This is an appeal from the judgment of sentence after a jury trial in which appellant was convicted of rape and involuntary deviate sexual intercourse.
Appellant alleges: (1) that the trial judge failed to give a cautionary instruction on the limited purpose of testimony from the victim that appellant, in order to threaten the *276 victim, told her about a prior rape episode; (2) that trial counsel was ineffective in failing to object to the admission of this testimony without the cautionary instruction and in neglecting to object to references of the prior rape conviction in the prosecutor’s closing; (3) that trial counsel was ineffective for failing to place into evidence that appellant had called the State Police, who were looking for him, which evidence would have strengthened appellant’s defense of consent; (4) that trial counsel was ineffective in failing to call appellant and vigorously cross-examine the victim who presented the only'testimony concerning the rape; and (5) that the evidence was insufficient to convict appellant of rape. Because none of these contentions has merit, we affirm.
In contending, initially, that the trial judge was required to give a cautionary instruction regarding the limited purpose of the complainant’s testimony that appellant told her about a previous rape conviction, appellant urges us that this matter is controlled by
Commonwealth v. Claypool,
In carving out this new exception to the general rule of inadmissibility of prior crimes, the Supreme Court went on to state:
*277 Although we have determined that evidence of prior criminal acts which the defendant himself makes relevant to prove the crimes with which he is charged is admissible, we are still mindful of the potential for misunderstanding on the part of the jury when this type of evidence is admitted. Therefore, such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.
It is this language which appellant insists creates, at least by implication, a per se rule mandating a cautionary instruction by the trial court regardless of whether or not it is requested.
In
Commonwealth v. McCann,
We read
Claypool’s
directive that a cautionary instruction must accompany the admission of evidence of prior crimes in situations similar to the one at bar no different from the broad language in
Mulgrew
which the
McCann
court held did not create any
per se
rule, especially
*278
when this argument in both
McCann
and
Mulgrew,
as well as here, was coupled with the alternate theory of trial counsel’s ineffectiveness in failing to request such instruction or in neglecting to object to the trial court’s dereliction in that regard. Moreover, were we to make a contrary determination we would be usurping our Supreme Court’s seminal and still viable decision in
Commonwealth v. Clair,
Having so concluded, the next logical step is to consider whether trial counsel was ineffective in neglecting to object to the failure of the trial court to give a cautionary instruction and in failing to request same from the trial court. We are also asked to determine whether trial counsel was similarly derelict in failing to object to various references of the prior rape conviction made by the prosecutor in closing. In doing so, we are guided by the principles recently set forth by our Supreme Court in
Commonwealth v. Pierce,
Our standard governing ineffectiveness claims was set forth in Commonwealth ex rel. Washington v. Maroney, [supra], which requires that we independently review the record and examine counsel’s stewardship in light of the available alternatives. As we stressed in Maroney:
Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of ineffective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.
Strickland requires:
*280 [A] [c]onvicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced that defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
Underpinning this entire analysis, of course, are several tenets, the most basic of which is that the law presumes counsel’s effectiveness. Commonwealth v. Butler, supra; Commonwealth v. Pierce, supra; Commonwealth v. Christy, supra. Accordingly, counsel will not be deemed ineffective for failing to raise a baseless claim, nor will his/her decision not to embark upon a particular course of conduct constitute ineffectiveness if counsel reasonably determines that no benefit will accrue or if that decision was made not as a result of sloth or ignorance of available alternatives. Id. Finally, counsel cannot be determined to be ineffective unless a court concludes that viable alternatives existing but not chosen offered a potential for success substantially greater than the tactics counsel actually utilized. Commonwealth v. Pierce, supra; Commonwealth v. Christy, supra; Commonwealth ex rel. Washington v. Maroney, supra.
*281 With the foregoing principles guiding us, we conclude that the inaction of trial counsel here in not requesting a cautionary instruction and in failing to object to the admission of the subject testimony presents an arguably colorable claim of ineffectiveness, especially since the viable alternative of requesting such instruction and of lodging an objection to the trial court’s allowance of this testimony was available to trial counsel. Nor are we convinced, upon a hindsight evaluation of trial counsel’s inaction in this regard, that the non-pursuit of this particular course — i.e., the failure to request an instruction or object to admission of the subject testimony — had some reasonable basis designed to effectuate appellant’s interests. No doubt, had the cautionary instruction been issued, either sua sponte or by request of trial counsel, or had an appropriate objection been lodged, this claim of error would not now be before us.
Our inquiry, however, cannot end here, for we must now determine whether trial counsel’s shortsightedness prejudiced appellant’s defense to the extent that “counsel’s errors were so serious as to deprive [appellant] of a fair trial, a trial whose result is reliable.”
