Commonwealth v. Provenzano

Decision Date27 July 2012
Docket NumberNo. 1787 EDA 2011,J-S13042-12,1787 EDA 2011
Citation2012 PA Super 155
CourtPennsylvania Superior Court

Appeal from the Judgment of Sentence of January 18, 2011

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001889-2009



Thomas Anthony Provenzano appeals from the judgment of sentence, imposed by the Court of Common Pleas of Monroe County, after a jury found him guilty of two counts of indecent assault.1 On appeal, he claims that the evidence was insufficient to prove his convictions and that the trial court incorrectly calculated his prior record score (PRS). Upon review, we affirm the conviction, but vacate the sentence and remand for resentencing.

The trial court set forth the procedural and factual history of this case in its opinion denying post-sentence motions:

K. F. ("Victim"), [was] a 15 year old girl who [was] considered mentally disabled. She ha[d] an [Intelligence Quotient (IQ)] of 50, function[ed] at a second to third grade level and her level of broad independence [was] at an average of five years and one month. On September 2, 2009, four witnesses saw the Defendant and the Victim alone in the Defendant's vehicle while parked in the parking lot of [Perkins] Family Restaurant in Mount Pocono, Monroe County. The Victim and the Defendant began to kiss. The kissing was described by the witnesses as "French kissing", "hot and heavy" and "passionate." At first, the witnesses thought that the Victim, who was wearing a baseball cap, was male. However, when the Victim removed the baseball cap and her long hair was revealed, the witnesses realized that the Victim was in fact a female.
The Victim and the Defendant continued to kiss. Thereafter, the Victim's head disappeared in the area of the Defendant's lap. Many of the witnesses stated that they thought the Victim was giving the Defendant oral sex. After a few minutes, the Victim's head came back up and the Defendant wiped off the Victim's chin; they kissed again. After this encounter ended, the Victim looked in the mirror and adjusted herself, fixing her hair and glasses.
The Defendant and the Victim left the Defendant's car holding hands and entered the restaurant. The two were seated at a table and ordered food. While at the table, the Victim and the Defendant were looking at each other from across the table and holding hands. The Victim and the Defendant ate, paid for their food, left the restaurant holding hands and got into the Defendant's car. The Defendant then drove to the Walmart parking lot.
Pedro "Pee Wee" Maldonado, one of the cooks at Perkins and a witness to the aforementioned events, thought that he recognized the Victim and felt that he "needed to go and get her." As such, Maldonado went to his own car, took off his uniform and proceeded to the Defendant's car. There, he saw the Victim sitting on top of the Defendant facing him. The two were kissing very passionately and the Defendant was "caressing" theVictim's back. Maldonado banged on the car. This caused the Defendant to open his door and "toss" the Victim out of the driver's side door.
The Victim ran to Maldonado repeating "I'm sorry Pee Wee" over and over. Maldonado explained that the Victim had nothing to be sorry about. The Defendant got out of his vehicle and tried to talk to Maldonado, asking to explain and stating that he had a family. Maldonado told him to "shut up and back away." Maldonado called the Victim's mother and was told to take the Victim away from the Defendant. Maldonado took the Victim into the restaurant and the police were called.

Trial Court Post-Sentence Motion Opinion, 6/15/2011, at 10-11 (record citations omitted).

Following a police investigation of the incident, Provenzano was arrested and charged with a series of offenses, including multiple counts of indecent assault and corruption of a minor. The case eventually proceeded to a jury trial, at which the Commonwealth produced the above-summarized evidence. Provenzano took the witness stand and testified that while there was physical contact between him and the victim, it was in the nature of familial affection and not sexual. The jury ultimately convicted Provenzano of one count of indecent assault upon a person with a mental disability and one count of indecent assault upon a person who was less than sixteen years of age.

On January 18, 2011, the trial court sentenced Provenzano to a term of imprisonment of 18 to 60 months for the indecent assault (person with mental disability) conviction, and a concurrent term of 12 to 24 months'imprisonment for the indecent assault (person less than sixteen years of age) conviction. In determining its sentence, the trial court reviewed an ordered presentence investigation report (PSI) which included Provenzano's five prior convictions from the state of New Jersey (attempted possession of burglary tools; aggravated unlicensed operation of motor vehicle; possession/use of controlled substance; criminal trespass; and assault on correctional officer). Post-sentence motions were timely filed and denied. This appeal followed.

