Com. v. Corley, K. (memorandum)
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J-S64005-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. KEITH Q. CORLEY, Appellant No. 2168 EDA 2012 Appeal from the Judgment of Sentence of June 22, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012082-2011 BEFORE: GANTMAN, DONOHUE AND OLSON, JJ. MEMORANDUM BY OLSON, J.: FILED DECEMBER 20, 2013 Appellant, Keith Q. Corley, appeals from the judgment of sentence entered on June 22, 2012, as made final by the denial of Appellant s postsentence motion on June 29, 2012. We affirm. The trial court has provided us with a thorough and well-written summary of the underlying facts in this case. As the trial court explained: At approximately 1:30 a.m. on August 11, 2011, complainant [K.B.] left her brother s house, picked up some take-out food, and walked to the intersection of 52nd and Market Streets in the City of Philadelphia. She arrived at the 52nd and Market Streets bus stop at approximately 2:15 a.m. After waiting for the shuttle bus for approximately one hour, [K.B.] was approached by another woman in the vicinity. They discussed the bus s delay. When they saw a marked police vehicle coming down the street, they flagged it down to get more information. [Appellant], who was the on-duty, uniformed police officer operating the vehicle, informed [K.B.] that due to construction, she would have to catch the shuttle bus at Chestnut or Walnut Street. He J-S64005-13 offered [K.B.] a ride to the terminal at 69th and Market Streets, which she accepted. When [K.B.] opened the rear passenger side door to get into the patrol car, [Appellant] told her [that] she could sit in the front passenger seat, which she did. [K.B.] testified that after she moved to the police vehicle s front passenger seat, [Appellant] began to drive at a slow pace. In the car, while [K.B.] was using Facebook on her cell phone, [Appellant] told her that she owed him a favor. [K.B.] asked him what he meant, and he responded that he had done [K.B.] a favor and now she owed him one. [K.B.] testified that she believed [Appellant] was alluding to a sexual favor. [Appellant] drove [K.B.] up Market Street to 63rd Street, turned onto Cobbs Creek Parkway, and, without saying a word, drove into a parking lot adjacent to a skating rink and playground, and in the vicinity of some area houses. [K.B.] testified that there were no other cars in the lot, and the area was unlit. While in the parking lot, [Appellant] again said that he wanted [K.B.] to do him a favor. He exited the police vehicle, walked around the front of the car, opened the front passenger side door, and stood in front of [K.B.] with his pants unfastened. [Appellant] told [K.B.] that he wanted her to perform oral sex on him. Still standing in front of [K.B.], and his gun still on his hip, [Appellant] unzipped his pants and pulled his penis out through his zipper. He was standing approximately one foot in front of [K.B.], such that he was blocking her ability to get out of the passenger[-]side door. [K.B.] testified that she did not want [Appellant] to put his penis inside her mouth, nor did she give him permission to do so. She was frightened that if she did not do as [Appellant] said, she could have been left for dead in the parking lot. Though [Appellant] never made any gestures or references to the gun on his hip, it was visible as he stood in front of [K.B.] telling her she owed him a favor. In the midst of the described circumstances, [Appellant s] penis was inserted into [K.B. s] mouth, where he then ejaculated. Afterward, [Appellant] asked [K.B.] to hand him some napkins from the glove compartment, which he used -2- J-S64005-13 to wipe off his penis. [Appellant] then handed a napkin to [K.B.], which she used to clean her mouth. [Appellant] got back into the car and without any conversation drove [K.B.] to the 69th Street terminal. When they arrived, [K.B.] got out of the car, and [Appellant] drove away. [K.B.] noted the number on the patrol car and entered it in her phone. She immediately approached [SEPTA] Transit Police Officer Dwayne Morrison . . . who was at the terminal. She told him that she had been sexually assaulted by a Philadelphia police officer. [K.B.] then called 911 along with Officer Morrison. After speaking with the 911 operator, Officer Morrison drove [K.B.] back to the 63rd and Cobbs Creek Parkway, where she met with members of the Philadelphia Police Department at the scene of the incident. From the parking lot, [K.B.] was taken to the Special Victims Unit[,] where she gave a statement and identified [Appellant] from a photo array. [Appellant], testifying on his own behalf, did not dispute that he drove [K.B.] to the parking lot, exposed himself to her, and received oral sex from her. He, however, testified that this was at the insistence of [K.B.]