289 A.3d 100
Pa. Super. Ct.2022Background
- Victim (M.K.) was an employee and longtime acquaintance of defendant Timothy Haahs, founder/CEO and pastor; incident occurred in Haahs’s office during a work visit in April 2019.
- While holding her tightly, Haahs placed his finger inside M.K.’s mouth, touched her teeth and tongue, and then pressed his lips and tongue over her mouth for 15–30 seconds despite her resistance.
- Haahs was convicted after a one-day bench trial of indecent assault without consent under 18 Pa.C.S. § 3126(a)(1) and sentenced to one year probation with sex-offender registration requirements.
- On appeal Haahs argued the Commonwealth failed to prove “indecent contact” because the lips/outer mouth/teeth are not “sexual or other intimate parts.”
- While this appeal was pending, the Pennsylvania Supreme Court decided Commonwealth v. Gamby, which defined “sexual or other intimate parts” to mean a body part that is (1) personal and private, (2) ordinarily touched only by persons with a close relationship, and (3) commonly associated with sexual relations or intimacy — a four-part test applied conjunctively.
- The Superior Court applied Gamby to these facts, concluded the inside of the mouth (and lips/tongue/teeth as touched here) meets that definition, and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether touching the complainant’s lips/inside mouth/teeth constitutes touching a “sexual or other intimate part” for indecent assault under §3126 | Commonwealth: the forced insertion of finger into mouth and subsequent licking/tongue contact show indecent contact with an intimate part tied to sexual intimacy | Haahs: lips/teeth are public-facing, commonly touched by non-intimates (greetings, family), not private sexual parts; insufficient evidence | Held: Applying Gamby, the inside of the mouth (and here lips/tongue/teeth as touched) satisfies the Gamby criteria; evidence sufficient; conviction affirmed |
| Whether §3126 is unconstitutionally vague as to what counts as an “intimate part” | Haahs: expansive readings make statute vague unless limited to genitals/buttocks/breasts | Commonwealth/Trial Court: defendant failed to meaningfully develop vagueness claim on appeal | Held: Vagueness claim waived for inadequate briefing; not reached on merits |
Key Cases Cited
- Commonwealth v. Gamby, 283 A.3d 298 (Pa. 2022) (defines “sexual or other intimate parts” using a conjunctive multi-factor test and holds the neck is an intimate part)
- Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006) (kissing with tongue may constitute touching an intimate part for indecent assault)
- Commonwealth v. Provenzano, 50 A.3d 148 (Pa. Super. 2012) (French kissing a minor supported conviction under §3126)
- Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. 1999) (attempted mouth/face contact can support indecent assault findings)
- Commonwealth v. Williams, 255 A.3d 565 (Pa. Super. 2021) (standard of review for sufficiency challenges)
- Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014) (issues inadequately developed on appeal are waived)