COMMONWEALTH of Pennsylvania, Appellant, v. Nicholas RHODES, Appellee.
Supreme Court of Pennsylvania.
Submitted Dec. 6, 1985. Decided June 6, 1986.
510 A.2d 1217 | 508 Pa. 537
Alexander Hemphill, Philadelphia, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
LARSEN, Justice.
The principal issue raised by this appeal is whether the evidence introduced at trial is sufficient to sustain appellee‘s conviction for rape under section 3121 of the Crimes Code,
In reviewing the sufficiency of the evidence to sustain a conviction, we apply the usual standard of review:
[W]e must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.
Commonwealth v. Scatena, 508 Pa. 512, 518, 498 A.2d 1314, 1317 (1985). Viewed in that light, the record discloses the following.
At approximately 4:20 p.m. on February 18, 1982, the victim, a third grader at the Hunter School in Philadelphia, left her home to go to a cooking class at the nearby Waterloo Playground. The victim had celebrated her eighth birthday the prior month (January 9th). After playing tag for awhile with a playmate at the playground, she went inside a building there and watched two men playing chess. One of the men was twenty year old Nicholas Rhodes, the appellee in this case. Nicholas Rhodes lived across the street from the victim and her family and knew her for about three years. The victim knew the appellee as “Nicky.”
When he was done playing chess, appellee asked the victim if she wanted to go somewhere, whereupon he led her to an abandoned building near the playground and took her upstairs to a dirty, unfurnished room on the second floor. Appellee instructed her to lay down on the dirty floor and to pull her legs up. He then laid on top of her and touched her “butt” with “something” in his pubic area.1 The victim felt pain when appellee “touched her” this way,
When the victim arrived at her home at about 7:30 p.m.-8:00 p.m., her mother observed her crying, frightened and smelling of dog feces which was on her clothing and in her hair. The victim‘s mother immediately examined her and found her underwear bloody and turned inside out, her rectum torn and bleeding, and her vagina red. The victim‘s mother called the police and the child was taken to a hospital where a medical examination tested positively for sperm in both the “vulvular sample” and the “rectal sample“, and revealed a “recto-vaginal fissure” (a tear). Lab results confirmed the presence of blood and “seminal stains” on the victim‘s underwear. Appellee was arrested at his home later that evening, and charged with rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, corruption of minors and unlawful restraint.
Appellee knowingly and intelligently waived his right to a jury trial, and was tried on August 11, 1982 before the Honorable Alfred J. DiBona, Jr., in the Court of Common Pleas of Philadelphia. The Commonwealth presented the above record evidence by testimony of the victim, her mother, the arresting officer and stipulations of fact regarding the medical and laboratory tests. Appellee testified in his defense and denied having seen the victim on February 18, 1982. He claimed to have been home from about 3:30 p.m. until his arrest that evening. Appellee‘s mother, who resided with appellee, testified that he had been out of the house earlier in the day and that when he returned home (she did not say what time he returned), she did not notice any unusual odors about him (such as the odor of dog feces). In an attempt to discredit the child victim‘s testimony, defense counsel questioned her about a prior inconsistent statement she had given to the police officer to the effect that the incident had taken place in an alley.
Appellee‘s appeal to the Superior Court challenged the sufficiency of the evidence to sustain his convictions,3 challenged the sentences as “too harsh and severe for a sexual assault upon a young girl without violence or injury” and alleged an abuse of discretion in the denial of his motion for reconsideration without a hearing or written statement explaining the denial. A panel of the Superior Court (per Wieand, J., joined by Cirillo, J.; Cavanaugh, J., dissenting) found the evidence sufficient to sustain the convictions for
We granted the Commonwealth‘s petition for allowance of appeal from the Superior Court‘s order, and we now reverse.
Section 3121 of the Crimes Code establishes the crime of rape and its elements as follows:
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.
