*1 Pennsylvania, COMMONWEALTH of
Appellee CAPO, Appellant.
Sortir
Superior Pennsylvania. Court of
Submitted Dec.
Filed March
Reargument Denied March Packel,
Jоhn W. Public Assistant Defend- er, Philadelphia, appellant. for Marshall, Catherine Assistant District At- torney, Commonwealth, Philadelphia, ap- for pellee. JOHNSON, MONTEMURO*, JJ.,
Before CIRILLO, Judge President Emeritus. MONTEMURO, J.: appeal judgment an from following Appellant’s sentence conviction for indecent аffirm. assault. We ¶2 approxi- On November mately victim, p.m., year 5:00 old M.A., eating and a were friend dinner relatively empty shop sandwich across the Appellant, street from their school when then old, years shop, entered the sat down and began leering at M.A. He then winked wavеd, smiling making kissing noises her direction. Because his behavior made uncomfortable, shop. her M.A. left the day, 3 The next M.A. two her waiting in a lobby friends were hotel for * assigned Superior Retired Justice Court. *2 ¶ Appellant argues that the evidence they sat at a
rides home from school.1 While lobby prove he touched the victim’s failed to talking, Appellant entered the table parts,” or that his drawing private closeby. began down He on “sexual other and sat sexually occasionally looking up at with her was motivated. sketchpad, M.A. contact a extremely uncomfortable and there- She felt ¶ evaluаting challenge to the 9 In to As M.A. and her fore decided leave. evidence, sufficiency the of hotel, began Appellant got friends to exit the whether, viewing all test evidence [t]he is up table told her that she from his trial, together admitted with all reason- at wait, up holding an unfinished draw- should therefrom, light in a inferences drawn able ing of her. as favorable to the Commonwealth most ¶ by 4 Flattered the likeness of the winner, of the trier fact could verdict sketch, agreed to M.A. sit down the table guilt estab- found that the defendant’s was Appellant that he finish the so сould beyond a reasonable doubt. lished drawing; friends. she sat in between her two Collins, Pa. Commonwealth minutes, approximately 45 M.A. After stood up had to leave because her ride arrived. ¶ in Examining the evidence here same, Her friends did the walked ahead light most Common the favorable Appellant M.A. the hotel exit. of toward wealth, enough exists it is clear that evidence arm, forcibly grabbed upper M.A. support Appellant’s conviction. We first to repeating several times that he was not fin- Appellant note that does not and cаnnot struggled ished. As to herself from she free performed with claim that his actions were grip, Appellant attempted M.A. on to kiss Rather, he consent. contends victim’s mouth, reaching only her face and neck. amount to “indecent that his actions do not Appellant After freed victim’s one of the involve contact” because the contact did not arms, shoulders, he rubbed her back genitalia. the victim’s breasts pull away. stomach until she was able to statutory language The ¶ Appellant was convicted indecent defining indecent contact includes years probation. assault and sentenced to two parts” intimate as both and “other “sexual” raising appeal claim followed the sole erogenous purposes of possible zones for support the evidence is to insufficient Thereforе, phrase “other prosecution. the conviction. solely genita parts” to intimate cannot refer ¶ 6 The indecent assault de- lia, ignores the distinc as such a construction pertinent in part fined as follows: and “other intimate tion between “sexual” making redundant. pаrts,” the latter term § 3126. Indecent assault (a) person Offense defined. —A who statutory rules construc 12 The has contact with the com- indecent given to require that full effect be each tion complainant plainant or causes possible. if provision of the at all statute have indecent contact with the Legisla §§ 1922. Had the Pa.C.S.A. guilty of if: indecent assault scope of to limit the indecent ture wished only, easily organs might contact to sexual (1)the person does so without Instead, the statute is more have done so. complainant’s consent. namely, broadly to situations such applicable, 3126(a)(1). 