Commonwealth v. Provenzano
50 A.3d 148
| Pa. | 2012Background
- Provenzano appeals after a jury found him guilty of two indecent assault counts; claims insufficiency and miscalculated PRS, and the trial court’s sentence was improper.
- Victim is a 15-year-old with an IQ of 50 and mental disability; witnesses observed kissing in a Perkins parking lot and related acts.
- Maldonado, a restaurant cook, saw the victim on Provenzano’s lap; he intervened and police were called.
- Trial evidence included victim’s capacity to consent and Provenzano’s testimony that contact was familial; jury convicted on two indecent assault counts.
- Trial court sentenced 18–60 months and 12–24 months concurrent; PSI listed five New Jersey convictions; on appeal, convictions affirmed but sentence vacated and remanded for resentencing due to PRS errors and potential illegal multiple counts under indecent assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence shows the victim’s mental disability required for §3126(a)(6). | Provenzano (P) argues no disability proven. | Provenzano challenges the disability evidence. | Evidence supported disability; sufficient for conviction. |
| Whether the evidence proves indecent contact with the victim under §3126(a)(8). | P contends no indecent contact occurred. | P argues lack of contact meeting statute. | Kissing and related contact sufficient for indecent assault. |
| Whether the PRS was miscalculated and sentencing error occurred, requiring remand. | P asserts improper PRS and guideline application. | P disputes calculation and classification of prior NJ offenses. | PR.S miscalculated; remand for resentencing; potential illegal sentence due to dual convictions under §3126; total PRS should be two. |
Key Cases Cited
- Commonwealth v. Crosby, 791 A.2d 366 (Pa.Super.2002) (victim’s mental disability proven by testimony; capacity to consent)
- Commonwealth v. Ricco, 437 Pa.Super. 629, 650 A.2d 1084 (Pa.Super.1994) (skin-to-skin contact not required; evidence of indecent assault)
- Commonwealth v. Capo, 727 A.2d 1126 (Pa.Super.1999) (touching with involuntary nature supports indecent assault conviction)
- Commonwealth v. Evans, 901 A.2d 528 (Pa.Super.2006) (kiss on mouth and surrounding touching can be indecent assault)
- Commonwealth v. McClintic, 851 A.2d 214 (Pa.Super.2004) (jury may infer indecent assault from offensive touching)
- Commonwealth v. Archer, 722 A.2d 203 (Pa.Super.1998) (discretionary-sentencing review; sua sponte illegal sentences exception)
- Commonwealth v. Walls, 926 A.2d 957 (Pa.2007) (abuse of discretion standard in sentencing)
- Commonwealth v. Janda, 14 A.3d 147 (Pa.Super.2011) (improper PRS calculation from out-of-state offenses)
- Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super.2003) (requirement for substantial question in discretionary-sentencing appeal)