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HomeMy WebLinkAbout99-2575 criminalCOMMONWEALTH Vo JOHN R. KLEESE · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 99-2575 CRIMINAL TERM · 1N RE: OPINION PURSUANT TO PA. R.A.P. 192_5 Guido, J., October I'~ ,2000 On March 9, 2000, a jury convicted defendant of indecent assault, attempted indecent assault and corruption of minors.2 On August 7, 2000, he was sentenced to 11 72 to 23 months in the county prison on the charge of indecent assault. He was also sentenced to a concurrent 5 year period of intermediate punishment on the corruption of minors charge.3 This timely appeal followed. Defendant's counsel has filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa. Rule of Appellate Procedure 1925(b). The issues to be addressed on appeal are as follows' (1 .) Our instruction to the jury "that sexual (sic) assault includes situations where a perpetrator fails to achieve his objective despite his best efforts to do so." (2.) Our allowing the Commonwealth to advance a theory of attempted indecent assault. (3.) Our alleged error in defining the term "intimate body parts." (4.) The Commonwealth's evidence was not sufficient to sustain the convictions. For the reasons hereinafter set forth, we are satisfied that the issues are without merit. 18 Pa. C.S.A. § 3126(a)(1)(8). 18 Pa. C.S.A. § 6301. The attempted indecent assault merged with the indecent assault charge for purposes of sentence. 99-2575 CRIMINAL TERM FINDINGS OF FACT The incidents giving rise to these charges occurred on May 27, 1999. At that time the victim was fifteen (15) years old. She and the defendant's daughter were very good friends. On the night in question, the victim was sleeping over at the defendant's house. This was not an unusual occurrence. What was unusual, however, was the fact that defendant was home. As a track driver, he was rarely home when the victim stayed over at their home. The victim and the defendant's daughter were sleeping on the sofa bed in the living room. In the middle of the night the victim was awakened by the defendant putting his hand down her pants.4 His hand got under her underwear line when she rolled over away from him and pulled the covers up real tight.5 Later that night, the victim went into the kitchen to get some ice for a sore knee. The defendant began massaging her knee. What occurred next was related by the victim as follows' And I said, That's fine, you know, I'll go back to bed. And I tried to walk out there, and he stood in front of me and tried to pull my pants down, and I was holding them. Q. How did he do that? A. Like how was he trying to pull them down? He was holding them fight here and pulling them, and I was holding them up by my waist. · o o Q. Was he able to pull your pants down? A. No, not all the way, just a little. · o · Q. Did you say anything to him? A. I was just saying, No, I don't want to. You know, I didn't want my pants to be pulled down. Q. What happened after that? A. He tried to - - well, he grabbed me and was trying to kiss me and stuff, and he pushed me against the door. Notes of testimony, p. 14. Notes of testimony, p. 15. 99-2575 CRIMINAL TERM Q. Where was he trying to kiss you? A. On my face. Q. Was he able to kiss you on your face? A. No, I kept pushing him away. Q. And then - - I'm sorry, what did he do after he was trying to kiss you ? A. He pushed me against something, a door. · · · Q. What did he do after he pushed you against the door? A. He was trying to kiss my face and go up my shirt under my bra and stuff. Q. Now, when you say he was trying to go up your shirt and under your bra, what did he do? A. He put his hand up my shirt and was trying to go under my bra with his hand. Q. How far did his hand get up your bra? ' A. Up my bra like right to here. Q. Right in the center? A. Yes. Q. Was he saying anything to you at this time? A. Yes, he asked me if I would suck his dick, and I said no. And he told me that I told him that I wanted him to. Q. Did you ever tell him that you wanted to? A. No, I didn't Q. Did he ever say anything else to you as he was putting his hand up your shirt? A. When I was fighting him, he said something along the lines of, Don't make me hurt you or - - I'm not exactly sure what he said, but - Q. How were you fighting him? A. Pushing, I was trying to push him away. Q. Was that everything that happened in the kitchen that early morning? A. Yes. Q. How did it stop? A. I just got him pushed away enough that I could walk away. On cross examination the victim admitted that the defendant did not actually touch her vagina or her breasts. The following exchange took place between her and the defendant's attorney' Q. So he never touched your vagina? A. No. 6 Notes of testimony, pp. 20-22. 99-2575 CRIMINAL TERM Q. The closest he ever got, according to you, was he attempted to put his hands underneath your pants and got underneath the elastic of the top? A. Of my underwear. Q. Of your underwear? A. Yes. Q. He never touched your buttocks, did he? A. No. · o · Q. Now, you indicated when the district attorney asked you to indicate where he touched your breast, you were messing around with the area that I call the sternum. And in order- - I'm putting my hand roughly in the middle of my chest on that bone. Is that where your hand was? A. Yes. Q. Now, that's where he touched or did he touch your breast? A. He was underneath my bra trying to go to' my breast. Q. Did he touch your breast? A. No, he did not.7 The defendant hotly contested the victim's version of events. He denied that he ever touched her or even attempted to touch her on the night in question. He contended that the events related by the victim were a complete fabrication. Obviously, the jury chose to believe the victim. DISCUSSION ERROR IN JURY INSTRUCTIONS Defendant's allegations of error numbers 1 & 3 question the propriety of our jury instructions. The portions of the jury instructions complained of are as follows: Indecent assault has the following elements' One, that the Defendant had indecent contact with Ms. Seeders in this case. Two, that he did so without her consent or that he did so knowing that she was under the age of sixteen and that he was four or more years older than her, and they were not married at the time. So those are the elements of the offense of indecent assault. Indecent contact with Ms. Seeders by the Defendant without her consent or with her being under