Appeal from judgment of sentence of Court of Common Pleas of Lycoming County, May T., 1969, No. 332, in case of Commonwealth of Pennsylvania v. Wilford D. Rhome.
Robert C. Wise, for appellant.
William S. Kieser, Second Assistant District Attorney, with him Allen E. Ertel, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm on the opinion of President Judge Greevy.
Appellant was convicted by a jury of assault with intent to commit sodomy as defined by the Act of June 24, 1939, P. L. 872, § 502, 18 P.S. § 4502.
In this appeal appellant contends that the evidence at trial was insufficient to support the conviction. In this regard, the rule is that "the test of the sufficiency of the evidence is whether accepting as true all of the evidence upon which, if believed, the jury could have properly based its verdict, such evidence is sufficient in law to prove beyond a reasonable doubt that the defendant
is guilty." Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968).
The evidence at trial, in light most favorable to the Commonwealth, is that the appellant approached an undercover police officer in a public men's room. Appellant started a conversation with the officer and then in the language of the trial court "asked him if he wanted a drink of water. That after they both had a drink of water that the Defendant rubbed the penis of (the officer) and said, 'How does that feel?', and continuing to rub the private parts of (the officer) the Defendant said, 'You don't mind, do you?', and then he said 'It won't take long to get this started.'" Appellant was then arrested by the undercover officer.
Sodomy is defined in The Penal Code in relevant part as one having carnal knowledge of another person either by the anus or "by or with the mouth." The Act of June 24, 1939, P. L. 872, § 501, 18 P.S. § 4501. Immoral practices which do not encompass this activity, therefore, are not acts of sodomy either within the meaning of 18 P.S. § 4501 or the assault with intent to commit sodomy statute, 18 P.S. § 4502.
On the basis of the facts as set forth at trial it is impossible to determine whether appellant intended to commit sodomy upon the person of the police officer or instead intended to commit other immoral acts which are not sodomous within the meaning of 18 P.S. § 4501.
In such circumstances the jury should not have been allowed to guess and speculate as to the intent of the appellant. In this regard therefore, this case is distinct from Commonwealth v. Schaller, 72 Pa. D. & C. 459 (1950), which is relied upon by the Commonwealth. In Schaller a conviction for solicitation to commit sodomy was sustained in part on the basis that the defendant stated words which ...