Com. v. Brown, D.

J-S15029-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAEQUAN BROWN :

:

Appellant : No. 1709 EDA 2023

Appeal from the Judgment of Sentence Entered June 9, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0000806-2023

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 2, 2024

Appellant Daequan Brown appeals from the judgment of sentence

imposed following his conviction at a bench trial for invasion of privacy.1

Appellant argues that the evidence was insufficient to sustain his conviction.

After careful review, we conclude that the evidence was sufficient to sustain

Appellant’s conviction for invasion of privacy, but we are constrained to vacate

the judgment of sentence and remand with instructions.

The trial court summarized the relevant facts and procedural history of

this matter as follows:

On May 10, 2022[,] Complainant got off a train at the North

Philadelphia SEPTA train stop. Complainant testified that as she

was coming up the stairs from the train platform, [Appellant] was

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 7507.1(a)(2).

J-S15029-24

close behind her. [Appellant] pulled up her dress and she felt

something touch the back of her leg. [Complainant] turned

around and saw [Appellant] and he “had his phone out like he was

recording. The flash and everything was on his phone.”

[Appellant] did not have permission to lift her dress, touch her

backside or record her. When Complainant turned around and

saw [Appellant] doing all of this, [Appellant] said, “oh, my bad”

and ran up the steps and across the street and then came back

down the steps. Complainant then called 911.

The Commonwealth marked and moved into evidence as Exhibit

“C-1”, a video taken of the incident by the security cameras at the

train station. The [trial c]ourt viewed the video which clearly

showed [Appellant] at first walking well behind Complainant and

then rushing up immediately behind her as she was walking up

the steps. It then shows [Appellant] pulling his phone out from

under Complainant’s dress, close to her backside. At that time,

the light on [Appellant’s] phone was on. Complainant testified

that she felt the phone and saw the light on his phone, and she

thought he was recording her.

The Commonwealth and [Appellant] stipulated that two cell

phones were seized from [Appellant] pursuant to a search warrant

and no pictures or videos of the complaining witness were found

on either phone.

Trial Ct. Op., 8/23/23, at 1-2 (some formatting altered and citations omitted).

After Appellant was found guilty of indecent assault, invasion of privacy,

and harassment before the Philadelphia Municipal Court, Appellant appealed

to the trial court. Following a non-jury trial de novo, the trial court found

Appellant guilty of invasion of privacy and not guilty of indecent assault and

harassment.

On June 9, 2023, the trial court sentenced Appellant to a term of twelve

months of probation and was ordered to comply with the registration and

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reporting requirements for a Tier I offender under the Sexual Offender

Registration and Notification Act2 (SORNA).

Appellant filed a timely appeal, and both the trial court and Appellant

complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue:

Can Appellant’s conviction for invasion of privacy under §

7507.1(a)(2) stand when there was no photographic or video

evidence recovered from Appellant’s phone and there was

insufficient evidence that Appellant personally viewed

[C]omplainant’s intimate parts?

Appellant’s Brief at 3.

Sufficiency of the Evidence

Appellant argues that the Commonwealth failed to present sufficient

evidence to support his conviction for invasion of privacy. In support,

Appellant claims that “[h]is conviction was based solely upon the trial court’s

speculative finding that [he] put his phone under [C]omplainant’s dress and

viewed her intimate parts.” Id. at 9. Appellant asserts that the security

camera video recorded at the SEPTA station confirms that Appellant did not

lift Complainant’s dress, and although the video shows that Appellant was

walking closely behind Complainant with his phone flashlight illuminated near

her dress, the video shows that the screen on the phone was dark. Id.

Further, Appellant emphasizes that although Complainant testified that she

felt Appellant lift her dress, the trial court agreed that the security video did

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2 42 Pa.C.S. §§ 9799.10-9799.41.

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not support that conclusion. Finally, Appellant notes that the Commonwealth

searched the two phones on his person when he was arrested, but the search

revealed no evidence that he took any video or photograph of Complainant’s

intimate body parts. Id. at 10.

The Commonwealth responds that Appellant knowingly viewed

Complainant’s intimate parts, and the evidence established beyond a

reasonable doubt the elements of invasion of privacy. Commonwealth’s Brief

at 6. The Commonwealth contends that Appellant approached Complainant

from behind as she was walking up the stairs to exit the subway station and

placed his phone under her dress while shining the phone’s flashlight on

Complainant’s buttocks. Id. at 4, 6-7. The video then reveals that Appellant

rushed away when Complainant confronted him. See id. at 7. The

Commonwealth concludes that the evidence was sufficient to convict Appellant

of invasion of privacy. See id.

