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Commonwealth v. Kelly

Superior Court of Pennsylvania

October 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH LOUIS KELLY, Appellant

Submitted October 15, 2014

Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County. Criminal Division at No(s): CP-23-CR-0002697-2012. Before KELLY, J.

Steven M. Papi, Public Defender, and Patrick J. Connors, Public Defender, Media, for appellant.

John J. Whelan, Assist. District Attorney, Media, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., DONOHUE, J., SHOGAN, J., ALLEN, J., LAZARUS, J., WECHT, J., and STABILE, J.

OPINION

Page 1026

BENDER, P.J.E.

Appellant, Joseph Louis Kelly, appeals from the judgment of sentence of 30-72 months' incarceration, and a consecutive term of 5 years' probation, imposed following his conviction for corruption of minors and indecent assault. The question before us is whether the Commonwealth proved, by sufficient evidence, that Appellant engaged in a " course of conduct" as required under the felony grading of the offense of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii). Because we conclude that Appellant did not engage in a " course of conduct" within the meaning of that provision, we vacate his judgment of sentence and remand for resentencing.

This case involved Appellant's sexual abuse of Z.K., a minor with learning disabilities. During the summer of 2011, Z.K. lived with his mother, grandmother, and

Page 1027

Appellant (his mother's husband), at their home in Chester, Pennsylvania. Appellant was approximately ten years old at that time.[1] Prior to the abuse detailed below, Z.K. indicated that he and Appellant got along " okay[.]" N.T., 8/8/12, at 27.

Z.K. recalled that on a hot day during the summer of 2011, he wanted to visit his friend's house; however, his mother told him that he could not go until he took a bath.[2] Following his mother's instructions, Z.K. went to the upstairs bathroom accompanied by Appellant. This was not unusual, as Appellant " sometimes" helped to " wash [him] up." Id. at 36. Appellant's mother was in her bedroom at this time, which was also located on the second floor of the residence.

Z.K. and Appellant did not speak during Z.K.'s bath, and the door to the bathroom was closed. At one point, Appellant grabbed Z.K.'s penis and began " playing with it." Id. at 45. Z.K. tried to call out, but he could not because Appellant was using his other hand to cover Z.K.'s mouth. Appellant held his hand over Z.K.'s mouth for " a long time, 'cause I can't -- he held my nose, and I can't even breath. ... Probably like five minutes I keep on doing that, telling him to get off my -- get off my face." Id. at 49. Z.K. recalled that Appellant's right hand covered his mouth while Appellant's left hand played with his penis. Appellant did not speak to Z.K. while this happened.

Z.K. made several attempts to flee the bathroom and tell his mother, but Appellant held him in place and silenced his cries. This continued for about five minutes until Z.K.'s mother came into the bathroom to check on his progress. When she opened the door, Appellant stopped groping and restraining Z.K. and left the bathroom. At that point, Z.K. exited the bathtub and put on his clothes.

Z.K. said that this was the only occasion when Appellant had molested him and that Appellant had previously washed him in the shower or bath without incident. However, on this occasion, Z.K. indicated that Appellant " didn't really clean [his] body." Id. at 42. Z.K. did not immediately report the abuse. However, once Appellant left the residence, approximately six weeks after this incident, Z.K. told his mother and grandmother what had happened.

Z.K.'s mother testified that she was still married to Appellant at the time of trial. However Appellant moved out of their Chester residence, in November of 2011, following an argument with her that resulted in the involvement of police. Z.K. told his mother about the bathroom incident in January of 2012. Z.K. did not tell her sooner because Appellant had threatened to harm him, his mother, and his grandmother.

Z.K.'s mother suspected that something had happened between Appellant and Z.K. prior to Z.K.'s disclosure. Her suspicions arose in September of 2011, because Z.K. " didn't want to be around [Appellant] anymore .... Like he wouldn't go to the store with [Appellant] anymore. He wouldn't do activities. Stopped going to the library. He wouldn't be anywhere [Appellant] was at ...." Id. at 63.

The Commonwealth filed a criminal complaint on January 24, 2012, charging Appellant with three counts of indecent assault, 18 Pa.C.S. § 3126(a)(1), (2) and (7), and one count of corruption of minors, 18 Pa.C.S. § 6301.

Page 1028

Immediately prior to Appellant's non-jury trial, the criminal information was amended to reflect the felony gradation of the corruption of minors offense, 18 Pa.C.S. ยง 6301(a)(1)(ii). The trial was held on August 8, 2012, and the court found Appellant guilty of all counts. The court sentenced Appellant on November 14, 2012, to 30-72 months' incarceration for ...


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