Com. v. Cole, D.

C
J-S09035-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONNEL COLE                                :
                                               :
                       Appellant               :   No. 2938 EDA 2019

          Appeal from the Judgment of Sentence Entered May 28, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000889-2017

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               Filed: April 30, 2021

        Donnel Cole (“Cole”) appeals from the judgment of sentence imposed

following his convictions of corruption of minors, unlawful contact with a

minor, and indecent assault – threat of forcible compulsion.1 We affirm.

        In its Opinion, the trial court set forth the relevant factual history

underlying this appeal as follows:

              On October 22, 2016, the Complainant [] returned home to
        her mother’s house in southwest Philadelphia around 10 a.m.[,]
        after spending the night at her boyfriend’s house.             The
        Complainant was 16 years old…. The Complainant was in a rush
        that morning because she was late for work….             While the
        Complainant was getting ready for work, [Cole] arrived at the
        house with his 4[-]year[-]old daughter…. The Complainant’s
        mother [] and [Cole] were in a relationship at the time. … When
        the Complainant stated to her mother that she was in a rush to
        get to the trolley, [Cole] offered a ride, saying he was going that
        way.

____________________________________________


1   See 18 Pa.C.S.A. §§ 6301(a)(1)(i), 6318(a)(1), 3126(a)(3).
J-S09035-21


            The Complainant got in the car with [Cole], and he began
      driving. However, [Cole] stopped the car a short distance down
      the block. [Cole] then told the Complainant that he had gotten
      into a fight with her mother, that he didn’t want to be with her,
      that he didn’t find her attractive[,] and that he could never be with
      someone so heavy. [Cole] further stated that he found the
      Complainant attractive and wanted to be with her.              [Cole]
      continued to drive while talking about [Complainant’s] mother.
      The Complainant responded that she was having trouble with her
      boyfriend, who had gotten on her nerves the night before. [Cole]
      subsequently asked “what type of stuff” the Complainant did with
      her boyfriend. His inquiry made her uncomfortable. [Cole] told
      the Complainant that she deserved better because her boyfriend
      was ugly but she was “beautiful.” As he continued to drive, [Cole]
      removed items (name tag, hat, etc.) from the Complainant’s lap
      and put them in the backseat.

            After removing the items, [Cole] began to touch and rub the
      Complainant’s leg. When [Cole] noticed that there was a hole in
      the crotch area of the Complainant’s pants, he said “even better,”
      and began touching her vagina over the tights she was wearing
      underneath her pants. Afraid, the Complainant told [Cole] “no!”
      The Complainant further told [Cole] that he shouldn’t be touching
      her because she was sixteen, and he was in a relationship with
      her mother. However, [Cole] continued to touch her with his right
      hand and offered her $3,000 []. He then put his hand down the
      Complainant’s pants and touched the skin at the top of her pubic
      area. Although she tried to remove his hand, [Cole] put his hand
      back on the area. The Complainant next texted her boyfriend
      about what was transpiring because she feared for her safety.

             [Cole] briefly stopped at the Prism Institute to sign in for a
      class before returning to the car minutes later to continue driving.
      He asked the Complainant if they could hang out a bit longer and
      have sex, but she said that her manager had called[,] informing
      her that she needed to be at work. However, [Cole] continued to
      ask [Complainant] for sex. After [Cole] dropped the Complainant
      off at her job, she walked inside and cried. When her manager
      asked [Complainant] what was wrong, she explained what had
      happened. The manager then called the police.

Trial Court Opinion, 8/31/20, at 3-5.




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J-S09035-21


        Following an investigation, Cole was charged with endangering welfare

of children, corruption of minors, and indecent assault – threat of forcible

compulsion.2      The Commonwealth later amended the charges to include

counts for unlawful contact with a minor and indecent assault – without the

complainant’s consent.3

        A jury trial was held from February 5, 2019, to February 12, 2019. On

February 11, 2019, during deliberations, the jury asked the court several

questions. Relevantly, in question #2 the jury inquired, “Is consent relevant

to the definition of indecent assault as it relates to the unlawful contact with

a minor offense?” N.T., 2/11/19, at 11. The trial court heard arguments from

both parties.