In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

Because a determination of evidentiary sufficiency presents a

question of law, our standard of review is de novo and our scope

of review is plenary. In reviewing the sufficiency of the evidence,

we must determine whether the evidence admitted at trial and all

reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient

to prove every element of the offense beyond a reasonable doubt.

The facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. It is within the

province of the fact-finder to determine the weight to be accorded

to each witness’s testimony and to believe all, part, or none of the

evidence. The Commonwealth may sustain its burden of proving

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every element of the crime by means of wholly circumstantial

evidence. Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the fact-

finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted and formatting altered).

The offense of invasion of privacy is set forth in 18 Pa.C.S.§ 7507.1:

(a) Offenses defined— . . . a person commits the offense of

invasion of privacy if he, for the purpose of arousing or gratifying

the sexual desire of any person, knowingly does any of the

following:

* * *

(2) Photographs, videotapes, electronically depicts, films or

otherwise records or personally views the intimate parts, whether

or not covered by clothing, of another person without that

person's knowledge and consent and which intimate parts that

person does not intend to be visible by normal public observation.

* * *

(e)Definitions.—

* * *

“Intimate part.” Any part of:

(1) the human genitals, pubic area or buttocks; and

(2) the nipple of a female breast.

“Photographs” or “films.” Making any photograph, motion

picture film, videotape or any other recording or transmission

of the image of a person.

* * *

“Views.” Looking upon another person with the unaided eye

or with any device designed or intended to improve visual

acuity.

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18 Pa.C.S. § 7507.1(a)(2), (e).

Here, the trial court concluded that there was sufficient evidence to

support Appellant’s conviction for invasion of privacy. See Trial Ct. Op. at 4.

In reaching that conclusion, the trial court explained:

The evidence was sufficient to support [Appellant’s] conviction on

the charge of invasion of privacy. Complainant testified as set

forth above that [Appellant] pulled up her dress,[3] put his phone

underneath her dress which touched her leg/ backside. The light

and or flash was on his phone, and it appeared he was recording.

At minimum, [Appellant] was viewing [] Complainant’s intimate

parts. During the defense closing argument the [trial c]ourt and

counsel closely examined video portions of the video 19 times and

it clearly showed [Appellant] rushing up to [] Complainant, pulling

his phone from out under Complainant’s dress and rushing away

when he was confronted by Complainant. This video made it

abundantly clear to the court that [Appellant] was recording

and/or viewing Complainant’s intimate parts. . . . [Appellant’s]

phone was facing up and he was pulling it out from underneath

her dress.

Id. (some formatting altered).

Following our review of the record, and in viewing the evidence in the

light most favorable to the Commonwealth as verdict winner, we conclude that

there was sufficient evidence to support Appellant’s conviction. See Palmer,

192 A.3d at 89. As noted, the Commonwealth presented video evidence

showing that Appellant closely followed Complainant up the stairs, pulled his

____________________________________________

3 Although Complainant testified that Appellant lifted her dress, we are

cognizant that the trial court acknowledged that the security video did not

specifically show this action. See N.T., 4/28/23, at 44. However, physically

lifting Complainant’s dress is not an element of the crime, and as the trial

court notes, the evidence established that Appellant, at a minimum, was

viewing Complainant’s intimate parts. See Trial Ct. Op. at 4.

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phone from under Complainant’s dress, and then rushed away when

confronted. See N.T., 4/28/23, at 14-15, 39-40; Trial Ct. Op. at 4. Further,

we agree with the trial court’s conclusion that even if Appellant was not

recording, Complainant’s testimony and the security video evidence

established that, at a minimum, viewed Complainant’s intimate parts as

defined in the statute without her consent. See N.T., 4/28/23, at 46-47; see

also 18 Pa. C.S. § 7507.1(a)(2), (e). Therefore, Appellant is not entitled to

relief.

Legality of Sentence

Finally, we must address the legality of Appellant’s sentence. See

Commonwealth v. Wright, 276 A.3d 821, 827 (Pa. Super. 2022) (noting

that questions regarding the legality of the sentence questions “are not

waivable and may be raised sua sponte on direct review by this Court”

(citation omitted and formatting altered)). A challenge to the legality of the

sentence “presents a pure question of law. As such, our scope of review is

plenary and our standard of review de novo.” Id. (citations omitted and

formatting altered).