Commonwealth v. Pierce, supra,
The oft-stated test for determining the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the verdict winner, here the Commonwealth, and drawing all properly inferable deductions from the evidence, a jury could have reasonably determined that
*282
the Commonwealth has proven each element of each offense beyond a reasonable doubt.
Commonwealth v. Stambaugh,
Appellant’s sufficiency claim asserts that the Commonwealth failed to prove the element of forcible compulsion to negate the defense of consent because no evidence was brought to light of physical abuse or the use or threatened use of a weapon. Complaint is also made of the lack of medical evidence to infer force of intercourse or even any intercourse at all.
The relevant statutory provisions read as follows:
[18 Pa.C.S.A.]
§ 3121. Rape
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 ____
[18 Pa.C.S.A.]
§ 3123. Involuntary Deviate Sexual Intercourse.
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution____
Our Supreme Court in
Commonwealth v. Rhodes,
The Supreme Court then elaborated on the proof required to sustain a conviction under either Section 3121 (1) or (2) as follows:
When forcible compulsion (used or threatened) consists of physical force or violence, relatively tangible circumstances, testimony and other evidence will tend to prove the existence of such. When forcible compulsion (used or threatened) consists of ‘moral, phychological [sic] or intellectual force,’ the force may be less tangible but is not less susceptible of proof, and the critical circumstances and evidence here will be those which tend to prove or disprove compulsion or lack of consent, i.e. that such force was ‘used to compel a person to engage in sexual intercourse against that person’s will.’ ... The task of the fact finder in each case will be essentially the same, the determination of whether the victim ... was forced to do a thing (... to engage in sexual intercourse ...) against his or her will.
Within the context of the above framework, we will analyze the uncorroborated (as to the actual attack) and unrefuted testimony of the victim, Miss Dunlap, employing the Rhodes factors particularly applicable to the instant situation.
*284 Miss Dunlap, in her testimony, stated that she asked appellant to drive away from the isolated, wooded area after he had picked her up in his jeep (N.T. 26, 28). Her testimony is replete with indications that she was afraid of appellant because he stated that he would beat her up badly if she attempted to leave the jeep (N.T. 32, 38) and if she did not have intercourse with him (N.T. 29, 30, 34, 40, 41).
She indicated that she removed her shirt at appellant’s request because he told her that she had no choice otherwise (N.T. 29-32). Miss Dunlap had intercourse with appellant three times. The first time, appellant forced her to perform oral sex upon him (N.T. 33-34). The second time, appellant forced her to remove her remaining clothing. The victim testified that she cried the entire time (N.T. 34-36). Finally, appellant indicated that he would only believe that Miss Dunlap would not report this incident to the police if she would have intercourse with him for the third time (N.T. 40-41). She initially refused and then agreed. Her testimony in this regard was as follows: “I just laid there and cried, hoping it would be done fast____ I was just just laying there crying____” (N.T. 42).
Q. How did you feel at that point, Cherina?
A. Numb. I felt sick.
Q. Why?
A. Because it was disgusting. And I just wanted to go home.
Id.
Miss Dunlap’s testimony also reveals that the area where appellant had parked the jeep and where the rape occurred was mountainous, wooded and isolated (N.T. 26). Her description was corroborated by Trooper Engle of the State Police to whom Miss Dunlap had reported the incident (N.T. 68). She also stated that no one else was in the area (N.T. 26, 30, 34, 37). When a truck did go by, appellant warned her not to yell because he did not want to hurt her (N.T. 39).
We are convinced that the evidence sufficiently demonstrates that the atmosphere and physical setting were such that Miss Dunlap was unable to obtain assistance or to *285 escape. Appellant’s threats to harm her, his actual prevention of her escape from the jeep and his forcing her to have intercourse with him in a desolate area manifests his domination and control of her. Moreover, Miss Dunlap’s testimony that she was afraid that appellant would hurt her if she did not have intercourse is indicative that she acted under duress. Commonwealth v. Rhodes, supra.
In a case where, as here, a victim is threatened with physical abuse if she refuses to engage in intercourse with the assailant even to the point where the victim considers it pointless to resist, we have held that such conduct demonstrates the use of force and threat of force sufficiently compelling to meet the statutory threshold of forcible compulsion.
