*1 ignоres majority’s reading well settled The of Evans principles of law. attempt play cannot
I sanction the Commonwealth’s jury’s sympathies to win a conviction. on the order unnecessary. testimony The widow was decedent’s Showing picture served no her the of her dead husband Ap- grieve jury. purpose but to cause her to before inflammatory, pellant objected testimony being hеr challenge probative objection an which includes a evidence challenged Because this value of the evidence. jury, it great potential inflaming because had virtually value, probative no I dissent. had additional dissenting MANDERINO, join in this JJ., NIX and opinion.
v. WALKER, Appellant. Joseph Vurlie Pennsylvania. Supreme Court Argued March 1976. July 6,
Decided *5 Defend- Dean, Cook, of Public R. J. John Office John appellant. er, Pittsburgh, for Campbell, Atty., L. Colville, Robert Dist. E.
Robert appellee. Pittsburgh, Atty., Dist. Asst. J., EAGEN, ROB- O’BRIEN, JONES,
Before C. MANDERINO, POMEROY, JJ. ERTS, NIX and THE OF OPINION COURT EAGEN, Justice. Walker, tried before a Joseph was
Appellant, Vurlie (commonly referred jury and convicted liquor statutory rape, rape), violation forcible Post verdict corrupting of minor. the morals laws sentenced to was and denied. Walker were filed motions imprisonment conviction; years’ оn the ten five to years’ imprisonment rape con- on the five to ten *6 imprisonment the vio- ; months’ on to twelve viction three three liquor one to conviction and lation of the laws imprisonment corrupting the morals a years on concurrent- were to run minor conviction. All sentences af- ly. Superior which appealed to the Court Walker granted judgments all of sentencе. This Court firmed single namely, did to a issue: allocatur restricted statutory rape conviction imposition on the of sentences right against rape violate Walker’s conviction upon were jeopardy since both convictions based double intercourse. the same and one act of sexual prosecution gave rise to this are as The facts which picked up Mаy 1973, Walker, age a follows. On fourteen-year-old fifteen-year-old her female female and hitchhiking Pitts- companion in were suburban who they re- inquired ages burgh. as to their Walker suggested ages. sponded with their correct Walker girls agreed. go riding they in his automobile and They produced and the three drank it. Some wine was stops either or later so that Walker made several girls their Afterward Walker could run own errands. marijuana all bought quantity some a wine and ill; in girls intoxicated and The became three shared. fourteen-year-old became began to vomit and fact, attempted register at to all three a unconscious. Walker however, companions; up” he his motel so could “sober fifteen-year-old she then said they The were refused. suggested go she tаke cab. wanted to home and Walker check, his in with gave her dollars cash and a He five transportation she it, pay printed for the name on he in motel where a room a then rented Walker left. girl young fourteen-year-old. when the Later took the began regain consciousness, she became aware Walker screamed, having her. but with She was sexual relations killed. She or would be quiet was to be she warned again reawakening lapsed upon into unconsciousness and in was sent home a cab. above, only presently be
As
stated
one issue
inquiry
fore
this Court. Our
is limited to whether
imposition
separate
prison
concurrent
sentences
but
on the
and the
conviction1
duplicitous
in
consti
conviction constitute
sentences
grew
tutional
out of
sense where both convictions
Initially,
same
act
the Com
of intercourse.
waived since
monwealth contends that this issue has been
object
imposed.
when
to the sentences
Walker failed
Tisdale,
Pa.Super. 77,
A.
Commonwealth v.
See
However,
appellant
Tis
2d
unlike the
being
dale,
attacking
propriety
is not
Walker
*7
single
such, is not mak
and,
for a
act
as
twice convicted
ing
disguised
validity
convictions
a
attack on
contrary,
underlying
Walker’s
the sentences. On
challenge
exclusively
at the lawfulness
is directed
imposed upon
As such
these convictions.
sentences
properly
us.3
before
been
and is
claim has not
waived
12,
24, 1939,
872, 721,
§
May
1966
Act
as amended
of June
P.L.