18 Pa.C.S.A. perpetrator in present one which the as the objective, in clearly sexual fails achieve his defines indecent contact Section 3101 A nature, efforts to do so. despite his best “[a]ny touching of the or other sexual reading statutory language is broader for the desire, Supreme Court. our one sanctioned strictly penal to be con- statutes are person.” “While either 18 Pa.C.S.A. Therefore, building past p.m. p.m. 4:00 6:00 the school ride was not available until M.A.’s lobby across thе street. permitted students wait the hotel and no students are to remain inside strued, required give the courts are not appellant whether even ‘touched’ M.A. within meaning words of criminal statute their [the narrow (Appellant’s statute].” meaning disregard legisla est ll-12)(emphasis original). the еvident Brief at Al tive intent of the though acknowledges statute.” Commonwealth v. Appellant that skin-to- Barud, Pa. required, 165 skin contact is not he would have *3 Wooten, (1996)(citing indecency Commonwealth v. 519 us measure the of the contact ac (1988)). Pa. cording 880 any layer of thickness of cloth by ing perpetrator. worn the victim We ¶ support reading 13 In of his of the stat- Appellant’s decline invitation to do so. In ute, Appellant commentary relies on the to deed, panel already a of this Court has ruled (1980) § 213.4 of the Model Penal Code that a is “[s]uch result untenable as it would (“MPC”), derived, from which 3126 is see completely purpose eviscerate of the stat Mumma, Commonwealth v. 489 Pa. prohibit.” ute and the evil which it to seeks (1980), A.2d 1026 but which does not define Ricco, Pa.Super. Commonwealth v. “sexual or other The MPC (1994). 1084, 1086 specifically restricts the offense to contact interpret To the statute the manner primary secondary organs sex —fe- posited by appellant would contravene the genitals, genitals— male breasts or and male purpose of enactment and would this lead judges juries order to rеlieve from the patently to absurd results. When indecent distinguishing pas- burden of “affection from occurred, a contact has victim feels no less sion,” §atMPC 213.4 n. so to exclude shame, outrage disgust merely be- gestures “commonly expressive of familial or layer clothing cause of comes a between friendly Mumma, affection.” Pa. at of perpe- own skin and the skin his/her Appellant A.2d at 1029. advances this trator. to view buttress of the characterization his equivocal behavior as but “unwelcome con- Id. duct,” is, 11), (Appellant’s Brief that un- ¶ Appellant 16 The conclusion equally interpreta- bidden but susceptible of disregards language us reach of the stat- benign tion as or criminal in intent. The ute, prosecutions assault limits indecent conclusion, entirely upon Appellant’s based only involving to cases direct contaсt with sex inability genitalia, to touch the victim’s is contrary organs. interpretation is to inconsistent with Appellant’s the account of Legislature. the clear intent of the increasingly gestures, intrusive which were ¶ argues Appellant also that the evi- avuncular, way paternal, no platonic, artis- prove statutory dence is insufficient to tic or otherwise demonstrative familial of requirement be that done “for friendly affection. of sexual - ¶ Appellant’s intent was clear Appellant’s desire.” This is an extension indeed, trial Ap court found incredible impediments insistence that to success vitiate pellant’s testimony as to both the extent of They the intent behind the criminal act. do his actions and his motives. His manhan not, out, points for as the Commonwealth dling struggled the victim as she not a was gropings pawings forcibly imposed on disрlay “friendly alleges, affection” as he the victim are not consistent with artistic inability and his to achieve more intimate friendship, speak eloquently interest or but accomplished contact than was in fact does attempt gratify of a sexual failed desire not mаke equivocal the assault or lessen its directly. Indeed, interpretation more this is indecency. accept premise We not do the unavoidable which the trial court one argument, that the character an inde placed upon Appellant’s actiоns. We see no entirely depends degree cent assault on its disagree. reason success achieved the attacker. ¶ Accordingly, judgment of sen- ¶ Appellant offers variation on his tence affirmed. by insisting theme con- since he “made ¶ back, CIRILLO,
tact
Judge
with M.A.’s
shoulder аnd
stomach
President
coat,
Emeritus,
highly questionable
Dissenting
over her
Opinion.
down
files a
¶
usage for
CIRILLO,
Emeritus,
determining
5 In
the common
Judge
President
term,
dictionary for
turn to the
assis-
this
I
dissenting:
“intimate,”
Webster’s,
In
the word
tance.
Majority
Appellant’s
1 The
finds that
context,
is defined as
used in
sexual
when
lips
attempt
M.A. on her
unsuccessful
to kiss
or marked
sexual rela-
“engaged in
rubbing
her
and his non-consensual acts
tions_”
New Interna-
Third
Webster’s
shoulders,
an
back and stomach constitute
Dictionary
From this
tional
3126 of the
indecent assault under section
term
can be inferred that
definition it
disagrеe
separately
I
and write
Crimes Code.
only to
parts” refers
those
“other intimate
written,
3126 as
due
the fact
subject
body
that are the
explicitly prohibit
not
such contact.
does
contact or relations.
assault,
2 The
of indecent
as the
legislature derived section 3126
*4
6 Our
out,
pertinent
majority
in
pointed
is defined
of the Model Penal Code
from
213.4
section
part as follows:
Mumma,
(MPC).
v.