As noted above, the trial court sentenced Appellant to a term of twelve

months’ probation for invasion of privacy, which was graded as a third-degree

misdemeanor.4 See N.T., 6/9/23, at 7, 28-29. At the time of sentencing,

Appellant had been in custody for 396 days. Id. at 7-8. However, the trial

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4 The statutory maximum sentence for a third-degree misdemeanor is one

year. See 18 Pa.C.S. § 1104(3).

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court explained that following Appellant’s arrest for the charges in the instant

case, Delaware County issued a probation detainer and subsequently imposed

a sentence for DUI-related charges. See id. at 6-8, 27-29. Therefore, the

trial court concluded that the time Appellant served in custody would be

credited toward the Delaware County sentence, rather than his sentence in

the instant case. See id. at 27-29.

However, on this record, there is insufficient information to determine if

the time Appellant served incarcerated was, in fact, credited to Appellant’s

Delaware County sentence, or if a Delaware County sentence was properly

imposed, entered prematurely, or subsequently vacated.5 Specifically, it is

unclear when the time Appellant spent incarcerated began to run in this case

or if such time was credited to a separate sentence in Delaware County.6 See

N.T., 6/9/23, at 6.

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5 At the sentencing hearing, the trial court and the Commonwealth discussed

the Delaware County detainer and acknowledged that the probation detainer

and revocation sentence in Delaware Court may have been premature and

was “something Delaware County would have to deal with.” N.T., 6/9/23, at

6, see also id. at 27-29. However, the trial court informed Appellant that the

time he served after his arrest in this case would count toward the Delaware

County sentence. See id. at 27-29. As stated, we are unable to discern from

the current record whether Appellant’s time spent incarcerated after his arrest

in this case was, in fact, credited toward any other sentence or if it must be

counted toward the sentence in this case.

6 Regarding credit for time served, Section 9760 of the Sentencing Code

provides as follows:

(1) Credit against the maximum term and any minimum term shall

be given to the defendant for all time spent in custody as a result

(Footnote Continued Next Page)

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Due to the lack of information in the record, we are constrained to

vacate Appellant’s sentence and remand for a new sentencing hearing. At

that time, the trial court may gather evidence and take testimony regarding

the time credit Appellant should have received and at which docket that credit

shall apply.

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of the criminal charge for which a prison sentence is imposed or

as a result of the conduct on which such a charge is based. Credit

shall include credit for time spent in custody prior to trial, during

trial, pending sentence, and pending the resolution of an appeal.

(2) Credit against the maximum term and any minimum term shall

be given to the defendant for all time spent in custody under a

prior sentence if he is later reprosecuted and resentenced for the

same offense or for another offense based on the same act or

acts. This shall include credit in accordance with paragraph (1) of

this section for all time spent in custody as a result of both the

original charge and any subsequent charge for the same offense

or for another offense based on the same act or acts.

(3) If the defendant is serving multiple sentences, and if one of

the sentences is set aside as the result of direct or collateral

attack, credit against the maximum and any minimum term of the

remaining sentences shall be given for all time served in relation

to the sentence set aside since the commission of the offenses on

which the sentences were based.

(4) If the defendant is arrested on one charge and later

prosecuted on another charge growing out of an act or acts that

occurred prior to his arrest, credit against the maximum term and

any minimum term of any sentence resulting from such

prosecution shall be given for all time spent in custody under the

former charge that has not been credited against another

sentence.

42 Pa.C.S. § 9760.

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In the event that Appellant’s time in custody was properly credited

toward his Delaware County sentences, the trial court may resentence

Appellant to the same sentence it imposed in this matter on June 9, 2023.

However, if the trial court concludes that Appellant’s credit for time served

should have been credited toward the instant case, the trial court shall

resentence Appellant to a new legal sentence, bearing in mind that the

statutory maximum sentence for a third-degree misdemeanor is one year.

See 18 Pa.C.S. § 1104(3); see also 42 Pa.C.S. § 9760.

For these reasons, although we conclude that the evidence was

sufficient to sustain Appellant’s conviction for invasion of privacy, we are

constrained to vacate Appellant’s judgment of sentence and remand for

resentencing consistent with this Memorandum.

Conviction affirmed. Judgment of sentence vacated and case remanded

with instructions. Jurisdiction relinquished.

Date: 10/02/2024

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