Commonwealth v. Humphreys

1 Pa. D. & C.5th 403
CourtPennsylvania Court of Common Pleas, Fayette County
DecidedAugust 22, 2007
Docketno. 1217 of 2006
StatusPublished
Cited by1 cases

This text of 1 Pa. D. & C.5th 403 (Commonwealth v. Humphreys) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Fayette County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Humphreys, 1 Pa. D. & C.5th 403 (Pa. Super. Ct. 2007).

Opinion

SOLOMON, J.,

Following a trial by jury, the appellant, Terry Keith Humphreys, was found guilty of indecent assault, 18 Pa.C.S. §3126(a)(7), and corruption of minors, 18Pa.C.S. §6301(a)(l). Thereafter, the appellant was sentenced and then filed an appeal from [404]*404the judgment of sentence to the Superior Court of Pennsylvania. This opinion is in support of the verdict of the jury.

STATEMENT OF THE CASE

When M.S., the victim in this case, was 5 years old, she began to visit her grandparents every weekend. N.T., 3/7/07, at 19,21-22. During these visits, she would also visit the home of her aunt and her husband, the appellant. Id. at 23.

One day, as her aunt slept, the victim was watching television. Id. at 31. The appellant sat beside her and put his hand down her pants and then under her shirt, touching her “private parts” and her “chest” underneath her clothes. Id. at 32-33. Putting his hand inside her underwear, he touched her vagina and moved his hand around. Id. at 35. He then put his hand under her shirt and felt her breast. Id. at 35-36.

After touching M.S., the appellant removed his pants and told her to touch his penis, which she did, and it became “hard.” Id. at 37-38. When he was finished, he told her he would do it again if she told anyone. Id. at 36.

The same acts then occurred more than 20 times until M.S. was 10 years of age. Id. at 41. The appellant finally stopped these actions when, at age 10, M.S. told him she had told someone but, in reality, she had not told anyone. Id. at 41-42.

At the time of trial, M.S., who was bom on August 7, 1993, was 13 years and 7 months of age. Id. at 17. The Commonwealth and the appellant stipulated that the appellant was over the age of 18. Id. at 63.

[405]*405In his own defense, the appellant denied that any improper touching had ever occurred.

Upon this testimony, a jury of the appellant’s peers found him guilty of indecent assault and corruption of a minor.

DISCUSSION

In his concise statement, the appellant raises the following issues:

(1) That the verdict was against the weight and sufficiency of the evidence;

(2) That “the court erred in precluding the defense to introduce testimony from the alleged victim’s brother”; and

(3) That “the court erred in allowing the testimony of the alleged victim, who was under 14 years of age at the time of trial, without making an inquiry into the competence of the witness under Rule 601 of the Pennsylvania Rules of Evidence.”

Initially, the appellant asserts that the verdict was against the weight of the evidence. This issue has not been properly preserved for consideration since the appellant did not present it first to the trial court. Pa.R.Crim.P. 607(A), 42 Pa.C.S. (“A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentencing motion”). See also, Commonwealth v. Butler, 729 A.2d 1134, 1140 (Pa. Super. 1999), appeal denied, 560 Pa. 668, 742 A.2d 167 (1999). Here, the appellant first raises this claim on appeal. Therefore, since he did not comply with Rule 607, this claim is waived.

[406]*406Also in his first issue, the appellant contends that the “verdict was against the... sufficiency of the evidence.” With regard to insufficiency of evidence claims, we observe the following standard:

“ ‘ [A]n appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.’. . . The proper application of the sufficiency test requires us to evaluate the entire trial record and all evidence actually received in the aggregate and not as fragments isolated from the totality of the evidence____This standard means that [the appellate court] must review the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. . . . Moreover, the jury, as the trier of fact, is free to believe all, some or none of the evidence presented____” Commonwealth v. Kasunic, 423 Pa. Super. 112, 115-16, 620 A.2d 525, 527 (1993). (citations omitted)

Instantly, the trier of fact was free to believe all or part of the testimony of any witness, while disregarding the testimony which it deemed to be untruthful. Likewise, mere conflict of testimony does not render a verdict insufficient. Commonwealth v. Evans, 299 Pa. Super. 529, 445 A.2d 1255 (1982).

Since there were two guilty verdicts, we are unsure if the appellant is contending that the evidence was insufficient to sustain the guilty verdicts against him for both [407]*407indecent assault and corruption of minors. However, we will address both guilty verdicts.

With regard to the charge of indecent assault, the statute provides that “[a] person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if: (7) the complainant is less than 13 years of age.” 18 Pa.C.S. §3126(a)(7). Indecent contact is defined as “[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. This contact even encompasses touching through the clothing. Commonwealth v. Ricco, 437 Pa. Super. 629, 634, 650 A.2d 1084 (1994) (concluding that touching through the clothing may be considered “indecent contact” and rejecting a per se rule requiring “skin-to-skin” contact); In the Interest of M.S., a Minor, 10 D.&C.4th 282, 283 (1990) (“The [‘indecent contact’] element of‘touching’ can be established even though the private parts of the victim are touched over the clothing.”).

Here, though, we have testimony presented by the victim that the appellant touched her breasts and her vagina, placing his hand underneath her shirt and inside her underwear. In addition, the appellant also had the victim touch his penis. These acts continued to take place between the time the victim was 5 years old and 10 years of age. Therefore, since the jury is free to believe this testimony, and viewing the facts in a light most favorable to the Commonwealth as the verdict winner, it is clear that the jury could have reasonably concluded that all of the elements of the crime of indecent assault were established beyond a reasonable doubt. Hence, the verdict should not be disturbed.

[408]

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Bluebook (online)
1 Pa. D. & C.5th 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-humphreys-pactcomplfayett-2007.