Appeal from the Order of May 19, 2008, in the Court of Common Pleas of York County, Criminal Division, at No. CP-67-CR-0003734-2007.
The opinion of the court was delivered by: Colville, J.
BEFORE: FORD ELLIOTT, P.J., MUSMANNO and COLVILLE*fn1, JJ.
¶ 1 The Commonwealth appeals the order granting Bereim Dorm ("Dorm") a new trial. The trial court issued the aforesaid order after finding that confusing jury instructions and an incorrect verdict slip produced an uncertainty as to which offense Dorm was convicted of committing at a certain count, prevented the court from knowing what sentencing provisions applied to Dorm, and/or otherwise resulted in an unfair trial process. As explained more fully infra, the Commonwealth claims the court erred because Dorm waived any objection to the jury instructions and because those instructions were correct as a matter of law.*fn2 We affirm in part, vacate in part and remand for a new trial.
¶ 2 Dorm was tried for several charges, including statutory sexual assault ("SSA") and involuntary deviate sexual intercourse ("IDSI"). The SSA statute reads, in pertinent part, as follows:
. . . [A] person commits [SSA] when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other.
¶ 3 Sexual intercourse includes vaginal, oral and anal sex. 18 Pa.C.S.A. § 3101. Anal sex was not an issue in this case. Thus, in this particular appeal, the SSA under consideration involves vaginal or oral intercourse.
¶ 4 The relevant portion of the IDSI statute is the following:
(a) Offense defined.--A person commits [IDSI] when the person engages in deviate sexual intercourse with a complainant:
(7) who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and ...