It is . . . apparent . . . that the Commonwealth failed to prove a forcible rape. There is not one iota of evidence that sexual intercourse was accomplished by forcible compulsion or by threat of forcible compulsion. Similarly, there was no evidence that the child was unconscious or mentally deficient. Although we do not minimize the heinous nature of appellant‘s act, it seems clear that the act of vaginal intercourse was criminal because of the provisions of
18 Pa.C.S. § 3122 defining statutory rape and not because it was a forcible rape as defined in18 Pa.C.S. § 3121 .
332 Pa.Super. at 278, 481 A.2d at 613.
While we agree with the Superior Court that there was no evidence that the child victim in this case was unconscious,
The Crimes Code of 19727 represented a significant departure from the prior criminal law of Pennsylvania that had been embodied in the Penal Code of 1939. The Crimes
Thus, the Crimes Code provides:
The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved. The discretionary powers conferred by this title shall be exercised in accordance with the criteria stated in this title and, in so far as such criteria are not decisive, to further the general purposes stated in this title.
Purposes
The general purposes of this title are:
(1) To forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or public interest.
(2) To safeguard conduct that is without fault from condemnation as criminal.
(3) To safeguard offenders against excessive, disproportionate or arbitrary punishment.
(5) To differentiate on reasonable grounds between serious and minor offenses, and to differentiate among offenders with a view to a just individualization in their treatment.
The Crimes Code‘s provisions on Sexual Offenses are an amalgam of prior criminal law (judicial and statutory), the Model Penal Code promulgated by the American Law Institute in October, 1962 (Proposed Official Draft), and the recommendations of the Pennsylvania Bar Association‘s Special Commission on Crime and Juvenile Delinquency in conjunction with the Joint State Government Commission. Comment, Revision of the Law of Sex Crimes In Pennsylvania and New Jersey, 78 Dick.L.Rev. 73, 77 (1973) (hereinafter Comment). The Penal Code of 1939 defined the crime of rape, as did most jurisdictions, in accordance with the common law as “unlawful carnal knowledge of a woman, forcibly and against her will.”8 The essential elements of the crime of rape under this definition were penetration, however slight, force and the lack of consent of the woman. Wharton‘s Criminal Law, Torcia, C., (14th ed.) § 283 (hereinafter Wharton‘s); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Brown, 184 Pa.Super. 494, 136 A.2d 138 (1957). The “force” required in this formulation of the crime of rape was not the force inherent in the act of penetration but, rather, the force actually used or threatened to overcome or prevent resistance by the victim. Wharton‘s supra at § 288. Since the focus of the element of force was on its use to overbear a victim‘s will and demonstrate lack of consent,9 the cases held that the “requisite force need not have been actually
The Penal Code of 1939 also contained a provision defining the crime of statutory rape as the “unlawful carnal knowledge and abuse of a woman child under the age of sixteen (16) years, if the jury shall find that the woman child was” of good repute and did not consent.10 See Commonwealth v. Walker, supra.
Sexual assault crimes have always presented perplexing, controversial and emotionally charged problems for the criminal justice system. A non-exclusive list of these problems under the common law and the Penal Code of 1939 would include: what constitutes “unlawful carnal knowledge” or “sexual intercourse” (are intercourse “per os” or “per anus” included)?; the quality and quantity of force necessary to constitute “forcible rape“, or conversly, the degree of resistance required and/or expected of the victim; when will a victim be deemed incapable of consent?; when will consent be deemed vitiated by fraud, deception, intoxication, incapacity, etc.?; perceived doubts about the reliability of a victim‘s accusations; etc. See, e.g., In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 34-35, 428 A.2d 126, 135-150 (1981) (Larsen, J., dissenting); Wharton‘s supra at Chapter 17; Comment, supra. In response to
The Proposed Official Draft of the Model Penal Code, adopted in October, 1962 by the American Law Institute, stirred great interest and intense debate among the legislatures of many, if not most, of the states of the union, acting as a catalyst for the revision and reform of criminal laws throughout the country. See generally, Wharton‘s, supra at Chapter 17, and Comment, supra. Among the most controversial and hotly debated of the Model Penal Code‘s provisions were those of Article 213 classifying the Sexual Offenses. Article 213 proposed the following categories of sexual offenses:
§ 213.1. Rape and Related Offenses
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old. Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree.
