Commonwealth v. Jennings

1

COMMONWEALTH OF PENNSYLVANIA v. MARVIN JENNINGS Appellant

No. 222 EDA 2022

No. J-S43029-22

Superior Court of Pennsylvania

March 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 27, 2021, in the Court of Common Pleas of Delaware County, Criminal Division at No(s): CP-23-CR-0002750-2019.

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM

KUNSELMAN, J.

Marvin Jennings appeals from the judgment of sentence entered following his convictions for criminal attempt to commit statutory sexual assault, unlawful contact with a minor criminal attempt to commit corruption of minors, and criminal use of a communication facility.^[1] We affirm his convictions and deny his motion to stay sexual offender registration. However, we vacate his sentence and remand for resentencing.

Beginning on April 14, 2019, Jennings chatted on a dating/messaging application with "Casey," who claimed to be a 14-year-old girl in Delaware County. After Casey said that she was 14, Jennings told her that she was too young, but he then continued to chat and exchange photographs. Their conversation was marked by sexual content, as well as Jennings' suspicion that Casey was not who she claimed to be.

[Jennings:] So ur willing to be with an older guy?

[Casey:] I mean idk I'm nervous but I'd try

[Jennings:] So convince me to hookup with u. If not, I'll just let it go

[Casey:] I mean I'm down to try it lolzzz would u wanna be with me??? I never really done anything so I'm kind of embarrassed

[Jennings:] To he honest. I know ur a cop,lol. I love toying with y'all. Anytime an underage girl is on these sites, it's a sting! Ctfu

[Casey:] Lolzz Def not a cop r u?

[Jennings:] Hell no.

[Casey:] Bs

Ur gonna tell my mom rnt u [Jennings:] U got one photo on ur page. Classic Ur mom? Lol

[Casey:] Lolzz Idk I don't have alot on my ipod lolz me and my friend put this up for fun

[Jennings:] U haven't convinced me out that ur not a cop and that ur real

[Casey:] Well idk how to do that, lolzzz... but it would be cool to be a 14 year old cop:)

Exhibit 3, at 16-17; id. at 20 ("U ever watched porn before?"); id. at 21 ("I have no intention of talking to noone but u. If u told ur mom we was talking I'd be in trouble"); id. at 30 ("So u wanna have sex right?"); id. at 32 (Casey: "I guess it will hurt then" Jennings: "Not if it's real wet. It'll slide right in"); id. at 34 ("I'm horny and hard"). Eventually, Jennings and Casey agreed that he would drive to meet her in the back of a K-Mart parking lot on April 20, 2019. He said he would drive a white, four-door Toyota.

In reality, the "Casey" account was maintained by Ridley Township Detective Timothy Kearney. Detective Kearney briefed a law enforcement team with descriptions of Jennings and Jennings' vehicle, and the team waited in the parking lot. The trial court described what happened next:

[Jennings] was originally spotted by Detective David Tyler, of Delaware County [Criminal Investigation Division], in the rear of the K-Mart parking lot, driving a different vehicle than the one initially described. Detective Tyler's attention was drawn to a red, Chevy Yukon because the car continually circled the parking lot, and would drive to the rear of the K-Mart and then back around to the front of the building. The car eventually parked, and Detective Tyler was able to drive past and observe that the driver matched the physical description of [Jennings] that was provided by Detective Kearney. Detective Tyler notified the other officers that he believed the suspect came to the scene in the Yukon and not the white Toyota. [Jennings] then circled back to the rear of the K-Mart and the decision was made to stop the vehicle. Upon being stopped and escorted out of the vehicle, [Jennings] blurted out that he "knew this was a set up."

[Jennings] was taken back to the police station to be interviewed; Detective Kearney, Detective Tyler, and [Sergeant Kenneth] Bellis were present in the interview room. [Jennings] waived his Miranda rights and freely gave a statement to police and also gave consent to allow Detectives to search his phone.

