Com. v. Grayson

Decision Date21 October 1988
Citation379 Pa.Super. 55,549 A.2d 593
PartiesCOMMONWEALTH of Pennsylvania v. Thomas Willard GRAYSON, Appellant.
CourtPennsylvania Superior Court

Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellant.

Douglas J. Wright, Asst. Dist. Atty., Girard, for Com., appellee.

Before CAVANAUGH, ROWLEY and KELLY, JJ.

KELLY, Judge:

In this case, we are called upon to decide what degree of physical contact is necessary to constitute "indecent contact" within the meaning of that term in 18 Pa.C.S.A. § 3126 which defines the offense of indecent assault. Specifically, we must determine whether the brushing of appellant's penis against the underside of the victim's jaw constitutes touching as contemplated by the statute. Upon review of the record and the applicable authority, we conclude that the physical contact which occurred in this case constituted indecent contact within the meaning of the statute. Accordingly, we affirm.

The following is a summary of the factual and procedural history of this case. In the early morning hours of September 9, 1986, the victim, a fifty-three year old woman who is unable to speak, heard a knock on her apartment door. Because she was not tall enough to view through the peep-hole in the door, she opened it. Appellant, whom she had known for some years, entered her apartment, threatened and then sexually assaulted her. On the same day, appellant was arrested and charged with rape and indecent assault. The indecent assault charge stemmed from the appellant's attempt to put his penis in the victim's mouth. Appellant was tried by a jury which, on March 12, 1987, returned a verdict of guilty on the indecent assault charge only. On March 23, 1987, a motion for a new trial and/or arrest of judgment was filed. This motion was denied on April 15, 1987. On July 28, 1987, sentence was imposed which contained a term of confinement of eleven and one-half (11 1/2) months to twenty-three (23) months. This timely appeal followed.

The principle issue on appeal is whether the evidence was sufficient to sustain a conviction of indecent assault.1 Specifically, appellant argues the trial court misapplied the definition of "indecent contact" in determining whether the evidence was sufficient to sustain the conviction. We do not agree.

In reviewing the sufficiency of the evidence in a criminal case, all of the evidence must be viewed in a light most favorable to the Commonwealth and all reasonable inferences therefrom must be drawn in favor of the Commonwealth. Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987); Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985).

The pertinent part of 18 Pa.C.S.A. § 3126 ("Indecent Assault"), provides as follows:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:

(1) He does so without the consent of the other person "Indecent contact" is defined in 18 Pa.C.S.A. § 3101 as:

Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.

Appellant asserts that the "touching" in this case is not encompassed within the definition of indecent contact because his penis touched the underside of the victim's jaw which is a non-sensate portion of the body. Specifically, appellant asserts that indecent assault will occur only if the sexual or other intimate part of the defendant's body is touched by a sensate part of the victim's body, e.g. hand or foot, for the purpose of arousing or gratifying sexual desire, in either person, without the victim's consent, or if the sexual or other intimate part of the victim's body is touched by a sensate part of the defendant's body, e.g. hand or foot, for the purpose of arousing or gratifying sexual desire, in either person, without the victim's consent.

In rejecting appellant's claim, the trial court explained:

In this case, the jury could have found that defendant caused the victim to touch a sexual part of defendant for the purpose of arousing or gratifying sexual desire in defendant. Regardless of whether the victim was forced to touch defendant's sexual parts with a sensate or insensate portion of her body, the potential effect upon the victim was the type of harm sought to be punished by the crime of indecent assault.

(Trial Ct.Op. at 2).

Essentially, this case involves a question of statutory construction. In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. The legislature has directed that, "In the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would result in construction inconsistent with the manifest intent of the General Assembly." 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a) and (b) the legislature further explained that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S.A. § 1921 (emphasis added). Words and phrases in a statute are to be construed according to their common meaning and accepted usage. 1 Pa.C.S.A. § 1903(a); see also Fireman's Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 464 A.2d 431 (1983). Criminal statutes are to be strictly construed in favor of the defendant; however, the rule of strict construction does not mandate that words of a criminal statute be relegated to their narrowest meaning possible. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). Language which is capable of more than one meaning can be clear and unmistakable in the context of its usage by the selection of the meaning which is neither forced nor strained. Cf. Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 516, 454 A.2d 1, 5 (1982). Moreover, in construing statutes, courts must presume that the legislature did not intend absurd or unreasonable results. 1 Pa.C.S.A. § 1922(1).

We are called upon to construe the word "touch" as it is used in 18 Pa.C.S.A. § 3101 to define "indecent contact." Specifically, appellant is attempting to distinguish between "sensate" and "non-sensate" parts of the body in determining...

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14 cases
  • Com. v. Berryman
    • United States
    • Pennsylvania Superior Court
    • November 1, 1994
    ...and embodied in 1 Pa.C.S.A. § 1901 et seq. Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993); Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988); 1 Pa.C.S.A. § 1901. In ascertaining the meaning of a statute, it is our obligation to determine the intent of the legislatu......
  • Com. v. Gerulis
    • United States
    • Pennsylvania Superior Court
    • November 13, 1992
    ...intent." Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 880 (1988). See also Commonwealth[420 Pa.Super. 276] v. Grayson, 379 Pa.Super. 55, 59, 549 A.2d 593, 595 (1988) ("Words and phrases in a statute are to be construed according to their common meaning and accepted usage."). In thi......
  • Allam v. Harry
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • February 21, 2017
    ...part of the victim's body, his conduct fell within the statutory prohibitions of the indecent assault statute"); Com. v. Grayson, 549 A.2d 593, 594 (Pa. Super. Ct. 1988) (holding that "the brushing of appellant's penis against the underside of the victim's jaw constitutes touching as contem......
  • Com. v. Hawkins
    • United States
    • Pennsylvania Superior Court
    • September 24, 1992
    ...of the person for the purpose of arousing or gratifying sexual desire, in either person." 18 Pa.C.S. § 3101. In Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988), this court construed the term "touch" as it is used in the definition of "indecent contact" under 18 Pa.C.S. § 3101......
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