J-S49007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

KINTAE JONES

                            Appellant                No. 833 EDA 2015


           Appeal from the Judgment of Sentence February 20, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002775-2014

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

KINTAE JONES

                            Appellant               No. 2210 EDA 2015


           Appeal from the Judgment of Sentence February 20, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002779-2014


BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                             FILED JULY 14, 2016

       In these consolidated appeals, Appellant, Kintae Jones, appeals from

the judgment of sentence entered February 20, 2015, by the Honorable

Sierra Thomas Street, Court of Common Pleas of Philadelphia County,
____________________________________________


* Former Justice specially assigned to the Superior Court.
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following his conviction of Aggravated Indecent Assault, 18 Pa.C.S.A. §

3125(a)(7). Section 3125(a) requires “penetration, however slight.” Digital

penetration of a victim’s labia constitutes such penetration and a victim’s

uncorroborated testimony is sufficient evidence that penetration occurred.

Here, the victim testified—in no uncertain terms—that Jones digitally

penetrated her labia. A full discussion follows.

      The conviction in question stems from Jones’s sexual abuse of the

victim, T.W. Jones was the physically abusive, live-in boyfriend of T.W.’s

mother, and the abuse extended to T.W. and her siblings. The children lived

in abject fear of him.

      After years of abuse, authorities removed T.W. and her sister from the

home. Finally away from Jones, the girls made statements reporting the

abuse. Based on their reports, the police conducted an investigation and

Jones was arrested and charged with a slew of sexual and violent offenses.

      A jury convicted Jones of Aggravated Indecent Assault among

numerous other sexual offenses. On February 20, 2015, the trial court

sentenced Jones to a concurrent term of ten to twenty years’ imprisonment

for the Aggravated Indecent Assault conviction. These timely appeals

followed.

      Before we proceed to the merits, we must determine whether both

appeals are proper. The matter proceeded in the lower court at two docket

numbers because there were two victims. Jones filed two appeals. In each


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appeal, he raises a single issue: whether the Commonwealth presented

sufficient evidence to sustain his conviction for Aggravated Indecent Assault.

A review of the record reveals that Jones was only convicted of Aggravated

Indecent Assault at docket number CP-51-CR-0002779-2014; he was not

even charged with that crime (let alone convicted) at docket number CP-51-

CR-0002775-2014. Indeed, the trial court, in its well-written and thorough

opinion, finds this issue “moot” for this very reason at docket number CP-51-

CR-0002775-2014. Trial Court Opinion, 11/17/15, at 22. Accordingly, we

quash the appeal docketed at 833 EDA 2015. We proceed to the merits.

      Here, Jones contests only the Aggravated Indecent Assault conviction,

claiming that the Commonwealth presented insufficient evidence to sustain

the conviction. Specifically, Jones alleges that the Commonwealth did not

establish the element of penetration beyond a reasonable doubt. See

Appellant’s Brief, at 3.

      Our standard of review is as follows.

      [W]hether, 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. 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,

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      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the [trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted; brackets in original).

      The relevant statute requires “penetration, however slight, of the

genitals….” 18 Pa.C.S.A. § 3125(a). Digital penetration is sufficient to

support a conviction. See Commonwealth v. Gonzalez, 109 A.3d 711, 723

(Pa. Super. 2015). Penetration is not limited to penetration of the vagina;

“entrance in the labia is sufficient.” Commonwealth v. Hunzer, 868 A.2d

498, 506 (Pa. Super. 2005) (citation omitted). If believed by the trier of

fact, a victim’s uncorroborated testimony is sufficient evidence to prove such

penetration occurred. See Commonwealth v. Trimble, 615 A.2d 48, 50

(Pa. Super. 1992).

      This conviction arises from an incident that occurred when T.W. was

just seven years old. T.W. was watching television with her brothers and

sisters downstairs. She went upstairs by herself to use the bathroom. When

T.W. got upstairs, Jones pulled her into a bedroom, sat her on the bed,

pulled her pants down, and touched her vagina in a circular motion. The

prosecuting attorney asked if Jones’s hand went inside T.W.’s vagina:

      Prosecutor: At any point did any part of [Jones’s] hand go

      inside?


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      T.W.: No.

      Prosecutor: So when you say it didn’t go inside, I’m sorry to [sic]

      graphic, [sic] go inside the lips at all?

      T.W.: Yes.

      Prosecutor: It just didn’t go in the hole part?

      T.W.: Yes.

N.T., Trial, 9/17/14 at 113.

      Jones argues that the Commonwealth did not prove the necessary

element of “penetration, however slight” beyond a reasonable doubt. Jones

asserts that the Commonwealth asked a “confused [sic] compounded leading

question” to establish the element of penetration. Appellant’s Brief at 7

(unnumbered). As a result, T.W.’s response, according to Jones, “was

unclear.” Id. Jones contends that the Commonwealth’s burden of proof

“rests on this single question and answer” that Jones calls “confusing at

best.” Id., at 10.

      To begin, there is no record of any objection being raised at the time

of questioning. If the prosecutor asked a leading question, the appropriate

time to raise an objection would have been at trial, when the questions were

raised. See Pa.R.E. 103(a)(1). It is certainly not now for the first time on

appeal. See Pa.R.A.P. 302(a).

      In any event, after review of the transcript, we find that the victim’s

testimony is clear. The Commonwealth’s questions were used to clarify—not


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confuse the facts. Each question and answer was clearly delineated in

structure and resolution. Far from “unclear,” the exchange went into specific

anatomical detail. The prosecuting attorney asked if Jones penetrated T.W.’s

vaginal “lips,” then asked if Jones penetrated T.W.’s vaginal “hole.” T.W.’s

responses followed logically and coherently. Jones, T.W. testified, digitally

penetrated her labia, not her vagina. Under Hunzer, this testimony,

obviously credited by the jury, was plainly sufficient to support a finding of

penetration.

       Based on the victim’s testimony that Jones’s fingers penetrated her

labia, we conclude that the evidence was sufficient to support the jury’s

finding that Jones committed “penetration, however slight.”

      Judgment of sentence affirmed at 2210 EDA 2015. Appeal quashed at

833 EDA 2015.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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