(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.
Section 213.2 of the Model Penal Code established the category of Deviate Sexual Intercourse by Force or Imposition. Under this section, deviate sexual intercourse by force is a felony of the second degree and contains subcategories of offenses substantially similar to the subcategories of rape. Compare MPC § 213.1(1) (a)-(d) with MPC § 213.2(1) (a)-(d). Deviate sexual intercourse by imposition is a felony of the third degree and contains subcategories of offenses substantially similar to the subcategories of gross sexual imposition. Compare MPC § 213.1(2)(a)-(c) with MPC § 213.2(2)(a)-(c). The Model Penal Code also proposed establishment of the sexual offenses of corruption of minors and seduction, sexual assault and indecent exposure. MPC §§ 213.3, 213.4 and 213.5, respectively.11
With this background in mind, we now turn to construction of section 3121 of the Crimes Code, guided by the principle that the “provisions of [the Crimes Code] shall be construed, if possible, according to the fair import of their terms” and, if susceptible of differing constructions, interpreted according to the general purposes of the title and the special purposes of the particular section.
Insight into the purposes of section 3121 of the Crimes Code can be achieved by comparing section 3121 to section 213.1 of the Model Penal Code. (The Historical Note to
Section 3121(3) of the Crimes Code is similar to MPC § 213.1(1)(c) and establishes a category of rape where the victim is unconscious, as did the Model Penal Code.
Section 3121(1) defines the category of rape where the actor engages in sexual intercourse by “forcible compulsion.” The comparable provisions of the Model Penal Code are more specifically directed at acts of physical force and/or acts of violence by the terminology “compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping.” MPC § 213.1(1)(a). “Forcible compulsion,” therefore, would seem to have a broader meaning than the comparable provisions of the Model Penal Code with its emphasis upon physical force and violence. The “fair import” of the phrase “forcible compulsion” may be gathered by looking at the common, accepted meaning of those words.
The Oxford English Dictionary provides the following definitions:
Force: n. Strength, Power.
- Physical strength, might or vigour, as an attribute of human beings.
- As an attribute of physical action or movement: strength, impetus, violence or intensity of effect.
- Power or might. . . .
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- Physical strength or power exerted upon an object; esp. the use of physical strength to constrain the action of persons; violence or physical coercion.
. . .
(d) In non-material sense: Constraint or compulsion or constraint upon . . . to act under self-constraint and against one‘s natural impulses. Under a force: under compulsion.
- Mental or moral strength. . . . power of vigorous and effective action, or of overcoming resistance.
- Of things (in non-material or moral relations): Power to influence, affect or control (esp. men in their actions . . .)
[other definitions omitted]
Force: v. [includes]
- To use violence; to violate, ravish (a woman).
- To press hard upon . . .
- To constrain by force (whether physical or moral); to compel; to overcome the resistance of. . . .
- To compel, constrain or oblige (a person, oneself, etc.) to do a thing. . . .
[other definitions omitted]
Compulsion: n. The action, or an act, of compelling, or the condition of being compelled; constraint, obligation coercion.
Compel: v.
- To urge irresistably, to constrain, oblige, force: a. a person to do a thing (the usual const.) . . .
a. To take or get by force, to extort. b. To constrain (an action) . . . to command. - To force . . . to drive forcibly.
- To overpower, constrain.
[other definitions omitted]
Webster‘s New Collegiate Dictionary defines “force” not only as “strength or energy exerted or brought to bear; to do violence,” but also to “compel by physical, moral or intellectual means,” and “violence, compulsion or constraint exerted upon or against a person or thing.” Synonyms offered are “compel, coerce, constrain, oblige,” which synonyms have the: ”shared meaning element: to make someone or something yield. Force, the general term, implies an overcoming of resistance by the exertion of strength, weight, power, stress, or duress.”
