Volume 57, No. 37

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTITIOUS NAME

 

TABLE OF CONTENTS

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

SECOND PUBLICATION

 

ESTATE OF FLORENCE I. BOLD, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Megan B. Webb

402 Black Walnut Drive

Phoenixville, PA 19460

 

Keirstan G. Edris

14 W. Market Street

Myerstown, PA 17067

 

Timothy T. Engler

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

THIRD PUBLICATION

 

ESTATE OF ETHEL M. ENGLAND, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elizabeth England, Executor

89 Belmont Road

Hummelstown, PA 17036

 

ESTATE OF EVONNE C. CLARK, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin J. Brandon, Executor

Estate Evonne C. Clark

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ARLENE I. WAMPLER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

1. Frank Wampler, Co-Executor

Henry E. Wampler, Co-Executor

 

Gerald Brinser, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF MARGIE L. WEST a/k/a MARGIE LEA WEST, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Thomas W. West, Jr., Co-Executor

335 Evans Road

Zelienople, PA 16063

 

Charles M. West, Co-Executor

342 Grange Hall Road

Monroe, NH 03771

 

Robert R. Kreitz, Esquire

Kreitz| Gallen-Schutt

1210 Broadcasting Road, Suite 103

Wyomissing, PA 19610

 

ESTATE OF GARFIELD REICHERT, a/k/a GARFIELD G. REICHERT, JR., late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executor.

 

Darrel Reichert, Co-Executor

1561 N. 7^th Street

Lebanon, PA 17046

 

Dee Jay Reichert, Co-Executor

757 Horseshoe Pike

Lebanon, PA17042

 

Richard J. Weist, Esquire

Williamson, Friedberg, & Jones, LLC

10 Westwood Road

Pottsville, PA 17901

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of the Fictitious Name Act, 54 Pa. C.S.A. Sec 311 of Act 1982-295, and its amendments and supplements, that L & S Property Ventures, LLC of 340 Freeport Road, Lebanon, Pennsylvania, has filed an Application for registration of the fictitious name of WareHouse435 which shall have its principal place of business at 435 Willow Street, Lebanon, Pennsylvania.

 

JUDGES OPINION

Commonwealth of Pennsylvania v. Byron McDaniels

 

Criminal Action-Law-Motion to Quash-Aggravated Indecent Assault-Penetration, However Slight-Clitoris

 

Charges of Aggravated Indecent Assault and Indecent Assault were bound over following a preliminary hearing where testimony was presented at the preliminary hearing that a seventeen (17) year old victim awoke from sleep to discover Defendant touching her breasts and clitoris under her clothes.  Defendant has filed a Motion to Quash the charge on the basis that touching a clitoris does not constitute penetration of genitalia as required by the statute criminalizing the offense of Aggravated Indecent Assault.

 

1. Title 18 Pa.C.S. § 3125 indicates that a person commits Aggravated Indecent Assault if the person engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than for good faith medical, hygienic of law enforcement purposes if the person does so without the complainant’s consent.

 

2. The term “penetration, however slight,” is not limited to penetration of the vagina. Entrance of the labia is sufficient to constitute “penetration, however slight.”

 

3. Touching of the clitoris under a victim’s clothes is sufficient to constitute “penetration, however slight” so as to sustain the charge of Aggravated Indecent Assault.

 

L.C.C.C.P. No. CP-38-CR-0001659-2018, Opinion by Bradford H. Charles, Judge, July 16, 2019.

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                      : 

PENNSYLVANIA                                :                                                                                                                           :        NO. CP-38-CR-1659-2018

1. :       

                                                          :

BYRON MCDANIELS                         :

:

ORDER OF COURT

 

AND NOW, this 16^th day of July, 2019, in accordance with the attached Opinion, the DEFENDANT’s Motion for Writ of Habeas Corpus is DENIED.  The DEFENDANT is to appear at the Criminal Call of the List on September 10, 2019 at 8:30am in the designated Courtroom.  He is also directed to appear for the first day of criminal trials scheduled to commence September 23, 2019 at 8:30am in the Courtroom #3.  All proceedings in this case are to be conducted before this jurist.

 

BY THE COURT:

 

                                               J.

BRADFORD H. CHARLES

 

 

BHC/pmd

 

Cc:    Megan Ryland-Tanner, Esquire// District Attorney’s Office

Elisabeth Pasqualini, Esquire//  2205 Forest Hills Drive, Suite 10, Harrisburg PA  17112

Court Administration (order only)

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                      : 

PENNSYLVANIA                                :                                                                                                                           :        NO. CP-38-CR-1659-2018

1. :       

                                                          :

BYRON MCDANIELS                         :

:

APPEARANCES

 

Megan Ryland-Tanner, Esquire          For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

 

Elizabeth Pasqualini, Esquire             For Byron McDaniels

 

OPINION BY CHARLES, J., July 16, 2019

 

Before us is the embarrassing but legally relevant question of whether touching a female clitoris constitutes “penetration” for purposes of Pennsylvania’s Aggravated Indecent Assault statute.  For reasons we will set forth more particularly within this Opinion, we hold that the DEFENDANT’s conduct in this case is sufficient to trigger a conviction for Aggravated Indecent Assault.

 

1. FACTS

The DEFENDANT has filed a Motion to Quash a charge of Aggravated Indecent Assault lodged against him.  The parties have stipulated to the admissibility of a transcript of the Preliminary Hearing conducted on October 11, 2018 before the Honorable Maria Dissinger.  Neither party presented additional evidence to us beyond what was set forth in the Preliminary Hearing transcript.

