Opinion
J-S66010-13 No. 3432 EDA 2012
02-18-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSEPH LOUIS KELLY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 14, 2012
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002697-2012
BEFORE: PANELLA, MUNDY and FITZGERALD, JJ. MEMORANDUM BY PANELLA, J.:
Retired Justice assigned to the Superior Court.
Appellant, Joseph Louis Kelly, appeals from the judgment of sentence entered on November 14, 2012 in the Court of Common Pleas of Delaware County. After careful review, we affirm.
During the summer of 2011, Kelly resided, in Chester, Delaware County, with his wife, Caprese, her grandmother and her 11-year-old learning disabled son, Z.K. One evening, Z.K. was taking a bath when Kelly came into the bathroom, wearing only a white t-shirt and underwear, "to wash [him] up." N.T., Non-Jury Trial, 8/8/12, at 36, 51. Z.K. testified that it was not out of the ordinary for Kelly to assist him while bathing. See id. However, on this occasion, Z.K. recounted that Kelly began to inappropriately touch his penis, which Z.K. referred to as "his wee-wee." Id., at 38. Z.K. testified that Kelly then placed his hand over his mouth and squeezed his wee-wee and "[his] balls" with a clenching motion. Id., at 48-49. Z.K. tried to scream for help and flee the bathroom; however, Kelly "was holding his mouth." Id., at 39. Kelly "stopped playing with [Z.K.'s] wee wee" when his wife, Caprese entered the bathroom. Id., at 37. Z.K. quickly exited the bathroom and, from that day on, his mother testified that he "did not want to be around [Kelly] anymore or go places with him." Id., at 63. It was not until Kelly moved out of the residence months later in November of 2011 that Z.K. told his mother what Kelly did to him. See id., at 41, 61. Z.K. testified that he did not tell his mother what happened sooner because he was embarrassed and "scared of what [Kelly] was going to do to [him]." Id., at 41.
Following a bench trial on August 9, 2012, Kelly was convicted of indecent assault and corruption of minors. Thereafter, on November 14, 2012, the trial court sentenced Kelly to a period of not less than 30 nor more than 72 months' imprisonment on the corruption of minors' conviction followed by a consecutive five year period of state sex offenders' probation on the indecent assault conviction. This timely appeal followed.
18 PA.CONS.STAT.ANN. § 3126(a)(1)(2),(7).
18 PA.CONS.STAT.ANN. § 6301(a)(1)(ii).
On appeal Kelly raises the following issues for our review:
1. Whether the Court lacked jurisdiction to impose judgment of sentence upon Mr. Kelly for the crimes of Indecent Assault and Corruption of Minors since the Commonwealth failed toAppellant's Brief, at 5.
prove that the alleged crimes occurred within the Commonwealth Pennsylvania?
2. Whether the evidence was insufficient to sustain the convictions for Indecent Assault since the Commonwealth failed to prove beyond a reasonable doubt that Mr. Kelly had indecent contact with a complainant for the purpose of arousing sexual desire in himself or the complainant?
3. Whether the evidence was insufficient to sustain the conviction for Corruption of Minors since the Commonwealth failed to prove beyond a reasonable doubt that Mr. Kelly, being the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupted or tended to corrupt the morals of any minor less than 18 years of age?
Preliminarily, Kelly argues that the trial court lacked jurisdiction because the Commonwealth failed to prove the alleged crimes occurred in the Commonwealth of Pennsylvania. Jurisdiction in criminal matters rests solely in the courts of the state or country in which the crime is committed. Commonwealth v. Firestone, 385 A.2d 489, 490 (Pa. Super. 1978). The locus of a crime is always a factual issue because a court has no jurisdiction unless the act charged occurred in the county where the defendant is tried. See id. In order to sustain a guilty verdict, some evidence of locus must be offered by the prosecution. See id.
Here, the victim testified that he resided at 2710 Swartz Street in the City of Chester with his mother and her husband, Kelly. See N.T., Non-Jury Trial, 8/8/12, at 26. The victim testified that the assault occurred in the bathroom of the residence, in the summer of 2011, a period of time during which the victim's mother testified that Kelly was living at the residence. See id., at 26-28, 60. Accordingly, any challenge to the jurisdiction of the court is meritless. The Commonwealth sufficiently established the locus of the crime.
Kelly next challenges the sufficiency of the evidence as it relates to his conviction for indecent assault. Our standard of review for a challenge to the sufficiency of the evidence is well-settled.