In common usage, therefore, the phrase “forcible compulsion” clearly connotes more than the exercise of sheer physical force or violence as the Superior Court has so limited section 3121(1) in this case and others.12 The phrase also connotes the act of using superior force-physical, moral psychological, or intellectual-to compel a person to do a thing against that person‘s volition and/or will.
Section 311 of the Crimes Code, enacted simultaneously with section 3121, lends further support for the construction of “forcible compulsion” as an act, including but not limited to physical force or violence, used to compel a person to engage in sexual intercourse against that person‘s will. Section 311 provides, in relevant portion:
Consent
(a) General rule.-The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or
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(c) Ineffective consent.-Unless otherwise provided by this title or by the law defining the offense, assent does not constitute consent if:
(1) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense;
(2) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense;
(3) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or
(4) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.
From all of the foregoing, therefore, we hold that “forcible compulsion” as used in section 3121(1) includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person‘s will.
Closely related to section 3121(1) is section 3121(2) which applies to the situation where “forcible compulsion” is not actually used but is threatened. That section uses the phrase “by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” The Model Penal Code used the terminology “compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution” and graded that offense as gross sexual imposition, a felony of the third degree. The Pennsylvania legislature rejected the concept that sexual intercourse compelled by “gross imposition” should be graded as a less serious offense and, therefore, enacted section 3121(2). By use of the phrase “person of reasonable resolution,” the legislature introduced an objective standard regarding the use of threats of forcible compulsion to prevent resistance (as opposed to actual application of “forcible compulsion.“)
The determination of whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion (which we have defined to include “not only physical force or violence, but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person‘s will,” supra, at 555), or by the threat of such forcible compulsion that would prevent resistance by a person of reasonable resolution is, of course, a determination that will be made in each case based upon the totality of the circumstances that have been presented to the fact finder. Significant factors to be weighed in that determina-
It is neither desirable nor appropriate to attempt to delineate all of the possible circumstances that might tend to demonstrate that sexual intercourse was engaged in by forcible compulsion or by the threat of forcible compulsion within the meaning of section 3121(1) and (2). That delineation will evolve in the best tradition of the common law-by development of a body of case law applying section 3121 (as it has been here construed) and the principles of construction set forth in the Crimes Code. When forcible compulsion (used or threatened) consists of physical force or violence, relatively tangible circumstances, testimony and other evidence will tend to prove the existence of such. When forcible compulsion (used or threatened) consists of “moral, phychological or intellectual force,” the force may be less tangible but is not less susceptible of proof, and the critical circumstances and evidence here will be those which tend to prove or disprove compulsion or lack of consent, i.e. that such force was “used to compel a person to engage in sexual intercourse against that person‘s will.”14 In this regard, the excellent analogy made by Mr. Justice Hutchinson in his concurring opinion is a point well made-proof of compulsion and lack of consent under section 3121(1) and (2) is not unlike proof of compulsion or coercion in the context of confessions challenged by a defendant as involuntary. The task of the fact finder in each case will be essentially
Reviewing the evidence in the instant case, we find it sufficient to demonstrate beyond a reasonable doubt that appellee engaged in sexual intercourse with his eight year old victim by forcible compulsion and by the threat of forcible compulsion. Appellee, a twenty year old man who knew the child victim and her family for three years and who the victim knew as Nicky, lured the victim into an abandoned, filthy building and instructed her to lay down and pull her legs up, whereupon he forced his will upon her and engaged in acts of sexual and deviate sexual intercourse to the extent that she was bleeding and torn.
There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (“prevent resistance“), without the use of physical force or violence or the explicit threat of physical force or violence. As Judge Cavanaugh noted in his dissenting opinion in this case, “the illicit commands of this twenty
Additionally,
(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
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(d) the female is less than 10 years old.
and the category of gross sexual imposition where
(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct....
