Com. v. Kelley

• Decision Date: 19 July 2002
• Citation: 569 Pa. 179,801 A.2d 551
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Bernard Dale KELLEY, Appellant.
• Court: Pennsylvania Supreme Court

801 A.2d 551

569 Pa. 179

COMMONWEALTH of Pennsylvania, Appellee v. Bernard Dale KELLEY, Appellant.

Supreme Court of Pennsylvania.

Argued May 15, 2002.

Decided July 19, 2002.

Paul Philip Ackourey, Scranton, for appellant, Bernard Dale Kelley.

Jason J. Legg, Scranton, Charles J. Aliano, Montrose, for appellee, Com. of PA.

Before: ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice NEWMAN.

Bernard Dale Kelley (Kelley) appeals from the Order of the Superior Court, which reversed the decision of the Court of Common Pleas of Susquehanna County (trial court) and remanded the case for trial. We granted review limited to the conclusion of the Superior Court that evidence of digital penetration can sustain a charge of sexual assault, 18 Pa.C.S. § 3124.1.¹ More succinctly, we examine if the Superior Court erred in finding that evidence of digital penetration can sustain a charge of sexual assault, where said charge requires proof of sexual intercourse or deviate sexual intercourse. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On March 11, 1999, the Commonwealth filed a criminal complaint charging Kelley with forty-two counts of each of the following crimes: rape, statutory sexual assault, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, indecent assault, and endangering the welfare of children.² These charges arose from allegations that Kelley repeatedly abused his stepdaughter (the victim) for four years.

Kelley waived his preliminary hearing and the Commonwealth filed criminal informations on June 3, 1999. Kelley filed an Omnibus Pretrial Motion, which included a motion for habeas corpus relief. On October 15, 1999, the trial court conducted a hearing on the pretrial motion and remanded the case to the district justice for a hearing on the motion for habeas corpus relief. During the hearing, which occurred on November 15, 1999, the Commonwealth presented the testimony of the victim; and she testified that Kelley regularly touched her breasts and vaginal area. She stated that this conduct began when she was seven or eight years old and continued until she was eleven years old. According to the victim, the abuse occurred approximately one to two times a week. She further testified that, on more than one occasion, Kelley inserted his fingers into her vagina and moved them up and down. The victim also stated that Kelley "kissed" her vagina "for a few minutes" on one occasion. (Notes of Testimony (N.T.) dated 11/15/99, at 16, 33.) At the conclusion of the hearing, the district justice bound over one count each of rape, statutory sexual assault, and involuntary deviate sexual intercourse, as well as forty-two counts each of sexual assault, aggravated indecent assault, indecent assault, and endangering the welfare of children.

Following oral argument on Kelley's motion for habeas corpus relief, the trial court issued an Order dismissing the rape, statutory sexual assault, and involuntary deviate sexual intercourse counts, and one of the counts of sexual assault. The court dismissed these charges because it held that the Commonwealth had failed to present evidence of penetration when Kelley allegedly "kissed" the vagina of the victim. In addition, the court dismissed all remaining counts of sexual assault because the court concluded that proof of digital penetration could not support a prima facie case of sexual assault. The court bound over for trial the forty-two counts of aggravated indecent assault, indecent assault, and child endangerment. The Commonwealth appealed.

In a Memorandum Opinion, the divided Superior Court panel reversed. First, regarding the alleged conduct of kissing the vagina of the victim, the majority held that the Commonwealth had presented sufficient proof of penetration to make out prima facie cases of rape, statutory sexual assault, involuntary deviate sexual intercourse, and one count of sexual assault. Second, the majority concluded that evidence of digital penetration could support the forty-one prima facie cases of sexual assault. Consequently, the majority reversed the Order of the trial court dismissing one count each of rape, statutory sexual assault, involuntary deviate sexual intercourse, and forty-two counts of sexual assault, and remanded the matter for trial.

Judge Joseph A. Hudock filed a Concurring and Dissenting Memorandum in which he agreed with the majority's disposition regarding the sufficiency of the evidence to support charges based upon oral contact with the vagina. Judge Hudock departed from the majority in that he concluded that digital penetration could not be properly classified as sexual assault.