. According to [Appellant], as soon as [K.B.] got into the police vehicle, she began telling [Appellant] she owed him a favor. [Appellant] told her that she did not have to give him any money. Then, as they drove westbound on Market Street, [K.B.] offered to stop in a store to buy a condom. [Appellant] told her, No, that s okay. Soon after, [K.B.] pointed out a Rite Aid and again offered to get a condom. [Appellant] again said, No, that s okay. [K.B.] offered to get a condom a third time as they passed a gas station. [Appellant] continued driving, and [K.B.] suggested, Just find a spot and I ll do something else for you. [Appellant] drove into a parking lot, parked the police car, stepped outside the vehicle and walked over to the passenger side, and opened the passenger-side door. When [Appellant] opened the door, [K.B.] turned toward [Appellant]. He unzipped his pants, took his penis out of his pants, and [K.B.] performed oral sex on him. [Appellant] conceded that the rest of their encounter occurred as [K.B.] had testified. ... -3- J-S64005-13 [Appellant] was charged with involuntary deviate sexual intercourse, sexual assault, indecent exposure, and official oppression. On March 16, 2012, after a jury trial, [Appellant] was found guilty of indecent exposure and official oppression.[1, 2] On June 22, 2012, [Appellant] was sentenced to three to six months of incarceration, followed by two years [of] probation. On June 25, 2012, [Appellant s] counsel filed post-sentence motions [and claimed: that the verdict was against the weight of the evidence; that, at sentencing, the trial court failed to consider all of the mitigating factors; and, that Appellant was entitled to bail while his direct appeal was pending.] After a June 29, 2012 hearing, the [trial] court denied [Appellant s motion for a new trial and Appellant s motion for reconsideration of sentence3], but granted the bail motion, conditioned upon [Appellant] being placed on house arrest. Trial Court Opinion, 3/20/13, at 1-5 (internal citations and footnotes omitted). On July 24, 2012, Appellant filed a timely notice of appeal and Appellant now raises the following claims to this Court:4 ____________________________________________ 1 The jury found Appellant not guilty of involuntary deviate sexual intercourse and sexual assault. 2 18 Pa.C.S.A ยงยง 3127 and 5301, respectively. 3 The trial court denied Appellant s motion for a new trial and Appellant s motion for reconsideration of sentence on the record at the June 29, 2012 hearing. See N.T. Hearing, 6/29/12, at 5 and 8. 4 The trial court ordered Appellant to file and serve a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied and listed the four claims he currently raises on appeal. -4- J-S64005-13 1. Whether the evidence was insufficient to convict [Appellant] of indecent exposure since [Appellant s] defense was consent and [Appellant] was found not guilty of the underlying sexual act? 2. Whether the evidence was insufficient to convict [Appellant] of official oppression since [Appellant] thought he [was] engaging in a legal consensual sex act and [Appellant] was found not guilty of the underlying sexual act? 3. Whether the evidence was against the weight of the evidence for both indecent exposure and official oppression since [Appellant] was found not guilty of the underlying sexual act and his actions were consistent with consent? 4. Whether [the trial court] committed reversible error when it denied [Appellant s] request for a jury instruction on mistake of fact as to indecent exposure and official oppression since [Appellant] had testified that he thought his actions were legal? Appellant s Brief at 4.5 We have reviewed the briefs of the parties, the relevant law, the certified record, and the opinion of the able trial judge, the Honorable Donna Woelpper. We conclude that there has been no error in this case and that the trial court s opinion, filed March 20, 2013, meticulously and accurately disposes of Appellant s claims on appeal. Therefore, we affirm on the basis of the trial court s opinion and adopt it as our own. In any future filings with this or any other court addressing this ruling, the filing party shall attach a ____________________________________________ 5 Within the argument section of Appellant s brief, Appellant abandoned the final two claims that are listed in his statement of questions involved on appeal. See Appellant s Brief at 17. -5- J-S64005-13 copy of the trial court s opinion with the name of the victim redacted. Instead, the victim s initials shall be used. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/20/2013 -6-
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