At the Preliminary Hearing, 17-year old M.N. testified.  She stated that she attended a New Year’s Eve party on January 1, 2016 hosted by a friend.  She spent the night at the friend’s house.

Early in the morning, M.N. fell asleep in the living area of the house.  She awoke to feel the DEFENDANT fondling her.  (N.T. 6).  After touching her breasts, the DEFENDANT put his hand down M.N.’s leggings and “rubbed” her “clit”.  (N.T. 6-7).  M.N. did not describe the contact further.  Neither M.N. nor the DEFENDANT said anything while this behavior was occurring.  The DEFENDANT then stopped when M.N. “pretended to wake up”.

Based upon the testimony of M.N., Judge Dissinger bound all charges over to Court.  The DEFENDANT filed a Motion for Writ of Habeas Corpus.  In the motion, the DEFENDANT acknowledged that the Commonwealth could establish charges pertaining to Indecent Assault.  However, the DEFENDANT sought dismissal of the Aggravated Indecent Assault charge based upon the premise that no “penetration” of M.N.’s genitalia occurred.  Both parties have filed briefs regarding their respective positions.  We issue this Opinion in support of our decision to send the question of Aggravated Indecent Assault forward to a trial by jury.

 

1. DISCUSSION

Aggravated Indecent Assault is defined in the Pennsylvania Crime Code as follows:

“(a) Offenses defined – …a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law-enforcement procedures commits Aggravated Indecent Assault if:

(1) The person does so without the complainant’s consent…” 18 Pa. C.S.A. § 3125

 

No Pennsylvania statute defines the term “penetration, however slight, of the genitals”.  However, Pennsylvania’s Superior Court has determined “that the term ‘penetration, however slight’ is not limited to penetration of the vagina; entrance in the labia is sufficient.” Commonwealth v. Hawkins, 614 A.2d 1198, 1200 (Pa. Super. 1992).

The term “penetration, however slight” is not only employed in the Aggravated Indecent Assault statute; it is also found in other statutes such as Rape and Involuntary Deviate Sexual Intercourse.  Most of the decisional precedent involving the phrase “penetration, however slight” is found within the context of these other crimes.

Relatively early in the evolution of Pennsylvania jurisprudence, the Pennsylvania Superior Court determined that “penetration, however slight” does not require penetration into the vaginal canal.  In Commonwealth v. Bowes, 74 A.2d 795 (Pa. Super. 1950), the Superior Court stated that penetration of the labia is sufficient to constitute “penetration, however slight”.  In Commonwealth v. Ortiz, 475 A.2d 559 (Pa. Super. 1983), the Court approved a jury instruction that read as follows:

“There must be some penetration by the Defendant of his penis into the female’s sex organ.  I also told you that however slight that penetration may be is sufficient to constitute the act.  What the law means by that is it need not be full entrance into the female’s sex organ by the male with his sex organ.  So we say however slight, which means the smallest penetration within the female’s sex organ.  Once the person, the Defendant, the male breaks that area, the outside, once he makes the slightest penetration within, it is sufficient to constitute the crime of rape.  So it is not necessary to have a full penetration to the entire vagina; just some penetration within the male sex organ into the female sex organ.”

 

(Id at page 561)

 

 

In the context of oral sex allegations, Pennsylvania’s Superior Court has determined that entry of the tongue into the vaginal area is not necessary.  Rather, “[s]ome form of oral contact with the genitalia of the female victim is all that is required.”  In the interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994).  See also, Commonwealth v. Trimble, 615 A.2d 48 (Pa. Super. 1992).

In this case, the DEFENDANT argues that rubbing a woman’s clitoris does not satisfy the statutory requirement of “penetration, however slight”.  Not surprisingly, the Commonwealth responds that touching of a clitoris, by definition, satisfies the penetration requirement.  Unfortunately for this Court, the parties’ arguments have required us to identify where the clitoris is located vis a vis the female genitalia.[1]

The best diagram located by this Court of the female genitalia was found in the online version of Encyclopedia Britannica.  See, Britannica.com.  That diagram depicts the clitoris as being located outside the labia minora but within the labia majora.  See, Britannica.com;anatomy;clitoris.  These diagram clearly indicate that touching the clitoris requires a person to “penetrate” the lips of the female’s labia.[2]

Based upon diagrams of the female reproductive system that we accessed online, and based upon the relatively broad definition of “penetration, however slight” found in Pennsylvania law, we conclude as a matter of law that touching of a female clitoris can constitute “penetration, however slight” for purposes of Pennsylvania’s Aggravated Indecent Assault law.

Of course, the jury who will be impaneled to hear the above-referenced case will have the ultimate authority to determine whether all of the elements of Aggravated Indecent Assault have been established beyond a reasonable doubt.  At this point, the role of the Court is to determine whether enough evidence exists to justify a submission of this case to the jury.  Because we conclude that M.N.’s testimony at the Preliminary Hearing is sufficient to establish the elements of Aggravated Indecent Assault, we will deny the DEFENDANT’s Motion for Writ of Habeas Corpus and we will send all of the charges against the DEFENDANT forward to a jury trial.

 

 

[1] We used the word “unfortunately” because it is difficult to locate non-pornographic biological references regarding the location of a female clitoris.

[2] We confirmed the accuracy of this diagram by also consulting with a friend who is an OB/GYN physician.