Com. v. Widger, K.Com. v. Widger, K.
Appellant, Kyle Rockwell Widger, appeals the October 15, 2019 judgment of sentence imposing an aggregate 10 to 20 years’ imprisonment after a jury convicted Appellant of aggravated indecent assault of a child less than 13 years of age, aggravated assault of a child less than 13 years of age, and endangering the welfare of a child.1 We affirm.
On July 18, 2017, Appellant was charged with the aforementioned crimes, as well as, inter alia, indecent assault of a child less than 13 years of age2 after Appellant digitally penetrated the child‘s vaginal cavity and caused a second-degree perineal laceration that extended from the vaginal opening
On April 3, 2019, a jury found Appellant guilty of aggravated indecent assault of a child less than 13 years of age, aggravated assault of a child less than 13 years of age, and endangering the welfare of a child. The jury found Appellant not guilty of indecent assault of a child less than 13 years of age. The trial court ordered a pre-sentence investigation (“PSI“) report and ordered Appellant to submit to an assessment by the Sexual Offender‘s Assessment Board.
On October 15, 2019, the trial court sentenced Appellant to 10 to 20 years’ imprisonment for aggravated indecent assault of a child less than 13 years of age, 5 to 10 years’ imprisonment for aggravated assault of a child less than 13 years of age, and 6 to 24 months’ imprisonment for endangering the welfare of a child. The trial court ordered the latter two sentences to run concurrently to the sentence for aggravated indecent assault of a child less than 13 years of age. Appellant‘s aggregate sentence, therefore, was 10 to 20 years’ imprisonment. Appellant was determined not to be a sexually violent predator but was ordered, as a Tier III offender, to register for life with the Pennsylvania State Police as mandated by
[1.] Whether the evidence was insufficient as a matter of law to sustain [Appellant‘s] convictions for aggravated assault [of a child less than 13 years of age], aggravated indecent assault of a child [less than 13 years of age], and endangering the welfare of [a child] where, among other things, the requisite mens rea elements for the [aforementioned] offenses, the penetration and [lack of] good faith elements for aggravated indecent assault [of a child less than 13 years of age], and [the] serious bodily injury element for aggravated assault [of a child less than 13 years of age] were not proven beyond a reasonable doubt?
[2.] Whether the trial court erred in accepting an inconsistent verdict where [Appellant] was acquitted of indecent assault [of a child less than 13 years of age], but convicted of aggravated indecent assault [of a child less than 13 years of age], when the proof required for both charges consisted of the same conduct and evidence?
[3.] Whether the trial court erred in imposing a ten-year mandatory minimum sentence for aggravated indecent assault [of a child less than 13 years of age] pursuant to
42 Pa.C.S.A. § 9718 , which has been previously held to be an unconstitutional statute?[4.] Whether the lack of any disclosure prior to trial of the Commonwealth‘s notice of its intent to seek a mandatory minimum sentence pursuant to [section] 9718, violated [Appellant‘s] state and federal due process rights where he was deprived of his right to make an informed decision regarding his decision to proceed to trial?
Appellant‘s Brief at 4 (extraneous capitalization omitted).
In his first issue, Appellant argues there was insufficient evidence to support his convictions. Id. at 10-18. Specifically, Appellant contends there was insufficient evidence of the requisite mens rea to establish that he committed the offenses of aggravated indecent assault of a child less than 13
In addressing the merits of a sufficiency claim, our standard and scope of review are well-settled.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant‘s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof or proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier[-]of[-]fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004) (citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). To preserve a
Section 3125 of the Pennsylvania Crimes Code defines aggravated indecent assault, in pertinent part, as follows:
§ 3125. Aggravated indecent assault
(a) Offenses defined.—[A] person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person‘s body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
(1) the person does so without the complainant‘s consent;
(2) the person does so by forcible compulsion;
(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;
(5) the person has substantially impaired the complainant‘s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance;
(6) the complainant suffers from a mental disability which renders him or her incapable of consent;
(7) the complainant is less than 13 years of age; or
(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.
(b) Aggravated indecent assault of a child.--A person commits aggravated indecent assault of a child when the person violates subsection (a)(1), (2), (3), (4), (5) or (6) and the complainant is less than 13 years of age.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
A person commits aggravated assault of a child less than 13 years of age if the person “attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a child less than 13 years of age, by a person 18 years of age or older.”
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor‘s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation.
“A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits [the offence of endangering the welfare of a child] if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.”
