Com. v. White

• Citation: 232 Pa.Super. 176,335 A.2d 436
• Parties: COMMONWEALTH of Pennsylvania v. George WHITE, Appellant.
• Decision Date: 27 February 1975
• Court: Superior Court of Pennsylvania

Page 436

335 A.2d 436

232 Pa.Super. 176

COMMONWEALTH of Pennsylvania v. George WHITE, Appellant.

Superior Court of Pennsylvania.

Feb. 27, 1975.

Petition for Allowance of Appeal Denied May 23, 1975.

Vincent J. Ziccardi, Defender, John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Before WATKINS, Presiding Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

This is an appeal from thje judgment of sentence imposed by the court below. The appellant, George White, was found guilty in a non-jury trial on conduct which corrupted or tended to corrupt the morals of a minor, attempted indecent assault, and terroristic threats. He was acquitted on indictments charging attempted rape and attempted statutory rape. Post-trial motions were argued that denied, whereupon the appellant was sentenced to three years psychiatric probation for the offense of corrupting the morals of a minor. A concurrent sentence of two years psychiatric probation was imposed on the conviction of attempted indecent assault. Sentence was suspended on the bill charging terroristic threats. This appeal followed.

At trial the complaint, Walesca Rodriquez, an eight year old girl, testified that in July of 1973, she was playing outside her home located in Philadelphia, when a man, who she later identified as the appellant, came over to her and placed his hand over her mouth and shined a flashlight on her face. The child further testified that the appellant carried her to the back of an abandoned house located on the same block as her own home. Once inside, the appellant told the girl he was going to grab her. The child then testified that the appellant held her against a wall by her shoulders and proceeded to pull her skirt up approximately six inches when she suddenly saw a neighbor, Edwin Negron, passing a window. The child called out to Mr. Negron that the appellant wanted to kill her. At this point, the appellant left the child alone and fled the house with Mr. Negron unsuccessfully giving chase.

The appellant testified that on the night of the incident, he was using his flashlight in search of his dog in the vicinity of the abandoned house. Appellant further testified that as he was leaving the old house Mr. Negron confronted him and asked him what he was doing. When Mr. Negron advanced towards him the appellant fled. The appellant also testified that he never touched the complainant, nor was she with him when he entered the old house. The appellant called four witnesses to testify in his behalf. In essence, these witnesses testified to the effect that the defendant told them he was going to look for his dog on the night in question.

With respect to his conviction for attempted indecent assault, appellant contends that in the first instance, the evidence was insufficient to constitute the crime and, in any event, since he was specifically indicted for indecent assault he could not be convicted of Attempted indecent assault. We do not agree with either contention.

The recently enacted Pennsylvania Crimes Code, Act of December 6, 1972, P.L. ---, No. 334 § 1, eff. June 6, 1973, 18 Pa.C.S. § 101 et seq., controls the disposition of this appeal since the alleged offenses occurred subsequent to June 6, 1973. The crime of indecent assault is defined in § 3126 of Title 18 as follows:

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

(1) he knows that the contact is offensive to the other person; . . .'

'Indecent contact' is defined 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.' 18 Pa.C.S. § 3101 (1973). An accused is guilty of attempt when, 'with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.' 18 Pa.C.S. § 901 (1973). Application of the above statutes to the facts at bar, i.e., the appellant's act of carrying the complainant to the back of an abandoned house; holding her shoulders, threatening to grab her, and lifting her skirt up approximately six inches, all of which occurred against the complainant's will, demonstrates that the appellant had the requisite intent to commit, at the minimum, an indecent assault and, furthermore, had taken substantial steps towards the completion of the reprehensible act.

Appellant concedes that under the Act of June 24, 1939, P.L. 872, § 1107, 18 P.S. § 5107, a conviction for an attempt upon an indictment charging a substantive crime would have been proper. Appellant argues, however, that since 18 P.S. § 5107 has been repealed by the new Crimes Code, his conviction for attempted indecent assault cannot stand. We reject this argument for several reasons. Initially, appellant's argument fails because 18 Pa.C.S. § 905 specifically provides, inter alia, that the punishment for attempt shall be of the same grade and degree as the most serious offense which is attempted. In addition neither the Crimes Code nor the Pennsylvania Rules of Criminal Procedure contain any provision requiring a conviction of the substantive offense, as distinguished from the attempt, when the indictment charges the actual offense. Furthermore, when appellant was convicted of attempted indecent assault, he was necessarily convicted of a crime which is an integral part of the substantive crime of indecent assault, since the consummated act of indecent assault cannot exist without first the attempt to commit an indecent assault. Therefore, appellant could not seriously claim that he was caught by surprise, insomuch as his defense against the charge of indecent assault also constituted a defense against the attempt to commit such an act. For all of the foregoing reasons we hold that the appellant was properly convicted of attempted indecent assault.

Appellant next maintains that his conduct did not constitute the crime of corrupting or tending to corrupt the morals of a minor. The relevant statute, 18 Pa.C.S. § 3125, provides in pertinent part:

'(a) Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of 18 years, or who aids, abets, entices or encourages any such child in the commission of any crime, or who knowingly assists or encourages such child in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.' ¹

Parenthetically, we note at the outset that this section re-enacts verbatim the prior statute, ² which prohibited conduct that corrupted or tended to corrupt the morals of a minor, with the exception of the degree of punishment prescribed.

In Commonwealth v. Meszaros, 194 Pa.Super. 462, 464, 168 A.2d 781, 782 (1961), this Court, speaking through Judge Ervin, stated: "Tending to corrupt' like 'contributing to delinquency,' is a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct.' (citations omitted.) Judge Ervin further observed that: 'The terms of the proscription are clear; no adult may with impunity engage in conduct with a minor which has the effect of corrupting the morals of the child . . ..' 194 Pa.Super., at 464, 168 A.2d at 782. In Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276 (1957), cert. denied 355 U.S. 954, 78 S.Ct. 539, 2 L.Ed.2d 530 (1958), this Court held that the former statute (18 P.S. § 4532) was not void for vagueness. Judge Ervin, again speaking for the Court, there stated: 'The common sense of the...