Com. v. Rhodes

• Decision Date: 06 June 1986
• Citation: 510 A.2d 1217,510 Pa. 537
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Nicholas RHODES, Appellee.
• Court: Pennsylvania Supreme Court

Page 1217

510 A.2d 1217

510 Pa. 537

COMMONWEALTH of Pennsylvania, Appellant, v. Nicholas RHODES, Appellee.

Supreme Court of Pennsylvania.

Submitted Dec. 6, 1985.

Decided June 6, 1986.

Eric B. Henson, Deputy Dist. Atty., Gaele McLaughlin Barthold, Chief/Pros. Appeals, Leslie A. Sudock, Philadelphia, for appellant.

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, 18 Pa.C.S.A. § 3121; to make that sufficiency determination under the circumstances of the instant case, however, it is first necessary to delineate the elements and define the scope of section 3121.

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, 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, and she "told him to stop." In a short while, appellee left the building with the victim who then walked to her home in the dark.

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.

Judge DiBona adjudicated appellee guilty of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure and corruption of minors. ² Post trial motions were denied and appellee was sentenced to a term of imprisonment of six to twenty years on the conviction for rape (a felony of the first degree) and to a concurrent term of imprisonment of six to twenty years on the conviction for involuntary deviate sexual intercourse (a felony of the first degree). Additionally, appellee received a sentence of five years probation on the conviction for corruption of minors (a misdemeanor of the first degree) and a suspended sentence on the conviction for statutory rape (a felony of the second degree). No sentences were imposed on the remaining convictions. Appellee filed a motion for reconsideration of sentences which was summarily denied by Judge DiBona without a hearing.

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 involuntary deviate sexual intercourse, ⁴ statutory rape, ⁵ and corruption of minors, ⁶ but insufficient to sustain the conviction for rape under 18 Pa.C.S.A. § 3121. 332 Pa.Super. 273, 481 A.2d 610, 613 (1984). The Superior Court further held that since "we cannot be certain that the trial court's sentences for [involuntary deviate sexual intercourse and corruption of minors] would have been the same if it had known that the conviction for forcible rape would be set aside ... we will vacate all judgments of sentence and remand for resentencing." Id. In effect, the Superior Court's disposition reduces appellee's potential maximum sentence, since rape, a felony of the first degree, carries a twenty years maximum sentence of imprisonment, while statutory rape, a felony of the second degree, carries with it a ten years maximum sentence of imprisonment. See 18 Pa.C.S.A. § 1103(1) and (2).

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:

Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious; or

(4) who is so mentally deranged or deficient that such person is incapable of consent.

18 Pa.C.S.A. § 3121(1)-(4). Labelling this section as "forcible rape," the Superior Court held:

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 in 18 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, 18 Pa.C.S.A. § 3121(3), we find the evidence sufficient to establish beyond a reasonable doubt the crime of rape by forcible compulsion, threat of forcible compulsion and with a victim who was so mentally deficient by virtue of her young age as to be legally incapable of consent. 18 Pa.C.S.A. § 3121(1), (2) and (4). (Appellee had been charged by the Commonwealth under all four of the categories of rape. See note 2, supra.)

The Crimes Code of 1972 ⁷ represented a significant departure from the prior criminal law of Pennsylvania that had been embodied in the Penal Code of 1939. The Crimes Code worked major substantive changes in the criminal law and did not simply recodify and reclassify existing laws, although the Crimes Code did draw from the concepts of and experience under the Penal Code of 1939 and the common law. Three Prosecutors Look At The New Pennsylvania Crimes Code, 12 Duq.L.Rev. 793, 804 (1974). One of the drafters of the Crimes Code, Sheldon S. Toll, has remarked that perhaps the most significant departure from the Penal Code of 1939 and the early common law was the rejection of the very strict approach to interpretation of substantive criminal laws in favor of a more common sense and flexible approach. Criminal Law Reform in Pennsylvania: The New Crimes Code, S.Toll, 78 Dick.L.Rev. 1, 3 (1973) (hereinafter Toll ).

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...