During his statement, [Jennings] told Detectives that he traveled to the parking lot that day from Philadelphia to meet Casey. [Jennings] told Detectives that Casey told him she was only 14[ ]years old and that he agreed that such an age would render a girl a child. [Jennings] admitted that he continued to talk to Casey because people often lie on the websites about their age and that she looked like she may be older than that from the photos she sent. When asked if it was his intention to have sex with her upon arrival, [Jennings] stated "It depended on how she looked, if she really looked her age I would probably [have] believed her and I just, I'm good you know." [Jennings] essentially informed the Detectives that he was curious; maybe it was a young girl, maybe it was an adult, or maybe it would be a cop, but that he freely came to the parking lot that day knowing it could be 14-year-old Casey.

Trial Court Opinion, 5/29/22, at 3-4 (record citations, footnotes, and italics omitted).

Sergeant Bellis charged Jennings with the above offenses. On July 23, 2021, a jury found Jennings guilty on all counts. The trial court imposed an aggregate sentence of 50 to 100 years of imprisonment, concurrent with 7 years of probation.^[2] On November 5, 2021, Jennings filed post-sentence motions, which the trial court denied on December 6, 2021.

On January 6, 2022, Jennings filed a notice of appeal. Jennings complied with Pennsylvania Rule of Appellate Procedure 1925(b). The trial court entered its Rule 1925(a) opinion on May 29, 2022.

Jennings presents seven issues, which we reorder as follows:

1. Whether the post-sentence motion was untimely filed on November 5, 2021 such that this appeal should be quashed?

2. Whether the evidence was insufficient to establish appellant's guilt for the offense of attempt to commit statutory sexual assault beyond a reasonable doubt, in violation of appellant's state and federal constitutional rights?

3. Whether the evidence was insufficient to establish appellant's guilt for the offense of unlawful contact with a minor (undercover officer) beyond a reasonable doubt, in violation of appellant's state and federal constitutional rights?

4. Whether the evidence was insufficient to establish appellant's guilt for the offense of attempt to commit corruption of minors beyond a reasonable doubt, in violation of appellant's state and federal constitutional rights?

5. Whether the trial court imposed illegal sentences of 25 to 50 years of incarceration each for attempt to commit statutory sexual assault and for unlawful contact with a minor?

6. Whether the trial court erred as a matter of law and violated the discretionary aspect of sentencing when it imposed a manifestly excessive and unreasonable life sentence of 50 to 100 years of incarceration?

7. Whether appellant's sex offender registration pursuant to Subchapter H of Act 29 is unconstitutional and his registration should be stayed pending resolution of Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020)?

Jennings' Brief at 4-5.

We first address the timeliness of the appeal. Our initial review of the record indicated that judgment of sentence was imposed on October 25, 2021. Thus, Jennings' post-sentence motion (filed November 5, 2021) and his notice of appeal (filed January 6, 2022) would be untimely. See Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (citing Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (en banc)). Accordingly, we directed Jennings to show cause why his appeal should not be quashed. He complied. After review of Jennings' response and the record, we are satisfied that judgment of sentence was entered on October 27, 2021, and the docket entry dated October 25, 2021 was erroneous.^[3] Therefore, his post-sentence motion and notice of appeal were timely filed, and we decline to quash this appeal.

Turning to the substantive issues, Jennings challenges the sufficiency of the evidence to support three of his convictions. Because he incorporates the same sufficiency argument for all three, we will address these claims together. With respect to criminal attempt to commit statutory sexual assault, Jennings argues that there was insufficient evidence to establish (1) his belief that Casey was younger than 16, (2) his intent to engage in sexual intercourse, and (3) a substantial step towards engaging in sexual intercourse. Jennings' Brief at 22-29. With respect to unlawful contact with a minor, he challenges the evidence of his (1) belief that Casey was actually underage and (2) intent to engage in sexual intercourse. Id. at 29-30. And with respect to criminal attempt to commit corruption of minors, he argues the evidence does not prove that he (1) believed Casey to be underage, (2) intended to engage in sexual intercourse, and (3) attempted to commit the offense, based on his lack of intent to engage in sexual intercourse. Id. at 31-32.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for a fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no

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