J-S67010-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Former Justice specially assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JJ JOHN WHIPKEY, : : Appellant : No. 43 WDA 2014

Appeal from the Judgment of Sentence December 20, 2 013, Court of Common Pleas, Washington County, Criminal Division at No. CP-63-CR-0003170-2012 BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ. MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 4, 2015 Appellant, JJ John Whipkey (“Whipkey”), appeals fr om the judgment of sentence entered on December 20, 2013 by the Court of Common Pleas, Washington County, following a conviction of false imprisonment of a minor, 18 Pa.C.S.A. § 2903(b), and criminal attempt at ind ecent assault of a child less than 13 years of age, 18 Pa.C.S.A. § 901(a); 1 8 Pa.C.S.A. § 3126(a)(7). For the reasons set forth herein, we affirm. The trial court provided the following summary of the facts and procedural history:

On November 4, 2012, Michelle Clark [(“Clark”)] went to the home of Patty Brodak [(“Brodak”)] on Allison Avenue in the city of Washington, Washingto n County. Clark provided care for James McCave [(“McCave”)], who rented a room from Brodak but needed housekeeping and caretaking services because he was elderly. On that date Clark was accompanied by her two children, five-year-oldJ-S67010-14

- 2 - [A.H.] and three-year-old [C.H.]. [Whipkey’s] room was located on the second floor of Brodak’s home. At some point during the visit [Whipkey] isolated [C.H.] in his room, stuffed a towel in her mouth causing her lip to bleed, and undressed her on his bed. While Clark was downstairs she could hear [C.H.] yelling for her from upstairs, and her son [A.H.] also came downstairs to summon Clark upstairs because he became aware that [C.H.] was crying and locked in [Whipkey’s] room. Clark ran upstairs and could hear her daughter crying for her from inside [Whipkey’s] room. Clark pounded on the door of [Whipkey’s] room, but he refused to open the door. During this time, [Whipkey] moved [C.H.] from his bed to his closet and restrained her there. The door was locked and Clark attempted to kick the door down but was unable to do so. Unable to gain entry into the roo m, Clark told [Whipkey] that she was going to call the police. While Clark ran downstairs to call the pol ice, Brodak went upstairs and successfully kicked in the door to [Whipkey’s] room. Clark ran back upstairs and entered [Whipkey’s] room. She found [C.H.] behind the bedroom door with only her underpants on, and [Whipkey] putting a shirt on her. Clark removed [C.H.] from [Whipkey’s] room and brought her downstairs. As police arrived [Whipkey] ran through the kitchen an d out the back door. Clark, McCave, and Brodak tried to physically restrain [Whipkey] but could not reac h him, and responding officers pursued [Whipkey] without success. [C.H.] was transported to Washington Hospital for examination and interviewing purposes. Trial Court Opinion, 5/8/14, at 3-5. Whipkey was subsequently located in Pittsburgh and charged with one count of false imprisonment of a minor, 18 Pa.C.S.A . § 2903(b), and oneJ-S67010-14

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count of indecent assault of person less than 13 ye ars of age, 18 Pa.C.S.A. § 3126(a)(7). On September 13, 2013, at the conclusi on of a nonjury trial, the trial court found Whipkey guilty of false impri sonment and criminal attempt to commit indecent assault. The trial cour t sentenced him on December 20, 2013, to an aggregate sentence of seve n and one half years to fifteen years of incarceration. Whipkey did not file post sentence motions. On January 3, 2014, Whipkey filed a timely appeal. On appeal, Whipkey raises the following issues for our review, which we have reordered for ease of disposition:

1. Did the Commonwealth present sufficient evidence, as a matter of law, of each of the counts : A. False imprisonment; and B. Criminal attempt to commit indecent assault. 2. Did the [t]rial [c]ourt abuse its discretion in finding the juvenile victim/witness competent to testify? Whipkey’s Brief at 4. For his first issue on appeal, Whipkey argues that the Commonwealth failed to present sufficient evidence to convict hi m of false imprisonment and criminal attempt to commit indecent assault. Id . at 10-12. Our standard of review in assessing the sufficiency of the evidence is well settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all of the evidence admitted at trial in the light most favorable to th e verdict winner, there is sufficient evidence to ena ble the fact-finder to find every element of the crimeJ-S67010-14