DISCUSSION

In the instant matter, we granted review of a single issue, whether evidence of digital penetration can sustain a charge of sexual assault. Given that this appeal raises a question of law, our scope of review is plenary. Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995).

We begin by examining the definition of sexual assault in our Crimes Code, because when the language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning. 18 Pa.C.S. § 105 (provisions of the Crimes Code must be construed "according to the fair import of their terms"); 1 Pa.C.S. § 1921(b); Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702, 705-06 (1992). When the meaning of a statute is plain, a court should not disregard the language of the law in the context of pursuing its spirit. 1 Pa.C.S. § 1921(b); Commonwealth v. Hagan, 539 Pa. 609, 654 A.2d 541, 544-45 (1995). Throughout our analysis, we are guided by the precept that penal statutes are to be strictly construed in favor of the accused. 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001); Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655, 660 n. 7 (1996).

Our legislature has defined sexual assault as engaging "in sexual intercourse or deviate sexual intercourse with a complainant without the complainant's consent." 18 Pa.C.S. § 3124.1. The question of whether or not digital penetration is a sexual assault is decided by resolving the issue as to if such conduct is sexual intercourse or deviate sexual intercourse.³

The General Assembly defines both sexual intercourse and deviate sexual intercourse in the general provisions of the sexual offenses. See 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. Deviate sexual intercourse is "[s]exual intercourse per os or per anus between human beings 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." Id.

Sexual intercourse and deviate sexual intercourse both include "intercourse per os or per anus." Sexual intercourse is distinct from deviate sexual intercourse in that it also includes intercourse in "its ordinary meaning." Construing sexual intercourse according to the fair import of its terms, digital penetration cannot be considered intercourse within its ordinary meaning. See, e.g., Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 450 (1998)

("ordinary meaning" of sexual intercourse in 18 Pa.C.S. § 3101 is vaginal intercourse). In addition, deviate sexual intercourse encompasses conduct not included within the definition of sexual intercourse, namely sexual intercourse with an animal and penetration of the genitals or anus with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures. Digital penetration does not fall into the category of either action.⁴ Consequently, digital penetration can be classified as sexual intercourse and deviate sexual intercourse, and thereby as sexual assault, only if it is "intercourse per os or per anus."

The General Assembly did not define "intercourse per os or per anus." We construe non-technical words and phrases in statutes, which remain undefined, according to their ordinary usage. 18 Pa.C.S. § 105; 1 Pa.C.S. § 1903(a); Commonwealth v. Brachbill, 520 Pa. 533, 555 A.2d 82, 86 (1989). The plain meaning of "intercourse," as used in § 3101, is "physical sexual contact between individuals that involves the genitalia of at least one person[.]" WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1177 (unabridged 1986). "Per" has been defined as "by the means or agency of: by way of: THROUGH." Id. at 1674. Consequently, the ordinary meaning of "per os or per anus" is through or by means of the mouth or posterior opening of the alimentary canal. WEBSTER'S at pp. 1595 (defining "os") and 97 (defining "anus"). Our courts have viewed the phrase "intercourse per os or per anus" as describing oral and anal sex. See generally Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989)

(noting that definition of sexual intercourse encompasses forcible penetration of the three defined orifices of the body); Commonwealth v. Lee, 432 Pa.Super. 414, 638 A.2d 1006,,

petition for allowance of appeal denied, 538 Pa. 643, 647 A.2d 898 (1994) (interpreting sexual intercourse and deviate sexual intercourse to include acts of oral and anal sex). Digital penetration of the vagina is not sexual contact with the victim by means of the mouth or anus. Digital penetration does not fall within any of the conduct described by our legislature as sexual intercourse or deviate sexual intercourse. Therefore, we hold that digital penetration may not be the basis for a charge of sexual assault.

The Commonwealth asserts that the majority of the Superior Court correctly relied upon its decision in Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140,petition for allowance of appeal denied, 516 Pa. 640, 533...