1,
84,
4721(a) [Supp.
§
§
[Special
P.S.
Session No.
P.L.
18
3]
1973-74].
24, 1939,
12,
872, 721,
May
§
1966
2. Act of
as amended
June
Session No.
P.L.
84,
1,
[Supp.
[Special
4721(b)
§
§
P.S.
P.L.
18
3]
1973-74],
Suрerior
3. The
was
Court found that each sentence
within
permissible range
imprisonment
respective
con-
for each of the
and,
viewing
independently
by
of one another
victions
them
therefore,
lidity
of the
appeal
actually
va-
ruled that
was
an attack on the
this
require
underlying
review
which would
a
convictions
Superior
Accordingly,
held
the is-
record.
Court
that
Walker,
Pa.Super.
234
sue had been waived. Commonwealth v.
433,
However,
power
aof
(1975).
beyond the
A.2d 858
it is
340
a de-
imposing
impose multiple
court
on
sentences
sentence to
act;
single
Common-
fendant
unlawful.
for a
those sentences are
Carroll,
357,
Pa.Super.
(1938); Common-
wealth v.
131
831
Pa.Super.
Rispo,
Commonwealth
222
309,
v.
Substantively,
requests
al
relief from
Walker
duplicitous
legedly
jeop
sentences based on the double
ardy clause of the Constitution of the
States.
It
United
provision
is well-settled that
this constitutional
de
was
signed
prevent
punished
being
an accused from
twice
being
for the same
from
tried
offense
well as
twice
Kepner
States,
100,
for it.
v. United
24 S.Ct.
U.S.
797,
(1903);
parte
Lange,
is to determine twice whether has been Walker in the constitutional sense.
Analysis duplicitous questions has sentence traditionally concept injury to the revolved around *8 sovereign, in this the Commonwealth. One case purposes punish offenses of the criminal law is Legisla by against Commonwealth, as defined prosecution is ture, that, and it follows criminal “[t]he Commonwealth, not for injury and for the done to the entitled, may, injury if done to the individual who through but there is a civil action. Where obtain redress pеr number of injury, one of of or death of a act cause Commonwealth, but injury sons, is one there but separate they separate, are t'! or are where acts causes peace injuries dignity of the Commonwealth.” to the 332 Pa.Super. Veley, 489,
Commonwealth v.
63
496
Carroll,
Pa.Super. 357,
also Commonwealth
See
v.
Ernesto,
(1938);
Without corrupting the morals of a minor and violation of the li supporting quor convictions, those we laws or facts many offenses conduct to determine how look to Walker’s against At the Commonwеalth have been committed. ingested urging, until she the victim intoxicants Walker’s advantage by taking her Then, of became unconscious. her, by threatening to kill advanced intoxication and force His Walker had sexual relations with her. use procure consent consti relations without the victim’s single single but a his act constitutes tutes but a act and dignity against peace the Com offense monwеalth. against but
That there is one offense appli instantly is from the statute clear Commonwealth the crimes of to this case.4 18 P.S. 4721 defines cable § statutory rape in that the crimes such a manner mutually 4721(a), unlaw are 18 P.S. exclusive. Under § age, regardless knowledge any female, ful carnal accomplished against the procured by is force and rape. Under 18 victim’s will is crime of P.S. § knowlеdge 4721(b), of a female under consensual carnal male, husband, by her old age years, not of sixteen that crime is statu sixteen, er a crime than made perpe 4721(a) tory rape. can be Under Section any female, not the victim is against whether or trated § 1,§ 3], [Special 18 P.S. May Sess. No. P.L. 4. Act [Supp.1973-74]. *9 age; of under the crux of the offense is force and lack statutory rape рrovisions the are victim’s consent. The applicable age only has when the victim is under thereby excluding rape. consented, the crime Accord- of ingly, statute, may the offense under intercourse be rape only age of statutory if the female is of under consented; pro- however, all intercourse sixteen and has regardless against will, by force cured victim’s age raрe. sum, In female’s is the crime of a victim’s possibility of a to sexual excludes the consent intercourse rape the act of of and makes for the offense conviction consenting criminally cognizable only if the intercourse hand, age the other of sixteen. On female is under possibility of a consent lack of the female’s excludes criminally cognizable statutory rape is but conviction intercourse if the non-consensual as the crime of through the of force.5 was initiated use penalties imposed 18 P.S. under
