Appeal from the Order entered October 24, 1985 in the Court of Common Pleas of Philadelphia County, Criminal, No. 85-01-557.
Jo-Ann Verrier, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Michael J. Kelly, Assistant Public Defender, Philadelphia, for appellee.
Olszewski, Del Sole and Beck, JJ.
[ 364 Pa. Super. Page 157]
This is a direct appeal by the Commonwealth from the judgment of sentence imposed on appellee-defendant John Bruner after his conviction at a bench trial on charges of corruption of minors, indecent assault, and involuntary deviate sexual intercourse. Post-verdict motions were timely filed and argued. The trial court granted Bruner's motion to arrest judgment on his conviction of involuntary deviate sexual intercourse. All other post-verdict motions were denied, and Bruner was sentenced. The Commonwealth now appeals the order arresting judgment of involuntary deviate sexual intercourse.
The charges in the instant case arise out of Bruner's sexual assault of his five-year-old nephew. While the victim
[ 364 Pa. Super. Page 158]
was visiting Bruner's home, Bruner invited the boy to accompany him outside on a walk. Once outside, Bruner led the boy to a car, which the two entered. Bruner proceeded to unzip the child's pants and remove the boy's penis. Bruner then put his mouth around and sucked the boy's penis.
On appeal, the Commonwealth's sole argument is that the trial court erred in interpreting the statutes defining the offense to mean that involuntary deviate sexual intercourse involving "sexual intercourse per os" occurs only when the mouth involved is that of the victim, not that of the perpetrator. We agree with the Commonwealth, and we vacate the judgment of sentence, reverse the order arresting judgment of involuntary deviate sexual intercourse, and remand for resentencing.
The statute defining the offense, 18 Pa.Cons.Stat.Ann. § 3123 (Purdon 1983), reads as follows:
§ 3123. Involuntary deviate sexual intercourse
A person commits a felony of the first degree when he engages in deviate sexual ...