- 4 - beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established b y the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finde r unless the evidence is so weak and inconclusive tha t as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Helsel , 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing Commonwealth v. Bricker , 41 A.3d 872, 877 (Pa. Super. 2012)). We first address Whipkey’s claim that the evidence was insufficient to convict him of false imprisonment. Whipkey asserts that “[t]he Commonwealth was unable to meet its burden of provi ng that [he] restrained C.H. unlawfully so as to interfere subst antially with her liberty.” Whipkey’s Brief at 10. Whipkey specifically argues that “while [his] actions were suspicious, being locked in a bedroom with a c hild for a few minutes falls short of the crime of false imprisonment.” Id . The Pennsylvania Crimes Code defines false impriso nment as follows: “[i]f the victim is a person under 18 years of age, a person who is not the victim’s parent commits a felony of the second degr ee if he knowinglyJ-S67010-14

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restrains another unlawfully so as to interfere sub stantially with [her] liberty.” 18 Pa.C.S.A. § 2903(b). “In determining the magnitude of restraint necessary for false imprisonment, this Co urt has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping 1 and unlawful restraint 2 .” In re M.G. , 916 A.2d 1179, 1181-82 (Pa. Super. 2007) (footnot es in original). In the instant matter, the Commonwealth presented the testimony of C.H., Clark, and McCave in support of its case. Cl ark testified that her son ran to her and informed her that C.H. was locked in Whipkey’s room. N.T., 9/13/13, at 32. When she ran upstairs to Whipkey’s bedroom, she could hear C.H. crying for her from the bedroom, but Clar k could not open the door because it was locked. Id . at 32-33. Clark began pounding on the door and told Whipkey that she was calling the poli ce. Id . at 34. McCave corroborated Clark’s testimony, stating “I could he ar [Clark and Brodak] beating on the door, and I could hear [Clark] hyste rically saying let me in.” Id . at 48. Finally, C.H. testified that she could not open the door when Clark was banging on the door because Whipkey held her do wn. Id . at 19. C.H. also testified that Whipkey put gloves and towels i n her mouth, causing her lip to bleed, and hid her in the closet. Id . at 18, 20-21.

1 18 Pa.C.S.A. § 2901(a).

2 18 Pa.C.S.A. § 2902(a).J-S67010-14

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Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, we conclude that the evidenc e is sufficient to sustain Whipkey’s conviction for false imprisonment of C.H. It is undisputed that C.H. is under eighteen years of age and that Whipke y is not a parent to C.H. Moreover, the evidence presented at trial establish es that Whipkey restrained C.H. by locking her in the bedroom, hidi ng her in the closet, holding her down, and preventing her from going to the door to open it. The short duration of the restraint is immaterial. In In re M.G. , the appellant entered the victim’s bedroom after she fi nished showering and closed and locked the door behind them. In re M.G. , 916 A.2d at 1180. The appellant ignored the victim’s request for him to leave her room, and instead, reached under the victim’s towel and “touc hed her ‘private area.’” Id . The victim pushed the appellant and began yelling a t him to leave. Id . The victim’s sister began banging on the bedroom do or, at which time, the appellant opened the door and left. Id . After the trial court adjudicated him delinquent on one count of false imprisonment, the appellant appealed, arguing that his interference with the victim’s lib erty “was not ‘substantial’ since the incident lasted, at most, two minutes.” Id . at 1183. This Court rejected the appellant’s argument stating, “[t]he r ecord is quite clear that Appellant’s restraint of [the victim] was unexpecte dly ‘cut short’ when [the victim’s] older sister tried to enter the bedroom. The fact Appellant’s assaultJ-S67010-14

