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HomeMy WebLinkAbout99-233 criminalCOMMONWEALTH vs SHARLENE HOCKENBERRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-233 CRIMINAL IN RE' POST-SENTENCE MOTION BEFORE HESS, J. AND NO W, this ORDER .. day of October, 1999, the post-sentence motion of the defendant in the nature of a motion for judgment of acquittal is DENIED. BY THE COURT, William I. Gabig, EsqUire Senior Assistant District Attorney ess, J. · H. Anthony Adams, Esquire Assistant Public Defender :rlm COMMONWEALTH vs SHARLENE HOCKENBE~Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-233 CRIMINAL 1N RE: POST-SENTENCE MOTION BEFORE HESS, J. OPINION AND ORDER The defendant, Sharlene Hockenberry, was found guilty by a jury on May 4, 1999, of rape, statutory sexual assault, incest, indecent assault, endangering the welfare of children, and corruption of minors. She was convicted of rape on an allegation that she engaged in sexual intercourse with her son at a time when she was approximately thirty-three years of age and her son was eleven. The court imposed the mandatory sentence for the rape conviction of not less than five years nor more than ten years. The defendant has filed a post-sentence motion in the nature of a motion for Judgment of Acquittal. Therein, it is contended that the verdict was against the weight and sufficiency of the evidence. Specifically, the defendant contends that the evidence did not in any way described or define the act referred to as sexual intercourse; namely, penetration, however slight. We agree with the defendant that the victim was, at no time, asked to describe in mechanical or anatomical terms what had occurred.~ Nonetheless, we agree with the ~ It is, in retrospect, most unfortunate that these matters were not clarified on direct examination. Considerable time and effort has gone into the disposition of this case post-sentence which could have easily been avoided by the posing of one or two questions. 99-0233 CRIMINAL Commonwealth that the testimony was sufficient for the jury to find the elements of rape beyond a reasonable. The brief of the Commonwealth quotes extensively from the trial transcript. We incorporate those references herein as follows: Direct Testimony of J. Dean Hockenberr3.' (victim) le A: That's the first time she had intercourse with me. (N.T.p. 12, line 9-10). . Q' So were there any other adults in the house at that time, the first time she had sexual intercourse with you? (N.T.p. 12, line 12, line 23-25). A: No. (N.T.p. 13, line 1). ge A' Sometimes she would just fondle me and stuff. And other times she would like make me have intercourse with her. (N.T. 13, line 15-17). , Q' can you give us an idea of approximately how many times you had sexual inter- course or how frequently it xvould be from after Christmas until June 6th, 1997, while you were in the sixth grade? A' We might have had intercourse like three times at that time... But she would do stuff to me once or twice a month. (N.T. p 14, line 8-13). Cross-examination of J. Dean Hockenberry (victim) Se A: The first time she had intercourse with me was in her bedroom. (N.T.p. 21, line 3-4). So Q: ... The first time you had- that you are claiming your mom forced you to have intercourse with her, did you have clothing 99-0233 CRIMINAL on? A: I had a towel wrapped around me. (N.T.p. 21, line 13-16). Direct Testimony of Janelle Roush (Children and Youth Worker o A: Okay. I then asked Sharlene about the other allegation, which was the intercourse. Sharlene told me that it did happen. She told me that the intercourse occurred about three times. She said that it first happened at- well, that it happened at her parents' home and at the trailer twice. And then I went into asking Sharlene about the first time that the intercourse occurred. (N.T. p. 35, line 4-11). o I asked Sharlene who was on top during the intercourse. She told me that J. Dean was. (N.T.p. 36, line 1-2). o I asked her how long it lasted. She sort of chuckled at that point and said that it didn't last long, because he was only a child. I asked her whether or not J. Dean would ejaculate insid.__..~e .of he__rr. And she tole me that she didn't think that he could. (N.T. p. 36, line 4-8). Direct Testimony of Trooper Worst 10. And then specifically one night she said ... and they had sexual intercourse three or four times. (N.T.p. 51, line 2 and 5). 11. She related that they had sexual intercourse three or four times. (N.T.p. 51 ,line 10-11). 12. Q: Did she say during the course of the sexual intercourse and the other sexual encounters 99-0233 CRIM~AL that the eleven year old boy ever threatened her verbally? A' No. She didn't. (N.T.p. 52, line 23- p. 52, line 1). Cross-examination of Defendant 13. A: He touched me and kissed me really hard. There was never any intercourse at all until 1030 Green Spring Road. (N.T.p. 75, line 4-6). r.:. ,.-,-.,:~ said that your son raped you and used force on you during these encounters to Janelle Roush, is that correct? A: Correct. (N.T.p. 87, line 6-9). Redirect of Defendant 15. Q: Why didn't you put up more of a fight when you had sexual intercourse that time with J. Dean? A: I guess it was because I mostly blocked it out of my mind ... (N.T.p. 90, line 15-18). ReCall of Janelle M. Rouse- Direct (By Defense Attorney) 16. A: The specific question I asked Sharlene was whether or not J. Dean would ejaculate inside of her. And she told me that she did not think he could ejaculate. (N.T.p. 100, line 7-9). The Crimes Code itself describes "sexual intercourse" as having a "normal meaning." Penetration is part of that normal meaning. 99-0233 CRIM~AL ORDER AND NOW, this day of October, 1999, the post-sentence motion of the defendant in the nature of a motion for judgment of acquittal is DENIED. B Y THE COURT, Wiil:v'-, !. Gabig, Esquire Senior Assistant District Attorney H. Anthony Adams, Esquire Assistant Public Defender :rim /~A. Hess, J.