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[U] Commonwealth v. Long

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH LONG, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered September 5, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. CP-51-CR-0015632-2010; MC-51-CR-0047378-2010.

BEFORE: SHOGAN, OTT and PLATT [*], JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Joseph Long, appeals from the judgment of sentence imposed on convictions of indecent assault (forcible compulsion), corruption of minors, and unlawful contact with minor.[1] We affirm.

Appellant indecently assaulted a twelve-year-old girl in the early morning hours of November 2, 2010. At a bench trial on May 4, 2012, the victim, her mother, two police officers, Appellant, and two character witnesses testified. Based on the evidence presented, the trial court found Appellant guilty of the above-named offenses. On September 5, 2012, the trial court sentenced Appellant to incarceration for an aggregate term of eleven and one-half to twenty-three months, followed by five years of reporting probation. This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.[2]

On appeal, Appellant challenges the sufficiency of the evidence supporting his convictions. In reviewing a sufficiency challenge, "we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense." Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.Super. 2013) (quoting Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011)). When performing this review, "we may not reweigh the evidence or substitute our own judgment for that of the fact finder." Id. (quoting Koch, 39 A.3d at 1001).

The trial court summarized the evidence as follows:

[The victim] testified that when she was 12 years old Appellant, a friend of her stepfather, touched her vagina with his hand as she slept in her own bed. N.T. from 5/4/2012, pp. 39-48. [The victim] woke up during the assault and immediately ran into her mother's bedroom. Id. [The victim's] mother testified that Appellant was a friend of her husband who was staying with [the victim's] family on the night of the assault. N.T. from 5/4/2012, pp. 102-110. [The victim's] mother testified Appellant had been drinking heavily that evening to celebrate his birthday. Id. [The victim's] mother also testified that [the victim] ran into her bedroom crying hysterically in the middle of the night and stated that Appellant had touched her private area. Id. [The victim's] mother first calmed [the victim], who was hysterical, and her husband, who was livid. Id. After calming her family, [the victim's] mother attempted to confront Appellant with the accusation but he was passed out drunk on a couch in [the victim's] home. Id. [The victim's] mother immediately called the police. Police arrived quickly and [the victim] reported the assault to the responding officers and then signed a written statement after being interviewed by a detective at a police station. N.T. from 5/4/2012, pp. 48, 88–89, 108.
[Appellant] testified that he was staying at [the victim's] home on the night of the assault. N.T. from 5/4/2012, pp. 138– 139. Appellant also testified that he drank an entire bottle of Bacardi rum that evening to celebrate his birthday. Id. Appellant testified that he carried his two year old daughter into [the victim's] room in the middle of the night and put the toddler in bed with [the victim]. N.T. from 5/4/2012, pp. 139–143. Appellant then state[d] that he touched [the victim's] leg and nudged her to move her over in the bed. Id. Appellant testified that he was "extremely drunk" at this time. N.T. from 5/4/2012, pp. 143–144. Appellant then testified that he left the room and fell asleep on the couch while talking to his girlfriend on the phone. Id.
Two days after being arrested, Appellant spoke with his mother on the telephone and asked his mother to call [the victim's] mother and apologize and tell [the victim's] mother that Appellant was really drunk. N.T. from 5/4/2012, pp. 151– 153. In other phone calls, Appellant told friends and family that he was very upset that [the victim] came to court and testified because Appellant thought he would prevail in this case when the Commonwealth's witnesses failed to appear in court. Id. [Appellant] presented character testimony at trial.

Trial Court Opinion, 3/21/13, at 1-2.

As stated above, Appellant was convicted of indecent assault, corruption of minors, and unlawful contact with minor. We shall address the sufficiency of the evidence to establish these offenses seriatim.

§ 3126. Indecent assault

(a) Offense defined.--A person is guilty of indecent assault if the person has indecent contact with the complainant, . . . for the purpose of arousing sexual desire in the person or the complainant and:
(2) the person does so by forcible compulsion[.] 18 Pa.C.S.A. § 3126(a)(2). Indecent contact is "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person." 18 Pa.C.S.A. § 3101.

Appellant asserts, "[T]he evidence did not establish that the brief contact in this case was for the purpose of arousing sexual desire." Appellant's Brief at 7. The trial court disagreed:

This Court found credible [the victim's] testimony that [Appellant] touched her vagina. Given [Appellant's] extreme intoxication and that fact that he was speaking with a girlfriend on the phone near the time of the assault, this Court draws the only reasonable conclusion presented by the evidence - [Appellant] touched [the victim's] intimate parts for the purpose of arousing or gratifying his own sexual desire. This Court cannot fathom another explanation for [Appellant's] act of reaching into the underpants of a young girl as she slept based upon the evidence of record.

Trial Court Opinion, 3/21/13, at 3–4.

Upon review of the evidence in the light most favorable to the Commonwealth, we discern no error. After the victim's mother and stepfather went to bed, Appellant moved his daughter into the victim's room and placed her on the victim's bed. N.T., 5/4/2012, at 32, 141–142. While positioned on the floor next to the victim's bed, Appellant put his hand down the victim's pants, beneath her underwear, and touched her genitalia while she was sleeping. Id. at 39–45. As the victim moved to escape the room, Appellant grabbed her by the arm to stop her. Id. at 44–45. By his own admission, Appellant celebrated his birthday by drinking a bottle of Bacardi rum. Id. at 139–140. Near the time of the assault, he was "extremely drunk" and had been talking on the phone with a girlfriend. Id. at 143–144.

As the trial court opined, the evidence promotes a reasonable inference that Appellant indecently touched the victim for the purpose of arousing or gratifying his own sexual desires. When the victim tried to leave, Appellant forcibly stopped her. Appellant's argument that his desires were not aroused or gratified by the brief sexual contact is irrelevant. The statute requires an indecent contact for the purpose of arousing or gratifying sexual desires, not actual arousal or gratification. Based on the foregoing, we agree with the trial court that the evidence was sufficient to sustain Appellant's conviction of indecent assault (forcible compulsion).

Next, we address:

§ 6301. Corruption of minors

(a) Offense defined.--

* * *
(ii) Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree.

18 Pa.C.S.A. § 6301(a)(1)(ii).

Appellant argues the evidence failed to establish "that the contact that occurred tended to corrupt the morals of the complainant." Appellant's Brief at 7. Again, the trial court disagreed:

[Appellant's] act of touching [the victim's] genital area is both an act that tended to corrupt the morals of a minor and a violation of Chapter 31 which tended to corrupt the morals of a minor.
On the date of the offense, [the victim] was under 18, N.T. from 5/4/2012, p. 23, and Appellant was over 18, N.T. from 5/4/2012, p. 124. Accordingly the evidence is legally sufficient to support Appellant's conviction for corrupting the morals of a minor.

Trial Court Opinion, 3/21/13, at 4.

Upon review of the evidence in the light most favorable to the Commonwealth, we discern no error. The victim was a minor, and Appellant was over 18. Appellant was convicted of indecent assault (forcible compulsion) pursuant to 18 Pa.C.S.A. § 3126, which is a violation of Chapter 31 of the Pennsylvania Crimes Code. Even the victim recognized the corruptive nature of Appellant's conduct, as she immediately and hysterically reported the assault to her mother and then to the police. N.T., 5/4/12, at 39–48, 102–110. Based on the foregoing, we agree with the trial court that the evidence was sufficient to support Appellant's conviction of corruption of minors.

Finally, we address:

§ 6318. Unlawful contact with minor

(a) Offense defined.--A person commits an offense if he is intentionally in contact with a minor, . . . for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).

18 Pa.C.S.A. § 6318(a)(1).

Appellant contends that, "while [his] touch may have been unwelcome, it was not the type of conduct which the statutes were enacted to protect against." Appellant's Brief at 9. The trial court rejected Appellant's argument:

As noted above, [the victim] was a minor at the relevant time. [Appellant] was convicted of indecent assault which is a violation of Chapter 31. Finally, [Appellant's] contact with [the victim] in her bedroom was for the purpose of committing the aforementioned indecent assault. Accordingly, the evidence is legally sufficient to support Appellant's conviction for [unlawful] contact with a minor.

Trial Court Opinion, 3/21/13, at 5.

Upon review of the evidence in the light most favorable to the Commonwealth, we discern no error. Appellant engaged in sexual contact with the victim, who was a minor, while both were within this Commonwealth. Appellant concedes that he "had his hand on [the victim] for seconds." Appellant's Brief at 9. Moreover, Appellant's indecent assault conviction is a violation of Chapter 31. Based on the foregoing, we agree with the trial court that the evidence was sufficient to support Appellant's conviction of unlawful contact with a minor.

Disturbingly, Appellant suggests that his conduct "was not the type of conduct which the statutes were enacted to protect against, " i.e., conduct that engenders "shame, outrage, and disgust" in a victim. Appellant's Brief at 8–9 (citing Commonwealth v. Ricco, 650 A.2d 1084, 1086 (Pa.Super. 1994)). Appellant is wrong, and his reliance on Ricco is misplaced. Therein, this Court affirmed a judgment of sentence imposed on a conviction of indecent assault where the appellant, dressed only in his underwear, "caused the victim to have indecent contact with him in that he placed the victim's hand upon his genitals." Ricco, 650 A.3d at 1085. The Ricco Court held that:

[t]he evidence presented by the Commonwealth unequivocally established that appellant committed the crime of indecent assault by causing the victim to have indecent contact with him in that he placed the victim's hand upon his genitals. Appellant nonetheless argues that this conduct should not be construed as an indecent assault because no actual skin-to-skin contact occurred. Appellant essentially asks us to impose a direct skin-to-skin contact requirement onto the statute even though it does not expressly so provide. This we decline to do.

In applying the indecent assault statute, this court has recognized that:

The legislature of this Commonwealth established the crime of indecent assault because of a concern for the shame, outrage, and disgust engendered in the victim, rather than because of any physical injury to the victim. Moreover, due to the nature of the offenses sought to be proscribed by the indecent assault statute, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act.

Ricco, 650 A.2d at 1085–1086 (quoting In the Interest of J.R., 648 A.2d 28, 34 (Pa.Super. 1994) (citation and quotation marks omitted)) (footnote omitted).

Compared to the Ricco facts, the indecent assault under review is more egregious in that Appellant entered the victim's bedroom, reached his hand down the victim's jeans and beneath her underwear, touched her bare genitalia with his bare hand, and then forcibly stopped the victim when she tried to leave. As evidenced by the victim running hysterically into her mother's room to report the assault, Appellant's conduct engendered "shame, outrage, and disgust" in the victim. As such, it is exactly the type of conduct sections 3126(a)(2), 6301(a)(1)(ii), and 6318(a)(1) were enacted to proscribe.

Judgment of sentence affirmed.

Judgment Entered.


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