Commonwealth v. Stambaugh, supra; Commonwealth v. Williams,
Because we deem the evidence otherwise sufficient to convict appellant of the crimes charged, we hold that he was not prejudiced by his trial counsel’s dereliction in not requesting the cautionary instruction or in failing to object to the admission of the victim’s testimony as to his prior rape conviction. We are of a similar opinion that the prosecutor’s references in closing to appellant’s former rape conviction did not prejudice appellant’s right to a fair trial for his counsel’s neglect to object, especially in light of the evidence presented as a whole. Furthermore, the trial judge in its opening instruction to the jury (N.T. 6) cautioned the jurors not to consider the comments of counsel as part of the evidence.
Commonwealth v. Nelson,
Appellant’s next two claims of ineffectiveness are that counsel was remiss in failing to place into evidence and argue during closing that appellant turned himself in to the State Police after ascertaining that the police were looking for him and in failing to call appellant and vigorously cross-examine the victim because no evidence existed of any *286 physical injury. We are not required to utilize the prejudice standard in assessing these two claims, for we conclude that they lack arguable merit. Since a presumption in the law exists that counsel’s stewardship is effective, it logically follows that counsel cannot be ineffective for failing to pursue a futile tactic. Commonwealth v. Christy, supra.
Appellant contends in the first of these two allegations that trial counsel was ineffective in that he did not elicit from a trooper of the State Police nor argue in closing that appellant had turned himself in to the State Police rather than escape after hearing that the latter was looking for him. We recognize the failure to bring this to the jury’s attention as a legitimate defense ploy designed to downplay appellant’s guilt. Otherwise, it had no reasonable basis to promote appellant’s interests, nor would appellant’s chances for gaining an acquittal be substantially greater if this matter had been called to the jury’s attention. Commonwealth v. Clemmons, supra.
Appellant’s next claim of ineffectiveness centers on trial counsel’s dereliction in not calling appellant to the stand to testify on the issue of consent in light of the fact that no medical evidence existed to demonstrate that a forcible rape had occurred, that appellant used no weapon, nor did he threaten the victim with a weapon, that Miss Dunlap smoked cigarettes before and after intercourse with appellant and that she went to her boyfriend after she was dropped off by appellant. Using the same analysis, as we conclude, once again, that appellant’s trial counsel employed a trial tactic which he believed offered appellant a greater chance of acquittal under the circumstances. His placing appellant on the stand would have contributed nothing, in our view, to further appellant’s interests.
We have already analyzed the sufficiency of the evidence with regard to appellant’s complaints of ineffectiveness here and, once again, employing the teaching of the Supreme Court in Commonwealth v. Rhodes, supra, hold that the victim need not be attacked with a weapon or *287 be subjected to threats with a weapon or evidence any physical abuse to satisfy the statutory elements of forcible compulsion or threat of forcible compulsion. Commonwealth v. Stambaugh, supra; Commonwealth v. Williams, supra. Moreover, we do not perceive how any defense testimony on the fact that Miss Dunlap smoked cigarettes could have aided appellant’s cause, especially when the victim admitted that she smoked cigarettes when she was with appellant, and the jury, no doubt, weighed this factor accordingly. We also find appellant’s statement that “the victim was finally dropped off by the Defendant [and] went directly to her boyfriend who was waiting for her” belied by the record (Appellant’s Brief, p. 14).
Miss Dunlap’s unrefuted testimony indicates that she managed to escape from appellant after they left the area where the rape occurred, using the excuse that she needed to use the restroom. Appellant exited the jeep to attempt to repair it. At that point, Miss Dunlap left the jeep and ran across the road to the Garden Seat Tea Room where her boyfriend and some other friends were (N.T. 47).
In light of the foregoing, trial counsel, by placing appellant on the stand or conducting a more forceful cross-examination of Miss Dunlap, would have only succeeded in unduly inflaming the rape incident, especially the victim’s predicament, and, thus, appellant’s guilt potential.
Appellant lastly complains that the evidence was insufficient because it only consisted of the uncorroborated testimony of the victim. Appellant here once again reiterates the same arguments made in his ineffectiveness claim, namely, that uncorroborated testimony without evidence of violence or physical abuse and without any evidence of a medical examination does not warrant his conviction. Again, we disagree. The uncorroborated testimony of a rape victim, if believed by a jury, is sufficient to support a rape conviction.
Commonwealth v. Westcott, supra.
Moreover, no medical testimony is needed to corroborate the victim’s testimony if that latter testimony was
*288
rendered credible by the jury.
Id.; Commonwealth v. Flynn,
Judgment of sentence affirmed.
Notes
. Appellant's ineffectiveness claims are properly preserved for review. It is well-established in this Commonwealth that the ineffectiveness of prior counsel must be raised at the
earliest stage
of the proceedings at which counsel whose ineffectiveness is challenged no longer represents the defendant.
Commonwealth v. Hennessey,