489 Pa.
Commonwealth
§
Indecent Assault
3126.
(1980).
is,
1026,
It
414 A.2d
1029
(a)
person
defined. —A
who has
Offense
therefore,
in
important to consider the MPC
complainant
with the
indecent contаct
parts.”
the term “other intimate
interpreting
complainant
the
to have indecent
causes
not define
Although MPC section 213.4 does
person
guilty
of inde-
contact with the
parts,”
intimate
the
the
or other
term “sexual
if:
cent assault
commentary
why
lan-
explains
such
MPC’s
(1)
the сom-
the
does so without
ultimately
wording
in the
guage was
included
plainant’s consent.
As the Official
offense under the MPC.
of the
3126(a)(1).
§
18
Section 3101 of
Pa.C.S.A.
explains, an earlier draft of section
Comment
Code defines “Indecent Contact”
Crimes
commonly
“specifically excludеd ‘acts
213.4
”
“Any touching
as:
of the sexual or other
friendly
expressive
familial or
affection.’
parts
intimate
of the
for the
(1962)
213.4,
(quot-
§
11n.
Model Penal Code
sexual desire
4,
207.6,
§
ing
Code
T.D.
Model Penal
§
person.” 18
3101.
either
Pa.C.S.A.
(1955)). Also,
previous
draft
293-94
proscribed contact
failed to limit the
3 Wоrds of a statute must be construed
intimate
of sexual
other
according
accepted
to their common and
us-
rather,
any
victim;
contact
it covered
1903;
age. 1
Trust
Pa.C.S.A.
Bankers
Co.
gratifica-
purpose of sexual
Foust,
89,
1054,
initiated for the
Pa.Super.
v.
424
recognized
of 213.4
(1993).
tion.
Id. The drafters
interpreting
A court
a statute
liability
hug
or a
“premising
on a kiss
and
intent of
must ascertain
effectuate the
ability
weight
place too much
on the
legislature
give
full effect to each
jury
distinguish affection
judge or
provision
possible.
if at all
of the statute
and, therefore,
passion”
restricted
from
1921,1922;
Co.,
§§
Bankers Trust
Pa.C.S.A.
or other
only to contact with sexual
Moreover,
supra.
our rules of construction
omitted).
(citation
To
parts.
Id.
strictly
penal
provide that
statutes must be
this,
commentary
per-
states
exemplify
construed.
Pa.C.S.A. 1928.
shоuld
part
“sexual misbehavior
tinent
¶4 First,
from
3101’s
clear
wholly equivocal conduct.
not
based on
be
meaning
occurs
plain
that “indecent contact”
requires some more
provision
therefore
proscribed contact
when there is
with
act,
fondling
of a wom-
such
demоnstrative
genitals.
v.
Commonwealth
female male
breast,
genitals, or
manipulation of male
an’s
(1996);
Gordon,
513,
In
543 Pa.
vagina or anus.” Id.
digital penetration of
J.R.,
416,
Pa.Super.
penis against
jaw);
victim’s
Commonwealth
Whetstine,
Pa.Super.
terms, MPC, an evaluation of the precedent review of the surrounding current application statute, I conclude that person’s
“indecent contact” is contact with a *5 including penis, vagina
anus; parts” and “other intimate ex- limited
clusively result, If breasts. this majority, reached is not what the
legislature intended, upon then I call our
legislature to explicitly define “other intimate present ease, 9 In the I do not condone conduct; Capo’s fact,
Mr. I believe that
other relevant sections the Crimes Code
may cannot, have been more applicable.2 I
however, agree majority with the that “inde-
cent grabbing contact” includes arm, upper unsuccessfully attеmpting to mouth,
kiss a on the rubbing hand, shoulder, person’s
one’s back and interpret
stomach area. To “other intimate
parts” to include the of those areas expand the crime indecent assault encompass any almost non-consensual con- person.
tact with another’s Accordingly, I Capo’s would reverse
conviction for the crime of indecent assault. Presently, Assault, Capo's may 2701; pro- Simple conduct been such as 18 Pa.C.S.A. scribed under other Attempt, relevant criminal statutes Criminal 18 Pa.C.S.A. and/or