Com. v. Hawkins

Decision Date24 September 1992
Citation614 A.2d 1198,419 Pa.Super. 37
PartiesCOMMONWEALTH of Pennsylvania v. Robert HAWKINS, Appellant.
CourtPennsylvania Superior Court

Owen Larrabee, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before ROWLEY, Presiding Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

CIRILLO, Judge.

Robert Hawkins appeals from a judgment of sentence entered on September 14, 1990 in the Philadelphia County Court of Common Pleas. We reverse and remand for a new trial.

Hawkins was charged with rape, involuntary deviate sexual intercourse and related charges as a result of his encounter with the victim, W.G., on July 6, 1989. On April 3, 1990, a jury convicted Hawkins of attempted involuntary deviate sexual intercourse. See 18 Pa.C.S. §§ 3101, 3123, 901. Hawkins was acquitted of the rape charge. Post-verdict motions were filed and denied and Hawkins was sentenced to five to ten years imprisonment. This timely appeal followed. On appeal, Hawkins raises the following issues:

1. Was not the evidence insufficient as a matter of law to establish that appellant was guilty of attempted involuntary deviate sexual intercourse where the appellant kissed the complainant's vagina, but did not penetrate, inasmuch as there was insufficient evidence of the intent to perform anything more than an indecent assault?

2. Did not the trial court err, violating appellant's state and federal constitutional right to due process, when he refused to instruct the jury on the lesser included offense of indecent assault, but only upon the greater offense of attempted involuntary deviate sexual intercourse, inasmuch as the evidence would clearly support such a conviction for the lesser offense?

3. Did not the trial court err by refusing to give any instruction at all as to the negative effect of prior inconsistent statements on witness credibility?

Initially, Hawkins argues that the evidence was insufficient to prove the crime of attempted involuntary deviate sexual intercourse beyond a reasonable doubt. See 18 Pa.C.S. §§ 901, 3101, 3123. An attempt requires proof that the actor, "with intent to commit a specific crime, ... does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901(a). The crime of involuntary deviate sexual intercourse requires "some penetration however slight." 18 Pa.C.S. §§ 3101, 3123. Here, Hawkins argues that the evidence only established that he kissed the complainant's vagina. As such, Hawkins contends that the evidence was insufficient to prove that he intended to orally penetrate the complainant's vagina.

When presented with a challenge to the sufficiency of the evidence, we are required to view the evidence in the light most favorable to the verdict winner and draw all reasonable inferences therefrom to determine if there is sufficient evidence to find every element of the crime charged. Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990). The complainant testified that Hawkins kissed her vagina. From this evidence, the jury could certainly infer Hawkins's intent to penetrate her vagina with his tongue, or to force the act of cunnilingus upon her. 1 See Commonwealth v. Vanderlin, 398 Pa.Super. 21, 35-37, 580 A.2d 820, 828-829 (1990) (the jury could conclude that defendant attempted involuntary deviate sexual intercourse from the evidence establishing that the defendant touched the victim's mouth with his penis); see also Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987) (cunnilingus is one of the acts proscribed by section 3123 of the Crimes Code). We conclude, therefore, that the evidence was sufficient to support Hawkins's conviction for attempted involuntary deviate sexual intercourse. Fromal, supra.

Next, Hawkins argues that the trial court committed reversible error in refusing his request for a jury instruction on the lesser included offense of indecent assault. See 18 Pa.C.S. § 3126. A trial court must charge on a lesser included offense if there is some disputed evidence concerning an element of the greater charge or if the undisputed evidence is capable of more than one rational inference. Commonwealth v. Coleman, 344 Pa.Super. 481, 496 A.2d 1207 (1985); Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984). "It is not error ... for a judge to refuse to instruct the jury on the lesser included offense unless the evidence could support a conviction on the lesser offense." Commonwealth v. Wilds, 240 Pa.Super. 278, 287, 362 A.2d 273, 278 (1976) (emphasis added). Cf. Commonwealth v. Sirianni, 286 Pa.Super. 176, 428 A.2d 629 (1981) (in prosecution for aggravated assault, court of common pleas properly refused defendant's request to charge the jury on simple assault as the lesser included offense where defendant followed the victim, pulled a gun and shot twice at the victim at point-blank range, one shot hitting the victim in the arm and the other missing the victim's head by inches).

The trial court concluded that there was no indication that the offense of indecent assault was committed rather than the greater offense of involuntary deviate sexual intercourse, and thus a charge on indecent assault was not warranted. The Commonwealth does not dispute that indecent assault is a lesser included offense of involuntary deviate sexual intercourse. The Commonwealth asserts that the trial court properly refused the indecent assault instruction "because there was no evidence of indecent assault[.]" The Commonwealth's argument, however, misconstrues the language of the indecent assault statute as well as the recent case law interpreting the term "indecent contact," an element of indecent assault. See 18 Pa.C.S. §§ 3101, 3126.

