Appeal from the Judgment of Sentence entered July 28, 1987 in the Court of Common Pleas of Erie County, Criminal Division, No. 1737 of 1986.
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
Douglas J. Wright, Assistant District Attorney, Girard, for Com., appellee.
Cavanaugh, Rowley and Kelly, JJ.
[ 379 Pa. Super. Page 57]
In this case, we are called upon to decide what degree of physical contact is necessary to constitute "indecent contact" within the meaning of that term in 18 Pa.C.S.A. § 3126 which defines the offense of indecent assault. Specifically, we must determine whether the brushing of appellant's penis against the underside of the victim's jaw constitutes touching as contemplated by the statute. Upon review of the record and the applicable authority, we conclude that the physical contact which occurred in this case constituted indecent contact within the meaning of the statute. Accordingly, we affirm.
The following is a summary of the factual and procedural history of this case. In the early morning hours of September 9, 1986, the victim, a fifty-three year old woman who is unable to speak, heard a knock on her apartment door. Because she was not tall enough to view through the peep-hole in the door, she opened it. Appellant, whom she had known for some years, entered her apartment, threatened and then sexually assaulted her. On the same day, appellant was arrested and charged with rape and indecent assault. The indecent assault charge stemmed from the appellant's attempt to put his penis in the victim's mouth. Appellant was tried by a jury which, on March 12, 1987, returned a verdict of guilty on the indecent assault charge only. On March 23, 1987, a motion for a new trial and/or arrest of judgment was filed. This motion was denied on April 15, 1987. On July 28, 1987, sentence was imposed which contained a term of confinement of eleven and one-half (11 1/2) months to twenty-three (23) months. This timely appeal followed.
The principle issue on appeal is whether the evidence was
[ 379 Pa. Super. Page 58]
sufficient to sustain a conviction of indecent assault.*fn1 Specifically, appellant argues the trial court misapplied the definition of "indecent contact" in determining whether the evidence was sufficient to sustain the conviction. We do not agree.
In reviewing the sufficiency of the evidence in a criminal case, all of the evidence must be viewed in a light most favorable to the Commonwealth and all reasonable inferences therefrom must be drawn in favor of the Commonwealth. Commonwealth v. Pearsall, 368 Pa. Super. 327, 534 A.2d 106 (1987); Commonwealth v. Capers, 340 Pa. Super. 136, 489 A.2d 879 (1985).
The pertinent part of 18 Pa.C.S.A. § 3126 ("Indecent Assault"), provides as follows:
A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, ...