We do not address all of the possible conditions that would demonstrate that a person “is so mentally deranged or deficient that such person is incapable of consent.” Suffice it to say that the eight year old child in this case
The Oxford English Dictionary defines “deficient” as “1. Wanting some part, element, constituent, or characteristic which is necessary to completeness, or having less than the proper amount of it; wanting or falling short in something; defective.” Webster‘s New Collegiate Dictionary defines “deficient” as “1. lacking in some necessary quality or element ...” using as an example “deficiency in judgment.” And, as noted previously, the Crimes Code explicitly informs us as to when a person is incapable of consent, namely, when “assent” to an act
...
(1) is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense;
...
(2) is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense....
As Judge Cavanaugh stated in dissent:
The necessary implication of the [Superior Court] majority‘s decision is that this eight year old child engaged in an act of consensual intercourse with appellant. I cannot agree. There is a serious question that an eight year old child is capable of consenting to sexual intercourse. Common sense and human experience compel us to the conclusion that a child of such tender years should not be expected to know the nature and implications of human sexual intercourse. Since the statute excludes from the consensual defense a victim who is “so mentally deranged or deficient that such person is incapable of consent“, how much more so should it be interpreted to protect a child who by reason of her infancy may not be
said to have developed a cognition of the nature of an act of adult sexuality.
332 Pa.Super. at 280, 481 A.2d at 614 (footnotes omitted).16
We hold, therefore, that the evidence was sufficient to demonstrate beyond a reasonable doubt that appellee engaged in sexual intercourse with a person (an eight year old child) who was “so mentally deficient that such person [was] incapable of consent.”
The Superior Court also stated in the instant case that “it seems clear that the act of vaginal intercourse was criminal because of the provisions of
The crimes of rape and statutory rape are no longer mutually exclusive offenses as they were held to be by this Court when statutory rape was defined as “consensual carnal knowledge of a female under the age of sixteen years, by a male, not her husband, older than sixteen....” Commonwealth v. Walker, supra 468 Pa. at 332, 362 A.2d 227, overruled in part in Commonwealth v. Frisbie, 506 Pa. 461, 465, 485 A.2d 1098 (1984). (See note 10, supra.) In Walker, we held that, since a single act could not be simultaneously consensual and without consent, the appellant there committed only one of the injuries to the Commonwealth proscribed by the crimes of rape and statutory rape and could not, therefore, be convicted of both. With the elimination of the consensual element of statutory rape, this impediment to the dual convictions for rape and statutory rape no longer exists.
Nor do double jeopardy principles or the doctrine of merger of lesser included offenses prohibit the conviction and sentence for both rape and statutory rape arising from a single act of sexual intercourse. In Commonwealth v. Norris, 498 Pa. 308, 319, 446 A.2d 246 (1982), involving a double jeopardy challenge to dual convictions, this Court stated: “unlike the situation in Walker, the Commonwealth suffered two injuries from appellant‘s single act in that appellant not only engaged in forcible intercourse with an individual who was not his spouse, but also corrupted the morals of a child under the age of eighteen.” So too in the instant case, the Commonwealth has suffered two injuries
In Commonwealth v. Sayko, Pa. (1986), Justice McDermott, speaking for the majority, extrapolated the Norris reasoning in the double jeopardy context to a challenge to dual convictions for indecent exposure and indecent assault based upon the doctrine of merger. In that case, Justice McDermott stated for the Court:
The General Assembly may discern by statute different interests to be protected in the same person during a criminal transaction. There is a difference in fact and in consequence between an indecent touching and an indecent exposure; and a profound difference between both acts and the corruption of a minor. Each contain different elements designed to protect different interests. The corruption of a minor child can only be committed against a minor child, hence the interest to be protected and the age of the victim are elements different from those of indecent assault and indecent exposure, which offenses can be perpetrated against anyone, young or old. So too, are there different interests and different elements dividing an indecent touching and an indecent exposure.