Id. at 11-16.

Cole argued that consent was relevant to the

charge for indecent assault, as it related to the charge for unlawful contact

with a minor.

Id. The trial court

disagreed, and answered the jury’s question

by responding, “The answer is no.”

Id. at 21.

        On February 12, 2019, the jury found Cole guilty of corruption of minors,

unlawful contact with a minor, and indecent assault – threat of forcible

compulsion, and not guilty of indecent assault – without the complainant’s

consent.     The Commonwealth nolle prossed the charge for endangering

welfare of children.        The trial court deferred sentencing and ordered



____________________________________________


2   See 18 Pa.C.S.A. §§ 4304, 6301(A)(1)(i), 3126(a)(3).

3   See 18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(1).

                                           -3-
J-S09035-21


preparation of a pre-sentence investigation report. On May 28, 2019, the trial

court sentenced Cole to an aggregate term of 11½ to 23 months in prison,

followed by 5 years of probation. On June 7, 2019, Cole filed a post-sentence

Motion, challenging, in relevant part, the trial court’s answer to jury question

#2. The Motion was denied by operation of law on October 7, 2019.4 Cole

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

       On appeal, Cole raises the following question for our review:

       Where the jury in a trial charging indecent assault and unlawful
       contact with a minor asked the question, “Is consent relevant to
       the definition of indecent assault as it relates to the unlawful
       contact with a minor offense?”, was it not error and an abuse of
       discretion to answer the jury’s question, “No”, over defense
       objection and a request for further instruction on the applicability
       of consent, where the court’s answer had a tendency to mislead
       of confuse the jury on a material issue?

Brief for Appellant at 3.

       Cole argues that the trial court erroneously responded to jury question

#2. See Brief for Appellant at 9-20. Cole claims that the trial court should

have instructed the jury that consent was relevant to the indecent assault



____________________________________________


4 See Pa.R.Crim.P. 720 (stating, in relevant part, that “the [trial court] judge
shall decide the post-sentence motion, including any supplemental motion,
within 120 days of the filing of the motion. If the judge fails to decide the
motion within 120 days … the motion shall be deemed denied by operation of
law.”). The 120th day after June 7, 2019, was Saturday October 5, 2019. See
1 Pa.C.S.A. § 1908 (stating that whenever the last day of the appeal period
falls on a weekend or on any legal holiday, such day shall be omitted from the
computation of time).

                                           -4-
J-S09035-21


charges as they related to the unlawful contact with a minor charge.

Id. at

9-10.

According to Cole, in order for the jury to have found him guilty of

unlawful contact with a minor, the jury must first have found him guilty of

indecent assault. Cole asserts that if Complainant consented to the contact

that formed the basis for the indecent assault charges, he could not have been

convicted of indecent assault, and, accordingly, could not have been convicted

of unlawful contact with a minor.

Id.

The Crimes Code

defines unlawful contact with a minor, in relevant part,

as follows:

              A person commits an offense if he is intentionally in contact
      with 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: Any of the offenses enumerated in Chapter 31
      (relating to sexual offenses).

18 Pa.C.S.A. § 6318(a)(1). “[Section] 6318 does not require that a defendant

be convicted of the substantive offense for which he contacted the minor, let

alone be charged with it.” Commonwealth v. Reed, 

9 A.3d 1138

, 1146 (Pa.

2010).

      Here, Cole was charged with unlawful contact with a minor in relation to

the substantive offense of indecent assault.     Although the jury found Cole

guilty of indecent assault – forcible compulsion, this conviction was not a

prerequisite to the jury finding Cole guilty of unlawful contact with a minor.

See 

Reed, supra

.       Thus, whether Complainant had consented to Cole

touching her, which formed the basis for the indecent assault charge, was

                                      -5-
J-S09035-21


irrelevant to the unlawful contact with a minor charge.         Accordingly, we

conclude that the trial court did not err in the way it responded to jury question

#2, and we deny Cole relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/21




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