Com. v. Gamby, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL GAMBY :
:
Appellant : No. 1813 MDA 2019
Appeal from the Judgment of Sentence Entered September 12, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002561-2019
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 12, 2021
Appellant, Carl Gamby, appeals from the judgment of sentence entered
in the Court of Common Pleas of Dauphin County. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
Factual Background
March 28, 2019, was [Appellant’s] second day at a new job
working for the Econo Lodge on Eisenhower Boulevard in Swatara
Township, Dauphin County. It was also the first time that he met
[K.A., the victim], an experienced employee who was to help train
[Appellant] as they worked together during the evening shift.
(N.T. 9/11 & 12/19 p. 14). From 4:00 p.m. to approximately 7:30
p.m., [Appellant] interacted professionally with [K.A.]. At 7:30
p.m. [Appellant] excused himself to ostensibly take a cigarette
break. (N.T. 9/11 & 12/19 pp. 15-16). He next went to the
restroom where he injected himself with what he testified was
likely fentanyl and bath salts. (N.T. 9/11 & 12/19 p. 60).
[K.A.] immediately suspected something was wrong when
[Appellant] stumbled out of the restroom. [Appellant] then
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grabbed [K.A.] from behind with his arm around her neck and
kissed [K.A.] on her neck. (N.T. 9/11 & 12/19 pp. 16-17). Next,
he proceeded to take off his shirt. As [K.A.] tried to text her boss
for help, [Appellant] inserted himself between the desk and [K.A.]
and repeatedly requested to kiss her. (N.T. 9/11 & 12/19 p. 18).
[K.A.] stood up and attempted to get away from [Appellant]
as he advanced and tried to touch [K.A.]. She yelled, “You need
to get away from me. Stop. Don’t touch me.” (N.T. 9/11 & 12/19
p. 19). When she had an opportunity, [K.A.] left the lobby area
and went outside to her car at the same time she was calling 911.
(N.T. 9/11 & 12/19 pp. 19-20). The Commonwealth played for
the jury a videotape of this series of interactions that occurred
inside the Econo Lodge. (Commonwealth’s exhibit 1; N.T. 9/11
& 12/19 pp. 22-24). As [K.A.] was leaving, [Appellant] said to
her, “Before you leave, I just want to show you something. And
that’s when he started to take his pants off.” (N.T. 9/11 & 12/19
p. 24).
As video footage from outside the hotel documented,
[Appellant] ran after [K.A.] when she fled to her car.
(Commonwealth’s exhibit 1). [K.A.] locked herself in her vehicle
and attempted to leave. [Appellant], now totally naked, pressed
himself against the car. (N.T. 9/11 & 12/19 pp. 25-26). He shook
[K.A.’s] car and demanded, “You have to stay. You have to come
out and talk to me.” (N.T. 9/11 & 12/19 p. 26). [Appellant]
continued to hold onto the car as [K.A.] drove away. (N.T. 9/11
& 12/19 p. 26). [K.A.] drove to the police station, which is a short
distance away at the Swatara Township building. When Officer
Neve met her, he observed that [K.A.] was extremely frightened.
(N.T. 9/11 & 12/19 p. 49). Neve noted and photographed
handprints on the driver’s side windows. (Commonwealth’s
exhibits 3 & 4). When the police arrested [Appellant], it was noted
that he had an abrasion on his penis like a “road rash.” (N.T. 9/11
& 12/19 p. 51). The police also documented that [Appellant’s]
clothes were left across the floor of the hotel lobby, and that he
had left a syringe on the restroom sink. (Commonwealth’s
exhibits 5, 6, & 7).
During his testimony, [Appellant] freely admitted to
injecting himself with what he then thought was heroin, but now
believes was fentanyl and bath salts. (N.T. 9/11 & 12/19 p. 60).
The charges of possession of drug paraphernalia and indecent
exposure were essentially conceded at trial. (N.T. 9/11 & 12/19
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p. 66). [Appellant] maintained that he was not guilty of indecent
assault, however, the jury found otherwise.
Procedural History
Following his arrest on March 28, 2019, [Appellant] was
charged with indecent assault without consent,1 indecent
exposure,2 use or possession of drug paraphernalia,3 and public
drunkenness and similar misconduct.4 A jury trial was conducted
on the first three of these charges on September 11 and 12, 2019,
and following the jury’s return of guilty verdicts on these counts,
[Appellant] was immediately sentenced. [Appellant] filed a post-
[sentence] motion on September 17, 2019, challenging the
sufficiency of evidence to support his conviction of indecent
assault. The court denied the post-sentence motion on October
3, 2019, and [Appellant] filed a timely notice of appeal on October
30, 2019.
