J-A24009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

CARLOS J. F. FIGUEROA-FAGOT, 

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

No. 1270 EDA 2014

 

Appeal from the Judgment of Sentence Entered April 4, 2014, 

in the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No(s): CP-51-CR-0009312-2012

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 14, 2015

Carlos Figueroa-Fagot (Appellant) appeals from the judgment of 

sentence after being convicted of criminal attempt - kidnapping, unlawful 

contact with a minor, interference with custody of children, corruption of 

minors, indecent assault, and simple assault. Upon review, we vacate 

Appellant’s judgment of sentence, reverse Appellant’s convictions for 

unlawful contact with a minor, indecent assault, and corruption of minors, 

and remand for proceedings consistent with this memorandum.1

The incident giving rise to these charges occurred on July 17, 2012 at 

approximately 4:00 p.m. V.P., a ten-year-old girl at the time, along with her 

one-year-old brother, went to Tony’s Market to get chocolate water ice. The 

 

1 The Commonwealth has filed a Motion to Complete the Record Pursuant to 

Pa.R.A.P. 1926. We grant the motion and have obtained the surveillance 

video of the incident.
J-A24009-15

- 2 -

two then were walking to the home of V.P.’s father when V.P. saw Appellant 

sitting in a white, four-door car with the door open. V.P. then “turned the 

corner and saw [Appellant] running behind [her], and he tried to grab 

[her].” N.T., 9/9/2013, at 30. V.P. testified that Appellant grabbed her and 

had “his hand over [her] mouth and one [of] his arm[s] under [her] leg.” Id. 

V.P. testified that she was “screaming and kicking” and “bit his finger” while 

he was grabbing her. Id. at 31. She further testified that she did not hear 

Appellant say anything and that she was scared for both herself and her little 

brother. Appellant finally dropped V.P. and ran back to his car.

V.P. ran to her house, told her mother about the incident, and her 

mother called police. Police Officer Edward Lichtenhahn was assigned to the 

case. He conducted a neighborhood survey, which included obtaining a 

video recovered “from a private residence showing the actual attack that had 

taken place.” N.T., 9/10/2013, at 16. 

Appellant appeared voluntarily at the police station accompanied by 

his pastor the following day.2 Police showed him the video of the incident, 

and Appellant told police it was his car in the video. Id. at 38. Police then 

 

2

In conjunction with their investigation, police put out a bulletin with 

Appellant’s basic description as well as a description of the vehicle, and 

offered a reward for information. Appellant told police that after seeing the 

bulletin on the news, a family member accused Appellant of being the 

person involved and planned to report Appellant to collect the reward 

money. Thus, Appellant went voluntarily to the police to say that he was not 

involved in the case. 
J-A24009-15

- 3 -

read Appellant his Miranda3rights, and Appellant agreed to speak 

voluntarily with police. Appellant admitted that the person in the video 

“looks like” him, but he does not “remember.” Id. at 45. 

Appellant was charged with the aforementioned crimes, as well as 

false imprisonment and unlawful restraint, and proceeded to a jury trial. 

The jury found Appellant guilty of attempted kidnapping, unlawful contact 

with a minor, interference with the custody of children, corruption of minors, 

indecent assault, and simple assault.4 On April 4, 2014, the trial court 

conducted a hearing to determine if Appellant was a sexually violent 

predator (SVP) and to sentence Appellant. The trial court concluded that 

Appellant was an SVP and sentenced Appellant to an aggregate term of 17 

to 34 years of incarceration.5 Appellant did not file a post-sentence motion, 

but did file timely a notice of appeal. Both Appellant and the trial court 

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

 

3 Miranda v. Arizona, 384 U.S. 436 (1966).

4 Both unlawful restraint and false imprisonment were nolle prossed.

5 The sentence was broken down as follows: 1) attempted kidnapping, 10 to 

20 years of incarceration; 2) unlawful contact with a minor, 31⁄2 to 7 years of 

incarceration; 3) interference with custody of children, 31⁄2 to 7 years of 

incarceration; 4) corruption of minors, 21⁄2 to 5 years of incarceration; 5) 

indecent assault, 21⁄2 to 5 years of incarceration; and 6) simple assault, 21⁄2 

to 5 years of incarceration. The first three sentences run consecutively to 

each other; the second three sentences run concurrently to the first three 

and to one another.
J-A24009-15

- 4 -

On appeal, Appellant challenges the sufficiency of the evidence to 

sustain three of his convictions: corruption of minors, indecent assault by 

forcible compulsion, and unlawful contact with minors. We address all three 

issues mindful of our well-settled standard of review.

The standard we apply in reviewing the sufficiency of 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 that of 

the fact-finder. ... 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) 

(quoting Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012) 

(citations omitted)).