Appellant argues that the evidence was insufficient to prove that he acted with malice, for purposes of his aggravated assault of a child less than 13 years of age conviction, or knowingly caused the child‘s injury for purposes of aggravated indecent assault of a child less than 13 years of age or endangering the welfare of a child.4 Appellant‘s Brief at 13. Appellant
The Commonwealth argues that that child‘s injury “would have required too much force for [] Appellant not to know or understand what was going on at the time.” Commonwealth‘s Brief at 7. The Commonwealth contends that Appellant was angry with the child at the time he was changing her diaper and that the injury was “through the muscle with enough pressure to tear the skin and separate the muscle in the midline.” Id. at 5. The Commonwealth avers that Appellant admitted to being the only caregiver with the child at the time of injury and admitted he caused the injury. Id. at 4.5
Dr. Adrienne Bonham, an expert in obstetrics and gynecology, described the child‘s injury as a second-degree laceration, approximately three centimeters, from the perineum into the vaginal cavity. N.T., 4/2/19, at 152-153, 155, 158, 160-161. Dr. Bonham stated that the injury was not a “superficial scratch” but, rather, a second-degree laceration in which the muscles in the middle of the perineum separated. Id. at 161. Dr. Bonham remarked,
[t]he muscles, the superficial muscles of the pelvic floor[,] all come together in [the] area between the vagina and anus; it is connected in that area, [it is] called the perineal body. This laceration went through the skin and into those connective tissue[s] and separated the attachments of the muscles together in the midline[.]
Id. Dr. Bonham opined that this type of injury would require a significant amount of force with enough pressure to tear the skin and separate the muscles in the midline. Id. Dr. Bonham opined, to a reasonable degree of medical certainty, that the child‘s injury could not have been self-inflicted, caused when the child allegedly “lifted her buttocks up in the air and fell down on [Appellant‘s] hand[,]” or by applying diaper rash ointment to the perineum area, even in an aggressive manner. Id. at 165-166.
In the emergency room of the hospital, the child was “tearful and very uncomfortable with any exam[ination]” and the medical team was unable to examine the extent of the injury. Id. at 152, 169. As a result, an operation was required during which, upon sedation of the child, the severity of the child‘s injury was determined. Id. at 152-152. Dr. Bonham was able to repair the laceration with fine sutures, which will likely result in a scar. Id. at 164. Dr. Bonham pro-actively treated the child for several potential sexually transmitted diseases and inserted a catheter into the child‘s bladder for 24 hours to help eliminate discomfort while urinating. Id. at 165. The child received follow-up treatment from a pediatric gynecologist, and Dr. Bonham believed the child was healing “okay.” Id. at 171.
Based upon the totality of the circumstances, the jury could infer beyond a reasonable doubt, that Appellant knowingly and recklessly digitally penetrated the child‘s vaginal cavity without a good faith medical reason and that Appellant‘s actions caused the child serious bodily injury and endangered the child‘s welfare. The Commonwealth presented expert testimony to establish that the severity of the injury was such that it was not caused by an alleged accidental insertion of Appellant‘s finger or by Appellant‘s application of diaper rash ointment, even if in an aggressive manner. The child‘s injury
In Appellant‘s second issue, he argues that the trial court erred by permitting an inconsistent verdict in which the jury convicted Appellant of aggravated indecent assault of a child less than 13 years of age but acquitted Appellant of the charge of indecent assault of a child less than 13 years of age. Appellant‘s Brief at 18-19. Appellant contends, “[t]he jury‘s acquittal of [i]ndecent [a]ssault was plainly based on the same criminal conduct and evidence[,]” namely that Appellant digitally penetrated the child‘s vaginal cavity. Id.
The Miller Court noted an exception to the non-reviewability rule when the conviction of one crime requires, as an element of that crime, the completion of a predicate crime. Id.; see also Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005) (holding that a conviction of ethnic intimidation must be vacated where the defendant was acquitted of the predicate crime of terroristic threats, which was a specific statutory element of the offense of which he was convicted); Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010) (holding that pursuant to statute, the grading of a conviction of unlawful contact with a minor for sentencing purposes is predicated upon the defendant‘s conviction of an underlying offense and the defendant may
This Court, in comparing the elements necessary to support convictions of aggravated indecent assault of a child less than 13 years of age and indecent assault of a child less than 13 years of age, stated,
[a]ggravated indecent assault [of a child less than 13 years of age] is defined as penetration, however slight, of the genitals or anus of the victim with a part of the offender‘s body for any purpose other than good faith medical, hygienic, or law enforcement procedures if the victim is less than 13 years of age.
18 Pa.C.S.A. § 3125[(a) and(b)] . Indecent assault [of a child less than 13 years of age] is defined as indecent contact with the victim if the victim is less than 13 years of age.18 Pa.C.S.A. § 3126[(a)(7)] .18 Pa.C.S.A. § 3101 defines “indecent contact” as any touching of the sexual or other intimate parts of the victim for the purpose of arousing or gratifying sexual desire in either person.Aggravated indecent assault includes an element that is not required to commit indecent assault. That element is penetration of the genitals or anus of the victim. Indecent assault includes an element that is not required to commit aggravated indecent assault. That element is proof of arousing or gratifying sexual desire.
Commonwealth v. Allen, 856 A.2d 1251, 1253-1254 (Pa. Super. 2004), appeal denied, 870 A.2d 319 (Pa. 2005).
