Appellant, Valentine Dorman, appeals from the judgment of sentence entered by the Court of Common Pleas of Northumberland County following his convictions of rape, statutory rape, corruption of minors and indecent assault. We affirm.
The facts giving rise to this appeal are as follows. Appellant, who at the time of the incident was 38 years of age, offered to give his thirteen year old niece, Tina W., a ride to the raceway near her home. However, instead of taking Tina to the promised destination, appellant, after a brief detour to procure some marijuana, drove Tina down a dirt road to a secluded, wooded area. After proceeding down the road to a dead end, appellant parked the vehicle. Tina testified that appellant came over to her side of the car and began touching her. When he started to “move down,” she said “don’t.” Nevertheless, appellant continued to fondle her and then removed her clothing, as well as his own. Appellant pushed Tina back onto the seat of the car and proceeded to have sexual intercourse with her. Other than the victim’s statement “don’t,” nothing was said during the entire episode. However, on the way back to Tina’s house, appellant instructed her not to mention the incident to anyone or he would tell her father that she smoked marijuana. Tina obeyed and did not tell anyone until several months later, when, believing she was pregnant, she told the school nurse.
Appellant was tried by a jury and convicted of rape, statutory rape, corruption of minors, and indecent assault. Following the denial of his post-trial motions, he was sentenced to a term of seven to fifteen years imprisonment on charges of rape and statutory rape, one to five years for corruption of minors, and six to twelve months for indecent *422 assault, the sentences to run concurrently. Appellant’s motion to modify his sentence was denied. This timely appeal followed.
Appellant’s first allegation of error is that the evidence is insufficient -to sustain the verdict on the charge of rape. We begin our analysis by noting our standard of review when examining a claim that the evidence is insufficient to support a verdict:
The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.
Commonwealth v. Aulisio,
The offense of Rape is defined as follows:
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.
18 Pa.C.S.A. § 3121.
Appellant contends that the Commonwealth failed to establish the element of forcible compulsion or threat thereof, which is required in order to sustain his conviction under 18 Pa.C.S.A. § 3121(1) and (2). More specifically, he claims that the only evidence of force in the instant case is the victim’s statement “don’t” when he first started to remove her clothing. He argues that in the absence of evidence that he physically compelled the victim or threatened her with violence, this testimony is not enough to prove the *423 forcible compulsion element of rape beyond a reasonable doubt.
This court has stated that the evidence necessary to support the element of forcible compulsion need only be such as to establish lack of consent and to induce the woman to submit without additional resistance; it is not necessary that the victim be beaten, cry, become hysterical, or be threatened with a weapon for the crime of rape to occur.
Commonwealth v. Williams,
In
Commonwealth v. Mlinarich,
In 1986, our supreme court decided the landmark case of
Commonwealth v. Rhodes,
[t]he respective ages of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.
Id.,
There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (“prevent resistance”), without the use of physical force or violence or the explicit threat of physical force or violence. As Judge Cavanaugh noted in his dissenting opinion in this case, “the illicit commands *426 of this twenty year old [man] in an isolated and abandoned room were ... an imperative which gave the [eight year old] child victim no alternative but submission to appellant’s corrupt scheme.”
Id.,
After Rhodes, there seemed to be no question that psychological, moral or intellectual force could support a finding of forcible compulsion. However some uncertainty was cast upon this proposition when the Pennsylvania Supreme Court granted the Commonwealth’s petition for allowance of appeal in the Mlinarich case and considered the question of whether the accused’s threat to send the victim back to the juvenile home constituted “forcible compulsion” or “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution” within the meaning of 18 Pa.C.S.A. § 3121(1) and (2). See Commonwealth v. Mlinarich, 542 A. 2d 1335 (1988). Three justices concluded that such a threat was not sufficient to support a conviction for rape and joined in an opinion in support of affirmance of this Court’s en banc decision. Chief Justice Nix, author of the Opinion in Support of Affirmance, concluded that “the term ‘forcible compulsion’ includes both physical force as well as psychological duress [but] rejected] the contention that ‘forcible compulsion’ was intended by the General Assembly, in this context, to be extended to embrace appeals to the intellect or the morals of the victim.” Id. at 1338. At only one point throughout the entire opinion did Chief Justice Nix cite to Rhodes, and that was merely to support the proposition that “psychological coercion ... may overpower the will to resist as effectively as physical force.” Id. at 1342. Justice Larsen, in an Opinion in Support of Reversal, relied almost exclusively on Rhodes to support his position, remarking that:
Rhodes is the law of this Commonwealth, and is unquestionably dispositive in this case; Rhodes compels the conclusion that Mlinarich engaged in sexual intercourse with the child victim without her consent and by forcible compulsion or its threat. The Opinion in Support of *427 Affirmance does not attempt to distinguish Rhodes, nor does it attempt to explain in any way why it is not controlling. Instead, the three members of this Court in support of affirmance simply ignore Rhodes and pretend that it does not exist. Rhodes does exist, however, and remains the law of the Commonwealth.
