J-S52027-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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CUONG PHAM,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1958 EDA 2015

Appeal from the Judgment of Sentence March 23, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0014307-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 22, 2016

Because the Commonwealth did not present sufficient evidence to 

sustain a conviction for patronizing a prostitute pursuant to 18 Pa.C.S. 

§ 5902(e), I respectfully dissent and offer the following analysis.1

 

1 The Majority suggests that Appellant did not adequately develop this 

argument; therefore, we should not consider it. Majority at 4 n.1. 

First, the trial court acknowledges that Appellant’s 1925(b) statement 

preserved this exact issue. The trial court opinion states that “[Appellant] 

argues that the Commonwealth failed [] to prove beyond a reasonable doubt 

that he possessed the intent to hire a prostitute or that he did in fact ‘hire’ a 

prostitute.” TCO, 1/21/2016, at 3.

We recognize that Appellant’s brief is somewhat inartful; however, 

within his challenge to the sufficiency of the evidence, Appellant argues that 

the evidence was insufficient because Appellant did not intend to “patronize 

the prostitutes.” Id. at 27. He goes on to state: “[W]hy didn’t he show 

money, open[] the door, invite[] her in or ask[] her to follow him or 

initiate[] the conversation about money and the acts []. What we have is all 

her solicitation to which he responded[.]” Id. Based on the foregoing, this 

Court may address this issue.
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Appellant was convicted for “hir[ing] a prostitute or any other person 

to engage in sexual activity with him.” 18 Pa.C.S. § 5902(e). Here, Officer 

Rosenbaum testified that Appellant “pulled up to her ... [and] told [her] that 

he wanted a blowjob. Officer Rosenbaum asked Appellant how much he was 

willing to pay and he said, $20.00.” TCO, 1/21/2016, at 2 (quotation marks 

and citations to notes of testimony omitted). Officer Rosenbaum 

immediately signaled for back up.

While there is no case law directly on point with respect to sufficiency 

of the evidence for a section 5902(e) conviction, we can look to the case law 

that has developed for section 5902(a).2 In Commonwealth v. Potts, 460 

A.2d 1127, 1137 (Pa. Super. 1983), this Court held the evidence was 

sufficient to convict Potts of prostitution where she “accepted the money 

($140.00) offered by Detective Toler to engage in a specific sexual act and 

she undressed in preparation for it.” 

Comparing Potts to the circumstances of this case, where no money 

exchanged hands, and Appellant did nothing further to indicate that he 

wished for Officer Rosenbaum to perform the blowjob,3I conclude that the 

 

2 This section of the statute criminalizes the acts of the prostitute. See 18 

Pa.C.S. § 5902(a) (“A person is guilty of prostitution if he or she: (1) is an 

inmate of a house of prostitution or otherwise engages in sexual activity as a 

business; or (2) loiters in or within view of any public place for the purpose 

of being hired to engage in sexual activity.”).

3 The sex act does not have to be completed for a defendant to be found 

guilty under this statute. Commonwealth v. Danko, 421 A.2d 1165 (Pa. 

Super. 1980).
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evidence was insufficient to sustain Appellant’s conviction.4 Accordingly, I 

would reverse Appellant’s judgment of sentence. 

 

4 The evidence is sufficient to find Appellant guilty of criminal solicitation 

pursuant to 18 Pa.C.S. § 902(a) (“A person is guilty of solicitation to commit 

a crime if with the intent of promoting or facilitating its commission he 

commands, encourages or requests another person to engage in specific 

conduct which would constitute such crime or an attempt to commit such 

crime or which would establish his complicity in its commission or attempted 

commission.”). In fact, Appellant was charged originally with both criminal 

solicitation and patronizing a prostitute. At the magistrate, Appellant was 

found guilty of criminal solicitation and not guilty of patronizing a prostitute. 

Appellant appealed for a trial de novo to the Court of Common Pleas, and 

the Commonwealth filed a new information which included only the 

patronizing a prostitute charge.