We begin with Appellant’s corruption of minors conviction. That 

statute provides, in relevant part, as follows. “[W]hoever, being of the age 

of 18 years and upwards, by any act corrupts or tends to corrupt the morals 

of any minor less than 18 years of age ... commits a misdemeanor of the first 

degree.” 18 Pa.C.S. § 6301(A)(1)(i).

Corruption of a minor can involve conduct towards a child in an 

unlimited number of ways. The purpose of such statutes is 

basically protective in nature. These statutes are designed to 

cover a broad range of conduct in order to safeguard the welfare 

and security of our children. Because of the diverse types of 
J-A24009-15

- 5 -

conduct that must be proscribed, such statutes must be drawn 

broadly. It would be impossible to enumerate every particular 

act against which our children need be protected.

Commonwealth v. Slocum, 86 A.3d 272, 278 (Pa. Super. 2014). 

We point out that “[t]ending to corrupt ... is a broad term involving 

conduct toward a child in an unlimited variety of ways which tends to 

produce or to encourage or to continue conduct of the child which would 

amount to delinquent conduct[.]” Commonwealth v. Meszaros, 168 A.2d 

781, 782 (Pa. Super. 1961). Instantly, Appellant grabbed V.P. suddenly, in 

front of her young brother, and attempted to kidnap her. Such conduct is 

not the type that would tend to “produce” or “encourage” delinquent conduct 

in V.P. Id. Accordingly, we reverse Appellant’s corruption of minors 

conviction.

We now turn to Appellant’s convictions for indecent assault by forcible 

compulsion pursuant to 18 Pa.C.S. § 3126(a)(2) and unlawful contact with a 

minor pursuant to 18 Pa.C.S. § 6318. The trial court concluded that the 

evidence was sufficient where Appellant “forcibly grabbed the victim, 

covered her mouth, touched her in an intimate place, picked her up close to 

his body, and attempted to abduct her.” Trial Court Opinion, 10/31/2014, at 

14. 

With respect to unlawful contact with a minor, this Court has explained 

that “[unlawful contact with a minor] is best understood as unlawful 
J-A24009-15

- 6 -

communication with a minor.” Commonwealth v. Leatherby, 116 A.3d 

73, 79 (Pa. Super. 2015) (emphasis added).6 See Commonwealth v. 

Velez, 51 A.3d 260 (Pa. Super. 2012) (holding that unlawful contact with a 

minor can be inferred where the victim’s pants were removed and that could 

not have occurred absent a verbal or physical directive from Velez).

 Instantly, the victim testified that she did not hear Appellant say 

anything and the surveillance video indicates no nonverbal communication. 

N.T., 9/9/2014, at 31. Thus, the evidence does not establish any verbal or 

nonverbal communication as contemplated by the statute to convict 

Appellant of unlawful contact with a minor. Accordingly, we reverse 

Appellant’s conviction on this charge.

To sustain the conviction for indecent assault by forcible compulsion, 

the perpetrator must have “indecent contact with the complainant ... for the 

purpose of arousing sexual desire in the [perpetrator] or the complainant 

and ... does so by forcible compulsion.” 18 Pa.C.S. § 3126(a)(2).

In this case, the victim testified that Appellant “had his hand over 

[her] mouth [and] his arm under [her] leg.” N.T., 9/9/2014, at 30. A review 

of the video of the incident does not establish that Appellant touched the 

 

6 The statute provides, 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[.]” 18 Pa.C.S. § 6318(a).
J-A24009-15

- 7 -

victim in “an intimate place” as the trial court suggests. Instead, the video 

demonstrates that Appellant was trying to kidnap the victim by picking her 

up and carrying her away while she was fighting against him. “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 

probability of fact may be drawn from the combined circumstances.” 

Commonwealth v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (citation 

omitted; emphasis added). After a review of the video and the victim’s 

testimony, this is the type of case where the evidence was so weak and 

inconclusive that the jury’s verdict cannot be sustained on this charge 

because it does not establish that Appellant had indecent contact with the 

victim for the purpose of arousing his sexual desire. Accordingly, we reverse 

Appellant’s conviction on this charge.

Our disposition reversing Appellant’s convictions on the 

aforementioned charges may upset the trial court’s sentencing scheme. See 

Commonwealth v. Sutton, 583 A.2d 500, 502 n. 2 (1990) (citations 

omitted) (“Where one, convicted of several crimes, successfully challenges 

his judgment of sentence on appeal, remand for resentencing may be just 

under the circumstances, as it may further the sentencing court’s plans for 

protection of society from future criminal activity and rehabilitation of the 
J-A24009-15

- 8 -

criminal and reduce the possibility of disparate and irrational sentencing.”). 

Accordingly, we remand this case for resentencing.

Judgment of sentence vacated. Convictions reversed for corruption of 

minors, indecent assault, and unlawful contact. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judge Wecht joins the memorandum.

Judge Panella files a concurring and dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/2015