Commonwealth v. Gamby

283 A.3d 298

COMMONWEALTH of Pennsylvania, Appellee

v.Carl GAMBY, Appellant

No. 62 MAP 2021

Supreme Court of Pennsylvania.

Argued: March 9, 2022

Decided: September 29, 2022

Spencer Hamilton Bradley, Esq., James Jude Karl, Esq., Mary Lynn Klatt, Esq., Dauphin County Public Defender's Office, for Appellant.

Francis T. Chardo III, Esq., Mari Ladina Hambright, Esq., Ryan Hunter Lysaght, Esq., Christopher John Robinson, Esq., Erin Varley, Esq., Dauphin County District Attorney's Office, for Appellee.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE TODD

In this appeal by allowance, we consider whether the unwanted kissing of a person's neck constitutes the touching of "sexual or other intimate parts" for purposes of the crime of indecent assault.¹ For the reasons that follow, we determine that "other intimate parts" are those parts of the body that are personal and private, and which a person ordinarily allows to be touched only by other individuals with whom the person has a close personal relationship, and which are commonly associated with sexual relations or intimacy. Applying this meaning, we conclude that the neck is an intimate part of the body, and thus, we do not disturb the jury's finding that Appellant, Carl Gamby, by grabbing the victim, K.A., from behind and kissing her neck for the purpose of sexual gratification, committed indecent assault. Accordingly, we affirm the order of the Superior Court.

The facts underlying this matter, as set forth by the trial court, are as follows:

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 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, "[b]efore 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, "[y]ou 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).

Trial Court Opinion, 12/9/19, at 1-3. Appellant was charged with indecent assault without consent,² indecent exposure,³ use or possession of drug paraphernalia,⁴ and public drunkenness and similar misconduct.⁵

As the crime of indecent assault is central to this appeal, we turn to the Pennsylvania Crimes Code, which sets forth the crime of indecent assault, in relevant part, as follows:

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) (emphasis added). Further, the term "[i]ndecent contact," as used above, 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 any person." 18 Pa.C.S. § 3101 (emphasis added). The meaning of the phrase "sexual or other intimate parts," which is not statutorily defined, lies at the core of this matter.

At his jury trial, Appellant, who testified on his own behalf, freely admitted to injecting himself with what he thought was heroin, but which he later believed to be fentanyl and bath salts. The charges of possession of drug paraphernalia and indecent exposure also were essentially conceded at trial. However, Appellant maintained that he was not guilty of indecent assault, as he did not touch an intimate part of the victim's body. Ultimately, the jury found Appellant guilty on the first three of the crimes charged, including indecent assault.⁶ Thereafter, Appellant filed a post-sentence motion challenging the sufficiency of the evidence to support his conviction for indecent assault. The court denied the motion, determining, inter alia , that, by wrapping his arm around the victim's neck and "kiss[ing] the intimate part of her neck," there was sufficient evidence to support Appellant's conviction for indecent assault. Trial Court Opinion, 12/9/19, at 5.

Appellant appealed to the Superior Court contending that his kissing of the victim's neck did not satisfy the statutory element of touching the "sexual or other intimate parts" of the victim. Writing for a unanimous three-judge panel, Judge Jacqueline Shogan affirmed Appellant's judgment of sentence based primarily on the Superior Court's prior decisions, noting that the court previously has 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." Commonwealth v. Gamby , 2021 WL 99749, *3 (Pa. Super. filed Jan. 12, 2021) (citing Commonwealth v. Fisher , 47 A.3d 155 (Pa. Super. 2013) (holding evidence sufficient to sustain indecent assault conviction where defendant licked backs of victim's legs from her ankles to just below her buttocks for the purpose of sexual gratification); Commonwealth v. Provenzano , 50 A.3d 148 (Pa. Super. 2012) (affirming indecent assault conviction where defendant exchanged passionate kisses with 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 defendant of indecent assault where he wrapped his arms around victim and inserted his tongue into her mouth because act would not occur outside of sexual or intimate situation); Commonwealth v. Capo , 727 A.2d 1126 (Pa. Super. 1999) (upholding indecent assault conviction where defendant kissed victim's face and neck, and rubbed her shoulders, back, and stomach)).

In rejecting Appellant's argument that the neck does not constitute an intimate part of the body, the Superior Court further relied upon its decision in Commonwealth v. Hawkins , 419 Pa.Super. 37, 614 A.2d 1198 (1992), in which it reasoned that the broad language of the statute arose from "a concern for the outrage, disgust, and shame engendered in the victim rather than because of physical injury to the victim." Id. at 1201. As the Hawkins court explained, "[d]ue 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.

The Superior Court herein reasoned, inter alia , that Appellant's wrapping of his arm around the victim's neck, and kissing her neck, as found by the trial court, were intrusive gestures, and, as a result, that the victim suffered the outrage, disgust, and shame that it deemed Section 3126 sought to prevent. Thus, the Superior Court concluded that the evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, supported the jury's determination that Appellant committed indecent assault by touching the victim on an intimate part of her body for the purpose of arousing or gratifying sexual desire, and, in doing so, the court rejected Appellant's argument that the incidental contact of a single kiss to the victim's neck was insufficient. Gamby , 2021 WL 99749, at *5.

We granted allocatur to address whether the kissing of the victim's neck, without the victim's consent, constituted the touching of the "sexual or other intimate parts" of the victim sufficient to sustain Appellant's conviction for indecent...