Hawkins contends that "[a] jury could, after hearing the evidence, rationally conclude that appellant possessed only the intent to indecently assault his victim by nonconsensual sexual touching, ... and did, in fact, irrespective of intent, complete or attempt only indecent assault and not the greater offense of involuntary deviate sexual intercourse." We are inclined to agree.

The evidence at trial established that the complainant was in a "crack house" in Philadelphia when she met Hawkins. Thereafter, the victim voluntarily accompanied Hawkins and they proceeded to another crack house. When the complainant wanted to leave, Hawkins told her she could not. A struggle ensued. Hawkins then forced the complainant onto the couch, told her he wanted to have sex with her, and ordered her to remove her shorts and her bra. The complainant refused and Hawkins hit her with a blunt object.

The complainant testified that Hawkins had vaginal intercourse with her five times. She also testified that Hawkins kissed her vagina and that she pushed him away. Additionally, the complainant testified that Hawkins placed his penis near her rectum, and she again pushed him away, and that Hawkins demanded that she perform oral sex on him, but she refused. When Hawkins fell asleep, the complainant escaped and contacted the police.

At the conclusion of the evidence, the trial court permitted the charges of attempted involuntary deviate sexual intercourse and rape to go to the jury. Hawkins was found not guilty of rape, and guilty of attempted involuntary deviate sexual intercourse.

Our review of the record supports Hawkins's claim that the undisputed evidence is capable of more than one rational inference. The jury could have rationally concluded that Hawkins was guilty of either attempted involuntary deviate sexual intercourse or indecent assault. Coleman, supra; Wilds, supra.

Involuntary deviate sexual intercourse is defined as

Sexual intercourse per os or per anus between human beings who are not husband and wife, except as provided in section 3128 (relating to spousal sexual assault), and any form of sexual intercourse with an animal. The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical hygienic or law enforcement procedures.

18 Pa.C.S. § 3101. Sexual intercourse, "[i]n addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required." Id. The offense of indecent assault is defined 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[.]

* * * * * *

18 Pa.C.S. § 3126. Indecent contact is "[a]ny touching of the sexual or other intimate parts 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. At the conclusion of its analysis, this court stated:

Properly construed, the statute provides that if any part of a victim's body is brought into contact with a sexual or intimate part of the defendant's body, without the victim's consent, for the purpose of arousing or gratifying the sexual desire in either person, such contact constitutes indecent contact. Likewise, if a sexual or intimate part of the victim's body is brought into contact with any part of the defendant's body, without the victim's consent, for the purpose of arousing or gratifying the sexual desire in either person, such contact constitutes indecent contact.

Id. at 61, 549 A.2d at 596 (emphasis in original). Additionally, whether the offender is touching a sexual or intimate part of the victim's body, or the offender is forcing the victim to touch a sexual or intimate part of his body, the act of "touching," as...

To continue reading

Request your trial
15 cases
  • Commonwealth v. Gamby
    • United States
    • Pennsylvania Supreme Court
    • 29 Septiembre 2022
    ...neck does not constitute an intimate part of the body, the Superior Court further relied upon its decision in Commonwealth v. Hawkins , 419 Pa.Super. 37, 614 A.2d 1198 (1992), in which it reasoned that the broad language of the statute arose from "a concern for the outrage, disgust, and sha......
  • Commonwealth v. Houck
    • United States
    • Pennsylvania Superior Court
    • 26 Septiembre 2014
    ...element of the greater charge or the undisputed evidence is capable of more than one rational inference. Commonwealth v. Hawkins, 419 Pa.Super. 37, 614 A.2d 1198, 1203 (1992) (en banc ). If a rational jury, given the record evidence, can find the defendant guilty of the lesser-included offe......
  • Com. v. Burns
    • United States
    • Pennsylvania Superior Court
    • 31 Diciembre 2009
    ...to prove the "penetration, however slight" element of the crimes. 18 Pa. C.S.A. § 3123, § 3125(a); Commonwealth v. Hawkins, 419 Pa.Super. 37, 614 A.2d 1198, 1200 n. 1 (1992). ¶ 32 Judgment of sentence ¶ 33 BENDER, J. concurs in the result. DONOHUE, J. concurs in the result. 1. 18 Pa.C.S.A. ......
  • Commonwealth v. Moore
    • United States
    • Pennsylvania Superior Court
    • 30 Junio 2021
    ...v. Hunzer , 868 A.2d 498, 505-506 (Pa.Super. 2005), appeal denied , 584 Pa. 673, 880 A.2d 1237 (2005) (quoting Commonwealth v. Hawkins , 614 A.2d 1198, 1200 n.1 (Pa.Super. 1992) ).Instantly, Victim testified that Appellant rubbed her vagina with his fingers under her clothing and "it [hurt]......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT