*3 BROSKY, BECK, JJ. Before POPOVICH POPOVICH, Judge: entered judgment from the of sentence appeal
This is an following County, Pleas of Adams the Court of Common count of rape, counts of one on two appellant’s convictions The lower simple count of assault. assault and one indecent on years to six incarceration a sentence of three imposed court for the any sentence impose count and did not rape one review, judg- we reverse the Upon convictions. remaining for new trial. of sentence and remand ment Herein, insufficient to contends the evidence was failed his convictions because Commonwealth support or threat of forcible compulsion evidence of forcible present that the lower court’s Appellant also contends compulsion. erroneous lack of instruction on right his to a fair trial. prejudiced in a crimi of the evidence sufficiency “The test of the whether, at trial in viewing the evidence admitted nal case drawing all favorable to the Commonwealth and light most favor, there is inferences in the Commonwealth’s reasonable every find to enable the trier of fact to sufficient evidence a reasonable doubt.” charged beyond element of the [crime] 495-96, Carter, v. Commonwealth Peduzzi, (1984); 551, 555, foregoing Applying 31-32 standard, forth the facts of this case as the lower set *4 follows: victim, S.B., five age then and April,
... alone in Room # 3 at the living months was pregnant, Pennsylvania. [Appel- in Gettysburg, Shelter Homeless Clark, children lant], and their three girlfriend, Angela his from S.B.’s hallway # across the residing were Room nearby, Occasionally [appel- Ms. Clark was not unit. when or make sexual overtures would utter sexual remarks lant] time. thought joking who he was at the towards S.B. at 11:00 5, 1994, evening retired for the S.B. April On AJVL, 12:30—1:00 was awak- P.M. between S.B. Sometime entry [Appellant] into her room. by [appellant’s] ened going if she was to have bed and asked approached S.B.’s hit in the face [Appellant] S.B. sex with him. S.B. refused. while “kind of hurt”. Then pillow several time with a which down, and he her shirt off pulled her shoulders holding [appellant] but kissing protested her breasts. S.B. began that S.B. or he would tell Ms. Clark quiet told her be her up”. him and Ms. Clark would “beat invited to her room self-confidence, was S.B., shy lacking and appears who “rough”. because she looked S.B. afraid of Ms. Clark in the stomach. would hit her [appellant] also afraid that her pants, penetrated off S.B.’s pulled then [Appellant] telling quiet and continued her vagina penis, with his finished, he left the [appellant] When protested. when she room. were approximately persons the incident
At the time of Shelter, friend, plus two staff staying including at the S.B.’s help. day out for The next S.B. cry S.B. did not persons. another friend but told no spent to work and time with went out of embarrass- [appellant] one about the incident with 6, 1994, again Defendant evening April ment. On the wallet, room, her removed her through went entered S.B.’s card, car and identification card and Security medical Social some gave money them unless S.B. him keep said he would room, [appellant] After left paycheck. from her next friend, to her and a staff both incidents reported S.B. police. and the person, acknowledged seeking April S.B. earlier on
[Appellant] tonight?” going give good loving “Are me asking you in sexual entering engaging room and He admitted S.B.’s departing intercourse but claimed it was consensual. When thought he it entry, the room within 10 minutes after you.” “Thank important say 6'1", pounds weighted] stood [Appellant], age an attitude of shape. displayed He good physical *5 him being pleased able to take whatever whether that important personal sex or documents.
Trial Court 1-2. Opinion, pp. 3121(1) (2) § follows:
Rape is defined 18 Pa.C.S.A. as A person felony degree commits a of the first when he engages person sexual intercourse with another not his spouse:
(1) by compulsion; forcible (2) by compulsion prevent threat of forcible that would resolution!)] by person resistance of reasonable Berkowitz, Appellant, citing Commonwealth v. 537 Pa. (1994), that the failed contends prove compulsion compulsion, forcible or threat of forcible and, factually that this case is similar to appellant argues Berkowitz, therefore, Berkowitz, supra. controlled court reiterated that: supreme A.2d at our § rape The victim of a need not resist. Pa.C.S.A. ... necessary support rape “The force a conviction of need be such as to establish lack of consent and to only additional resis induce the to submit without [victim] of force to constitute degree required tance.... The depends particular is relative and on the facts and circum Rhodes, stances of the case.” Commonwealth v. 510 Pa. (1986) (citations 537, 554, 510 Pa. omitted.) noted that “where there is a high
Our
further
force,
consent,
showing
physical
lack of
but no
of either
coercion,
force,
physical
psychological
threat of
or
the ‘forcible
§
compulsion’ requirement under 18 Pa.C.S.A.
3121 is not
Berkowitz,
reaching
met.”
Appellant in intercourse engage hurt” each time she refused “kind of *6 man, the victim’s held down large Appellant, him. with the and removed during intercourse before and shoulders his addition, threatened to tell In clothing. victim’s and his in consensual sex engaged had they that girlfriend S.B., if to refuse she continued up” then “beat would girlfriend con Further, pregnant the victim was his advances. sum, find child. of her unborn well-being for the cerned Berkowitz, presented unlike those judice, the facts sub physi of rape the elements to establish were sufficient supra, necessary to sustain of force physical and threat cal force Garaffa, v. 440 Cf, Commonwealth conviction. appellant’s (1995) (evidence was sufficient 484, 133 656 A.2d Pa.Super. that she victim’s admissions despite rape conviction sustain failed to into room and hotel defendant willingly accompanied coupled opportunity, the given room when to leave the attempt her, where threaten verbally did not fact that defendant with bed, “fighting” victim was onto victim “pushed” defendant away); him Common “pushed” and she advances defendant’s (1977) 34, Pride, A.2d 1267 Pa.Super. 380 v. 252 wealth where de (evidence rape conviction sufficient to sustain was his refused 'victim’sface when she over placed pillow fendant if baby she harm her and her threatened to advances and resist).1 continued fair trial was his to a
Next, right appellant complains erroneously instruct the lower court when unduly prejudiced by lack of regarding the jury ed the 295, 300, 580 Pa. v. 525 In Commonwealth victim. 295, (1990), court wrote: supreme 297 our Moreover, allege that the evidence appellant has failed to we note that 1. simple By ne- for assault. his conviction insufficient to sustain convic- sufficiency evidence for his assault of the glecting to contest the tion, compulsion element essentially admitted the forcible appellant has 122, Irvin, Pa.Super. v. 260 Commonwealth conviction. of 1042, (crime 128-30, (1978) perpetrated rape, when of 1046 393 A.2d simple where assault assault compulsion, includes crime forcible of the to overcome the volition process and is used one element in the victim). law, of a or promptness common
Under
for a
considered an element
cry”
“hue and
See,
veracity
complainant.
weighing
when
consider
483,
(1890);
Allen,
Prompt reporting
Provided, however, that
chapter:
under this
prosecution
a
prohibit
in
be construed to
nothing
this section shall
alleged
of the
vic-
introducing
from
evidence
defendant
if
evidence
promptly report
the crime
such
tim’s failure
to the rules of evidence.
pursuant
be admissible
would
like smoke
cry
that “hue and
follow
It has been said
Freeman,
v.
