*1
269
ant a fair trial
solely
prior prosecutorial partic-
based
ipation.” Id.,
22,
at
Pa.
The order refusing appellant allow withdraw his pleas is affirmed. guilty
Superior Court of Pennsylvania.
Argued July 1984. Aug.
Filed *3 Gleason, Robert D. Johnstown, appellant. for Johnstown, Dennis M. McGlynn, Commonwealth, ap- pellee. SPAETH,
Before President Judge, WICKERSHAM, BROSKY, WIEAND, CIRILLO, SOLE, DEL MONTEMU- RO, JOHNSON POPOVICH, JJ.
WIEAND, Judge:
The issue in this appeal interpretation is the placed to be upon phrase “forcible compulsion” as it was used to define the crime of rape. What did the legislature intend when it defined as sexual intercourse with another ” person “by “by of forcible compulsion that prevent resistance by reasonable resolution”? legislature Did the intend to in- clude within the crime of acts of sexual intercourse induced by threats to do non-violent acts? After a careful of the legislative history
review Section 3121 of the Code, Crimes 18 Pa.C.S. and the in legal decisions jurisdictions, legislature this and other we conclude that the intended the term “forcible to compulsion” “physical mean compulsion or violence.” complainant
The this case had been committed to the Detention Home at the County age Cambria of thirteen admitting ring. Joseph after the theft of her brother’s neighbor Mlinarich was a of the child’s father. Mlinarich agreed and his wife to assume of the custody juvenile, who placed thereafter, was then their home. Shortly on the occasion of child’s fourteenth birthday, alleg- Mlinarich and, edly asked her to undress when she fondled complied, lap. her while she sat on his him juvenile When asked to Mlinarich The stop, repeated did so. same scenario was during four or five times two There- succeeding weeks. after, dates, separate five events occurred which led to charges subject criminal and convictions which are the appellate review. 15, 1981, occurring
Because of events on June Mlinarich attempted convicted of rape. testimony juvenile appellant was that had threatened to send her back to the detention if engage home she refused undress and in sexual intercourse. she undressed on that Although occasion, appellant’s penetration efforts to achieve were A unsuccessful. similar incident occurred on June Again, response by appellant to a threat to send her back tears, to the detention home and amidst her the juve- own nile appellant’s attempts pen- submitted unsuccessful *4 vagina. etrate her The events of this day were basis appellant’s attempted rape. second conviction of By 26, 1981, appellant virtue of similar threats made on June For this he finally penetration. was able to achieve was rape. occurring Because of events on June 29 convicted 1, July appellant involuntary was also convicted of intercourse. Mlinarich deviate sexual was convicted addi- corrupting on five counts of the morals of a child tionally for his conduct on all five dates and on counts of two
273 exposure indecent for conduct 29 occurring June July appeal, 1. On he contends the Commonwealth prove engaged failed to that he acts sexual with another compulsion or person compul- threat of forcible sion.1 felony
The crime of rape, degree, a the first is defined at 18 Pa.C.S. 3121 as follows: §
A person a felony degree commits of the first when he engages person intercourse with another ...:
(1) compulsion; by forcible
(2) by threat of forcible that would prevent person resolution; resistance of reasonable (3) unconscious; who is
(4) mentally who is so deranged or deficient that such person is consent. incapable of provision, admonished,
This we are “shall be construed according import to the fair terms.” 18 Pa.C.S. [its] penal however, 105. statute, Because it is a it must be Driscoll, construed. Commonwealth v. strictly 99, 485 Pa. 107, (1979) (plurality opinion); Common 312, 401 A.2d 316 Gordon, wealth v. Pa.Super. 480, 487, 691, 342 493 A.2d 695 Darush, v. Commonwealth (1985); 344, Pa.Super. 348, 256 1156, (1978). A.2d 389 1158 Strict is necessary construction to avoid the injustice convicting without clear conduct is unlawful. Com contemplated notice to him that monwealth v. Broughton, 369, 377, Pa.Super. 390 A.2d 1282, (1978). It also serves to courts from prevent creating legislature offenses which did intend to Cluck, v. Commonwealth 228, Pa.Super. create. (1977). 381 A.2d is
Our task this case made more because difficult of appellant’s victim sexual advances a fourteen year however, old child. The definition which adopt, we will age no It general know limitation. with a view to therefore, application, param- that we attempt to define Appellant challenge sufficiency of does not the evidence to exposure corrupting sustain the convictions for indecent morals of a child. *5 274
eters of the legislative proscription against sexual inter- course forcible or threat of compul- sion. law, rape
At common
was defined as
carnal
unlawful
woman,
of a
knowledge
spouse,
against
forcibly
v.
Stephens,
Commonwealth
394,
her will.
143
Pa.Super.
396,
919,
(1941).
17 A.2d
920
This common law definition
incorporated
statutory
was
into the
law of Pennsylvania
from earliest
times.
It is the same definition which was
included in
721 of the Penal
Section
Code
1939.2 The
phrase “against
her will” was held
the courts to be
synonymous with absence
consent. The decided cases
placed great emphasis
presence
on the
absence
con-
sent
the crime of
determining
whether
had been
Force, however,
committed.
was also a necessary ingredi-
Commonwealth v.
511,
ent.
Jaynes,
Pa.Super.
10 A.2d
(1939).
“The
relaxation of this rule
only
that this
[was]
relaxation,
force [might] be constructive. Under this
idiot,
held that where the female was an
or had been
[was]
rendered
the use of
drugs
intoxicating
insensible
drinks, and,
case,
in one
she
under the
of ten
age
where
was
she
years,
incapable
consenting,
implied
was
and the law
Stephens, supra,
Commonwealth v.
force.”
The common law definition of was determined It unsatisfactory. inadequate was found not because of its insistence that force or violence be an essential element but of its on “lack of emphasis because inordinate consent.” require This element of the offense had been construed to Therefore, woman to resist to the utmost. she whether resisted deemed an issue for the sufficiently jury was charge rape. most cases where the The rule worked who, disadvantage the unfair of the woman when threat- violence, ened chose quite rationally to submit to her assailant’s advances rather risk death or bodily than serious injury. 24, 1939, amended,
2. Act of June P.L. § 18 P.S. (repealed). com- by result achieved unjust often Because of the *6 Institute determined definition, Law the American mon law draft of original The satisfactory approach. to find a more sepa- establishment proposed Model Penal Code legally without and “intercourse “rape” crimes of rate were defined crimes proposed consent.” effective follows: and Related Offenses. Rape 207.4.
Section A male who has (1) Equivalent. Force or Its Rape by a not his wife commits a female knowledge of carnal degree if: of the second felony violence or or (a) by her to submit compels He force injury or physical serious that death or out of fear a on her or to be is about pain extreme inflicted any to commit or family, her member of or degree; felony of first admin- resistance he
(b) preventing For the purpose con- knowledge or her or without employs, isters to her or force re- intoxicants, sent, or other substance drugs, power of the victim’s deficiency in a sulting major behavior; or or control appraise powerless physically or (c) The female is unconscious resist; or (whether or not old years than 10 (d) The female is less that). actor is aware of felony a constitute shall An offense this subsection within physical inflicts serious if the actor degree of the first voluntary is not a victim, or if the victim injury upon previously and has the actor companion of social him sexual liberties. permitted Consent.
(2) Legally Intercourse Without Effective not his a female knowledge of has carnal A male who (1), commits subsection wife, not covered situations degree if: felony a of the third intimidation by any (a) to submit compels He her ordinary a woman resistance prevent [which resistance]; prevent calculated to [reasonably resolution] or
(b) that her is due to He knows submission substantial- control her appraise or own ly complete incapacity behavior, shall not a paragraph apply but this where age capacity loses that as a years woman over drugs in the voluntary result of use or] [intoxicants actor; company she
(c) knows that the female submits because is He being upon a sexual is committed her or unaware that act husband; he her supposes she falsely because than 16 old and the actor is (d) years The female is less is; older than she but shall be years at least [?] proves if the actor that the paragraph defense under this prostitute. girl was *7 (Tentative 1955) Code, 207.4 Draft No.
Model Penal added). explained para- The Commentary (emphasis (1) to “the (a) of was intended cover graph subsection cases, overpow- where the woman classic been] [had By requiring only or the threat of it.” by ered violence submit,” resist to and not that she “compelled the victim be utmost,” great intended to eliminate to a “to the was struggle strug- when requirement extent the that a woman (2), on the dangerous. useless and Subsection gle would be of hand, designed emphasize to the absence other stated: voluntary consent. Comment diminishes, the threat situation gravity As the one where over- changes gradually from to a situation where she whelms the will the victim to avoid some alternative can make a deliberate choice threaten to disclose an illicit may evil. The man af- parent’s farm, on her mortgage fair, foreclose deprive lose her or to her a valued job, cause her to move into a shadow may The situation possession. A for bargain gain bargain. between coercion and area 2(a) section; is present but subsection within i.e., compulsion, reach all situations of actual designed, to fear of female’s is determined submission where harm, with an objective test of the efficiency coercive element. added).
(Emphasis proposed statute, Under this subsection (1) was designed to cover sexual accomplished intercourse by physical force or threats grave which instilled fear of physical consequences to the victim or a member her or fear of the family, perpetration of a serious crime. (2), hand, Subsection on the other sought to criminalize intercourse obtained by psychological duress rather than physical violence or threats thereof.
These definitions were modified a corresponding when provision was inserted into Proposed Official Draft of the Model Penal It proposed Code. was there as follows: Rape
Section 213.1 and Related Offenses. (1) A Rape. male who has sexual intercourse with a female not his guilty wife is if: (a) he compels her to submit by or force death, imminent serious extreme or bodily injury, pain to be kidnapping, or anyone; inflicted (b) he has her substantially impaired power appraise or control her conduct or by administering employing knowledge drugs, intoxicants, without her or other means purpose resistance; of preventing (c) unconscious; the female is (d) the female is less than 10 years old.
Rape (i) is a felony degree second unless in the course thereof the actor inflicts bodily injury upon serious (ii) anyone, the victim was not a voluntary social companion of the upon actor the occasion of the crime and liberties, has not him previously permitted which case the offense felony degree. is a of the first Sexual intercourse includes intercourse os or per per anum, some penetration slight; however emission is not required.
(2) A Imposition. Gross Sexual male who has sexual intercourse with a female not his felony wife commits a degree the third if:
(a) compels he her to submit by any prevent by resolution; resistance a woman of ordinary Code, Model Penal (Proposed 1962) 213.1 Official Draft § added). (emphasis This draft continued the distinction be- rape involving tween “classic cases” force and situations not present where force was but the other person had not situation, freely consented. The latter the proposed which designated statute as “Gross Sexual Imposition,” was de- compelled “by fined as intercourse any threat that would prevent by resistance a woman of ordinary resolution.” added). (emphasis
In Pennsylvania, the Joint State Government Commission proposal drafted a similar to the Official Draft of the Model proposed Penal Code. The draft did not receive favorable which, legislature, 1972, action enacted a Crimes containing present Code definition of rape. The Crimes Code did not divide sex crimes into rape gross sexual did, however, imposition. It divide under the rape Model Penal into separate statutory provi- Code two crimes. The defining rape sion eliminated language which would defined have include intercourse with a child less Instead, age. than ten years legislature created a separate offense of statutory rape, felony a of the second degree, person which defined as sexual intercourse a eighteen years age person with a not a who is spouse years age. less than fourteen 3122.3 Pa.C.S. See Rhodes, 273, also: Pa.Super. Commonwealth v. (1984) (reargument 1984), A.2d 610 denied September granted July allocatur 1985. creating separate
Instead of crime of “gross sexual imposition,” legislature Pennsylvania created one rape, felony degree. offense of forcible of the first originally, statutory Under Crimes Code as enacted the crime of person years age was committed when a sixteen or older engaged spouse in sexual intercourse with another not his who 6, 1972, years age. was less than sixteen Act of December P.L. age provisions 1482. The current were added amendment in 1976. 18, 1976, May Act of P.L. 120. *9 offense, substituted for the legislature defining Code, spoken had of of the Model Penal which language death, bodily threat of imminent serious “force or ... upon to inflicted pain kidnapping, extreme injury, compulsion” or “the threat of the words “forcible anyone,” significant legislature It is that the compulsion.” forcible of those circum- incorporate not into the definition did Code, which, Model Penal would have under the stances to imposition.” appears sexual This “gross constituted Thus, the Model Penal Code intentional. where have been resistance prevent by of that would spoken “any had resolution” and had used those words ordinary a woman of imposition, legisla- sexual gross to define the crime of defining rape, spoke in of sexual Pennsylvania, ture in or “threat compulsion by intercourse of forcible of prevent that would resistance added). (emphasis resolution.” reasonable legislative from this which must be drawn The conclusion intended legislature Pennsylvania is that progression of inter- those acts to exclude from its definition not overwhelmed the victim’s will was course where thereof and or a threat compulsion or violence physical choice order to had made a deliberate where the victim harm. amounting bodily some alternative evil avoid Comment, Law Sex Crime Revision See: 73, 79 78 Dick.L.Rev. New Pennsylvania Jersey, (1973-74). “forcible,” derivative, when “force” and its
The term historically have been rape, the crime of used to define physi- mean legal scholars to understood the courts in its Thus, Jurisprudence American cal force violence. synon- “force” and “violence” edition uses the terms second defining rape: while ymously imply the use necessarily force” does not “by
The term of the victim compel submission physical actual force intercourse, mean threatened may but force The threat comply. if female does not or violence apprehension create a real may force or violence such *10 dangerous consequences, harm, or in bodily order to prevent resistance or victim, extort the consent of the if it so overpowers the mind of the victim that she dare resist, it must regarded in all respects equivalent exerted____ to force actually To rape, constitute where used, there is no force unconscious, woman must have been or unable fairly to comprehend the nature consequence the sexu- not, al act. there is no distinction between rape, If constructive, where the used is and seduction. force (1972) added) (footnotes Am.Jur.2d Rape (emphasis § omitted).
The legislatures of at least nine other states have em- the term ployed “forcible compulsion” to define the crime of rape. Illustrative is the statute in York pro- New which vides:
A male is in guilty the first degree when he engages in sexual intercourse awith female:
1. By compulsion; forcible or incapable Who is consent reason of being physically helpless;
3. Who is less years than eleven old. (effective N.Y.Penal 1, 1967). Law 130.35 September § language Similar in Alabama, used the statutes of Ala. 13A-6-61; Arkansas, Code Ark.Stat.Ann. 41-1803 § § (1977); Hawaii, 707-730; Hawaii Rev.Stat. Kentucky, Ky. § 510.040; Missouri, Rev.Stat. 566.030.1; Mo.Rev.Stat. § § Oregon, 163.375; Or.Rev.Stat. Washington, Wash. § 9A.44.040, Rev.Code 050.4 in The statutes all these §§ states include express definitions of the term “forcible compulsion” are which similar to the definition of rape Thus, included in the Model Penal Code. compul- sion has been legislatively defined to consist of either force or physical a threat thereof places person which or, fear of immediate death physical injury some employed phrase compulsion" 4. Connecticut also "forcible before (Formerly its statute was revised in 1975. codified at Conn.Gen.Stat. 53a-72). §§ instances, or another will be fear the victim 13A-6-60(8); Ark.Stat.Ann. See: Ala.Code kidnapped. § 707-700(12); 41-1801(2); Ky.Rev.Stat. Hawaii Rev.Stat. § § 556.061(11); 510.010(2); N.Y.Penal Law Mo.Rev.Stat. § § 163.305(2); 130.00(8); Or.Rev.Stat. Wash.Rev.Code § § 53a-65(8) 9A.44.010(5). See also former Conn.Gen.Stat. § 1975). (repealed in Pennsylvania has defined Supreme Court definition fol compulsion” consistently
“forcible
in the
The Court has done
jurisdictions.
lowed
sister
so
section of
Code
interpreting
*11
context of
the
the Crimes
In
deviate sexual intercourse.
involuntary
which defines
Perrin,
188,
484 Pa.
This Court considered compulsion.” Common- using ture in the term “forcible (1983), 467 Pa.Super. A.2d 31 Biggs, wealth v. held that sexual intercourse unanimous of this Court panel in the form of biblical persuasion, induced moral by cannot admonition, The Court said: “We rape. ignore import language clear of section 3121 by- upholding defendant’s conviction in the absence of any evidence that Marion Biggs submitted to intercourse out of Id., fear of an exercise of force her by father.” Pa.Superior at Ct. A.2d at 32. The definition of compulsion” adopt “forcible which we is today consistent holding with the Biggs.
The interpretations compulsion” of “forcible advocat ed separate writers of the dissenting opinions are only inconsistent not with the fair import the word “force” but also with all legally recognized definitions of the term. President Judge Spaeth would define “forcible compulsion” any “compulsion moral, by physical, intellectual means or exigencies of the circumstanc however, es.” This definition of compulsion,” “forcible is sufficiently broad to include “threats.” If the threat itself necessary rape, constitute then the requirement that a threat be such as “would prevent resistance aby person of reasonable resistance” has, has rendered unnecessary verbiage prac been tical purposes, been removed from the definition statutory offense. This is illustrated the facts of the where, instant case according Judge Spaeth’s President *12 definition, appellant’s “threat” to return the juvenile to the detention home would itself be the compulsion” “forcible the required by rape. statute for a conviction of Judge hand, Popovich, on the other simply eliminate the compulsion” words “of forcible as used the to by legislature the noun “threat” and modify rape would define to include sexual intercourse induced by “any construing threat.” statute, however, a a court must assume the legislature every given intended that word is to be effect. Crusco v. America, 293, 297, Insurance North 292 Pa.Super. Co. (1981). 437 A.2d 53-54 also: See Cerrato v. Holy 551, 554, Hospital, Pa.Super. Redeemer 493 A.2d (1985). Moreover, interpretation the proposed by Judge as Popovich, during we observed our recitation of the legislative rape Code, section of the history Crimes legislature Pennsylva- the unequivocally rejected by “forcible attempted nia. has not to define Judge Johnson willing determine on an appears and to be compulsion” the which will be deemed types ad hoc basis of threats rape. intercourse into forcible sufficient to transform sexual clear, however, less require something It that he will seems compulsion physical than or violence or physical or violence. compulsion has neither nor judicial
Research disclosed statute supports approaches by advocated decision which fact, alone, Although does standing dissenters. views, respective their it does proscribe the articulation of legislature, using suggest by an unlikelihood that compulsion,” the crime of term “forcible intended define hereto rape unprecedented in an manner to include acts not bound contemplated being conceptual fore within crime. intermediate court we appellate aries of the As an legal beyond prior concepts, reject are not free to move import prior decisions substitute for the fair judicial and “force” a definition meaning generic well defined few, expands which contains if limitations and any, If a unimagined parameters. crime of to heretofore created, by is to should created new crime be be legislature. so as a convic- compulsion” permit
To define “forcible tion is induced for whenever sexual intercourse means or threat” or moral or intellectual “any “physical, undoubtedly exigencies the circumstances” will If a man takes a destitute consequences. have unfortunate home her and her provides support into his widow convict such a definition of forcible will family, if threatens his attempted rape him of he to withdraw compel engages her to leave unless she support guilty Similarly, person may intercourse. favors another rape if he or she extorts sexual from spouse other or his or her upon discharging threat of *13 upon of or threat of fore- employment, from a position or parents, home of the other’s mortgage on the closing upon of denying application, a loan upon or threat of the other’s or disclosing adultery submission to an abortion. An interpretation compulsion forcible which employs an ambiguous, generic definition of force the poten- will create parade threats, tial for a express veritable and implied, in support of accusations of and attempted rape. To troublesome, make it even more such interpretation an place jurors will the hands of almost acts, unlimited discretion to determine which threats or promises transform will sexual intercourse into rape. With- out intending any condone foregoing, reprehen- acts, sible our use of them serves to illustrate the intol- erable uncertainty wholly which a elastic definition of rape will create. conclude,
The legislature, we did not intend to equate seduction, sinister, benign whether and make it the first To felony degree. allow a for rape conviction alleged where the victim has deliberately chosen intercourse in preference to some unpleasant other sensation not amounting physical violence be to injury would trivial- ize plight helpless victim of a rape. violent The latter is truly felony degree. of the first The former is scenarios, although not. The two reprehensible, are not the legislature recognized distinction, same. The has we are free to its ignore judgment or to redefine the law to new and concepts meet different of justice according to our philosophical own beliefs. provisions Pennsylvania Code Crimes are
pari construed, materia must if as one possible, be Lobiondo, Commonwealth v. 599, statute. 501 Pa. (1983); 1932(b). 462 A.2d An interpre- Pa.C.S. § tation of “force” which sustain appellant’s convic- consequences tions this case would have unfortunate if it were applied to be to other sections of the Crimes Code. 5, use of Chapter example, force is held to deadly justifiable when the actor force “believes that such is neces- death, himself sary protect against serious [or herself] bodily injury, kidnapping or compelled intercourse *14 505(b)(2) add- (emphasis 18 Pa.C.S. or threat." by § force “force,” suggest- definitions of ed). apply If to we were dissenters, deadly use of force would the by ed that he or she was person a believed whenever justified moral or by in sexual intercourse being engage coerced to The acts. by threats non-violent intellectual means inter- would, according to such an in case complainant in compulsion, justified have been of forcible pretation to extort appellant attempted using deadly force because his home threatening to remove her from by sexual favors intended This was not a result and return her to detention. by legislature. compulsion” urged upon
The of “forcible interpretation and also the dissenters will by us Commonwealth newly if to it to the attempts apply one approach absurdity “spousal The crime of spousal rape. created offense of new 21, into on December sexual assault” was enacted law in provides, 1985. It February effective on became part, as follows: Assault. Spousal Sexual
(a) felony commits a person Sexual Assault.—A inter- in sexual person engages that degree second when spouse: person’s course with that (1) compulsion; by forcible pre- that would (2) of forcible resolution; or a of reasonable by person resistance vent (3) is unconscious. who include 3128(a). If is to compulsion” “forcible
18 Pa.C.S. § “moral or threat” or by “any intercourse induced sexual circumstances,” exigencies of the intellectual means or the legal a monster have created legislature may well into juries courts and by inviting comprehension its beyond purpose for the of the marital bedroom privacy are relationships in marital manner which supervising the who thing punish one It is consummated. spouse engage his or her forces violently physically quite It is the other’s will. against intercourse sexual im- another, comprehension, all reasonable beyond pose harsh penalties upon spouse, criminal husband wife, who chooses to use “intellectual or moral means” or exploits exigencies who of the circumstances to obtain passive participation other’s active or inter- course. legislative of the marital history suggests law legislature intended as it did in 1972 when enacted, initially Crimes Code was com- “forcible
pulsion” physical meant force or During violence. debate in Senate, the of sponsor amendment, Senator Shu- maker, said:
The proof elements of the marital are rape [of bill] existing same as those from common law times and Sexual inter- currently set forth in [the] [Crimes] [C]ode: course imposed by involving force of force harm; threats death bodily or serious penetration of will, against slight; the victim’s however lack of consent to sexual contact or intercourse. (October Legislative 2, 1984) (State-
1984 Pa. 2858 Journal Shumaker) (emphasis added). ment of Sen. reasons,
For all accepts these this Court the defini compulsion tion of stated by Supreme forcible Court Perrin, Commonwealth supra. v. hold rape, We by legislature 3121(1) (2), defined at 18 Pa.C.S. § requires actual or a threat physical violence physical compulsion or violence sufficient prevent person resistance resolution. Applying reasonable case, that definition to the facts of the instant a threat withdraw custodial care and return a juvenile to a detention compulsion” home not sufficient was “forcible to make appellant’s out of act of sexual intercourse. It not does that, imply appellant’s condonation of conduct to suggest although reprehensible, it did not constitute the crime of legislature as defined at 18 Pa.C.S. § 1, however,
Appellant’s July conduct June 29 and sufficient to constitute of involuntary was the crime deviate 3123(5). sexual intercourse in of 18 violation Pa.C.S. This §
287 include deviate the offense to defines subsection years is less than 16 “who another intercourse with age.” in specifically did not Although the trial court a conviction regarding requirements jury struct the sexual inter (5) deviate involuntary under subsection 3123), this omission was (18 Pa.C.S. course section thereby waived. court’s attention and was to the trial called (1974); Clair, 458 Pa. 418, A.2d 272 v. Commonwealth McGinnis, 601, 606, 486 Pa.Super. v. Commonwealth Moreover, the omission was harmless. (1984). A.2d engaged had appellant found that jury necessarily witness, complaining sexual intercourse with deviate he concedes—that appellant there is no doubt—even age. years than 16 to be less alleged knew the victim therefore, and will be proper finding guilt, This sustained. im sentences suspended respect indefinitely
With court, not sanctioned are they the trial posed by Ferrier, 326 Pa.Su v. Sentencing Code. Commonwealth Nevertheless, “the (1984). entry 473 A.2d per. *16 sentencing is an exhaustion sentence suspended a are final and of sentence Thus such judgments power. protec jeopardy of the double to the constraints subject 236, 248 n. Goldhammer, 507 Pa. v. tion.” Commonwealth omitted). (citation (1985) 1313 n. 5 489 A.2d for convictions imposed of sentence The judgments set aside. reversed and rape are attempted and sex- involuntary deviate for imposed of sentence judgments of a child are the morals corrupting and intercourse ual merged exposure indecent for The convictions affirmed. sexual inter- deviate involuntary into the convictions con- for those imposed sentences course; separate and the aside. therefore, and set victions, are vacated dissenting state- J., concurring and POPOVICH, files a ment.
SPAETH, dissenting opinion President files a Judge, WICKERSHAM, J., joins. which JOHNSON, J., dissenting opinion. files a POPOVICH, Judge, concurring dissenting: agree Judge Spaeth appellant’s I with conduct did I compulsion. rise to the level of threat of forcible write I to add that would define threat forcible separately any compulsion to include threat which overbears will resolution under the circumstanc- of a of reasonable es of the situation. the case must disagree Judge Spaeth
I charge trial. The to the jury remanded for a new Standard Instructions Pennsylvania Jury accordance with compul- to the definition of specific charge and a Indeed, appellant requested by appellant. sion was not requested an instruction which encom- would not have ever physical compulsion. definition passed beyond purely a guilty today majority found jury appellant Since the support our court finds the evidence sufficient to verdict, found appellant a fortiori would have jury it had the of our definition of forcible guilty had benefit simply A a case is compulsion. new trial such required.
SPAETH, dissenting: President Judge, A of the court holds that the term “forc- majority today definitions of contained in the Crimes Code compulsion” ible intercourse, 18 involuntary deviate sexual Pa.C.S. 3121, 3123, “physical compulsion means violence.” §§ history major- that the Proceeding legislative from same different conclusion: quite I am led to ity analyzed, has “physical compulsion” Assembly the term General By moral, or intellectual means “compulsion by physical, meant *17 begin of the circumstances.” That we exigencies the suggests not so point apart the same and end so far at issue, importance, or its neither of difficulty much the discounted, as a fundamental clash over how may be which regard is to the crime of and its I law victims. regret that we have been unable to a provide unified however, to the I response question hope, before us. that opinions in the filed today provided several we have at least for a debate that will the question. basis resolve Appellant rape, was convicted on one count of jury counts of attempted rape, involuntary two two counts intercourse, deviate sexual two counts of indecent exposure, minor, corrupting five counts morals and five endangering counts welfare of children. The trial court vacated convictions the five counts of endan- children, gering the welfare of but denied appel- otherwise of judgment lant’s motion arrest or for new trial. Fol- sentence, took lowing imposition appellant ap- this 1) He issues: peal. raises four that the evidence was insufficient; 2) that the trial court’s instruction to the jury 3) inadequate; expo- the convictions of indecent was merge sure should the convictions of devi- involuntary intercourse; 4) complainant ate sexual that the was not competent testify. argument was insufficient
Appellant’s evidence the term requires meaning us to consider the “forcible Code, compulsion” as used Section 3121 of the Crimes rape, defines the crime of and Section Pa.C.S. which § Code, 3123 of the Crimes Pa.C.S. which defines I involuntary the crime of deviate sexual intercourse. As said, compulsion” have I should hold that means “forcible moral, or intellectual means or “compulsion by physical, standard, exigencies By of the circumstances.” Nevertheless, I was sufficient. find that the trial evidence I should jury inadequate. court’s instruction to the was of sentence for at- judgments rape, therefore vacate the intercourse, deviate sexual tempted rape, involuntary charges. and remand for a new trial on those This conclu- unnecessary appellant’s sion makes it me to reach argument. argument complainant His that the merger merit. competent testify is without *18 Appellant not challenged has his convictions of indecent exposure corrupting However, and the morals of a minor. on of indecent and on exposure, convictions four of the appellant five counts charging corrupting with the morals minor, a suspended I imposed. sentences were should the suspended illegal vacate sentences as sentences. In May complainant Vintondale, 1981 the living was in one half County, Cambria of a double house her with brother, older and his Gary, wife and child. The complain- father other siblings ant’s and her the other lived half ring belonging the double house. When a to Gary could not found, if complainant it, asked she had Gary taken had, and she admitted that she lost and had it. To teach lesson, complainant charges criminal were against filed her. testified that his Gary “put intent was to her for I couple days and then juvenile drop would charges 1/21/82, to see she it.” really what did with N.T. Consequently, May complainant 7. on was commit- to the ted court order custody County Cambria Detention Home.
Appellant lived doors from the house of the two complain- father, wife, mother, ant’s his aged Appel- sister. Appellant’s lant was unemployed. worked as a wife nurse’s aide, and complainant had done housework her. Appellant and had complainant’s his wife known the father for about six years, complainant when the was commit- home, ted appellant’s suggested wife that detention complainant live with her and appellant. complain- idea, good ant’s father that this thought May was a and on hearing, after a juvenile complainant was released into the appellant’s wife, pending further court custody proceedings.
The complainant celebrated her fourteenth on birthday 28, 1981, May appellant’s at home. She testified that evening began her and told appellant fondle that she 1/21/82, him that he not do that. should N.T. 143-46. She report wife, did not incident to appellant’s being afraid she speak appellant get would it and he about would 1/21/82, angry. N.T. 147. The complainant testified that this sort of incident repeated couple week”, times a “[a] 1/21/82, 147, N.T. and that when she appellant told that she did not him want to touch her and would he cry, stop, 1/21/82, N.T.
The information charges 15, 19, that on or about June *19 26, 1981, appellant engaged sexual intercourse with the complainant by threat of forcible compulsion that would prevent resistance reasonable resolution. The complainant testified that appellant’s wife was never home during the incidents question. She said that the first began incident with appellant asking her to take her clothes off. When she did not remove her bra and under- wear, [appellant] said, “he said, ‘Take them off.’ I ‘No.’ said, ‘Yes, He or he would send me back to the DH So, I Then, took them off. he took his [detention home]. 1/21/82, clothes off.” N.T. 156. After had their they off, complainant clothes appellant told she did not want cried, said, to do anything, before, and but ‘You did it “[h]e ”, you it, can do it now’ and I that didn’t do he would “[i]f 1/21/82, send me back.” N.T. Appellant got 155. then the sofa bed next to complainant penetrate and tried to her. appellant Since challenge does not sufficiency intercourse, the evidence of I shall not describe those as- pects of complainant’s testimony except to note that she testified pain that she felt “screaming and was and holler- ing” and “crying.” 1/21/82, N.T. 157. The second and third incidents happened in much the way, same with the complainant crying saying and that she did not want participate because she did not think right, that it was appellant threatening to send her back to the detention 1/21/82, home. N.T. 159-64. complainant testified that she was afraid of going back to the detention home. 1/21/82, N.T. 159.
The information also charges that on or about June 29 1, 1981, July appellant engaged involuntary deviate intercourse complainant. with the The complainant during testified that appellant first incident kept push- ing penis struggling, her head down to his and that she was 1/21/82, him quit at it. N.T. 167-68. crying yelling that to tell her father and appellant going She told she was DH”, he that would send me to the and that replied “[h]e let dad me he had me my wouldn’t see because now.” “[h]e 1/21/82, 168, 169. The second incident was similar. N.T. testified, appellant July complainant On So, I he started again, “asked me to do that and wouldn’t. 1/21/82, calling at me and me names.” N.T. 171. yelling leaving said that she was and went to her father’s home She 1/21/82, happened. and told him what had N.T. -1- Appellant argues discharged that he must be because prove degree was insufficient foregoing evidence one proved may that must be before be convict- “although he rape. Specifically, argues ed of actual violence longer require [proof physical courts no of] require [proof] do the actions the defendant they *20 fear of harm.” Brief for physical a reasonable create[d] view, 18-19. In his threat to send Appellant appellant’s at if to the detention home she did not complainant back not rise to the level of give submit to his demands “[did] courts____ [citing contemplated by force or threat Id. at 19. cases].” argument, I start with the observation considering the issue must decide. The issue is not
that misstates we “require” “the courts” or “con- degree compulsion what sure, issue, rape To that used to be the template[ be ]”. However, used to a common law crime. the Crimes Code 107(b). has common law crimes. 18 Pa.C.S. abolished § decide, therefore, The issue must is not whether we law, prove rape sufficient at common evidence was courts, is, whether the evidence as defined but prove rape legislature, sufficient as defined the Crimes Code. has defined as follows: legislature
A person commits [rape] felony degree of the first when he engages intercourse another person spouse: not his
(1) by compulsion; forcible (2) threat of prevent resolution; resistance aby person of reasonable (3) unconscious; who is
(4) is so mentally deranged who that such incapable of consent.
18 Pa.C.S.
3121.
§
Appellant
concedes—by
arguing otherwise—that
evidence was sufficient
to prove
“engage[d]
that he
sexual intercourse with another person
spouse.”
not his
Therefore,
Pa.C.S.
we are left
questions:
with two
§
First, was the
entitled to find from the
jury
evidence that
appellant’s threat
to send the
complainant back
if
detention home
she did not
to his
submit
demands consti
tuted a
compulsion”.
“threat of forcible
18 Pa.C.S.
3121(2).
second,
so,
And
if
was the
further entitled
jury
to find that the threat was such as
resis
prevent
“would
tence
aby
person of
resolution”?
Id.
reasonable
Of
course,
find,
in considering what the
was entitled to
jury
we
evidence,
must assume that
jury regarded
and all
it,
light
reasonable inferences from in the
most favorable to
Lovette,
the Commonwealth.
498 Pa.
Commonwealth v.
665,
(1982),
It is frequently said that the words of a statute are to be “given plain their meaning,” or are to be “understood according See, to their common and approved usage.” e.g., *21 Commonwealth v. 498 Pa. 446 Stanley, A.2d 583 (1982); 1903(a). maxims, however, Pa.C.S. These will yield not the of the meaning phrase, “threat of forcible compulsion,” for “force” has plain, more than one or com- approved, mon and meaning. Webster’s Third New Inter- (1968) national Dictionary provides eleven definitions of “force,” The first being some of these subdivided. seven are as follows: -ed/-ing/-s fr. MF forcen, forder; /“/ force vb [ME attack, compel, (assumed) fr. VL rape, fortiare, to
forcer to; do strong] esp fr. L vt 1: to violence : <a fortis intruder to constrain or by maiden the : > forced moral, or means or compel by physical, by intellectual to by injuries stay of circumstances exigencies <forced him his forget scruples to hunger at home> < > forced on evidence ~s conviction financial mind> < <such to the 3 to many ~s small businesses : weakness wall> make, cause, be, accomplish through make to or natural equal to logical necessity or diameters —Josi <~s drive, to, or press, 4 a : to attain effect as Royce> ah positive or some against by indicated resistance inertia through much compelling your way force or action < > < oil to the surface previously unobtainable forced problems basic —Amer. Guide Series: Pa.> < forced live b to by age us in which we —J.B. : Conant> inexora impose, urgently, importunately, or thrust press, little personality upon his world bly his <he forced Powys an "hisattentions on a organizing army —L.C. > < air) (as or into a through c : to warm duct woman drive > fan) (as force a impelling or channel some < compound into the crevices 5 : to achieve or caulking > or to win one’s strength struggle violence: a : bywin successfully storm : enter in attack ~a into : way < passage through by overcoming : to effect a castle b> Spauld mountain —O.L. passes defenses <forced through to or a eventual ing open c : break lock> < < > raise, accelerate, 6 a : or gate was ly > forced pace>; to the utmost sometimes : heighten <forcing (as pressure game) intensify action < : to game plays give a series brilliant b > forced forth, emit, unwilling produce only unnatural effort, laughter spontaneously freely, <the c —Sherwood Anderson : unnatural > forced strain, wrench, marked and lack use with unnaturalness use, limit, usual press past to an unusual of ease : *22 an into unusual or meaning interpretation to to dislo < if necessary, language cate into meaning his —T.S. Eli ot of interpretation to passage a : > <a > forced hasten the speed, growth, progress, or developing, matur (as means, ing through effort, of artificial maximum close care, attention) or individual march chil <a > < forced early dren into maturity by responsibili heavy forced (plants ties b : to or bring parts, their wanted > fruit) or (as flowers to out of maturity the normal season special the use of heat and lighting) lilies for <forcing the Easter trade > at 887.
Id. As one considers range and tone of these several definitions it becomes evident that appellant’s threat to send complainant back detention home if she did not submit to or might, not, his demands might have been a of “threat It compulsion.” was not such a if “forcible” to be considered as to meaning limited “to do to”; violence have such might been a threat if “forcible” is to be construed as “to meaning constrain or compel by physical, moral, or intellectual means exigencies or circumstances,” as meaning press, impose, “to or thrust urgently, inexorably.” importunately,
The same possibility reaching conflicting conclusions— “forcible compulsion” compulsion”—be- no “forcible upon comes examining evident the synonyms of “force.” As the observe, editors Webster’s in commenting on synonyms: these general “FORCE is a term indicating use strength, power, weight, stress, in overcoming duress resistance.” Appellant did not threaten “to do violence to” complainant in the same way as often occurs in rape cases—for example, he made to kill no threat or beat her. However, if jury find, was entitled to not a threat “violence”, then a threat of some sort application “strength”; complainant for the did not want to return to the detention home and way therefore some would have had to have to return. The been “forced” was also jury entitled to that appellant find had the “power” used complainant, of his over the and had
“weight” authority “duress”, her to “stress” order subjected over- come her resistance to his demands. choose therefore, is, problem, “plain
Our mean- *23 but, “threat of ing” phrase, compulsion,” of the to decide which several rather, plain meanings legis- in mind phrase enacting lature had when used In resolving problem, helpful Crimes it will be Code. Code, of the examine the several sources Crimes more of the definition of the crime of specifically, rape. Code’s in particular may prior Three sources be identified: law (both Code, common and the Model Penal statutory); law Draft, 1962; and the Proposed Proposed Official Crimes Code, the recommendations of the Joint embodying State Commission after consultation the Penn- Government with Bar Association. To make sylvania comparison easy, Sec- 1939, 24, 1939, Act of tion 721 of The Penal Code of June 721, amended, 3, 12, 872, Sess. No. Special May P.L. § 84, 1, 4721; 213.1 of P.L. 18 P.S. Section § Code; Proposed Model Penal Section 1201 of the Crimes Code, Code; and 3121 of the are set out in Section Crimes the footnote.1 PENAL CODE OF AS AMENDED Rape § 4721. woman, (a) knowledge forcibly Whoever has unlawful carnal of a will, conviction, against guilty rape, felony, her a and on and shall be sentenced to ($10,000), is pay exceeding ten a fine not thousand dollars undergo imprisonment, by separate solitary and or con- length of which be deter- finement at labor for a term the shall (15) years by mined the court but shall not be less than fifteen or act, than life if in the course of the commission of the he In all other cases he more bodily injury upon anyone. serious inflicts shall be sentenced exceeding pay ten thousand dollars a fine not ($10,000), undergo imprisonment by separate solitary or or confine- by simple imprisonment ment at labor or determined twenty for a term which shall be court, the maximum of which shall not exceed (20) years, or both. bodily injury" As used in this section the term "serious means
bodily injury which creates a substantial risk of death or which
permanent disfigurement
protracted
serious
or
loss or im-
causes
any
organ
body.
pairment
or
of the function of
member
of the
Whoever,
(b)
(16)
being
age
years
upwards,
of sixteen
and
any
unlawfully
carnally
knows and abuses
woman child under
age
(16)
consent,
years
guilty
of sixteen
statutory
the
rape,
with her
conviction,
felony,
pay
and on
shall be sentenced to
a fine
exceeding
($7,000),
undergo impris-
not
onment,
seven thousand dollars
or
labor,
by separate
solitary
by simple
or
or
confinement at
(15)
imprisonment,
exceeding
years
or
fifteen
both.
Upon
any
charged
the trial of
defendant
unlawful carnal
knowledge
age
and abuse of woman child
under
of sixteen
(16) years,
jury
if the
shall find that such
child
woman
was not of
consent,
good repute,
knowledge
carnal
that the
was with her
acquitted
rape,
defendant shall
the
fornication.
and be convicted of
MODEL PENAL CODE
Rape
Section 213.1.
Related
Offenses.
(1) Rape. A male who has sexual intercourse with a female not
guilty
wife is
his
if:
(a)
compels
he
her to submit
force or
threat of imminent
death,
bodily injury,
pain
kidnapping,
serious
extreme
or
to be
anyone;
inflicted on
or
(b)
substantially impaired
power
appraise
he has
her
or con-
by administering
employing
her conduct
trol
edge drugs,
ing
or
without her knowl-
purpose
prevent-
intoxicants
other means for
resistance;
*24
(c)
unconscious;
the female is
or
(d)
years
the female is less than 10
old.
(i)
Rape
felony
degree
is a
of the second
unless
in the course
bodily injury upon anyone,
(ii)
thereof
the victim was not a
actor inflicts serious
or
voluntary
companion
upon
social
of the actor
previously permitted
occasion
the
sexual
degree.
anum,
of the crime and had not
him
liberties,
felony
cases
which
the offense is a
of the first
per
Sexual
per
intercourse includes
os
intercourse
or
penetration
slight;
with some
however
emission is not re-
quired.
(2)
Imposition.
Gross Sexual
A
sexual
male who has
intercourse
felony
degree
with a female not his
wife commits a
third
if:
(a)
compels
by any
prevent
he
her
submit
resolution;
by
ordinary
resistance
or
woman of
(b) he knows that she suffers from a mental disease or defect
incapable
appraising
renders
which
her
nature
of her con-
duct; or
(c)
being
he knows
is
that she
unaware that a sexual act is
upon
falsely suppos-
committed
her or that she submits
she
because
that he is
es
her husband.
PROPOSED CRIMES CODE
article,
Section 1201.
unless a different
Definitions.—In
meaning plainly
required:
is
(1)
given
apply;
the definitions
in section
intercourse,"
(2)
ordinary meaning,
"Sexual
in addition to its
anus,
per
penetration
per
includes intercourse
os or
some
slight;
required;
however
emission
not
(3)
per
"Deviate sexual intercourse” means sexual intercourse
os
wife,
per
beings
anus
husband
or
and
between human
who are not
animal;
any
form of sexual intercourse with an
of these
through
comparison
way
As one works one’s
enacting
sources,
apparent
several
becomes
aspects
some
of the
Code,
legislature
selected
Crimes
question
there-
sources,
aspects.
other
rejecting
while
of selection
process
an
of this
analysis
fore arises whether
intended the
legislature
disclose how
will
rejection
to be understood.
compulsion,”
of forcible
“threat
phrase,
(4)
any touching
“Sexual contact” is
of the sexual or other inti-
parts
purpose
arousing
gratifying
mate
sexual
for the
or
desire,
person.
in either
Offenses.—(a)
Rape
Rape.
Section and Related
A male
guilty
who has sexual intercourse with a female not his wife is
rape if:
(1)
compels
he
her to submit
force or
threat of imminent
to be inflicted on
death,
bodily injury,
kidnapping,
serious
or
anyone; or
(2)
substantially impaired
power
appraise
he has
her
or con-
by administering
employing
trol her conduct
edge drugs,
ing
or
without her knowl-
purpose
prevent-
intoxicants or other means for the
resistance;
or
unconscious;
(3) the female is
or
old;
(4)
(15) years
the female is less than fifteen
or
(5) he knows that she suffers from a mental disease or defect
incapable
appraising
which renders her
the nature of her con-
duct.
(i)
Rape
felony
degree
is a
of the first
if:
in the course thereof the
(ii)
bodily injury upon anyone;
actor inflicts serious
the victim
voluntary
companion
upon
was not a
social
of the actor
the occa-
previously permitted
sion of the crime and had
him
liberties.
felony
degree.
In all other cases the offense is a
of the second
(b)
Imposition.
Gross Sexual
A male who has sexual intercourse
felony
degree
with a female not his wife commits a
of the third
if:
(1)
compels
by any
prevent
he
her to submit
threat that would
resolution;
ordinary
resistance
a woman of
(2)
being
he knows that she is unaware that a sexual act is
*25
upon
mistakenly
committed
her or that she submits
she
because
supposes that he is her husband.
CRIMES CODE
Rape
§ 3121.
person
felony
degree
engages
A
commits a
of the first
when he
person
spouse:
sexual intercourse with another
not his
(1) compulsion;
(2) by
prevent
threat of forcible
that would
resistance
resolution;
by person
of reasonable
unconscious;
(3) who is
or
(4)
mentally deranged
who is so
or
deficient that such
incapable of consent.
between the Crimes Code
Sometimes the differences
rather than
style
are a matter of
substance.
its sources
the phrase,
For
The Penal Code had used
“Who-
example:
knowledge of a woman ...” The
ever has unlawful carnal
Proposed
provided,
Crimes Code both
Model Penal Code and
a female not his
“A male
has sexual intercourse with
who
wife____”
Code,
legislature
the Crimes
enacting
intercourse,”
language,
more
“sexual
selected the
modern
instead of
language, “person”
and the more abstract
“male”,
spouse”
and “not his
instead of “female not his
first of these selections
Certainly
stylistic
wife.”
was
only
stylistic only. Although
and the others also seem
exclude the situation where a
explicitly
Penal Code did
was forced to submit to sexual intercourse
her
woman
husband,
probably
implied by
adjective
exclusion was
“unlawful,”
of a
phrase
knowledge
before the
“carnal
wom-
an;” and cases
that the element of carnal
holding
knowl-
edge
slight,
however
assumed
proved by penetration,
see,
penetration
vagina,
of the
Commonwealth v.
e.g.,
(1967),
Green, 210
Turning comparison then to a substantive Crimes sources, noted that initially may Code and its be retained, forward, or carried respects legislature several Thus, law, part. at least in main at common common knowledge” interpreted require law “carnal had been emission was not re- only penetration, slight; however Green, See, supra. v. quired. e.g., Commonwealth Code, Code, and the Proposed Model Penal Crimes enacted, aspect retained this Code as all Crimes requisite force could common law. At common law as, if the constructive, example, or victim were implied, unconscious, drugs rendered or insensible asleep *26 300 drinks, or of rational incapable consent because
intoxicating
See,
Stephens,
Commonwealth v.
e.g.,
underage
insane.
394,
(1941). Again,
Model
143
determined same alleged any other crime. The bility of an victim corroborated____ of a victim need testimony ..., no instructions shall be prosecution jury before a any alleged victim’s cautioning jury view given in all any way other than that which victims’ testimony is viewed. testimony 18, 53, 2, P.L. No. 18 Pa.C.S.
Act of May § however, mistake, to conclude from these It would be the Crimes Code and common law similarities between Code, legislature simply enacting the Crimes modern the common codify, language, intended to law respects legislature For in certain rape. definition of rejected law, and, following the common lead of Code, Model Proposed Penal Code Crimes took a *27 approach. fresh law, law,
At common
and
prior
rape
under
statutory
was
conceived in
terms
the victim’s refusal
to consent to
See,
Moskorison,
intercourse.
e.g., Commonwealth v.
Pa.Super. 332,
(1952) (“against
terror so extreme 213.1, (footnote and at 308 (1980), Comment Code omitted). citations momentum, it became increasing
Gradually, but with conception the common law apparent reluctance of victims to proven inadequate. simply in the incidence of the dramatic increase rape, the report for defendants crime, rates and the low conviction [were] awry. gone indices of a law ... all omitted). (footnotes Note, at 15 supra conception common law were in the The fundamental flaws to the Model Penal Code. commentary in the summarized to the oversimplified the common law place, In the first situation, her response falsifying victim’s point of *28 might failure to resist that the victim’s recognize failing intercourse, but had consented to be, not she because Penal panic.” fear and Model by “frozen she was because and Com- (Official Draft Revised Code and Commentaries addition, the 213.1, 303. In at ments) Comment dangerous conduct inordinately law demanded common death or victim; invite might resistance of the part either, might risk she harm, and rather than bodily serious to the intercourse.” to ‘consent’ rationally “quite decide[] finally, And Id. ground on the the male assailant wrong to excuse
it is with the dedication herself protect his victim failed of a reasonable might expect a court intensity that matter, may juries practical situation. As a in her person her to compelled that the male to show resistance require this generaliza- to encase submit, there is little reason but proof establishes in a rule of law. Where tion force, by to intercourse compel actor did submission to display or fearful victim of the weak failure should not be “earnest” resistance or even “utmost” exculpatory.
Id. at 305-06. nature, and fundamentally flawed of the recognition law, the American common of the inadequacy, consequent Law Institute “determined that an essentially fresh ap- proach should be undertaken.” Id. at 279. The essence of approach, as Code, embodied the Model Penal was to define terms of the force, actor’s use of with no reference to the victim’s refusal to consent. As the authors explained:
By focusing upon the actor who “compels” the victim “to submit force” by by omitting express language of resistance, consent and the Model Code casts en- away precedents crusted and strikes a fresh approach. This is not to say by that consent the victim is irrelevant or that inquiry into the level of resistance the victim cannot or should not Compulsion be made. plainly implies non-con- sent, just as resistance is evidence of By non-consent. token, the same the lack of resistance particular on a preclude occasion will not conviction of if the jury can be convinced the context and degree of force employed by the actor that the submission was com- pulsion. (footnote omitted).
