Commonwealth v. Kelly
102 A.3d 1025
Pa. Super. Ct.2014Background
- In summer 2011, appellant Joseph Kelly (adult) lived with his wife, her son Z.K. (minor with learning disabilities), and others; Z.K. was about 10–11 when the incident occurred.
- While supervising Z.K. in the upstairs bathroom, Kelly grabbed and touched Z.K.’s genitals and covered his mouth/nose to prevent him from calling out; the encounter lasted several minutes and ended when Z.K.’s mother entered.
- Z.K. disclosed the incident about six weeks later; the Commonwealth charged Kelly with three counts of indecent assault and corruption of minors under 18 Pa.C.S. § 6301(a)(1)(ii) (felony grading).
- At non-jury trial Kelly was convicted of all counts; the court sentenced him to 30–72 months for corruption of minors and 5 years’ consecutive probation for indecent assault.
- On appeal Kelly challenged sufficiency of evidence for the felony grading of corruption of minors, arguing the statutory phrase “course of conduct” requires multiple, related acts over time and a single incident cannot satisfy it.
- The Superior Court affirmed that a single indecent assault supported the misdemeanor grading but held the Commonwealth failed to prove the felony-grade element (a “course of conduct” in violation of Chapter 31), vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kelly) | Held |
|---|---|---|---|
| Whether §6301(a)(1)(ii) (“any course of conduct in violation of Chapter 31”) can be satisfied by a single sexual act | “Any course of conduct” can mean any action or series of actions; the modifier “any” permits a single Chapter 31 act to trigger felony grading | “Course of conduct” requires two or more related acts over time; a single episode cannot satisfy the felony gradation | The phrase requires multiple acts over time; a single indecent assault is insufficient for the felony grading; misdemeanor grading under §6301(a)(1)(i) remains supportable |
Key Cases Cited
- Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (standard of review for sufficiency of the evidence)
- Commonwealth v. McClintic, 909 A.2d 1241 (Pa. 2006) (de novo review for statutory interpretation)
- Kmonk–Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955 (Pa. 2001) (courts must heed what statute does not say when construing legislative intent)
- Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001) (penal statutes strictly construed; ambiguities resolved for accused)
- Commonwealth v. Leach, 729 A.2d 608 (Pa. Super. 1999) ("course of conduct" requires repetitive pattern of behavior)
- Commonwealth v. Sims, 919 A.2d 931 (Pa. 2007) (lesser-included offense doctrine)
- Commonwealth v. Reese, 725 A.2d 190 (Pa. Super. 1999) (definition and notice principles for lesser-included offenses)
- Commonwealth v. Waters, 988 A.2d 681 (Pa. Super. 2009) (remand for resentencing where greater-degree grading unsupported)