Returning to the facts of the case at bar and applying the test enunciated in Rhodes, we find that the evidence is sufficient to prove beyond a reasonable doubt that appellant *428 had sexual intercourse with his thirteen (13) year old victim by forcible compulsion and by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution in the victim’s position. The victim recounted the incident as follows:
Q. What happened at the dirt road, Tina?
A. Well, he got out and came over to my side and he opened the door.
Q. Tina, I know it is tough but you will have to explain to the jury what happened. Like I said, just stop us if you want to take a break at all. Could you explain to the jury what happened?
A. Started touching me.
Q. Would you tell the jury where he started to touch you?
A. In the front.
Q. Then what happened?
A. Then he started to move down.
Q. Did you say anything while he did this?
A. I said “don’t.”
Q. What happened after you said don’t?
A. He didn’t say anything, he just kept on doing it.
Q. Then what happened, Tina?
A. He removed my clothes.
Q. Did he have his clothes on at that point?
A. No, he started taking his off.
Q. Could you tell the jury what happened then?
A. Well, he pushed me back, then he got on top of me and he started, he stuck his penis in my vagina, then after he was done he got up and he got dressed, then I got up and I got dressed, then he came around to the other side of the car and got in and I shut my car door, then we took off.
Q. Did he say anything to you?
A. No, not then.
Q. Is this out in the woods, Tina?
*429 A. Yeah.
Q. What happened after that?
A. Then he took me home.
Q. Did he say anything on the way home?
A. No, not then. But when he came to the speedway he said I shouldn’t tell anybody.
Q. Why is that?
A. Because he said that he would tell my dad that I smoked Marijuana.
N.T. March 17, 1987 at 23-25.
Applying the factors outlined in
Rhodes
to the foregoing evidence convinces us that the victim in this case submitted to sexual intercourse under forcible compulsion or threat thereof that would prevent resistance from a person of reasonable resolution. The thirteen (13) year old victim was driven down a deadend dirt road to a remote wooded area. Despite the victim’s protest, appellant, who was twenty-five (25) years the victim’s senior, disrobed her, pushed her down on the seat of the car and had intercourse with her. Although there was no evidence that the victim struggled or otherwise resisted, other than saying “don’t,” this fact does not negate a finding of forcible compulsion. In light of the remote locality where the incident occurred, the absence of more strenuous resistance is easily understandable. The victim cannot be expected to cry out or struggle vigorously when such action may have the effect of escalating the danger already present in the volatile circumstances of an imminent rape. More importantly, appellant, who was the victim’s uncle, occupied a position of authority and trust such that the victim would feel coerced to submit to his demands out of a sense of duty or obedience. While the force used to overcome the will of the victim in this case was to a large extent subtle and psychological, it nonetheless satisfies the element of forcible compulsion necessary to sustain appellant’s conviction for rape.
See Commonwealth v. Poindexter,
Appellant next claims that the trial court erred by instructing the jury that they could draw an adverse inference against appellant for failing to call a potential alibi witness when the witness was residing in the state of New York and failed to obey a subpoena. Appellant’s defense at trial was an alibi defense. At trial appellant took the stand and testified that on August 10, 1985, at the time that the alleged rape took place, he was delivering a car to his cousin,, Darvin Carter, in New York. Appellant also testified that his cousin was not present to testify despite the fact that he had subpoenaed him in New York. Following closing arguments wherein both the prosecutor and defense attorney referred to the other side’s failure to procure certain witnesses, the trial court, sua sponte, gave the following instruction upon charging the jury:
There has been an issue raised as to the missing witness or witnesses. That question raises the question of what weight, if any, you would give to the fact that both the Commonwealth and the defendant failed to call possible witnesses. You may infer that a possible witness would have given testimony unfavorable to the party who failed to call them. If it was natural and reasonable to expect that party to call them, and there is no satisfactory explanation for why the party failed to call them. You should consider this along with all relevant facts and circumstances in determining this case. The inference that a potential witness’s testimony would have been unfavorable to the party who failed to call them is an inference that you may draw. It is not an inference that *431 you are required to draw. Note that an inference is merely that testimony might have been unfavorable, not that it would have been unfavorable. The inference is not a substitute for facts that you do believe.
N.T. March 17, 1987 at 168-169 (emphasis added). After the court concluded its charge to the jury, defense counsel objected to the missing witness instruction and moved for a mistrial on grounds that an instruction on missing witnesses is only proper when the witness is within the exclusive control of a party. 3 Id. at 179. We find that the trial court’s instruction on missing witnesses was appropriate under the circumstances of this case.
The instruction on missing witnesses is essentially a comment on the evidence; the inference itself is the natural inference that a party’s failure to call a witness in certain circumstances suggests that he was afraid to do so, which in turn suggests that the testimony would have been unfavorable.
See Downey v. Weston,
The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. However, each of the following circumstances represents an exception to that rule:
1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
*432 3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and,
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.