Id. at 306-07 It was this “fresh approach” legislature that our followed enacting It, too, when the Crimes Code. away “cast[] precedents,” encrusted rejecting the common law and the 1939 Penal Code’s reference to “against intercourse victim, will” defining rape being committed when a
engages in sexual intercourse with another person not his *29 spouse:
(1) by compulsion;
(2) by compulsion threat of forcible prevent that would resistance by person resolution; of reasonable 18 Pa.C.S. Code,
When one that in recognizes enacting the Crimes legislature the followed the Model Penal Code’s “fresh approach”, it becomes clear that the meaning of “forcible compulsion” is not limited to accomplished by force, force, threat of in the sense of “to do violence by evidence of proved only For if could be
to.” violence, violence, very questions the would or threat of law, common and that arose at arise under the Crimes Code law, common of the rejection led to the criticism focus, continue to instead inquiry the say, that is to was done to actor, on the victim: What violence of on the beaten, or choked? Was example, for the victim? Was she of the Model very death? The essence she threatened with the Code’s, common legislature’s, rejection and the Penal inquiry—that the while is that this should not be law violence, or threat accomplished by of course be can arising by compulsion violence, accomplished can be also violence, or threat of violence. than something from less I started— then, the with which question Returning, in legislature did the have of “force” plain meaning which in the compulsion” “forcible phrase mind it used the when concluding in hesitancy have no Crimes Code?—I limited sense of “to do mean force legislature did not more sense to”, general mean force and did violence moral, or intellectual compel by physical, “to constrain or Only of the circumstances.” exigencies means or manifest- legislature’s with the conclusion is consistent a “fresh Penal Code that the Model agreement ed taken, inquiry focus of shifted and the should be approach” force. to the actor’s consent away from victim’s reference to disturbed Nor is this conclusion the Model Penal in the text of legislature made changes Code, for examination will Code, it enacted the Crimes when and did changes stylistic only, were show that these It the common law. rejection the substantive affect the Model regarded legislature that the say seems fair Code, as, speak, so to Code, Proposed Crimes Penal that their substance “overwritten”, opinion of the and was simply expressed. briefly more could be grades had for three Thus, provided Codes where the two one, thereby provided only rape, legislature to the severity punishment to leave variations choosing writing the instead of sentencing judge, discretion
305 variation into the Crimes Code itself. The legislature took the same approach enacting other parts of the Crimes Code, often reducing grades the number of provided by the Code, Model Penal with a consequent increase the discre- tion of the sentencing judge. compare See and section 1203(a) (second Deviate Sexual Intercourse Force by degree 1203(b) felony) and section Deviate Sexual Intercourse by (third Imposition Other degree 18 felony) with Pa.C.S. (first 3123 Involuntary Deviate Sexual degree Intercourse § 1101(b) felony); (first section Kidnapping degree felony unless actor voluntarily prior trial, releases victim alive in which case degree second felony) with Pa.C.S. § (first Kidnapping degree felony); section 1402 Burglary (second or third degree felony) with 18 Pa.C.S. (first
Burglary degree felony). A simplification second was the omission from the Crimes Code, Code of the reference in the Model Penal and the Code, Proposed Crimes to the “gross offense of imposition.” simplification This followed from the legisla- ture’s decision to provide only grade rape. one In the Code, Code, Model Penal Proposed and the Crimes where grades three of rape provided, give were it made sense to name, “gross sexual imposition”, grade. to the third How- ever, only grade provided where one there was no reason for such labeling: grade the name of the one offense—“rape”—included every situation which the of- fense is committed.
And finally, simplification legislature’s a third was the “forcible”, use of the phrases word in the compul- “forcible sion” and “by compulsion.” Once it is law, determined to reject common and shift the inquiry force, from victim’s consent to the actor’s the question arises, threaten, “How much force must the actor apply, to be guilty rape?” The Model Penal Code answered this question by dividing rape grades, grade into three each being defined an objective standard which the actor’s force is to be measured. If the compelled actor the victim to submit application (“compels actual of force her to *31 force”), rape then the is at least a by felony
submit force, If in the actor degree. applying second “inflict[ed] or if “the bodily injury upon anyone”, serious victim was upon social of the actor the voluntary companion not a him previously permitted occasion of the crime and had not liberties,” then the is a of the first rape felony compelled by If the actor the victim to submit degree. threat, of the first if the felony degree then the is a death, threat of imminent compelled “by submission was pain kidnapping, extreme to be bodily injury, serious if degree compelled inflicted on and of the third anyone,” prevent by threat that would resistance a woman “by any differences, slight of resolution.” With the Pro- ordinary the same effect. the posed enacting Crimes Code is to scheme, Code, simplified the the legislature Crimes simplification following upon provide only the decision distinguish- of three. Instead of grade one instead by “force” and “force” involv- ing compulsion by between the bodily injury”, legisla- the serious ing “inflict[ion] [of] thus simply compulsion”, ture referred to “forcible embrac- in sorts of force. And instead of ing single phrase both death, “threat of imminent serious distinguishing between kidnapping” extreme and “threat that bodily injury, pain ordinary resistance a woman of resolu- prevent by would tion”, referred to “threat of legislature simply resistance prevent resolution”, single in a again embracing thus reasonable in separately situations stated the Model phrase several Proposed Penal Crimes Code. Code amendments of the only It remains to discuss Crimes I mentioned one of the amendments— already Code. have providing credibility alleged amendment that the the same standard as is the “should be determined victim crime,” an other and that credibility alleged any victim to view given cautioning jury “no instructions shall be way other than that alleged testimony any victim’s 18, May is viewed.” Act of testimony which all victims’ 2, 1976, P.L. No. 18 Pa.C.S. 3106. As one § amendment, increasingly impressed one is upon this reflects feature of the striking most For the importance. its not treated alleged victim was law was that common treated. To of other crimes were that victims the standard against many ways. discriminated she was contrary, so much not for woman law’s concern was The common Note, in a The Victim generally the man. See as for View, 11 American Crim.L. A Feminist Rape Case: Forcible commentaries). “The (1973) (collecting cases and Rev. 335 man.” said, often is the innocent victim,” “too real it was (1970). assumption 736 n. 6 Evidence Wigmore, 3A J. because unjustly imprisoned often men are was “that *32 all too often malicious women who brought by accusations Note, problems.” emotional sexual and afflicted with are cases, it was omitted). (footnote many at 336 supra rape either up sets actually “the victim suggested, assert- was unconsciously,____[WJomen consciously [it be rape may actually masochistic that inherently so are ed] ”. Id. at ‘liberating experience’ or a event’ ‘pleasurable summa- statement omitted). following The (footnote common law: attitude of the rizes the rape in trials. issues significant are the Force and consent talk, of after a lot submit times a female will Many reasons, later, range for a wide lunges, liquor, awful girls rape raped. Some really decide that she was yes yes no there’s say chicks no when many So easy. flick at a mere spread seem to thighs and their eyes, their a woman to by is often used The law finger. who boyfriend hoped-for or a boyfriend a former “get” never materialized. Note, (1971), quoted Rosenblatt, Denied Justice
S. at 335. supra law inade- the common that rendered
It this attitude was in the Model resulted rape, and that to deal with quate rejec- the Crimes Code’s by followed rejection, Penal Code’s explicit provi- legislature’s The tion, the common law. not to be 1976, alleged victim sion, in that an emotionally unbal- untrustworthy regarded probably anced, but instead was to be treated by standard that alleged treated, victims other crimes were only can be understood emphatic as an legislature reiteration determination, its manifested its enactment of the Code, Crimes prove that should be easier to rape than it been had at common law.
The same may be said of the other amendments of the Crimes Code made Act May supra. provided Section of the Act Prompt reporting to public authority required prosecution rape]: Provided, however, That nothing [for in this shall section be construed to prohibit a defendant introducing from evidence of the alleged victim’s failure report if promptly crime such evidence pursuant admissible rules of evidence.
18 Pa.C.S. 3105. § 2 of Act provided Section alleged victim need not resist actor in prosecu- Provided, however, tions rape]: That nothing [for section shall prohibit be construed to a defendant from introducing evidence that the victim alleged consented to the conduct in question.
18 Pa.C.S. (This repealed provision Code, amendment in the Crimes *33 which had been taken from of Section 213.6 the Penal Model Code, that no prosecution could be instituted maintained unless complaint months.) was made within three And finally, 1 of Section the Act further provided that 3104. Evidence of victim’s sexual conduct
§
(a) General of specific rule.—Evidence instances of alleged conduct, the past opinion victim’s sexual evidence the alleged conduct, of victim’s past reputa- sexual and of tion evidence the alleged victim’s sexual past conduct shall be in under prosecutions chapter admissible except of alleged evidence past victim’s sexual con- duct with the defendant where of consent the alleged victim at issue and such evidence is otherwise admissi- pursuant of ble to the rules evidence. proceedings.—A pro- defendant who
(b) Evidentiary past of the poses alleged to offer evidence victim’s (a) shall file a written pursuant conduct to subsection If, at the time of trial. at the proof motion and offer trial, the court determines that the motion time faces, on their the court shall proof offer of are sufficient hearing findings an in camera and shall make order admissibility the record as to the relevance the standards set forth pursuant evidence proposed (a). subsection 6, 6, 1482, 334, 1,
1972, Dec. P.L. No. effective June § 1, 120, 53, No. May P.L. 1973. As amended in 30 days. effective
18 Pa.C.S. § Thus, the 1976 amendments of the Crimes Code each of further proof rape, thereby an to the removed obstacle alleged determination that the advancing legislature’s victim of alleged of a should treated as the victim perhaps amendment is any other crime. The last-mentioned the common law significance. Experience with particular counsel was to that a tactic of defense principal had shown being suggestion alleged chastity, attack victim’s if sexual relations she was a bad prior she had had in a judge, summarized one trial person. result was acquitted that had a defendant jury just statement to a charged rape: country get
It in this convic- impossible is almost coming I to the conclu- rape____ reluctantly tion of am concerned, are jurors sion ... at least as far [that] crime____ longer trying is no [I]nstead defendant____ defendant, poor girl make the you it, the humiliation involved report rape don’t [G]irls trial____ They degradation go through they defendant, out of this court they are walk made there in their mind: our courts thought room with one I I say And can’t *34 rape. is no for the victims justice disagree them. with
Quoted Note, in Statutory Recent in Developments the supra Rape, Definition of Forcible at By limiting alleged evidence the past victim’s conduct to evidence conduct with the defendant where issue, consent is at the legislature sought counter the humiliation degradation so often upon inflicted the alleged victim.
Strictly speaking, it is not perhaps necessary consider Code, the 1976 amendments of the Crimes for as discussed above, when the Crimes Code is light examined the of its law, several common sources—prior the statutory Mod- Code, el Proposed Penal and the meaning Crimes Code—its Nevertheless, is clear. consideration the 1976 amend- useful, ments the confirm, amendments and empha- size, It meaning. said, that is as the though legislature “In Code, 1976: when we enacted the Crimes we were law, the reject determined to common and to proof make rape easier. we find did go Now we far enough. still being fairly. Women are not treated We therefore now enact these amendments.” conclusion, Appellant’s argument then: that the evi- was depends upon
dence insufficient that fact did, evidence fails to show either he or threatened to do, violence any complainant. to the Were this prosecution law, prosecution argument at common prevail. this would However, Code, it is a prosecution under Crimes which requires common law and rejects only that the evidence the complainant show submitted to appellant’s de- made mands because he such a “threat of compul- sion prevent by person resistance of reasonable [as] resolution.” By compulsion” legislature “forcible “compulsion by moral, meant physical, or intellectual means exigencies circumstances.” By stan- dard, evidence, light most viewed favorable Commonwealth, Appellant sufficient. threatened the girl, a 14 old complainant, year being returned to the home, seeing detention and with not her again. father Complainant was afraid of back going to the detention
311
had
brother,
whom she
been
Her father and
home.
her,
that
with the result
charges against
had filed
living,
in
there,
placed
and then been
days
spent
she had
three
I
the jury
believe that
court order.
home
appellant’s
to
compelled
was
complainant
find that the
to
was entitled
of her
exigencies
demands
appellant’s
submit to
further,
submitting,
in
she acted
circumstances, and,
that
resolution.2
of reasonable
a
on, and
conclusion,
heavily
appellant relies
Resisting
Biggs,
v.
approval, Commonwealth
cites with
majority
(1983). In
the defend-
Biggs
A.2d 31
Pa.Super.
intercourse,
period
years,
a
two
over
ant had sexual
com-
daughter. She
year-old
his 17
occasions with
several
that the
said was
told her
Bible
her father
plied because
her
have intercourse with
duty to
daughter’s
the oldest
as a
longer provide
no
mother could
father when the
he
anyone,
if she told
her that
mother. He also told
to
did any
of her. He never
violence
pictures
nude
show
the defend-
so. We reversed
her,
he threaten to do
nor did
“no evi-
that there was
rape, holding
ant’s conviction
accomplished through
dence that the intercourse
Rather,
assert-
compulsion____
of forcible
defendant]
[the
his
and assured
the intercourse
ed a
basis for
biblical
threats,
force,
of humilia-
not of
but
silence
daughter’s
at 32. To
467 A.2d
Id., 320
Ct. at
Pa.Superior
tion.”
are
threats of humiliation
holds that
Biggs
the extent that
a threat of
constitute
matter of law to
insufficient as a
it should be overruled.
compulsion,
foregoing interpretation of the Crimes
between the
2. The differences
view,
my
majority’s interpretation
are instructive.
Code and the
keep
continues
to
majority’s interpretation
of the Crimes Code
testimony in a
men: a woman’s
position subordinate to
women in a
trusted;
she
compelled
is not to
to submit
rape case that she was
Neither,
in
physical force.
prove
man used
that the
must be able
view,
Although the Crimes Code
jury
be trusted:
majority’s
is a
a woman
submitting,
must have acted as
requires
the woman
that in
resolution,
upon
apply this
jury
cannot be relied
a
of reasonable
only
standard;
rapist
who was
a
one
will convict as a
instead it
convictions,
regarding
is,
differing
suggest,
those
It
I
seducer.
competence
appropriate
jury’s
appropriate
status and
woman’s
function,
my differing interpretations
majority’s and
underlie the
Code.
of the Crimes
Some other cases should be noticed. In Commonwealth
Irvin,
v.
Pa.Super. 122,
(1978),
deviate sexual intercourse is terms of the victim, physical injury to the but terms the effect it has on the victim’s volition. Both crimes are committed when actor accomplishes “by the crime forcible com- *36 pulsion” “by compulsion threat of forcible that would prevent resistance of person reasonable resolution.” 3121(1),(2); 3123(1),(2). 18 Pa.C.S. The force neces- § support sary rape to convictions for and involuntary deviate sexual intercourse need as only be such to estab- lish lack of consent “to and induce a to woman submit resistance____” Commonwealth v. without additional Moskorison, 332, 336, 170 Pa.Super. 644, A.2d 85 646 (1952). noted, degree As one court has “The of force is required to constitute relative depending upon the particular Actual application circumstances. of force is Steele, Commonwealth v. required.” 241, not 75 Dauph. (1960). 246
Id.,
Pa.Superior
125-26,
260
atCt.
313 death, case it, since the threats were mention Similarly, Rough to do involved a threat violence. clearly He stepfather. year the 15 old victim’s the defendant was and otherwise treated her on the occasion struck her testimony “the as to said that victim’s forcibly. her We of her demonstrated forceful treatment appellant’s fear and Id., 275 lack consent to sustain verdict.” sufficient A.2d 608.3 Ct. at at Pa.Superior I to comment upon majority’s am constrained Finally, Perrin, Pa. v. Commonwealth upon reliance its case cites Perrin (1979). The sole majority A.2d highest court support proposition law for the that “the expressed the that ‘forcible this Commonwealth [has view] compulsion’ rather equivalent ‘physical is compulsion’ ” see id. 281; than at ‘psychological duress.’ At acknowledges Supreme that the Court’s statement majority involuntary deviate sexual intercourse crime “[t]he person another actual is committed forces when engage in acts of compulsion or threats thereof physical of the facts of “dictum view anal or oral intercourse” *37 acknowledge not the case.” 281. But the does majority At In Perrin were in from those here. how different the facts Thus, the to death. Perrin strangled the victim was found consider, it, did did not have before and therefore Court rape application physical occur the whether can without to is all that the Court referred surprising force. It not at no that doubt compulsion”, for there was physical “actual physical to “actual subjected had indeed been the victim compulsion:” of, with, mentioned, appellant charged and convicted was also
3. As
intercourse,
his
rape
involuntary
and
attempted
deviate sexual
to
convic-
was
extends
those
argument
that the evidence
insufficient
tions,
argument may
rape.
be
His
as well
to his conviction of
as
however,
involuntary
rejected summarily,
defining
deviate
in
intercourse,
provides
the offense is
the
that
Crimes Code
“by
accomplished
forc-
threat of
the intercourse
committed when
compulsion
prevent
of reason-
that would
resistance
ible
3123(2). Accordingly,
preceding
the
able resolution.”
Pa.C.S.
meaning
language as
in the definition
used
discussion
the
applicable.
rape is
From the fact that
the
was found
to
strangled
victim
death
her
her
her
legs spread apart,
clothing
bed with
from her
in her
body, spermatozoa
vagina
torn
tears
rectum,
her
jury
on the wall of
the
could have found
a reasonable
that she had
beyond
sexually
doubt
been
forcibly
assaulted and
sodomized.
192-93,
Pa. at
I in suggest, that the dictum even as dictum, way supports majority’s position. in no
-2- argues also that even if the Appellant evidence was still, the compulsion”, sufficient to show “forcible trial inadequate failing court’s instruction to the was jury I explain meaning compulsion.” agree of “forcible appellant, although appellant’s since conviction is to reversed, are rather academic. my be comments
The trial court’s statement of the elements of was Instruc- Pennsylvania Jury accordance with the Standard tions, 1/22/82, N.T. the evi- discussing 15.3121A. however, stated, “Now, in dence, respect the court that show, testimony as I would compulsion, believe the threat of return to the detention home.” N.T. 1/22/82, 73. This statement could have been understood that the ways: saying only testimony two as jury appellant pertaining testimony was complainant had threatened to return the detention evidence; home, is, only reminding jury as opinion that the court was of the that the saying itself actually compelled by showed that the victim was testimony threat, that it reason- perhaps implying also as in the that she did. responded way for her to have able *38 to this case of whether there importance Given the central compulsion not a threat of forcible such as had or had been by person resistance a of reasonable resolu- prevent would A tion, judge overlooked. trial ambiguity may this be may
315
opinion, including
weight
own
the
and effect
his
express
strength
its
points
the evidence and
given
a
weakness,
the statements he makes have
provided that
left to
to decide
clearly
jury
basis and it is
the
reasonable
the
facts, regardless
opinion
by
of any
expressed
the
Co.,
v. Philadelphia Transportation
judge. Williams
(1964);
370, 203
665
v.
415 Pa.
A.2d
Commonwealth
Collura,
(1956).
101
Pa.Super.
128 A.2d
v.
at
supra,
Pa.Super.
Commonwealth
Rough,
added).
(emphasis
When on involuntary deviate sexual said, the once trial court “threat of compulsion forcible that prevent resistance,” said, would and another time “accom- plished deviate intercourse either by forcible compulsion or compulsion.” N.T. 1/22/82, 75.
On the trial I jury new that should order the be would in terms instructed consistent with this Thus opinion. trial court be to required explain would that “forcible com- pulsion” moral, “compulsion by physical, means or intellec- or by tual means the exigencies of the circumstances.” language abstract, Since this is itself somewhat and might seem to rather jury high-flown, the trial court might illustrate, elaborate or it upon, to appropriate reference the evidence. That left to would be the trial court’s sound discretion. I
On the
trial
order the jury
new
should
would also be
instructed
“person
how
determine how a
of reasonable
behave,
resolution”
and who a
“person
reasonable
resolution”
The
that
given
is.
instruction
was
included no
explanation
importance
jury’s
function in this
regard.
trial
court should have
clear that
made
“rea-
standard,
sonable resolution” is an
so that
objective
jury
credible,
understood that even if it found the complainant
that was
end of
I
inquiry. Again,
not the
its
should leave
the trial court’s sound discretion to
extent on
what
retrial
reference
may
However,
to the evidence
appropriate.
needed,
seems
probable
some reference would be
if the
jury
person
were to understand that “a
of reasonable
resolution”
complainant,
the situation of the
so that
deciding
the complainant
whether
manifested
resolution”,
“reasonable
factors such
her age
and the
of her
circumstances
commitment to and release from the
Thus,
detention
will
jury.
home
be considered
for
example,
case,
in a different
factors
might
to be considered
complainant
place,
be that the
an
was
isolated
see Com-
Bowes,
(1975),
Pa.Super.
monwealth v.