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was thwarted sooner than he may have desired does n ot require a different result in this case.” Id . In this case, similar to the situation presented i n In re M.G. , the record establishes that Whipkey’s attempt to restra in C.H. was cut short when Brodak successfully opened Whipkey’s locked do or. Thus, just as this Court held in In re M.G. , the short duration of Whipkey’s restraint of C.H. does not compel a different result in this case. A ccordingly, we conclude that the evidence was sufficient to sustain Whipkey ’s conviction of false imprisonment. Whipkey also argues that the evidence was insuffici ent to convict him of criminal attempt to commit indecent assault. Wh ipkey’s Brief at 11-12. The Crimes Code provides the following definition o f indecent assault of a person less than 13 years of age:

A person is guilty of indecent assault if the perso n has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or fece s for the purpose of arousing sexual desire in the person or the complainant and: (7) the complainant is less than 13 years of age. 18 Pa.C.S.A. § 3126(a)(7). Indecent contact is def ined as “[a]ny touching of the sexual or other intimate parts of the person fo r the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S.A. § 3101. Thus, in order to sustain a conviction for criminal attempt to commit indecentJ-S67010-14

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assault, the Commonwealth was required to establish that Whipkey, with intent to commit indecent assault, engaged in “any act which constitutes a substantial step toward the commission of that crim e.” See 18 Pa.C.S.A. § 901(a) (“A person commits an attempt when, with int ent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.”). At trial, C.H. testified that while she was in Whi pkey’s bedroom, Whipkey took her clothes off. N.T., 9/13/13, at 15 -16. The Commonwealth also presented the testimony of Clark, who testifie d that when she finally gained access to Whipkey’s bedroom, she saw her dau ghter crying, wearing just a pair of underwear, and Whipkey helping her p ut her shirt back on. N.T., 9/13/13, at 35. At that point, C.H.’s shirt was “just over her head” and did not cover her chest at all. Id . McCave similarly testified that he witnessed Whipkey helping C.H. put her shirt back o n, and that the shirt was “on her head but not over her chest.” Id . at 49, 53. Whipkey does not contest the evidence presented. Instead, Whipkey asserts that “while [his] behavior and actions arou se suspicions as to what he attempted or maybe even did, a criminal prosecut ion may not be based upon mere suspicion and speculation, even where the acts appear to run afoul of mature, responsible and moral behavior.” Whipkey’s Brief at 11. Whipkey further alleges that “[e]ven when applying logical inferences to theJ-S67010-14

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facts we know, one cannot conclude that sufficient evidence of an attempted indecent assault was offered.” Id . at 12. We disagree. This Court previously rejected the notion that “the character of an indecent assault depends entirely on its degree of success achieved by the attacker.” Commonwealth v. Capo , 727 A.2d 1126, 1128 (Pa. Super. 1999) (stating “[the appellant’s] inability to achi eve more intimate contact than was in fact accomplished does not make that as sault equivocal or lessen its indecency.”). Rather, it is well settle d that “[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Helsel , 53 A.3d at 918.
In Commonwealth v. White , 335 A.2d 436 (Pa. Super. 1975), this Court upheld the appellant’s conviction of attempte d indecent assault, concluding: the appellant’s act of carrying the complainant to the

back of an abandoned house; holding her shoulders, threatening to grab her, and lifting her skirt up approximately six inches, all of which occurred against the complainant’s will, demonstrates that t he appellant had the requisite intent to commit, at th e minimum, an indecent assault and, furthermore, had taken substantial steps towards the completion of the reprehensible act. Id . at 181. Moreover, in Commonwealth v. Vosburg , 574 A.2d 679 (Pa. Super. 1990), this Court concluded that the Commonwealth p resented sufficientJ-S67010-14

