En Banc Superior Court: “Course of Conduct” Means More Than Once

In a unanimous en banc decision on a matter of first impression, this month the Pennsylvania Superior Court decided in Commonwealth v. Kelly, 2014 WL 5408185, that a single episode cannot constitute a “course of conduct” as is required for felony-grade corruption of minors charges, 18 Pa.C.S. 6301.  This decision, while perhaps not groundbreaking, brings the use of the phrase “course of conduct” into line with how it is used in other criminal statutes such as stalking, harassment, and Endangering the Welfare of a Child.

Joseph Kelly was convicted of sexually abusing a minor with learning difficulties.  The conviction stemmed from a single incident where Kelly assisted the minor in bathing.   This was not unusual, as Kelly maintained a relationship with the child’s mother, lived with them, and frequently assisted around the house.  However, this time, Kelly apparently fondled the boy’s genitals for a period of about five minutes while covering up the child’s mouth with his other hand.  At trial, the child testified that this was the only occasion Kelly had been inappropriate with him and there was no evidence suggesting otherwise.

Kelly was charged with a felony gradation of the corruption of minors charge, among other offenses.  His conviction concluded with him being sentenced to 30-72 months incarceration on that felony charge.

The court considered the phrase “course of conduct” to clearly differentiate the penalties for single and multiple endangering acts.  This is the normal interpretation of the phrase not only in the crimes code, the court noted, but also in Pennsylvania’s laws relating to certified public accounting and in the federal crimes code.  The court was able to locate no examples of where “course of conduct” could encompass a single act.  Accordingly, the en banc panel rejected the Commonwealth’s contention that Kelly’s offense, being only a single incident, could constitute the felonious “course of conduct” required by the legislature and remanded the case for resentencing consistent with its opinion.