In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt....Furthermore, a mere conflict in the testimony of the witnesses does not render the evidence insufficient because it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence.Commonwealth v. Montini, 712 A.2d 761, 767-768 (Pa. Super. 1998) (citations and quotation marks omitted). "We may not weigh the evidence and substitute our judgment for that of the fact-finder." Commonwealth v. Ventrini, 734 A.2d 404, 407 (Pa. Super. 1999) (citation omitted).
The offense of indecent assault is defined in pertinent part as follows:
§ 3126. Indecent assault18 PA.CONS.STAT.ANN. § 3126(a)(1),(2), and (7).
(a) Offense defined.— A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant's consent;
(2) the person does so by forcible compulsion;
...
(7) the complainant is less than 13 years of age.
The Crimes Code further defines the phrase "indecent contact" as "any 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.Cons.Stat.Ann. § 3101. While the term "touching" has not been expressly defined by our Legislature, this Court has indicated that it includes contact between a body part with another object so as to perceive it through the tactile sense. Commonwealth v. Ricco, 650 A.2d 1084, 1085 (Pa. Super. 1994).
Here, Kelly argues that the evidence failed to prove that he touched the victim's sexual or other private parts for the purpose of sexual gratification or arousal. See Appellant's Brief, at 16. In support of his argument Kelly acknowledges that at the time he was bathing the victim, he was "clothed," "his genitals were covered, and he did not touch himself while it was happening." Id., at 17. Further Kelly argues that "there is no evidence that either party involved had an erection or was in any way aroused." See id. Kelly's unique argument is baseless.
The evidence presented by the Commonwealth unequivocally established that Kelly committed the crime of indecent assault—he placed his hands on the 11-year-old victim's genitals and squeezed them while using force to cover Z.K.'s mouth with his hand.
In applying the indecent assault statue, this Court has recognized that
[t]he 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 statue, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act.Ricco, 650 A.2d at 633-634 (citation omitted). Clearly, the legislature envisioned the act of groping an 11-year-old child's genitals, by his own step-father, as a violation of this statute. As such, Kelly was properly convicted of indecent assault in violation of 18 PA.CONS.STAT.ANN. §3126(a)(1),(2), and (7).
Lastly, Kelly challenges the sufficiency of the evidence presented by the Commonwealth to sustain his conviction for corruption of minors. Section 18 PA.CONS.STAT.ANN. § 6301(a)(1)(ii) provides in pertinent part:
§ 6301. Corruption of Minors18 PA.CONS.STAT.ANN. § 6301(a)(1)(ii).
(a) Offense defined. —
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.
Corruption of a minor can involve conduct towards a child in an unlimited number of ways....The [ ] statute [ ] [is] designed to cover a broad range of conduct in order to safeguard the welfareCommonwealth v. Todd, 502 A.2d 631, 635, n.2 (Pa. Super. 1985) (citation omitted).
and security of our children. Because of the diverse types of conduct that must be proscribed, [the] statute [ ] must be drawn broadly. It would be impossible to enumerate every particular act against which our children need to be protected.
"Actions that tend to corrupt the morals of a minor are those that would offend the common sense of the community and the sense of decency, propriety and morality which most people entertain." Commonwealth v. Snyder, 870 A.2d 336, 351 (Pa. Super. 2005) (citation and internal quotation marks omitted).
Here, Kelly argues that the Commonwealth failed to establish that he engaged in a course of conduct, or pattern of behavior, that corrupts or tends to corrupt the morals of any minor less than 18 years of age. See Appellant's Brief, at 18. We disagree. Kelly, an individual over the age of 18, unmistakably engaged in a course of conduct that would affect any common sense of decency.
Kelly, the victim's step-father, entered the bathroom where his 11-year-old learning disabled step-son was in the bathtub naked, wearing only a t-shirt and underwear. Instead of "washing" Z.K., Kelly, in an effort to stifle Z.K.'s cries for help, covered his mouth with his hand while Kelly inappropriately touched the young boy's penis and squeezed his testicles. Kelly's disturbing victimization of Z.K. ceased only when Z.K.'s mother, his wife, entered the bathroom. Viewing the evidence adduced at trial in the light most favorable to the Commonwealth, it is evident that Kelly's conduct fell within the language of the statute and the trial court properly found him guilty of corruption of minors.
Judgment of sentence affirmed. Jurisdiction relinquished.
Fitzgerald, J., files a concurring and dissenting statement. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary