A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania en banc has issued a decision in the case of COMMONWEALTH of Pennsylvania v. Joseph Louis KELLY, Appellant, No. 3432 EDA 2012, 2014 WL 5408185, 2014 PA Super 243 (Oct. 24, 2014), an appeal from a Judgment of Sentence of the Court of Common Pleas of Delaware County, per Judge Kevin Kelly, Criminal Division, CP–23–CR–0002697–2012. The Judges were BENDER,BOWES, PANELLA, DONOHUE, SHOGAN, ALLEN,LAZARUS, WECHT and STABILE. Judge Bender wrote the Opinon. There was no dissent.

The Appellant, Joseph Louis Kelly, appealed from a judgment of sentence of 30–72 months’ incarceration and a consecutive term of 5 years’ probation imposed following his conviction for corruption of minors and indecent assault. The Appellant had committed a single act of fondling the genitals of a minor. The question here was a matter of first impression, that is, whether the Commonwealth proved that Appellant had engaged in a “course of conduct” as required under the felony grading of the offense of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii). The crux of his argument was that the use of the phrase “course of conduct” in subsection (a)(1)(ii) requires proof of two or more related events that occur over time, and, consequently, a single episode does not constitute a course of conduct.

The Superior Court concluded that the use of the phrase “course of conduct” in the first provision of subsection (a)(1)(ii) imposes a requirement of multiple acts over time, in the same manner in which the term is used in the harassment, stalking and EWOC statutes. The Legislature did not intend to apply the felony grading of the corruption of minors to a single sexual offense. Although there was insufficient evidence of a violation of the felony grading of that offense, Appellant’s commission of an indecent assault against the victim was sufficient evidence of the lesser included crime, that of the misdemeanor grading of corruption of minors. However, since the Appellant did not engage in a “course of conduct” within the meaning of the felony provision, the Court vacated his judgment of sentence and remanded for resentencing.

Attorney Steven Michael Papi represented the Appellant.

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