Id., slip op. at 4-5 (footnotes omitted). We therefore held that the offenses charged did not merge and it was not error for the lower court to sentence the defendant therein separately on each offense charged. See also Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985); Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1984). In the crime of statutory rape, the consent of the underage victim is immaterial and is no defense; rather, the legislature has determined that a person eighteen years of age or older commits the crime of
For the foregoing reasons, we hold that the Superior Court erred in finding the evidence insufficient to establish the crime of rape under
In his appeal to the Superior Court, appellee had also challenged his sentences on the grounds that a sentence of six to twenty years was “too harsh and severe for a sexual assault upon a young girl without violence or injury,” that he was “entitled to a written statement by the [post verdict motions] Court of the reason why a hearing to reconsider a severe sentence was denied,” and that he was entitled to a hearing on his motion to reconsider sentence. It is unclear whether the Superior Court actually resolved these issues. That court stated:
We have also reviewed the sentences imposed for involuntary deviate sexual intercourse and corrupting the morals
of a minor, as well as the court‘s reasons for these sentences. Contrary to appellant‘s contention, we perceive no abuse of discretion. The sentence was warranted by the nature of the crimes committed, appellant‘s prior criminal and psychiatric record, and the potential threat which he presented to the community if he were not confined.
481 A.2d at 610. Nevertheless, the Superior Court vacated all judgments of sentence and remanded for resentencing because “we cannot be certain that the trial court‘s sentences for such offenses would have been the same if it had known that the conviction for forcible rape would be set aside.” Id.
Since the conviction for “forcible rape” under
Accordingly, the order of the Superior Court is reversed, the conviction for rape is reinstated, and all judgments of sentence are reinstated.
FLAHERTY, HUTCHINSON and PAPADAKOS, JJ., join this opinion.
ZAPPALA, J., filed a concurring opinion which McDERMOTT, J., joined.
NIX, Chief Justice, concurring.
The majority opinion makes it necessary to clarify that the mere minority of the victim has never been construed as preventing the crime from being common law rape, either in its original form or as it has been codified under
The attempt by the majority to suggest the age of the victim alone can eliminate the requirement of force distorts the traditional distinction between statutory and common law rape. The offense of statutory rape is only applicable when the victim is under age, whether or not she has consented to the entry. This is a distinction that our legislature has evidenced a clear intent to preserve in the drafting of sections
Moreover, the focus by the majority on the force used to accomplish carnal knowledge in this case was gratuitous.
HUTCHINSON, Justice, concurring.
I join the majority but write separately to emphasize my view that the “forcible compulsion” which distinguishes “Rape” in
ZAPPALA, Justice, concurring.
I concur with the majority‘s holding that the victim‘s testimony and the physical evidence of trauma was suffi-
The majority‘s discussion of whether the age of a victim is in itself sufficient to establish forcible compulsion is unnecessary under the factual circumstances presented in this case. I do not join in that portion of the majority opinion and am concerned that the majority‘s finding that forcible compulsion may be established by a showing of the respective capacities of the defendant and victim will eradicate the distinction between the criminal offenses of rape,
McDERMOTT, J., joins in this concurring opinion.
510 A.2d 1232
COMMONWEALTH of Pennsylvania, Petitioner,
v.
Barry PATTERSON, Respondent.
Supreme Court of Pennsylvania.
May 19, 1986.
ORDER
PER CURIAM.
AND NOW, this 19th day of May, 1986, the Petition for Allowance of Appeal is granted and the order of Superior Court, 493 A.2d 88, 342 Pa.Super. 411, reversing the Philadelphia County Common Pleas Court Judgment of Sentence of July 18, 1983, and remanding for retrial is reversed.
Notes
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious;
(4) who is so mentally deranged or deficient that such person is incapable of consent; or
(5) who is less than 16 years of age.
A person who is 18 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age.
(a) Offense defined.-Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age . . . is guilty of a misdemeanor of the first degree.
(b) Whoever, being of the age of sixteen (16) years and upwards, unlawfully and carnally knows and abuses any woman child under the age of sixteen (16) years with her consent, is guilty of statutory rape, a felony . . .
Upon the trial of any defendant charged with the unlawful carnal knowledge and abuse of a woman child under the age of sixteen (16) years, if the jury shall find that such woman child was not of good repute, and that the carnal knowledge was with her consent, the defendant shall be acquitted of rape, and be convicted of fornication.