 (1986); Commonwealth v. Haldeman, 288 Pa. 81, 135 A. 651, 652 (1927).
¶ 10 Again, Rose argues that the statute could violate the dormant Commerce Clause by ensnaring an out-of-state resident. The record reflects, however, that Rose was not an out-of-state resident. In fact, he resided in Westmoreland County during all relevant time periods. Rose himself has not suffered an actual injury based on any purported dormant Commerce Clause violation. Thus, we conclude that Rose lacks standing to argue the constitutionality of the Pennsylvania statute.
¶ 11 Even assuming arguendo that Rose had standing, he would not be entitled to relief because there is no dormant Commerce Clause violation here. Our Supreme Court has explained that the dormant Commerce Clause of the federal constitution prohibits states from engaging in economic protectionism:
The United States Constitution provides that "Congress shall have Power ... to regulate Commerce ... among the several States." U.S. Const. art. I, § 8. While the Commerce Clause expressly speaks only to the ability of Congress to regulate interstate commerce, it has been interpreted to contain "an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce." Western & Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 652, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). This limitation has been sometimes coined the "negative" or "dormant" Commerce Clause. ... The dormant Commerce Clause "prohibits economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988).
Office of Disciplinary Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654, 666 (2004), cert. denied, 543 U.S. 1151, 125 S.Ct. 1332, 161 L.Ed.2d 114 (2005).
¶ 12 As noted above, § 6318 is a criminal statute that prohibits communicating with minors for sexual purposes. Rose has failed to articulate any economically protectionist aspect to this statute, either in general or as it particularly applies to him. See id. ().
¶ 13 We also note that state appellate courts have uniformly rejected dormant Commerce Clause challenges to criminal statutes that prohibit luring minors into sexual activity. These courts have held that the criminal statutes are a valid exercise of the state's police power, even though the contact with the minor takes place via the internet. See Hatch v. Superior Court, 80 Cal.App.4th 170, 94 Cal. Rptr.2d 453, 471 (2000); State v. Snyder, 155 Ohio App.3d 453, 801 N.E.2d 876, 886 (2003), appeal denied, 102 Ohio St.3d 1422, 807 N.E.2d 367 (2004); People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123 (2000), cert. denied, 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124 (2000). Such a statute "does not discriminate against or burden interstate trade; it regulates the conduct of individuals who intend to use the internet to endanger the welfare of children." Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 132. Because this reasoning is persuasive, we hereby adopt it.
¶ 14 In the same section of his brief, Rose suggests that § 6318 is unconstitutionally vague. If an appellant fails to develop a claim with citations to legal authority, the claim is waived. Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 386 (2005); Commonwealth v. Spease, 911 A.2d 952, 959 (Pa.Super.2006). Here, Rose's brief fails to develop any meaningful independent argument in support of his vagueness claim. Instead, Rose seems to rely entirely on his dormant commerce clause analysis in support of the vagueness claim. We conclude that this issue is waived.8
¶ 15 Finally, Rose argues that the trial court erred by not granting a...
To continue reading
Request your trial
-
Commonwealth v. Houck
...verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal.” Commonwealth v. Rose, 960 A.2d 149, 158 (Pa.Super.2008), appeal denied, 602 Pa. 657, 980 A.2d 110 (2009) (citation omitted). “An acquittal cannot be interpreted as a specific finding i......
-
Johnson v. Am. Standard
...the wrong persons to bring the constitutional challenge to Section 1929.1. Johnson II, 966 A.2d at 578 (citing Commonwealth v. Rose, 960 A.2d 149 (Pa.Super.2008) (holding that a Pennsylvania resident charged with a crime could not challenge the constitutionality of a criminal statute under ......
-
Burger v. Owens Illinois, Inc.
...interest. Oxford Assocs. v. Waste Sys. Auth. 271 F.3d 140 (3d Cir.2001). Generally, the interest must be substantial, Commonwealth v. Rose, 960 A.2d 149 (Pa.Super.2008), and the controversy real and concrete. City of Phila. v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 569 ¶ 6 In Johnson, the......
-
Commonwealth v. Mejia-Matos
...theft does not preclude a conviction for robbery, because a theft need not be completed for a robbery to occur).Commonwealth v. Rose, 960 A.2d 149, 158-159 (Pa. Super. 2008), appeal denied, 980 A.2d 110 (2009). Here, the robbery offense was not a required predicate offense for conspiracy. 9......