233
that would 3123(2). in- Accordingly, jury 18 Pa.C.S. resolution.” § involuntary deviate sexual on the definition structions consistent with the comments just should be intercourse regarding made rape. instruction on the definition I note, however, that appellant a defendant such as may be of involuntary convicted deviate sexual intercourse without showing compulsion.” “forcible This is so because 5 of subsection Section 3123 of provides the Crimes Code person that a involuntary commits deviate sexual inter- “when engages course he deviate intercourse with another 16 years age,” ... who less than 3123(5)—as the complainant Pa.C.S. case was. Subsection 5 was on specifically listed the criminal com- plaint case, in this and the information specifies that It is victim was fourteen. not at all clear why the Common- wealth did not request jury instructed accord- ance with subsection
-3- also Appellant argues that the trial court should have judgment arrested on the convictions the two counts of exposure indecent “in that those two verdicts guilty] [of *41 encompassed same criminal conduct as the two convic- tions of Deviate Involuntary Sexual Brief Intercourse^]” for Appellant at 7. Since I hold should that a new trial charges must held on involuntary be deviate intercourse, argument. I do not consider this has Appellant challenged not otherwise expo- his convictions of indecent However, sure. I believe the im- judgments sentence those posed on convictions should vacated. The Sentenc- sentence. See 42 ing Code does not provide suspended Ferrier, v. 9721(a); Commonwealth Pa.C.S. 326 Pa.Su- 331, 473 per. (1984) A.2d (indefinitely suspended 1375 sen- tence not a alternative). sanctioned The sen- sentencing imposed such, tences as suspended were sentences and notice sua Id. illegal, a sponte. See were fact that we may Brown, Commonwealth v. Pa.Super. 448, 290 A.2d 434 838 Goldhammer, But see Commonwealth v. (1981). 507 Pa. 1307,1313 (1985) (double 5 236, 5, jeopardy n. n. 248 489 A.2d sentence). suspended effect of The sentences imposed four of five counts charg- ing appellant corrupting morals of minor were
319 They also sentences. therefore also should be suspended on the resentencing the case remanded for one vacated and remaining count.
-4- last is the trial court abused Appellant’s argument complainant competent that the ruling its discretion to This is without merit. testify. argument is competency
It is settled that of a witness well falls presumed incompetency and the burden to show Commonwealth v. Riley, it. upon party asserting 390, 393, 384, (1974). A.2d 458 Pa. 326 385 When the the age years, is a child under of fourteen witness has trial satisfied that the witness judge should be communicate, “(1) to does including such capacity ability questions an to understand frame both (2) answers; intelligent capacity mental express of re- capacity itself and observe occurrence membering what it is is called to witness] [the about; (3) duty a consciousness of the testify speak the truth.” 307, 620, v. 615, Pa. 156 A.2d 310 McCoy,
Rosche
397
See also Commonwealth v.
(1959) (emphasis
original).
485,
454,
(1976).
Baker, 466
479,
Pa.
353 A.2d
a matter
for the sound
competency
determination
court,
of the trial
which will not be disturbed
discretion
Commonwealth
a clear
of that discretion.
absent
abuse
Ware,
334,
Accord,
v.
(1974).
Commonwealth v. 501 Pa. (1983). *42 Here, age. not fourteen complainant years the was under in camera be- Nevertheless, her court examined trial 1/21/82, her N.T. 113-24. On ruling competency. fore on of her the trial questioning the basis of our review of counsel, in her ruling compe- I that court and am satisfied The tent, its discretion. the trial court did abuse reasons by appellant advanced challenging complain- ant’s competency go not to but competency credibility.
WICKERSHAM, J., joins Opinion. this JOHNSON, Judge, dissenting: view, my judgments sentence should be af- Hence, firmed. this dissent.
I join in the statement of the case present- and the issues ed, as facts, as well the recitation of the contained in the Dissenting Opinion distinguished colleague, of my President Judge I also in the join SPAETH. conclusion set forth Judge Spaeth’s Dissent that “threat of forcible compulsion” is not limited to I physical threats of violence. therefore conclude that the first appeal, issue sufficiency of the evidence to establish crimes of and attempt- ed rape, must be resolved favor of the Commonwealth. having determined that majority, the convictions of attempted rape aside, must be and set reversed Appellant, does not reach the second issue raised by the trial court’s instruction the jury inadequate. was Judge issue, has considered the Spaeth agree and would Appellant with that the instruction legally was insufficient in failing explain meaning compulsion.” of “forcible issue, I On this must respectfully disagree Judge Spaeth.
The question presented Appellant in his brief is: should a new grant Whether Court trial in that the as to the Appellant Court’s instruction defini- tion of Forcible Compulsion Compul- Threat of Forcible sion legally insufficient?
Brief for Appellant at 8.
Both the trial brief are transcript Appellant’s clear Appellant exception only took to the sufficiency charge of support rape. evidence to did not Appellant challenge the trial either charge being court’s “confus- ing” “inadequate.” *43 request- completion charge,
At of the defense counsel the ed, separate, on the granted, charge an additional and was to returned as each possible verdicts that could be 1/22/82 at 96-99. Defense in the information. N.T. counts on following specific exception the the counsel then entered record: specific exception. I one For
MR. GLEASON: have record, to the of specifically except points we would already refused the Court. been We charge have this time to the except at submission counts, the three and indeed the two questions rape, intercourse and involuntary deviate sexual counts of matter law the that as a grounds been the char- has not compulsion element satisfied return the to the deten- girl a threat to acterization of threat that satis- tion a criminal constituting home that is since requirement. accordingly, And fies the wrecklessly the morals and part corrupting exception applies to type the same endangering, [sic] also, Your Honor. those sections that, I think that it is going I am to deny THE COURT: I going am to that determination. jury make No. and the Defendant’s out the joint send exhibit 2.No. exhibit concluded.)
(Whereupon, the discussion sidebar take the right, jury, All members of THE COURT: and with the case, your complete consideration give hope of at a verdict. arriving to deliberate
(Whereupon, the left the courtroom jury p.m.) at 3:10
Id., at 99-100. Appel- contend that exception, sought counsel
By this home, if to the detention to return victim lant’s threat demands, not constitute a did she did not submit his It rape statute. under the cognizable criminal Spaeth rejects Section point Judge which precisely that rejection. his Dissent. I concur with brief, argues: Appellant his Despite the fact that Judge Creany’s instructions seem to inbe conformity [Pennsylvania Suggested Stan- dard Instructions], Criminal Jury defendant contends that they missapplied were to the facts of this case. [sic] *44 “The threat of return to the detention home” does not in constitute force connection awith sexual crime. Since no type other of force was mentioned nor charge any testimony regarding the use or threat of force was it propounded, seems obvious that Judge Creany was relying on defendant’s statement as the sole basis for instructing the on the jury issue of forcible compulsion or thereof____ Moreover, Judge Creany failed to and amplify explain compulsion forcible to the and he jury failed to state that each individual act required an act of “forcible compulsion” or a “threat of compulsion forcible prevent that would resistance by of reasonable resolution.”
Appellant’s counsel Judge maintains Creany’s instruc- legally tions are inadequate this case.
Brief for Appellant at 25.
It is clear that Appellant takes issue I with conclusion would reach compulsion that forcible is not limited to com- pulsion by violence. His claim present that the trial court failed to amplify explain forcible to the jury must be rejected, Appellant’s however. Requested Points for Charge request did not include a any amplification for explanation meaning to the compulsion. forcible
My reading charge of the entire persuades me that was, fact, I legally sufficient. do not find the ambigui- ties which are apparent Judge Spaeth, nor did Appellant cite to these ambiguities so-called in his appeal to this objection charge Court. His to the did not recognize, and to, made without reference the ambiguities. Appellant objected to the it did charge because not state his theory on By insisting point, law. his mistaken Appellant failed to alert the possible court to the error Judge sponte. sua Spaeth now considers Appellant’s Since objec- tions at the charge conclusion of the specific were as to matters, to the adequacy no reference other been legal compulsion, objection—if any—has charge 466, Frank, Pa.Super. v. waived. Commonwealth (1979), cases cited therein. A.2d raised I the second contention Accordingly, reject charge on legal sufficiency of the as to the by Appellant compulsion. issue, that the convic- Appellant’s third respect With merge with the convic- exposure indecent should tions of intercourse, I find his deviate sexual involuntary tions of received Appellant without merit. wholly contentions Jail on County at the Cambria imprisonment sentences of attempted rape, corrupting rape, the convictions inter- minor, involuntary deviate sexual morals of a is a minimum imprisonment his aggregate, course. *45 Appellant eight years. a maximum of years of three to arrest refusing court erred contends that the trial only as to indecent merge guilty or to verdicts judgment exposure. trial announced: sentencing, distinguished judge
At remain, to addressing itself cases that both two recall, I started when you initially indecent exposure, you I to that these were sentencing process, indicated involuntary of deviate incorporated charges in the intercourse. C-0448(d), of
So, on the first count the sentence to: Defendant, Mlinarich is ordered Joseph prosecution. 1. the costs of Pay suspended. Further sentence is 2. C-0448(d), Joseph Defendant count of
The second Mlinarich is ordered to: prosecution. of Pay the costs suspended. is
2. Further sentence imposed I Now, sentencing which have the effect of the eight years jail time years is will have three you incarceration time and all service will of extended County in the Cambria Jail. 10/19/82 at 30. Sentencing Proceedings, Appellant’s to contention that a The short answer sentences arise unless and until merger issue cannot for which imposed charges on the have been imprisonment Here, sentenced sought. Appellant never merger is was involving imprisonment charges on either undergo be modified or exposure. The sentence cannot indecent merit, I I to be take find the issue without merged. Since suspended of a sentence. “illegality” on the position no challenge competency of the issue seeks to The fourth I testify. join Section fourteen-year-old complainant Opinion finds no error Spaeth’s Dissenting which Judge competent that the victim ruling in the trial court’s testify. I affirm the upon foregoing, all of the
Based of sentence. judgments A.2d 423 Pennsylvania
COMMONWEALTH v. PIERCE, Appellant.
Charles W. Superior Pennsylvania. Court of
Argued Feb. 1984. Sept. Filed