1 18 Pa.C.S. § 3126(a) (1)
2 18 Pa.C.S. § 3127(a)
3 35 [P.S.] § 780-113(a)(32)
4 18 Pa.C.S. § 5505
Trial Court Opinion, 12/9/19, at 1-3. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
The evidence was insufficient to sustain a conviction for
indecent assault under 18 Pa.C.S. § 3126 when [Appellant] did
not touch the “sexual or other intimate parts” of the victim’s body
within the definition of “indecent contact” set forth at 18 Pa.C.S.
§ 3101[.]
Appellant’s Brief at 4 (full capitalization omitted).1
____________________________________________
1We note that Appellant has presented three sub-arguments in his appellate
brief. Appellant’s Brief at 11-25. However, we only need address the second
sub-argument in the body of this memorandum.
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In his sole issue, Appellant argues that the Commonwealth failed to
present sufficient evidence to support his conviction of indecent assault.
Appellant’s Brief at 11-25. Specifically, Appellant contends that his conduct
of kissing the victim’s neck did not satisfy the element of touching the “sexual
or other intimate parts” of the victim. Id. at 17-20. Although Appellant
concedes that pertinent case law interprets “sexual or other intimate parts”
as encompassing body parts other than the genitals and breasts, he posits
____________________________________________
In his first subargument, Appellant claims that his conviction for
indecent assault cannot be sustained on the basis that the evidence was
sufficient to prove attempted indecent assault. Id. at 12-17. Although
Appellant was convicted of the completed crime of indecent assault and not
attempted indecent assault, Appellant alleges that the Commonwealth may
argue for a conviction of attempted indecent assault on appeal. Id. at 13.
Appellant notes that he presents this sub-argument “as a preliminary matter”
in order to “address that possibility.” Id. However, the Commonwealth has
not presented such an argument. Accordingly, we need not address
Appellant’s claim challenging a crime with which he was not convicted, i.e.,
attempted indecent assault.
In his final sub-argument, Appellant claims that if case law is construed
as interpreting the statutory phrase, “sexual or other intimate parts” as being
any body part, then those decisions should be overturned. Id. at 21-25.
Appellant contends that such a reading of the statute is in contravention with
the Model Penal Code, and should be abrogated by an en banc panel of this
Court or by the Pennsylvania Supreme Court. Id. at 21. We observe that we
must follow the decisional law established by our own Court.
Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009).
Therefore, Appellant is correct that unless or until the relevant case law is
overturned by an en banc panel of this Court, or by a decision of the
Pennsylvania Supreme Court, it continues to be viable precedent for this Court
and for the courts of common pleas. Id. Accordingly, we decline to address
this sub-argument without prejudice to Appellant’s ability to present the claim
in a properly filed application for reargument/hearing en banc. I.O.P. 65.38.
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that those cases involved conduct by the defendants that was more intrusive
and prolonged than that which occurred in this case. Id. at 17-18.
Our standard of review is well established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder[’s]. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
The relevant indecent assault statute provides as follows.
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes the
complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
(1) the person does so without the complainant’s
consent[.]
18 Pa.C.S. § 3126(a)(1). Indecent contact is defined as “[a]ny touching of
the sexual or other intimate parts of the person for the purpose of arousing
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or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101. Furthermore,
we are mindful that our legislature has also specified that “[t]he alleged victim
need not resist the actor” in prosecutions of sexual offenses. 18 Pa.C.S. §
3107. In addition, we observe that the offense of indecent assault does not
require the victim to be touched for a particular length of time. 18 Pa.C.S. §
3126(a)(1).
Also, we previously have held that areas of the body other than the
genitalia, buttocks, or breasts can be intimate parts of the body as
contemplated by the indecent assault statute when touched for sexual
gratification. See Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super.
2013) (holding evidence sufficient to sustain indecent assault conviction where
the appellant licked backs of the victim’s legs from her ankles to just below
her buttocks for the purpose of sexual gratification); Commonwealth v.
Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012) (affirming indecent assault
conviction where the defendant exchanged passionate kisses with the
mentally challenged minor victim who sat on his lap); Commonwealth v.
Evans, 901 A.2d 528 (Pa. Super. 2006) (holding evidence was sufficient to
convict the defendant of indecent assault where he wrapped his arms around
the victim and inserted his tongue into her mouth because act would not occur
outside of context of sexual or intimate situation); Commonwealth v. Capo,
727 A.2d 1126, 1127-1128 (Pa. Super. 1999) (upholding indecent assault
conviction where the appellant kissed the victim’s face and neck, and rubbed
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her shoulders, back, and stomach). See also Commonwealth v. Capers,
489 A.2d 879 (Pa. Super. 1985) (affirming the defendant's conviction for
indecent assault where evidence supported conclusion that defendant's
conduct was motivated, at least in part, by intent to arouse or gratify sexual
desire in himself or victim).
