No. 183 January Term, 1978, Appeal from Order of Superior Court of Pennsylvania, No. 1697, October Term, 1976, affirming the Judgments of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, No. 2384 of 1974.
Thomas G. Klingensmith, Lancaster, for appellant.
Richard A. Sheetz, Jr., Asst. Dist. Atty., Lancaster, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Nix, J., filed a dissenting opinion.
This case presents a question of whether the Commonwealth introduced sufficient evidence at appellant's trial to satisfy the requirements of Pennsylvania's indecent assault statute, 18 Pa.C.S. § 3126. Appellant, eighteen year old Harold Mumma, claims he did not know his contact with the victim, Mark Belesfield, was offensive and did not know the victim was unaware that an indecent contact occurred. We conclude that sufficient evidence appears of record to sustain the conviction. Accordingly, we affirm.*fn1
On September 22, 1974, appellant went to the Belesfield home, ostensibly for the purpose of obtaining eight-year-old Timothy Belesfield's assistance with the painting of appellant's car. Timothy's twelve-year old brother Mark answered the door and asked if he could help as well. Appellant agreed and the two boys accompanied appellant to his house. When they arrived appellant ran a short errand, then informed the boys that the possibility of rain precluded their painting the car. As an alternative, appellant invited the boys to join his "club."
Mark accepted the invitation and followed appellant into the house. They went upstairs to appellant's room, the "club" office, where appellant gave Mark a card to complete. Mark signed the card and appellant placed it in a file box. Appellant indicated that there were other members of the "club" and that the "club's" purpose was teaching math and other subjects to prisoners in the Lancaster prison.
Appellant next told Mark that "club" rules required every applicant to undergo a physical "examination." Appellant instructed Mark to undress and lie on the bed under a blanket. Next appellant asked Mark to stand and turn around, whereupon appellant "brushed" Mark's genitals four or five times.*fn2 Mark was also instructed to sit on the bed with the blanket covering his head and body. During this "examination," appellant put his head under the blanket to view Mark's nude body. After the "examination," Mark dressed, went out on a balcony, and spoke with Timothy. While Timothy entered the house to join the "club," appellant ushered Mark up to the attic for additional "testing."
In the attic another "club" officer, Ronny Moser, gave Mark written tests on mathematics and various other subjects.*fn3 Moser then told Mark to remove his trousers and stand a few feet away. Moser extinguished the room lights and illuminated Mark's body with a flashlight. Again, Mark was told to turn around during the "examination." While Moser was examining Mark, appellant subjected Timothy to the same induction procedure but without touching Timothy's genitals.*fn4
After Moser completed the examination of Mark, appellant escorted Timothy to the attic. There appellant and Moser finished Timothy's "examination" by shining the flashlight on him and asking him to turn around while the room was darkened. Finally, Mark indicated that the boys were expected at home. Moser told the boys that "if you come back, we will try to scrape up money for you out of the bank, if you remember the rules." Moser also added, "if you disobey the rules, you have stand in the corner for five minutes and with your clothes off." Neither Mark nor Timothy ever returned to appellant's house to participate in "club" activities.
A few months later, appellant asked Mark if he "wanted to sign out of the club." Mark indicated his willingness, but didn't have time that day. Three or four days later, when driving past Mark on the street, appellant stopped his car and again asked whether Mark wished to sign out. At trial Mark stated that "[appellant] had a file in his hand and he said we have to give you another physical . . . ." Mark accompanied appellant to the house and again went to the "club" office. This time the physical was interrupted when ...