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HomeMy WebLinkAbout99-0114 criminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF ' CUMBERLAND COUNTY, PENNSYLVANIA VS ' · 99-0114 CRIMINAL ALAN WILLIAM ZUFALL · IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant was originally charged with a count of involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault and corruption of minors. Following a jury trial in September of 1999, the defendant was convicted on counts of indecent assault and corruption of minors and a mistrial was declared with respect to the other charges by virtue of a hung jury. The Commonwealth decided not to retry the defendant with respect to the remaining counts and same were nolle prossed in January of 2000. On February 8, 2000, the defendant was sentenced to a total term of not less than nine nor more than twenty-three months. The defendant has filed an appeal with the following being the sole matter complained of: Defendant asserts there was insufficient evidence to sustain a guilty verdict for corruption of minors and indecent assault. The well-established test of the sufficiency of evidence in criminal cases is whether, viewing the evidence admitted at trial in a light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the crime charged beyond a reasonable doubt. Com. v. Gibson, 447 Pa. Super. 132, 668 A.2d 552 (1995). In this case, the direct evidence of the offense came from the ten-year old victim, Bobby S. In his testimony, the child described events that would occur when Mr. Zufall acted as his baby-sitter. He described how the defendant 99-0114 CRIMINAL would "get bad movies out" and would touch Bobby's penis. Bobby's testimony spans over some forty-four pages of transcript. While the graphic nature of the testimony will speak for itself, the following excerpt is typical of the activity described: Q What else would he do to you? A He would lay me down on a bed. Q He would lay you down on the bed. And? A And he would pull down my pants. Q And? A And he would put his dingie in my butt. Q He would put his dingie or his penis in your butt? A Yeah. Q Would he do this while you were on the bed? A Yes. Q Would that hurt? A Yeah. Q Did he do that a bunch of times too? A Yes. Q This was all at your mom's house? A Yep. Q While he was baby-sitting you? A Yes. N.T., Vol. I, p. 16. 99-0114 CRIMINAL Bobby's mother testified concerning the circumstances under which she came to know the defendant and verified that he would baby-sit for her. She also described how Bobby came to tell her and other family and friends what had happened to him. She also described an incident in which the defendant, when confronted, admitted the activity with her son. A Patrick Woods also testified. He was present when Mr. Zufall was confronted concerning the allegations made by Bobby. He was then followed by other witnesses to the same conversation. Various police officers were called to the stand one of whom was Officer Kenneth E. Huss of the East Pennsboro Township Police Department. He testified at length concerning his investigation in the case, described the arrest of the defendant and the defendant's eventual confession. Specifically, Officer Huss described a conversation with the defendant in the parking lot of the district justice's office, following the defendant's preliminary arraignment. A portion of that testimony is as follows: And that's when I said to him, I said, didn't you just tell me on the way over here that Bobby was your friend? And he said, Yes, he is, and I want him to stay that way. I said, Well, then why would he lie to us about this? And he put his head down, looked back at me, and he gave me that look. And over the years I have learned to detect a look of what's about to come. So I said, Do you want to tell me about it? I said, Did you actually do this to Bobby? And he said, Yes, I did. That's when I get into the specifics. I said, Did you actually have sex with Bobby? He said, Yes, I did. I said, you put your penis in his butt? And he said, Yes, I did. N.T., Vol. II, p.p. 36-37. 99-0114 CRIMINAL The defendant was the first witness in his own case. He denied having any sexual contact with Bobby. He claimed that a sexually explicit videotape was played by accident. He testified that his various admissions were the result of his confusion or fright. The remaining witnesses testified on behalf of the defendant to the effect that the defendant has a reputation as a peaceful and law-abiding citizen. It is, of course,' for the jury to evaluate the credibility of the witnesses. The jury is free to believe all, part, or none of the evidence presented. Com. v. Purcell, 403 Pa. Super. 342, 589 A.2d 217, 221 (1991). Here, it is clear that the evidence was sufficient to sustain the guilty verdicts for corruption of minors and indecent assault. Indecent assault, 18 Pa.C.S.A. 3126, is made out when the Commonwealth proves that a person has "indecent contact" with a complainant who is less than thirteen years of age. "Indecent contact," in turn, involves any touching of the sexual or other intimate parts of the person "for the purpose of arousing or gratifying sexual desire." 18 P.S. 3101. Here, taking the evidence in a light most favorable to the Commonwealth, it was established that the defendant had engaged in sexually motivated touching of a ten-year old child. Corruption of minors, 18 Pa.C.S.A. 6301, is committed when a person over the age of seventeen does any act which "corrupts or tends to corrupt the morals of any minor less than eighteen years of age." In this case, it was established that the defendant was over the age of thirty. N.T., Vol. 11, p. 107. There can be no doubt that the sexually oriented activities of the defendant were such as would have tended to corrupt the morals of a ten-year old. Thus, taken in 99-0114 CRIMINAL a light most favorable to the Commonwealth, the evidence clearly established the charge of corruption of minors. March 3o" ,2000 K ess, J. Jonathan B irbeck, Esquire Chief Deputy District Attorney Austin Grogan, Esquire Assistant Public Defender 'rim