Provenzano raises the following issues for our review:

(1) Whether the evidence was sufficient to support the conviction of indecent assault [of a person with a mental disability, 18 Pa.C.S. § 3126(a)(6)] because the evidence failed to establish that the [victim] had a mental disability and that [Provenzano] had indecent contact with the [victim].
(2) Whether the evidence was sufficient to support the conviction of indecent assault [of a person under the age of sixteen, 18 Pa.C.S. § 3126(a)(8)] because the evidence failed to establish that [Provenzano] had indecent contact with the [victim.]
(3) Whether the trial court erred in sentencing [Provenzano] when it incorrectly calculated [Provenzano's] prior record score and sentencing guidelines[.]

Appellant's Brief, at 3.

In his first two issues, Provenzano challenges the sufficiency of the evidence to support his convictions. In reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing theevidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

Provenzano first argues that despite the fact that the victim's school testing demonstrated that she had an IQ of 50 and the ability to conduct herself "at an elementary [school] age,"2 the evidence produced by the Commonwealth failed to demonstrate that "the [victim] suffer[ed] from a mental disability which render[ed] [her] incapable of consent" pursuant to 18 Pa.C.S. § 3126(a)(6). However, Provenzano offers no support for this assertion. Nor does he support his claim that the evaluation of a victim's mental capacity must follow the statutory paradigm for evaluating whether a defendant is a sexually violent predator. See Appellant's Brief, at 11-13.

Based on our evaluation of the record and the prevailing case law, we conclude that the Commonwealth's evidence, which consisted primarily of the testimony of the victim's "life skills" teacher3 from the Pocono MountainSchool District — who testified that the victim had an IQ of 50, and the decision-making capacity of an elementary school student — fairly put the question of the victim's capacity to consent before the jury. See generally Commonwealth v. Crosby, 791 A.2d 366 (Pa. Super. 2002) (record established victim's mental disability where victim's mother testified regarding victim's mental impairment under section 3126(a)(6)). Moreover, Provenzano presented no evidence, expert or otherwise, to contradict the fact that the victim, despite her chronological age, was operating on a grade school level and had a reduced mental capacity to consent to sexual contact. Therefore, we find no merit to this claim.

Provenzano next contends that the evidence was insufficient to sustain the finding that there was any indecent contact between him and the victim. We note that:

The separate crime of indecent assault was established because of a concern for the outrage, disgust, and shame engendered in the victim rather than because of physical injury to the victim. Due to the nature of the offenses sought to be proscribed by the indecent assault statute, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act.

Commonwealth v. Hawkins, 614 A.2d 1198, 1201 (Pa. Super. 1992) (citation and quotation omitted).

In Commonwealth v. Ricco, 650 A.2d 1084, 1086 (Pa. Super. 1994), this Court held that the Commonwealth need not establish "skin to skin" contact in order to sustain a conviction for indecent assault, and thatthe involuntary placement of the victim's hand over the clothed genitals of the defendant was sufficient evidence of indecent assault. In arriving at this conclusion, the Court again emphasized the "shame, outrage and disgust" on the part of a victim that is subjected to such an assault as a relevant consideration in determining whether an indecent assault had occurred.4 Id.

Subsequently, in Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super. 1999), this Court affirmed the conviction of a man who had grabbed a young woman by her arm and attempted to kiss her on the mouth. Even though the man managed only to kiss the young woman on her face and neck, he had also placed his hands on her shoulders and stomach without her consent. Due to the involuntary nature of this contact, it was deemed sufficient to sustain a conviction for indecent assault. It is of particular note that this Court, in affirming the conviction, rejected the defendant's argument that he could not be convicted of indecent assault because he had not...

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  • Commonwealth v. Torres, J-S33024-15
    • United States
    • Pennsylvania Superior Court
    • 10 Junio 2015 contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits. Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (internal citations omitted). Furthermore, this Court may not look beyond the content of the 2119(f) statement to deter......

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