Here, as discussed supra, there was sufficient evidence to convict Appellant of aggravated indecent assault of a child less than 13 years of age.
In his third issue, Appellant argues that the trial court erred in imposing a ten-year mandatory minimum sentence, pursuant to
Appellant‘s issue challenges the legality of sentence for which our standard of review is de novo and our scope of review plenary. Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).
Section 9718(a)(3) of the Pennsylvania Sentencing Code requires a person convicted of aggravated indecent assault of a child less than 13 years of age pursuant to
(c) Proof at sentencing.--The provisions of this section shall not be an element of the crime, and notice of the provisions of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth‘s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and
shall determine, by a preponderance of the evidence, if this section is applicable.
In Alleyne v. United States, the United States Supreme Court held that pursuant to the Sixth Amendment of the United States Constitution, which guarantees a defendant the right to a trial by an impartial jury and is applicable to the states by virtue of the Fourteenth Amendment,
[a]ny fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.
Alleyne v. United States, 570 U.S. 99, 103 (2013) (citation omitted).
In Commonwealth v. Wolfe, our Supreme Court, in addressing the implications of Alleyne on the constitutionality of Section 9718(a)(1) and (c), broadly held that Section 9718 is “irremediably unconstitutional on its face, non-severable, and void.” Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016). Justice Todd, in authoring a dissent in Wolfe, held that when the fact that triggered the mandatory minimum sentence was an element of the underlying criminal offense and the jury found, beyond a reasonable doubt, that element of the underlying criminal offense in order to convict the defendant of the same, the defendant has been afforded the benefit of every constitutional right and the imposition of a mandatory minimum sentence does not implicate the protections announced in Alleyne. Wolfe, 140 A.3d at 666-667 (Todd, J. dissenting). A severability analysis, as Justice Todd suggested, is implicated “only where a statute reveals a constitutional (or other) infirmity” and is not required when there is no Alleyne violation. Id. at 669-670.
In Commonwealth v. Resto, our Supreme Court was presented with the question of whether the imposition of a mandatory minimum sentence under Section 9718(a)(3) was unconstitutional pursuant to Alleyne. In an opinion announcing the judgment of the court (“OAJC“), Chief Justice Saylor7 held that Section 9718(a)(3) “requires no proof of any predicate or aggravating facts” and, therefore, does not implicate the protections afforded by Alleyne. Commonwealth v. Resto, 179 A.3d 18, 20-21 (Pa. 2018) (OAJC) (Todd, J. concurring; Dougherty, J. joining the concurrence). Chief Justice Saylor acknowledged that “some passages of Wolfe [were] written in overbroad terms to the degree that they disapprove Section 9718 as a whole, when the Court was not considering the materially distinct operation of [Section 9718(a)(3)].” Id. at 22. A minimum mandatory sentence that attaches to a conviction enumerated in Section 9718(a)(3) and does not require the sentencing judge to determine an additional, aggravating fact, does not run afoul of Alleyne because the conviction, itself, is a contemporaneous jury determination of the facts that require the imposition of a mandatory minimum sentence. Id. at 21. In so holding, Section
Here, Appellant was subject to a mandatory minimum sentence of 10 years’ imprisonment, pursuant to Section 9718(a)(3), because a jury found, beyond a reasonable doubt, all of the elements necessary to convict him of aggravated indecent assault of a child less than 13 years of age in violation of
“A question regarding whether a due process violation occurred is a question of law for which our standard of review is de novo and the scope of review is plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (citation omitted). Due process requires a criminal statute to give fair warning of the conduct prescribed, and the criminal information must provide fair notice of every crime of which a criminal defendant is accused. Commonwealth v. Sims, 919 A.2d 931, 939 (Pa. 2007) (citations omitted). The notice must be “sufficiently specific so as to allow the defendant to prepare any available defenses should he exercise his right to a trial.” Id. (citation omitted). The due process requirements ensure that if the Commonwealth prevails at trial, the defendant‘s conviction is not arbitrary or oppressive. Id. (citation omitted).
This Court previously held that “notice prior to trial of the mandatory sentence provision [is] unnecessary and impractical” because mandatory
In the case sub judice, the Commonwealth needed to provide reasonable notice of its intent to seek the mandatory minimum sentence of 10 years’ incarceration for Appellant‘s conviction pursuant to Section 3125(b), after Appellant was convicted by the jury but before sentencing.10
Judgment of sentence affirmed.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/13/2020
Notes
Commonwealth v. Johnson, 125 A.3d 822, 831 (Pa. Super. 2015) (citation and brackets omitted). If the legislature intended to require “malice” as a requisite element to convict a person of aggravated assault under Section 2702(a)(9), the legislature would have included the language as it did under Section 2702(a)(1). Absent such language in Section 2702(a)(9), the Commonwealth is required to prove only that Appellant acted with recklessness as defined by Section 302(b)(3) and is not required to demonstrate Appellant acted with malice.Where the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded. Moreover, where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show a different legislative intent.