Com. v. Berry

• Citation: 355 Pa.Super. 243,513 A.2d 410
• Parties: COMMONWEALTH of Pennsylvania v. Joseph Ronald BERRY, Appellant.
• Decision Date: 25 July 1986
• Court: Superior Court of Pennsylvania

Page 410

513 A.2d 410

355 Pa.Super. 243

COMMONWEALTH of Pennsylvania v. Joseph Ronald BERRY, Appellant.

Superior Court of Pennsylvania.

Argued May 20, 1986.

Filed July 25, 1986.

Harry B. Goldberg, Harrisburg, for appellant.

Yvonne A. Okonieski, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.

HESTER, Judge:

This appeal is from judgment of sentence for convictions of rape, indecent assault and corruption of minors. Appellant, Joseph Ronald Berry, was sentenced cumulatively to three to six years imprisonment. Post-verdict motions were denied.

The charges arose from appellant's assaults of February 9, 1983, and February 16, 1983, upon his fifteen-year-old stepdaughter. On both occasions, it was alleged appellant forced her to submit to sexual intercourse.

Appellant raises the following issues. 1) Whether the evidence was sufficient to sustain the verdict? 2) Whether the verdict was contrary to the evidence? 3) Whether the trial court erred in permitting the Commonwealth to amend the informations? 4) Whether appellant was prejudiced by the delay in arrest? 5) Whether the trial court erred in refusing to read all of appellant's submitted points for charge? 6) Whether the trial court erred in permitting the victim's mother to remain in the courtroom despite an order for sequestration of all witnesses? 7) Whether the trial court erred in denying appellant the opportunity to cross-examine the victim concerning her dating relationship with a man? 8) Whether the trial court erred in overruling appellant's objections to alleged hearsay evidence? 9) Whether the trial court erred in ignoring a task force pre-sentence report and in imposing consecutive sentences? 10) Whether the trial court erred in not conducting an evidentiary hearing on certain pre-trial issues?

We will address all issues, with the exception of the last which we summarily dismiss. The following discussion leads us to affirm.

First, appellant argues that the evidence was insufficient to sustain the verdict and that the verdict was contrary to the evidence. A reviewing court shall review all evidence and inferences therefrom in favor of the verdict winner. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). In this light, we hold that the evidence was sufficient to sustain the verdict.

The victim testified that on February 9, 1983, she was packing in her room for a camping trip. Her mother was at work, her sister was in her room and appellant was in the master bedroom. The victim was conversing with appellant across the hall and moved to his bedroom when it became difficult to hear. As the victim was sitting on the edge of the bed, appellant approached her, rubbed her neck and pushed her on her back when she attempted to pull away. He then disrobed and raped her. The victim did not protest because she feared appellant would strike her; she knew that appellant frequently struck her sister for disciplinary reasons.

One week later, the victim was watching television when appellant approached her again. As appellant began to rub her back, the victim tried to avert his advances. Again, appellant pushed her down and raped her. The victim's mother and sister were not at home.

Appellant complains that the victim waited sixteen months to report the alleged rapes and did so only in retaliation for appellant having beaten her sister. There was evidence that the victim was reluctant to report the rapes because she feared appellant's revenge and the disruption of the household. The victim testified that her mother desperately wanted appellant to be part of the family. Consequently, the victim wanted to wait until she left the household at age eighteen before reporting the rapes. However, when the family was breaking up as appellant continually alienated the victim's mother and sister, the victim came forward. The altercation between appellant and the victim's sister did not cause the victim to fabricate criminal charges; the altercation was the culmination of years of bickering and it convinced the victim to report the rapes.

According to appellant, the verdicts were also unsubstantiated because there was no evidence of force, injury or corruption. There was sufficient evidence of force as the victim testified that appellant pushed her down on both occasions and restrained her. Rape does not require injury; it is sufficient if appellant engages in sexual intercourse with the victim by threat of forcible compulsion which prevents her resistance. 18 Pa.C.S. § 3121; See Commonwealth v. Rhodes, --- Pa. ---, 510 A.2d 1217 (1986), wherein the Pennsylvania Supreme Court held that forcible compulsion is not limited to physical force or violence; it includes moral, psychological and intellectual force. Injury is similarly not required for corruption of minors; corrupting the morals of a minor in itself constitutes the crime. 18 Pa.C.S. § 6301. Finally, sexual intercourse with a minor is considered corruption of morals.

Appellant alleges several incongruities in the evidence and asserts that the victim's testimony lacked corroboration from her teacher and physician. For instance, appellant questions the verdict because the victim did not complain or scream and did not know whether she was bleeding. As alluded to earlier, a rape victim may be too frightened to resist. Similarly, whether or not the victim was bleeding is not determinative of rape.

The absence of corroboration is not unusual in rape cases. Generally, the victim's testimony alone constitutes the Commonwealth's case, and the jury may rely solely on the victim's account in passing judgment. See Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

Next, appellant argues that the trial court erred in permitting the Commonwealth to amend the informations. Appellant was originally charged with two counts of rape occurring respectively on February 9, 1983, and February 16, 1983, one count of indecent assault occurring on February 16, 1983, and corruption of minors occurring at divers times. The court permitted the Commonwealth to amend the information by adding a count of indecent assault stemming from the February 9, 1983 incident and by clarifying that the corruption of minors offenses occurred on February 9 and 16, 1983.

Appellant complains that the amendments did not involve a mere change of dates; rather, they allegedly added two separate charges for February 9, 1983. Also, he complains that the amendment of corruption from "diverse" acts to specific instances of corruption was prejudicial. Since these amendments occurred at trial, appellant asserts that he was not prepared to defend an additional indecent assault count and two specific acts of corruption.

Pennsylvania Rule of Criminal Procedure 229 allows the amendment of an information "when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense."

In Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979), we set forth the test for determining if an amendment is permissible under Rule 229.

The purpose of Rule 229 is to insure that a defendant is fully appraised (sic) of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. In effecting this purpose, the courts of the Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct.

(Citations and footnotes omitted.)

The indecent assault and corruption of minor charges concerned the same incidents on February 9 and 16, 1986, as the rapes. By adding a count of indecent assault for the February 9 incident, the Commonwealth neither prejudiced nor suprised appellant. The additional charge of indecent assault did not introduce new facts, and did not affect appellant's alibi defense. See Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981). His defense to indecent assault also applied to rape.

Appellant incorrectly states that the original charge of corruption of minors charged "diverse" acts. The original charge was for corruption of minors occurring on "divers" dates. When the Commonwealth determined that the corruption and rape charges concerned the same conduct on February 9 and 16, it was able to specify the dates for corruption of minors. For these reasons, we find no error by the trial court in amending the information.

Appellant's third argument is that the trial court erred in denying his motion to dismiss the charges due to the delay in instituting proceedings. According to appellant, the delay of sixteen months in filing charges impaired his alibi defense and denied him the opportunity to have the victim examined medically.

To support a claim that pre-arrest delay violated his due process rights, appellant must show both that he was substantially prejudiced and that the prosecution's reasons for the delay were improper. Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982). Assuming arguendo that the delay weakened appellant's alibi defense because he could not remember his whereabouts at the time of the incidents, he does not prove that the delay was a Commonwealth ploy for a tactical advantage. The delay was attributed solely to the victim's reluctance to report the incidents because she did not want to anger appellant and disrupt her family. Once she had reported the incidents, investigation and arrest promptly followed.

Appellant next assigns error to the court's refusal to read all of his points for charge. The court denied ap...