Further, punish legislative to manifest a intent deter § intercourse, the use force. non-consensual Unlawful up to rape, punishable by (1) a that is is either fine both, imprisonment years or $10,000 to life or fifteen upon victim injury bodily is inflicted where serious up (2) up $10,000 or during commission, to a fine or no serious years imprisonment where twenty or both to during Con bodily injury commission. is inflicted under sensual, unlawful, with an but sexual intercourse penalty rape, of a age female, carries years up fifteen imprisonment up $7,000 or fine statutory rape Although crimes of convictions for the mutually under exclusive on a act of intercourse are based right concеrning express opinion § no 18 P.S. we indict- or charge an information a defendant in Commonwealth to Indeed, given the alternative. ment with both crimes in the proof problems may be sit- rape, well law of there inherent charge crimes necessary proper both where it is uations alternatives. *10 imprisonment Throughout statute, pen- or both.6 the the alty degree increases as the of force commission used in legislative increases. The deterrent of the scheme effect prevention is intended forcible, to be the of non-consen- and, protection sual therefore, intercourse the of all person. women the from forcible invasions of the On hand, primary prohibiting other in un- the consideration lawful, underage female intercourse with an consensual traditionally legislative has been the desire attributed to protect unsophisticated protect to are to those who too themselves. legislative to foregoing,
From the the scheme protect person all the can be females from invasions of protect Legislature determined. seeks to females The all guilty used, from force force of where thе actor is and is hand, Legislature pro rape. On other seeks to sophistication of tect some females from their own lack unsophistication, on as defined and an actor who trades age, by guilty in the statute is of crime of taking advantage rape. Here, was not of Walker girl’s per se, procure sophistication, her con lack of rather, force sexual sеnt, but used and threats induce Therefore, interest it is relations. the Commonwealth’s preventing of prohibiting in forcible invasions and here, the Commonwealth’s person is not offended sophisti unsophisticated protecting the since interest in is violence age once force or and become irrelevant cation against Accordingly, Commonwealth victim. used a single of act only injury one from Walker’s has suffered man act intercourse and unlawful sexual Walker’s punishment.7 but dates one 3122, supplant- repealed §§ which has 18 3121 and
6. C.P.S.A. 4721, deter legislative § intent ed 18 P.S. further evidences reprehensible law punish element of the most force as the grade a felo- rape as sections intercourse. Those unlawful sexual sec- statutory rape felony of ny degree аs a first degree. ond effect, which, con- Appellant, by analogy, argument makes an offense statutory rape a lesser that included tends the crime
335 acknowledges prior This Court to the 18 enactment P.S. courts of § Common wealth had held that defendant could be a convicted statutory rape single episode un based on a However, lawful those cases also sexual intercourse. single episode although dual stated that convictions possible, if only were be defendant could sentenced as Cox, there but one conviction. Commonwealth v. were Pa.Super. (1967), refused, 30 allocatur A.2d Pa.Super. xxxix, corpus habeas denied nom. sub (E. F.Supp. Russell, United ex rel. Cox States v. D.Pa.1968); Samyan, 21 C. v. & Commonwealth Pa.D. *11 may in have Moreover, 401 whatever wisdom position in not this Court that does influence fluenced rendering and the instant decision both Cox Sa since preceded myan the which were decided statutes under materially, at applicable statute to this differed case and statutory rape, in from the least the definition of statute 12, 1966, May applicable to the Prior to case at bar. creating by Legislature when the amended P.S. § language (b) changing 4721(a) thе of and P.S. and §§ consent” to or without former from “with her the statute accomplished rape consent,” statutory be “with could her However, nonconsensually. after consensually or either statutory to consensual limited amendment, the was legislative exclusively.8 this that intercourse believe We However, analysis solely the rape. here is on our in crime of the against committed of offenses Walker has basis of the number any opinion express do not or Commonwealth we reach the and impact concept concerning of lesser included offenses of the the upon of merger the law operation of or the doctrine statutory rape. and incorrectly judge is It clear from the record that trial charge, rape. In his point charged jury on the prior to the amend- judge it existed the trial as stated law fact, repeated phrase § ment of 18 P.S. he read and in by the which had been eliminated “with or without consent” applicable to was amendment of and amended statute which may what- be and the case ever bar. However material that error at before us. may now it have had on this case is not effect First, above, appeal is inquiry instant limited as stated in the our changed amendment the character to such offenses Samyan readily distinguisha- an Cox extent that are cases, they ble. there is While no need to overrule these controlling not are here.