the age of sixteen, him being four or 7 Notes of testimony, pp. 29- 30. · 99-2575 CRIMINAL TERM more years older than her, and that they were not married to each other. What does indecent contact mean? It carries a special meaning under our law as follows' Indecent contact means any touching of the sexual or other intimate parts of the body for the purpose of arousing or gratifying sexual desire in either person. Indecent contact means any touching of the sexual or other intimate parts of the body for the purpose of arousing or gratifying sexual desire in either person. What are intimate parts? The statute doesn't define that, but our law says that intimate parts are not limited to the breast or genitalia, but they include other erogenous zones and intimate parts that are more broadly applicable to situations in which the perpetrator fails to achieve his objective, clearly sexual in nature, despite his best efforts to do so. So other parts of the body, erogenous zones, are included in intimate parts. We have broad discretion in phrasing the charge and can choose our own wording so long as the law is accurately presented to the jury. Commonwealth v. Hawkins, 549 Pa. 352, 391,701A.2d 492, 511 (1997) cert. denied, 523 U.S. 1083, 118 S. Court 1535, 140 L. Ed. 2nd 685 (1998). In the instant case, defendant objects to our definition of intimate body parts as well as the instruction that an indecent assault may be completed even though a perpetrator fails to achieve his objective. We are satisfied that our charge correctly stated the law to the jury. The instruction was based upon the decision of Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. 1999) in which the Superior Court noted: The language of the statutory section defining indecent contact includes both "sexual" and "other intimate parts" as possible erogenous zones for purposes of prosecution. Therefore, the phrase "other intimate parts" cannot refer solely to genitalia, as such a construction ignores the distinction between "sexual" and "other intimate parts," making the latter term redundant. 8 Notes of testimony, pages 115-116. 99-2575 CRIMINAL TERM Instead, the statute is more broadly applicable, namely, to situations such as the present one in which the perpetrator fails to achieve his objective, clearly sexual in nature, despite his best efforts to do so. 727 A.2d 1126 at 1127. ATTEMPTED INDECENT ASSAULT The Commonwealth requested that we charge the jury on the lesser included offense of attempted indecent assault. We agreed to do so over defendant's objection. He now alleges that this is reversible error. We disagree. It is well settled that a defendant can be convicted of a lesser offense included within the crime charged. Commonwealth v. Sewell, 702 A.2d 570 (Pa. Super. 1997) "As long as conviction is for a lesser included offense, the defendant will have been put on notice of the charges against him and can adequately prepare a defense." Id. at 571. Quoting from Commonwealth v. Blackwell, 436 Pa. Super. 294, 647 A.2d 915, the Sewell Court defined a lesser included offense as follows: A lesser-included offense is a crime having elements of which are a necessary subcomponent of elements of another crime, the greater offense. The elements in the lesser-included offense are all contained in the greater offense; however, the greater offense contains one or more elements not contained in the lesser-included offense. 702 A.2d at 57. Stated another way, "... it must be impossible to commit the greater offense without also committing the lesser included offense." Commonwealth v. Fuller, 396 Pa. Super. 605,579 A.2d 879, 884 (1990). In the instant case, the information charged defendant with the crime of indecent assault in that he did have indecent contact with a complainant or did cause the complainant to have indecent contact with him' (1) without the complainant' s consent; and/or (8) who was less than sixteen (16) years of age and 99-2575 CRIMINAL TERM being four or more years older than the complainant and not the 9 complainant's spouse. Section 901 of the crimes code provides as follows' § 901. Criminal attempt (a) Definition of attempt.- A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.~° It would have been impossible for the defendant to have committed the crime of indecent assault without first having made an attempt to do so. Therefore, the crime of attempted indecent assault is a lesser included offense of indecent assaUlt.~ SUFFICIENCY OF THE EVIDENCE. Defendant argues that the evidence was insufficient to sustain his conviction on the charge of indecent assault. The standard of review on a sufficiency of the evidence claim is whether all of the evidence, together with the reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to enable the fact finder to conclude that all of the elements of the offense were established beyond a reasonable doubt. Commonwealth v. Cox, 556 Pa. 366, 728 A.2d 923, (1999). In the instant case that standard has clearly been met. 9 18 Pa. C.S.A. § 3126 (a)(1)(8). ~0 18 Pa. C.S.A. § 901 (a). ~ See Commonwealth v. Miller, 269 Pa. Super. 589, 410 A.2d 857 (1979) holding that an attempt to complete a crime and the completion of the crime merge because "the lesser offense is a necessary ingredient of the greater offense." 410 A.2d at 858. 99-2575 CRIMINAL TERM The defendant put his hand down the victim's underwear as she lay sleeping in bed.~2 In addition, once they were in the kitchen he tried to pull her pants down, When she resisted, he pinned her against the door where he made repeated attempts to kiss her. He also put his hand under her shirt and bra trying to touch her breasts. We are unable to distinguish the facts in this case from those in Commonwealth v. Capo, supra, wherein the Court held that the evidence was sufficient to support the defendant's conviction for indecent assault. OCTOBER I 7 ,2000 Edward E. Guido, J. Michelle E. Hamilton, Esquire Assistant District Attorney For the Commonwealth H. Anthony Adams, Esquire Assistant Public Defender For the Defendant ~2 See Commonwealth v. Vosbure, 393 Pa. Super. 416, 574 A.2d 679 (19~0) wherein the ._ cotlrt found the testimony of an eight year old victim that "... she had felt someone pulling On her underWear while she lay in bed... "was "sufficient evidence for the jury to conclude, beyond a_r_easo, v. ahle. dotibt, llh~t t~'~ndecent assault had occurred..." 574 A.2d at 682. [~, [~I!! ~~