Opinion
35 WDA 2023 J-A29034-23
01-09-2024
COMMONWEALTH OF PENNSYLVANIA v. GERALD DIXON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered September 27, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at CP-02-CR-0003920-2020
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.
Gerald Dixon (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of two counts each of involuntary deviate sexual intercourse with a child (IDSI), unlawful contact with a minor, and indecent assault of a person less than thirteen years of age; and one count each of incest of a minor, endangering the welfare of children, and corruption of minors. We affirm.
At trial, the nine-year-old complainant (Complainant) testified that she was playing truth or dare with Appellant when Appellant pulled her pants down and licked her "front private." N.T., 3/14/22, at 63, 78, 88, 103. The Complainant identified her "front private" as the part of her body from which she urinates. Id. at 88-89. She stated that when her brother appeared, Appellant told her "to go upstairs and he stuck his front private in my back private and when he was done[,] he let us color." Id. at 89-90. The Complainant repeated that Appellant "put" or "stuck" "his front private in my back private." See id. at 89, 90, 92, 93, 96, 97; N.T., 3/15/22, at 73 (defense counsel asking if Appellant's "private was actually inside your back private," and Complainant answering yes). When Appellant had his front private in her back private, he was "moving it around," which the Complainant demonstrated by moving her hips from side to side. N.T., 3/14/22, at 101-02. She described Appellant having his hands "[o]n his front private … [w]hile it was inside [her.]" Id. at 102. Afterward, the Complainant went to the bathroom and noticed her "back private" was wet. Id. at 90. When the prosecutor asked if it was wet "on the outside of your back private or on the inside," the Complainant said, "Both." Id. at 91. Later that day, the Complainant disclosed the incident to her mother, who contacted police and took the Complainant to the hospital. N.T., 3/15/22, at 64-65, 86-87.
Dr. Jennifer Wolford, a child-abuse pediatrician testifying as a Commonwealth expert, stated that she physically examined the Complainant and found "[h]er anus did not have any visible fissures or lacerations." Id. at 116. Dr. Wolford added, "very rarely do we find abnormalities in children's exams"; Dr. Wolford explained that 95% of physical exams of female child sexual assault victims reveal "no evidence of penetrating trauma." Id. at 117-19. Dr. Wolford testified that minor anal traumas heal quickly, and the anus "is a very soft area that is meant to stretch." Id. at 119. She further opined,
penetration to a [young] girl with clenched buttocks is going to be difficult to define. Because in between two bum cheeks, that is penetrating to a little girl that says that is my bum. So I'm not sure if that went all the way into the rectal cavity, nor to me, as a child abuse pediatrician, is that relevant.Id. at 119-20.
Jamie Mesar, a former forensic interviewer, testified as a Commonwealth expert on the behavior of child sex-abuse victims. Ms. Mesar noted that young children usually have minimal sexual knowledge and may use "not necessarily appropriate words for their body parts and sometimes they have slang words they use…." N.T., 3/16/22, at 13.
The jury convicted Appellant of the above crimes, and the trial court sentenced Appellant to an aggregate 28 to 56 years of incarceration. Appellant filed a timely post-sentence motion claiming, inter alia, that his conviction for IDSI at Count 2 was based on insufficient evidence. The trial court denied the post-sentence motion, and Appellant timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents a single issue for review:
Whether [Appellant's] conviction at Count 2-IDSI must be reversed where the Commonwealth failed to prove, beyond a reasonable doubt, that there was "deviate sexual intercourse" as the term is used in 18 Pa.C.S.A. § 3123(b) and defined in 18 Pa.C.S.A. § 3101?Appellant's Brief at 6.
Appellant argues the evidence was insufficient to establish "penetration, however slight." Id. at 18-26. The Commonwealth counters that the Complainant's testimony, viewed in the light most favorable to the Commonwealth, was sufficient to establish penetration. See Commonwealth Brief at 9-13.
Appellant's challenge is limited to his conviction for IDSI at Count 2, as he concedes the Complainant's testimony was sufficient to sustain his conviction for IDSI at Count 1. Appellant's Brief at 21.
When reviewing a sufficiency claim, this Court
must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to prove every element of the offense beyond a reasonable doubt. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Any question of doubt is for the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.Commonwealth v. Martin, 297 A.3d 424, 434 (Pa. Super. 2023) (citation omitted). The "uncorroborated testimony of a single witness [can be] sufficient to sustain a conviction for a criminal offense, so long as that testimony can address and, in fact, addresses, every element of the charged crime." Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa. Super. 2018).
"A person commits involuntary deviate sexual intercourse with a child … when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age." 18 Pa.C.S.A. § 3123(b). "Deviate sexual intercourse" is "[s]exual intercourse per os or per anus between human beings…." 18 Pa.C.S.A. § 3101. "Sexual intercourse" includes "some penetration however slight; emission is not required." Id. "[T]o sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight." Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003).
Appellant argues the Complainant's testimony "lacked the requisite specificity to prove, beyond a reasonable doubt, what she meant by 'back private,'" and posits that "back private" could refer to the "intergluteal cleft," i.e., between the buttocks without penetration of the anus. Appellant's Brief at 25-26. Appellant relies on Dr. Wolford's testimony about a child considering contact "between two bum cheeks" to be penetration. See N.T., 3/15/22, at 119-20. We disagree with Appellant's argument.
Penetration may be proven by circumstantial evidence. See Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008). Further, "the uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses." Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999); see also Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. 1992) (testimony of child victim alone may support conviction for sex offenses).
Here, the Complainant testified that Appellant's "front private" was "inside of" her. N.T., 3/14/22, at 102. She agreed Appellant's "private was actually inside [her] back private." N.T., 3/15/22, at 73. The Complainant also stated that she felt wetness "on the outside of [her] back private and on the inside." N.T., 3/14/22, at 91 (emphasis added). The Complainant consistently and repeatedly described Appellant putting "his front private in my back private." See id. at 89, 90, 92, 93, 96, 97 (emphasis added). Giving the Commonwealth the benefit of all reasonable inferences to be drawn from the Complainant's testimony, we conclude that the jury could reasonably infer that Appellant "engaged in [an] act[] of … anal intercourse [with the Complainant], which involved penetration however slight." 18 Pa.C.S.A. § 3101.
The trial court and Commonwealth reference the Complainant's testimony from a prior habeas proceeding, which defense counsel read to her at trial, outside of the jury's presence, to refresh her recollection. See N.T., 3/15/22, at 38-52; Trial Court Opinion, 3/14/23, at 4; Commonwealth's Brief at 11. Appellant emphasizes that the habeas testimony was never presented to the jury or admitted as evidence. Appellant's Reply Brief at 2. We recognize that we may only consider "the evidence admitted at trial." Martin at 434; see also Commonwealth v. Grassmyer, 352 A.2d 178, 182 (Pa. Super. 1975) (holding trial court improperly referred to victim's statement from an in camera proceeding). In reviewing Appellant's issue, we only considered the evidence presented to the jury at trial.
Judgment of sentence affirmed.
Judgment Entered.