295
at
fire.” Commonwealth
follows
if
476,
follows that
a
presumption
Presently, the record reveals S.B. the despite left her room appellant the sexual assault after two staff members plus fact that there were fifteen residents Further, did appellant in Homeless at the time. the Shelter nor at work that after- complain morning, not the next while It noon, evening. home that nor while at friend’s from important took several documents appellant until after 66 assault, she
S.B., following the told a evening late the who at the shelter. staying friend of hers was also to instruct Clearly, judge only required trial is the facts. applicable presented law which is jury upon upon the law which relationship There must be some between at trial. presented and the evidence required an instruction Holland, 411-13, v. 405, Pa. 543 A.2d 518 Commonwealth Whiting, 409 Pa. (1989), quoting Commonwealth v. 1068, 1071 citing Commonwealth v. (1963), 492, 498, Coleman, (1961); 402 Pa. denied,
Meadows, appeal (1989); A.2d at 298. Pa. We (and court) trial an instruction appellant agree with appropriate failure make a on S.B.’s presented.2 the facts given jury was erro the court’s instruction
Appellant claims jury it inform the neglected specifically to neous because 4.13(a) (1979) pro § which with accordance Pa.S.S.Crim.J.I. vides: you find the defendant crime may guilty
Before beyond you in this must convinced charged Stohr, supra, this court found that victim's We note that father was a complaint to her mother after a sexual assault her passed complaint” though twenty-four some hours had "prompt even Thus, argued which the assault. it could be that S.B.’s since "prompt twenty-four hours of the attack was a was made within and, entitled to such complaint”, consequently, was not even instruction. *8 However, Stohr, distinguishable that the supra, find to be in victim years was four old at the time therein a nature that by her Where an assault is of such the assaulted father. may appreciated nature of the the offensive minor victim conduct, not have complaint necessarily justify prompt of would not the lack a (a year delay of one of at 299 an inference fabrication. necessarily require prompt complaint instruc reporting would in not Stohr, tion). supra, was an adult present unlike the victim In the report evening opportunities to the crime later that numerous and had including following day, when she appellant left and the after her room fifty- As court noted over work and at her friend’s home. this was at adult, important test an an of years ago: the victim is it is seven Where "complained opportunity.” credibility to on the first Com have her Berklowitz, monwealth charged reasonable doubt that the act did in fact occur and that it occurred without consent. [S.B. ’s] in delay making complaint
The evidence of does [S.B.’s] unreliable, necessarily testimony not make her but may remove it from assurance of reliability accompanying the the or victim of prompt complaint outcry which the a crime ordinarily expected such as this would to make. There- fore, delay making complaint the in should be considered evaluating testimony deciding in her and in whether the act occurred with or without her consent.
You must not in delay making [S.B.’s] consider a com- plaint as conclusive evidence that the act or did occur that it did occur but with her consent. failure to [S.B.’s] complain promptly any explanation and the nature of for that failure are factors all bearing believability on the of her in testimony by you light and must be considered of all the added.) (Emphasis evidence the case.
The trial gave following regarding instruction an alleged victim of complain promptly: sexual assault’s failure to
I want to caution you considering especially count one and count two and also I’m going go the one that next, you three, over with is requirement count there no for a victim of a sexual rape, assault whether that be and I’m moment, going you to describe indecent assault to in a make a There’s no time limit. Lack complaint. something you can consider but itself it doesn’t mean that the occur. event didn’t There’s time, argument her that there is some passage opportuni- ties to make a and there wasn’t. That’s some- you that, can and in thing doing again consider consider circumstances, individuals, setting, the the reasons that might given have been for that and determine whether anything you means or not.
Trial Transcript, pp. 103-104. judge a trial has in phrasing
While
broad discretion
charge
for
and is not bound
points
give
instructions
Faulkner,
defendant,
requested by
form
Commonwealth v.
*9
denied,
989,
57,
(1991),
cert.
503 U.S.
528 Pa.
397;
La,
1680, 118
433 Pa.Su
L.Ed.2d
Commonwealth
S.Ct.
(1994),
adequate
must
Judgment relinquished. trial. Jurisdiction dissenting opinion. BECK, J., concurring and files a have locks and at the shelter the doors did S.B. testified that given able to soundproof, she was by no means were the rooms therein was in hers. when she events in other rooms hear BECK, Judge, concurring dissenting.
I in the conclusion that the evidence majority’s concur sufficient to establish by the Commonwealth was presented However, majority’s I dissent from the respectfully force. the trial court’s instruction conclusion that I instruction was sufficient. would find that the was flawed. language to use when specific A trial court is not bound charge entirety its jury. It is the effect of charging is is that the relevant controlling; required all that Common legal fully adequately presented. principles La, wealth v. delay making complaint, respect to the issue
With *11 by a prompt complaint law is that “the lack of a relevant of the crime, of the merits although dispositive victim of a to whether case, a doubt as may justifiably produce occurred....” offense indeed
Pa. jurors they trial instructed the this lack of a their deliber- could consider the sexual contact issue was whether ations. Since the sole jurors consensual, essentially instructed charge when decid- consider the failure to make the truth. telling whether the victim was ing instruction, I hold that the court’s would Upon review of the and, to the sufficiently law communicated relevant therefore, trial is unwarranted. a new