J-A04036-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : POK SUN CHANG : : Appellant : No. 248 EDA 2018 Appeal from the Judgment of Sentence November 8, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008605-2016 BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J. DISSENTING MEMORANDUM BY COLINS, J.: FILED JUNE 26, 2019 As I would conclude that the evidence presented at trial, viewed in the light most favorable to the Commonwealth as the verdict winner, was sufficient to prove that Appellant committed the offense of promoting prostitution, I must respectfully dissent from the learned majority’s reversal of Appellant’s conviction. The offense of promoting prostitution as defined in Section 5902(b)(1) of the Crimes Code, 18 Pa.C.S. § 5902(b)(1) requires proof of two elements: first, the existence of a prostitution business, and, second, that the defendant owned, controlled, managed, supervised, or otherwise kept – in other words, “promoted” – the prostitution business.1 Though not defined in the statute, ____________________________________________ 1 Section 5902(b)(1) provides: * Retired Senior Judge assigned to the Superior Court. J-A04036-19 this Court has held that a prostitution business is “commercial [sexual] activity engaged in for gain.” Commonwealth v. Johnson, 670 A.2d 666, 669 (Pa. Super. 1996) (quoting Commonwealth v. DeStefanis, 658 A.2d 416, 420 (Pa. Super. 1995)). The mere agreement or offer to perform sexual acts for gain satisfies the statute, and there is no requirement that sexual acts actually be performed. Commonwealth v. Chon, 983 A.2d 784, 789 (Pa. Super. 2009); DeStefanis, 658 A.2d at 420 n.4. The Commonwealth presented overwhelming evidence that the Pink Spa was a prostitution business. Officer Kearney first learned of the Pink Spa from an advertisement on the Backpage.com website, which Officer Kearney knew from his experience in vice investigations was frequently a site of advertisement for prostitution services. N.T., 8/31/17, at 8-16. The Commonwealth introduced this advertisement as an exhibit, which stated that the Pink Spa offered “3 NEW CHERRY GIRLS,” “ASIAN LOVE,” and “Old Style Service,” and displayed photographs of young Asian women in lingerie. ____________________________________________ The following acts shall…constitute promoting prostitution: (1) owning, controlling, managing, supervising or otherwise keeping, alone or in association with others, a house of prostitution or a prostitution business… 18 Pa.C.S. § 5902(b)(1). Though Appellant goes to great pains to argue that the Commonwealth did not prove that the Pink Spa is a “house of prostitution” which requires, under the statutory definition, that prostitution “is regularly carried on” in a particular location, 18 Pa.C.S. § 5902(f), Section 5902(b)(1) was written in the disjunctive and a plain reading of this statute makes clear that the offense of promoting prostitution may be found where a defendant promoted either a prostitution business or a house of prostitution. -2- J-A04036-19 Commonwealth Ex. C-1. Officer Kearney visited the Pink Spa at the address listed online, rang the bell as instructed in the advertisement, and was greeted at ...
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