Further, the crime of indecent assault does not depend on the degree of
success achieved by the attacker. See Capo, 727 A.2d at 1128 (stating “[the
appellant’s] inability to achieve more intimate contact than was in fact
accomplished does not make that assault equivocal or lessen its indecency”).
The trial court offered the following analysis of Appellant’s challenge to
the sufficiency of the evidence:
In his argument, [Appellant] focuses on the moment that he
kissed the victim’s neck and maintains that the neck does not
constitute an intimate part of the body and thus cannot constitute
the indecent contact needed to sustain his conviction of indecent
assault. The case of Commonwealth v. Capo, 727 A.2d 1126(Pa. Super. 1999) addressed this exact issue. In Capo, the
defendant kissed the victim’s face and neck. He further rubbed
her shoulders, back, and stomach until the victim was able to pull
away. Id. at 1127. The Superior Court noted that “[t]he language
of the statutory section defining indecent contact includes both
‘sexual’ and ‘other intimate parts’ as possible erogenous zones for
purposes of prosecution.” Id. at 1127. Determining whether the
charged behavior was criminal or merely unwelcome was further
illuminated by Capo’s “increasingly intrusive gestures.” Id. at
1128.
Commonwealth v. Hawkins, 614 A.2d 1198 (Pa. Super.
1992) further explained the rationale for the broad language of
the statute.
The separate crime of indecent assault was
established because of a concern for the outrage,
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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.
Id. at 1201 (citation and quotation omitted); [s]ee also,
Commonwealth v. Provenzano, 50 A.3d 148 (Pa. Super.
2012).
[Appellant] did not plant a friendly but unwelcome kiss on
[K.A.’s] cheek. Instead, he wrapped his arm around her neck
and kissed the intimate part of her neck just as was done in Capo.
By grabbing the victim, disrobing, placing himself in front of the
victim, continuing efforts to kiss the victim, and pursuing her in
the nude as she fled, [Appellant] also demonstrated the
increasingly intrusive gestures that the Superior Court found
instructive in Capo. It is also clear that [K.A.] suffered the exact
“outrage disgust, and shame” that Section 3126 seeks to prevent
as a result of the defendant’s conduct. Hawkins, Supra. While
[Appellant] relies on an argument that could be supported by
Judge Cirillo’s dissent in Capo, which would greatly restrict the
parts of the body that could be considered “intimate” and narrow
the offense of indecent assault, that is not the law of Pennsylvania.
Accordingly, this court is convinced that the record provides
sufficient evidence when viewed in the light most favorable to the
Commonwealth from which the jury found beyond a reasonable
doubt that [Appellant] committed the offense of indecent assault.
Trial Court Opinion, 12/9/19, at 4-5. We are constrained to agree with the
trial court’s determination.
Our review of the record reflects that on March 28, 2019, Appellant was
at his place of employment to work an evening shift along with the victim,
who was his co-worker. N.T., 9/11-12/19, at 14. At approximately 7:30 p.m.,
Appellant used the restroom, and upon his return, he approached the victim
from behind, put his arm around her neck, attempted to kiss her, and
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ultimately kissed her neck. Id. at 14, 17. The victim told Appellant to sit
down. Id. at 16. While the victim was attempting to text her boss, Appellant
took off his shirt and told her that he wanted to kiss her. Id. at 18. Appellant
continued to approach the victim while she gathered her belongings to leave,
and she continually asked him to sit down. Id. at 19. The victim eventually
fled the premises as she called 911. Id. at 19-20. The victim testified that
as she was leaving, Appellant said, “Before you leave, I just want to show you
something.” Id. at 24. The victim stated “that’s when [Appellant] started to
take his pants off.” Id. Appellant was naked and followed the victim to her
car. Id. at 25-26. Once safely in her locked vehicle, the victim started her
car as Appellant pressed his body against the vehicle. Id. Appellant tried to
open the passenger door and shook the car. Id. Appellant hung on to the
victim’s car as she pulled away and ran after her as she left the parking lot.
Id. at 26.
Based on the foregoing, we are satisfied that the jury properly
determined that the Commonwealth established that Appellant touched the
victim in an intimate part of her body for the purpose of arousing or gratifying
sexual desire in either person necessary for the conviction of indecent assault.
Thus, we reject Appellant’s argument that the evidence presented is
insufficient because the incident contact of a single kiss to the victim’s neck
lasted mere seconds. Accordingly, having reviewed the crime for which
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Appellant has been convicted, we conclude that the evidence was sufficient to
sustain Appellant’s conviction. Hence, Appellant’s contrary claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/12/2021
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