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evidence to prove beyond a reasonable doubt that th e appellant committed indecent assault on an eight-year-old girl by pulli ng on her underwear while she lay in bed. Id . at 682 (stating, “the eight-year-old victim testif ied that she had felt someone pulling on her underwear while she lay in bed. This was sufficient evidence for the jury to conclude, b eyond a reasonable doubt, that an indecent assault occurred[.]”). Thus, viewing the evidence in a light most favorabl e to the Commonwealth as verdict winner, we conclude that W hipkey’s acts of locking C.H. in his bedroom and removing C.H.’s clo thing are sufficient to prove that Whipkey took a substantial step toward h aving indecent contact with C.H., who is less than thirteen years of age. Accordingly, the Commonwealth presented sufficient evidence to prove each element of criminal attempt to commit indecent assault. For his second issue on appeal, Whipkey asserts th at the trial court abused its discretion in finding the four-year-old victim to be a competent witness. Whipkey’s Brief at 8-9. “Our standard of review recognizes that [a] child’s competency to testify is a threshold le gal issue that a trial court must decide, and an appellate court will not distur b its determination absent an abuse of discretion. Our scope of review is ple nary.” Commonwealth v. Page , 59 A.3d 1118, 1126-27 (Pa. Super. 2013). In reviewing this issue, we note that in Pennsylvan ia,J-S67010-14

- 11 - [e]very witness is presumed competent. A party who challenges the competency of a minor witness must prove by clear and convincing evidence that the witness lacks the minimal capacity ... (1) to communicate, (2) to observe an event and accurately recall that observation, and (3) to understand the necessity to speak the truth. Id . at 1129 (quoting Commonwealth v. Pena , 31 A.3d 704, 706 (Pa. Super. 2011)). In this case, the trial court engaged in the follo wing inquiry to determine C.H.’s competency:

The Court: All right. What is your name?’ [C.H.]: Caileigh. The Court: Do you have a last name? [C.H.]: No. The Court: How old are you? [C.H.]: Four. The Court: Do you know why you are here today? [C.H.]: Because I need to tell you what happened with [Whipkey]. * * * The Court: Do you know what it is to tell the truth ? When you raise your right hand and swear to tell th e truth? [C.H.]: Yes. * * * The Court: When you are here today, do you understand that you have to tell me the truth? Do you know what the truth is? [C.H.]: Uh-huh. The Court: Do you know the difference between a truth and a lie? [C.H.]: Uh-huh.J-S67010-14

- 12 - The Court: Do you know that it’s good to tell the truth? [C.H.]: Uh-huh. The Court: Is it good or bad to tell a lie? [C.H.]: Good. If you lie, you won’t be in trouble. The Court: If you tell a lie you’ll be in trouble. [C.H.]: No. * * * The Court: Have you ever told a lie? [C.H.]: Well, I lied to my parents one time but the n I told them the truth. ... The Court: When you told a lie, did you get in trouble? [C.H.]: No. The Court: Did your dad or mommy tell you not to li e again? [C.H.]: Yes. They told me not to lie anymore so I didn’t lie anymore. The Court: So you know not to lie; is that right? [C.H.]: Yes. * * * The Court: If I told you this tie was purple, would that be true? [C.H.]: Yes. The Court: What color is this tie? [C.H.]: Yellow. The Court: If I told you it was purple, would that be a lie? [C.H.]: Yes. The Court: What color is your sweater? [C.H.]: Pink. The Court: If I told you that your sweater was whit e, would that be the truth? [C.H.]: No. The Court: Do you know the lady on your left over here? [C.H.]: Traci. The Court: She’s going to ask you some questions about what happened between you and –J-S67010-14

- 13 - [C.H.]: With [Whipkey]? The Court: Yes. She’s going to ask you some questions about that, do you know that? [C.H.]: Yes. The Court: Will you tell us the truth about what happened? [C.H.]: Yes. * * * The Court: After Traci asks you some questions, I might as you some questions and somebody else might ask you some questions and will you tell us the truth too? [C.H.]: Yes. The Court: Do you promise to do that? [C.H.]: Yes. The Court: Okay. Mr. Gorman, do you have any questions? Mr. Gorman: Hi. My name is Brian. Can you tell us what a lie is? [C.H.]: If you lie, you lie to your parents. If y ou lie, you lie to your mom and dad. Mr. Gorman: If you lie, you lie to your mom and dad , is that what a lie is? [C.H.]: Yes. N.T., 9/13/13, at 8-12. Whipkey objected to C.H.’s competency based on her age and based on the inconsistencies in her testimony regarding t he difference between a truth and a lie, stating:

