Com. v. Fulton

• Decision Date: 04 October 1983
• Citation: 318 Pa.Super. 470,465 A.2d 650
• Parties: COMMONWEALTH of Pennsylvania v. Chester George FULTON, Appellant.
• Court: Pennsylvania Superior Court

Page 650

465 A.2d 650

318 Pa.Super. 470

COMMONWEALTH of Pennsylvania v. Chester George FULTON, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 12, 1983.

Filed July 22, 1983.

Reargument Denied Oct. 4, 1983.

Alexander H. Lindsay, Jr., Butler, for appellant.

Robert F. Hawk, Asst. Dist. Atty., Butler, for Commonwealth, appellee.

Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.

VAN der VOORT, Judge:

Appellant's original conviction for statutory rape and attempted homicide was reversed by this court in Commonwealth v. Fulton, 271 Pa.Superior Ct. 430, 413 A.2d 742 (1980); he was granted a new trial due to a defective voir dire of the jury. At a second trial, the appellant was found guilty of statutory rape and attempted homicide. His appeal raises seven contentions of error. We will discuss the seven contentions in the same order as addressed by appellant's counsel. As we find no merit to such claims, we affirm.

I. Did the Court err in holding that the crime of statutory rape, a violation of 18 Pa.C.S. § 3122, is a lesser included offense of the crime of forcible rape, a violation of 18 Pa.C.S. § 3121?

The information filed in this case charged that appellant, in company with others, did "wilfully and unlawfully, knowingly and intentionally engage in sexual intercourse with one --- Strothers, age 13, by forcible compulsion or threat of same ...", citing 18 Pa.C.S. § 3121, (forcible rape) but not citing specifically § 3122 (statutory rape). In his charge, at the end of the first trial in March 1978, Judge Dillon gave the jury the alternatives of returning one of three verdicts: guilty of rape; guilty of statutory rape; and not guilty. The jury returned the second verdict.

In the second trial, which took place in January 1981, with Judge Kiester presiding, the court limited the Commonwealth to the charge of statutory rape, and attempted murder, as to which there had also been a verdict of guilty in the first trial. Guilty verdicts were returned on both counts.

It is the appellant's contention, relying upon the case of Commonwealth v. Walker, 468 Pa. 323, 332, 362 A.2d 227, 231 (1976) that (forcible) rape (§ 3121) and statutory rape (§ 3122) are two separate and distinct crimes, mutually exclusive, and that the information filed against this appellant charged a crime of forcible rape. Therefore, appellant contends the evidence submitted by the Commonwealth, to the extent it establishes statutory rape (presumably consensual) constitutes a fatal variance from the offense charged in the information ("by forcible compulsion or threat of same ..."). Therefore, he believes the statutory rape charge should be dismissed.

Appellant misreads Walker, as requiring his discharge. Walker does demonstrate that forcible rape and statutory rape are two different offenses against the Commonwealth. The court found, that under the facts of that case, the two offenses were "mutually exclusive." Walker could not be sentenced for both as there was only one criminal act accomplished. Appellant overlooks two important aspects of that decision. First, the prosecution was based on the 1966 version of 18 P.S. § 4721. Subsection (a) provided for prosecution for unlawful carnal knowledge against the will of the victim of any age, while (b) pertained only to consensual sexual relations with a female under the age of 16. The current enactments provide:

§ 3121. 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.

§ 3122 Statutory rape

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 close reading of § 3122 reveals that consent is not required for a statutory rape conviction. Unlike the preceding § 4721, intercourse by force or with consent is punishable under the current enactment. Therefore, an acquittal of forcible rape does not bar a conviction for statutory rape arising from the same incident.

This brings us to the second point which appellant overlooks in his analysis of Walker, 468 Pa. at 333 n. 5, 362 A.2d 227. Footnote number 5 reads:

Although convictions for the crimes of statutory rape and rape based on a single act of intercourse are mutually exclusive under 18 P.S. § 4721, we express no opinion concerning the right of the Commonwealth to charge a defendant in an information or indictment with both crimes in the alternative. Indeed, given the proof problems inherent in the law of rape, there may well be situations where it is necessary and proper to charge both crimes as alternatives.

