Com. v. Widger, K.
237 A.3d 1151
Pa. Super. Ct.2020Background
- Appellant Kyle Widger was charged after a two-year-old in his care sustained a second-degree perineal laceration involving digital penetration of the vaginal cavity.
- At trial the jury convicted Widger of aggravated indecent assault of a child <13, aggravated assault of a child <13, and endangering the welfare of a child; acquitted on indecent assault.
- Medical testimony described a ~3 cm second-degree laceration through perineal musculature requiring surgery and sutures; expert opined injury required significant force and was not consistent with accidental contact or ointment application.
- Widger admitted digital penetration but claimed the injury was accidental while applying diaper rash ointment; he and the child’s mother initially gave a self-inflicted story.
- Sentenced to an aggregate 10–20 years (including a 10-year mandatory minimum under 42 Pa.C.S. § 9718(a)(3)); ordered Tier III lifetime registration. Widger appealed on four grounds.
- Superior Court affirmed: sufficiency of evidence, inconsistency challenge rejected, § 9718(a)(3) mandatory minimum upheld as constitutional in light of Resto, and post-conviction notice satisfied due process here.
Issues
| Issue | Commonwealth's Argument | Widger's Argument | Held |
|---|---|---|---|
| 1. Sufficiency of evidence for aggravated indecent assault, aggravated assault, endangering welfare | Evidence (admission of digital penetration, medical expert, police investigation) permits jury to find penetration without good-faith purpose, recklessness/knowledge, and serious bodily injury beyond reasonable doubt | Penetration was minimal/accidental during ointment application; lacked mens rea (no malice/knowledge) and injury not serious | Affirmed — viewing evidence in Commonwealth's favor, jury rationally found elements proven beyond reasonable doubt. |
| 2. Alleged inconsistent verdicts (convicted of aggravated indecent assault; acquitted of indecent assault) | Elements differ (aggravated indecent assault requires penetration; indecent assault requires sexual arousal element); inconsistency not reviewable | Acquittal on indecent assault inconsistent because same conduct produced both charges | Affirmed — inconsistent verdicts permissible; here each offense contains an element the other does not, so Miller exception doesn't apply. |
| 3. Constitutionality of 10-year mandatory minimum under § 9718(a)(3) (Alleyne challenge) | § 9718(a)(3) attaches to the conviction itself; no additional fact-finding by judge required, so Alleyne does not bar it; Resto supports severability | Mandatory minimum is an unconstitutional delegation/impermissible judicial fact-finding under Alleyne; prior cases (Wolfe) found § 9718 problematic | Affirmed — under Resto, § 9718(a)(3) is severable and constitutional where the jury convicted of the predicate offense; mandatory minimum lawful. |
| 4. Due process/notice: Commonwealth failed to give pre-trial notice of intent to seek mandatory minimum | Statute required "reasonable notice" after conviction and before sentencing (which was given); pre-trial notice not required and impractical per precedent | Lack of pre-trial notice deprived Widger of ability to make an informed decision about trial/plea | Affirmed — Commonwealth provided notice after conviction and before sentencing; no due process violation here. |
Key Cases Cited
- Commonwealth v. Pappas, 845 A.2d 829 (Pa. Super. 2004) (standard of review for sufficiency of the evidence)
- Commonwealth v. Gonzalez, 109 A.3d 711 (Pa. Super. 2015) (digital penetration supports aggravated indecent assault)
- Commonwealth v. Miller, 35 A.3d 1206 (Pa. 2012) (inconsistent jury verdicts generally not reviewable)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase mandatory minimum must be found by jury)
- Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (Invalidated portions of § 9718; discussed Alleyne implications)
- Commonwealth v. Resto, 179 A.3d 18 (Pa. 2018) (held § 9718(a)(3) severable and constitutional as applied where conviction itself triggers mandatory minimum)
- Commonwealth v. Zorn, 580 A.2d 8 (Pa. Super. 1990) (practicality of providing notice of mandatory sentencing after trial but before sentencing)
- Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004) (discussion of malice vs. other mens rea for aggravated assault)