When the oath was administered, both hands were raised and no surname was given. There was an answer in the negative about swearing to tell the truth. There was an answer in the affirmative abou t whether it’s true that the tie was the wrong color. There were other answers that were inconsistent. A t least one that I recorded that were inconsistent wi th knowing the difference between a truth and lie.J-S67010-14

- 14 - Some were consistent, some were inconsistent and that’s short of reliability so we would object. Id . at 14. The trial court determined that C.H. understood the seriousness of the circumstances and that she understood “that she is required to tell the truth as to what happened[.]” Id . The trial court further concluded that C.H. was competent to testify because “all of her answers in their entirety [gave the trial c]ourt reason to believe that she can give tr uthful and honest testimony.” Id . at 15. In our review of the record, we acknowledge that [a] competency hearing concerns itself with the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth. A competency hearing is not concerned with credibility. Credibility involves a n assessment of whether or not what the witness says is true; this is a question for the fact finder. Commonwealth v. Moore , 980 A.2d 647, 650-51 (Pa. Super. 2009) (citing Commonwealth v. Delbridge , 855 A.2d 27, 39-40 (Pa. 2003)). In this case, C.H. demonstrated an ability to under stand the questions asked by the trial court and communicate her respon ses to the questions. Although C.H.’s testimony reflects some inconsisten cies regarding her understanding of the difference between the truth a nd a lie, we cannot conclude that the inconsistencies in her testimony provide a sufficient basis to disturb the trial court’s determination of compe tency.J-S67010-14

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This Court has established that [t]here is more to a child’s consciousness of the d uty to speak the truth than being able to give a clear example of a lie or to understand the concept of an “oath.” In fact, the trial judge’s opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more informative than the answers the child gives to questions such as “What is a lie?” and “What will happen to you if you tell a lie?” Commonwealth v. Payton , 392 A.2d 723, 725 (Pa. Super. 1978) (citing Commonwealth v. Mangello , 378 A.2d 897, 899 (Pa. Super. 1977)). The trial court in the instant matter considered th e totality of C.H.’s testimony as well as her demeanor and concluded tha t she was “capable of giving truthful and honest testimony” and therefore , was competent to testify. Trial Court Opinion, 5/9/14, at 6; see also N.T., 9/13/13, at 14-15. Based on our review of the record, despite the inco nsistencies in C.H.’s testimony, we discern no abuse of discretion by the trial court. Moreover, even if the trial court was incorrect in its conclusion that C.H. was competent to testify, the error was harmle ss. As this Court has established,

[a]n error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable probability that the error may have contributed to the verdict, it is no t harmless. In reaching that conclusion, the reviewi ng court will find an error harmless where the uncontradicted evidence of guilt is so overwhelming , so that by comparison the error is insignificant.J-S67010-14

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Commonwealth v. Kuder , 62 A.3d 1038, 1053 (Pa. Super. 2013) (quoting Commonwealth v. Mitchell , 839 A.2d 202, 214-15 (Pa. 2003)). As demonstrated in our analysis regarding Whipkey’s sufficiency claims raised in his first issue on appeal, the evidence i n this case was overwhelming in establishing his guilt on both char ges. Even without the testimony of C.H., the record is replete with suppo rt for the trial court’s verdict. Both Clark and McCave testified that Whip key locked C.H., who was three years old at the time, in his bedroom and wou ld not open the door. N.T., 9/13/13, at 32-34, 48, 52. When Brodak succe ssfully opened Whipkey’s bedroom door, Clark testified that C.H. w as standing behind the bedroom door, crying. Id . at 32-35. Clark and McCave’s testimony further established that C.H. was partially undressed with her shirt just over her head, but not covering her chest, and that Whipkey was helping her put her shirt back on. Id . at 35-36, 49, 53. Clark also observed that C.H. h ad a bloody lip. Id . at 36. This evidence, which Whipkey does not cont est, is sufficient to satisfy each element of the crimes wi th which he was charged. As a result, we conclude that the uncontradicted ev idence in this case is overwhelming in establishing Whipkey’s guilt, such that, any error in the trial court’s decision to deem C.H. a competent witness, is insignificant. Whipkey’s second issue on appeal accordingly fails. Judgment of sentence affirmed.J-S67010-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 2/4/2015