The court thereby, explicitly refused to address the issue whether both crimes could be alleged when only one act was performed. Implicitly therefore, the court also did not determine whether statutory rape was a lesser included offense of rape and hence need not be specifically charged in a criminal information. This brings us to the focus of the problem. Appellant argues that since Walker distinguishes between the two crimes, the second jury is barred from finding that the victim consented since the first jury found she had not. Therefore, he claims, the Commonwealth should have charged him in a second count with consensual, but underage sexual intercourse.

The trial court however found that the information, even if "not artistic enough", was adequate to charge appellant with statutory rape as it indicated the victim was "age 13." In the alternative, the trial court found statutory rape a lesser included offense of rape. (Opinion, p. 12)

A purported variance between the indictment and the offense proved will not be fatal to the Commonwealth's case unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant's efforts to prepare his defense, precludes the defendant from anticipating the prosecution's proof, or otherwise impairs a substantial right of the defendant. Commonwealth of Pope, 455 Pa. 384, 317 A.2d 887 (1974). Generally stated, the requirement is that a defendant be given clear notice of the charges against him so that he can properly prepare a defense. Commonwealth v. Wolfe, 220 Pa.Superior Ct. 415, 289 A.2d 153 (1972).

Commonwealth v. O'Brien, 303 Pa.Superior Ct. 189, 449 A.2d 642, 643 (1982). See also Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979); and Commonwealth v. Schomaker, 293 Pa.Superior Ct. 78, 437 A.2d 999 (1981). In the current appeal, we find that the purported variance is not fatal as appellant had clear notice of the charges.

The information charged that appellant had engaged in sexual intercourse with a thirteen year old female. The fact that the Commonwealth stated its intent to prove in addition to statutory rape, also that such rape was unconsented to, could not have surprised the appellant. Appellant was not misled; he was apprised that he was accused of having sex with a thirteen year old victim. While it would have been preferable for the Commonwealth to have outlined the allegations under both sections 3121 and 3122, we do not find that retrial on § 3122 should be barred because of such oversight.

As we find that any variance between the information and the proof at trial is not fatal, we need not determine whether statutory rape is a lesser included offense of rape. ¹

II. Did the Court err in denying counsel for the defendant the opportunity to cross-examine a Commonwealth witness concerning the character, motivation and bias of the witness, and more specifically, the substance of any agreement or understanding between the witness and the Commonwealth, whereby the witness would receive lenient treatment in exchange for his testimony?

III. Did the failure of the defendant's trial counsel to cross-examine a key Commonwealth witness concerning any agreement between the witness and the prosecutor, whereby the witness would receive lenient treatment in return for his testimony, and that he had a prior felony conviction, constitute ineffective assistance of counsel by depriving defendant of his right to counsel as set forth in the Sixth Amendment of the Federal Constitution?

As the two complaints are inter-related, they will be addressed jointly.

Lang was a co-actor in the instant case. He pleaded guilty to statutory rape and eventually received a sentence of two to five years. He was called as a prosecution witness, and testified only with respect to two aspects of the case. The prosecuting attorney had previously advised the court and appellant's counsel that Lang would be interrogated on only those two points, and suggested that cross-examination should be restricted to those two phases. After some discussion, Judge Kiester stated: "I believe his cross examination is restricted to those two things, that is the ruling. We will have to rule on the questions when they arise. I don't know what his questions will be." (N.T., p. 190)

Lang then testified that he had in his cottage a hatchet similar to (but not the same hatchet) as the Commonwealth's Exhibit 29, which had been found in a creek nearby the scene of the crimes. He also stated that appellant, the victim, and another man named Harris had left his cottage together. Appellant returned within 5 to 10 minutes, and Harris within 30 minutes. The victim did not return. Appellant's counsel limited his cross-examination to an affirmation that Exhibit 29 was not the witness's hatchet.

We find no error in Judge Kiester's preliminary ruling. The scope of cross-examination is within the discretion of the trial court and the court's decision will not be reversed absent an abuse of discretion. Commonwealth v. Sisco...