Id.,
275 Pa.Superior Ct. at 413,
Since the inference is permissible, it would have been error for the court to instruct the jury the other way, i.e., that the failure to call the named witnesses could not be considered in evaluating the credibility of appellant’s alibi. Consequently, even though the inference is only permissible, courts are permitted to comment on the possibility of drawing such an inference just as courts are permitted to comment on every other factor which a jury is permitted to consider.
However, we must emphasize, at this point, that while it is permissible for a jury to draw adverse inferences as to the credibility of a defendant’s alibi from his failure to call persons he identifies as eye-witnesses, such inferences are not mandatory. Furthermore, such inferences do not affect the presumption of innocence. The Commonwealth must still prove that the defendant committed the crimes alleged beyond a reasonable doubt.
Admittedly, if the jury chooses to draw an adverse inference from a defendant’s failure to call named alibi witnesses, his case may be affected because his alibi is not believed. But the credibility of defendant’s testimony is always something which he must consider before he takes the stand.
Nevertheless, since any inferences to be drawn are permissible, not mandatory, if a court chooses to charge on this issue, it must be careful not to overemphasize it so as to mislead the jury into believing the inference to be mandatory rather than only permissible.
*434
Id.,
In the case at bar appellant’s cousin, who he was allegedly delivering a car to on the night in question, was a resident of New York. At trial, appellant testified that he had subpoenaed his cousin in New York but that he refused to appear. Appellant argues that because his alibi witness was equally available to the Commonwealth by way of subpoena, the trial court erred in giving the missing witness instruction. However, this argument ignores several important considerations. First, “availability” is not determined merely from a witness’s physical presence or amenability to subpoena but also depends on the witness’s relationship to the party and the nature of the expected testimony. Both the Supreme Court of Pennsylvania and this Court have applied the missing witness rule even though the witness was technically available to the party seeking the advantage of the inference.
See Commonwealth v. Leonard,
This Court has held that where an accused raises an alibi defense and names a person who it is claimed can support the defense, but fails to call him as a witness, it is permissible for the jury to infer that the testimony of the absent witness would not have been favorable to the accused. Because it was not improper for the prosecuting attorney to urge the jury to draw the inference that the testimony of the [defendant’s] alleged alibi witnesses would not have corroborated his alibi, counsel was not ineffective for not interjecting an objection to the prosecutor’s remark.
Id.
Arguably, the fact that the witness is outside the court’s subpoena power should militate against drawing an adverse inference from his absence because this constitutes either a reasonable excuse for failing to present the witness or renders the witness unavailable to the party against whom the inference is sought. The logic behind disallowing the inference when a witness is truly beyond a party’s control is that the underlying basis for permitting the inference crumbles. In other words, when the witness is not within a party’s control, there is no basis for inferring that he was afraid to call the witness and consequently no basis for inferring that the witness’s testimony would be unfavorable. However, the mere fact that appellant subpoenaed his out-of-state cousin does not mean that it was beyond his control to compel his presence at trial. Aside from the fact that one would expect a relative who possessed exculpatory evidence to come forward of his own volition, appellant had at his disposal a means by which he could have compelled his cousin’s presence. The Uniform Act to Secure Attendance of Witness
5
, which has been enacted in both Pennsylvania and New York, “provides a speedy and effective procedure, through the use of a certificate issued under seal of court, to summon witnesses living in another state.”
U.S. ex rel. Drew v. Meyers,
We believe that the trial court’s instruction in this case did not overemphasize the negative inference to be drawn from a party’s failure to present a witness, but merely informed the jury that it could draw the inference against either the defendant or the Commonwealth if it chose to do so. In light of the fact that both the prosecutor and defense counsel alluded to missing witnesses in their closing arguments, a diluted missing witness instruction was proper in order to guide the jury in its deliberations. See N.T. March 17, 1987, at 179.
Appellant’s final contention is that the trial court erred in failing to appoint new counsel for him after he dismissed his counsel during the sentencing hearing. However, appellant failed to specifically raise this issue in his
*438
petition to modify sentence. The purpose of a petition to modify sentence is to provide the sentencing court with the first opportunity to modify its sentence and to correct errors which may have occurred during sentencing.
Commonwealth v. Cottman,
Judgment of sentence affirmed.
Notes
. Four justices, representing a majority of the court, supported both the test espoused in Rhodes and the result reached in the case. Justices Flaherty, Hutchinson and Papadakos joined in the Opinion authored by Justice Larsen..
. Former Justice Hutchinson did not participate in the consideration of Mlinarich.
. Pa.R.Crim.P. 1119(b) requires specific objections to the court’s charge before the jury retires to deliberate in order to preserve the challenge for appellate review.
. Although the court in Wright found the inference proper under the facts of the case, it went on to reverse because it found that the missing witness charge was overemphasized by the court.
. Act of June 23, 1941, P.L. 147 § 1 et seq., 19 P.S. § 622.1 et seq.
. While our holding may, at first glance, appear to conflict with some of our reasoning in
Commonwealth v. Boyd,