Hence, rule we that under circumstances Walker unlawfully statutory rape, was sentenced for that remaining imposed set аside. The sentence is sentences rape, liquor corrupting violation laws morals of a minor are affirmed. Superior
Hence, the order of the in Court reversed imposed judgment it sentence so far affirmed statutory rape respects In all other on conviction. the order is affirmed. J.,
MANDERINO, joins opinion in this filed a concurring opinion. J., dissenting opinion
POMEROY, filed a NIX, J., joins.
MANDERINO,
(concurring).
Justice
by
join
majority opinion
Eagen.
I
in the
Mr. Justice
I
jeopardy is
add
the issue of
like to
double
should
It
subject
jurisdiction.
issue
matter
similar to an
any
initially
appeal.
may
Con-
be
at
time even
on
raised
*12
try
stitutionally,
jurisdiction
or sentence
no court
has
Pennsyl-
person twice, in
the
violation of
Federal
a
Bartolomuc-
Commonwealth v.
vania Constitutions. See
1976).
July 6,
(filed
338,
(1976)
ci,
362 A.2d
Pa.
234
468
POMEROY,
(dissenting).
Justice
judgment
sentence im-
todаy
the
The
reverses
Court
statutory rape on
posed
appellant’s conviction for
upon
imposed
than
validi-
rather
the
to the
of the sentences
lawfulness
imposed.
were
upon
ty of
sentences
the convictions
Second,
or
charge
made at trial
objection
was
to the incorrect
no
Therefore,
on Walker’s behalf.
post
filed
in the
verdict motions
378,
Rаison,
waived,
Pa.
Commonwealth v.
458
been
has
issue
may
as
1119(b),
serve
(1974);
not
Pa.R.Crim.P.
337 basis an issue that properly pre- has not been appeal purposes. for served For reason, this I must dis- sent.
Although
apparently agrees
the Court
with the Com-
monwealth
propriety
that
issue of the
of the sentenc-
ing
appellant
on both his convictions for
statutory
court,
not
was
raised in the
it none-
trial
goes
appellant’s
theless
on to consider the merits of
dou-
jeopardy challenge. Assuming
ble
that the Court is cor-
appellant’s
solely
upon
rect that
claim is
an attack
merely
lawfulness of the two
not
sentences and
a dis-
guised
convictions,1
attack on his
consideration of this is-
by
holding
sue is
in
foreclosed
this Court’s
Common-
Piper,
307,
(1974).
wealth v.
458 Pa.
should Hence this cla im.2 dissent. opinion.
NIX,
joins
dissenting
J.,
in this
v. BARTOLOMUCCI, Appellee. Frank Pennsylvania. Supreme Court of Argued March 1976. July 6,
Decided fact and the constitutional issue is involved 2. The fact that a specifically does to consider that issue granted allocatur that we not nn, 7,6, A.2d compel Pa. at 310 result. 458 different