Com. v. Jones

• Decision Date: 15 March 1996
• Citation: 672 A.2d 1353,449 Pa.Super. 58
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ronald D. JONES, Appellant.
• Court: Pennsylvania Superior Court

Page 1353

672 A.2d 1353

449 Pa.Super. 58

COMMONWEALTH of Pennsylvania, Appellee, v. Ronald D. JONES, Appellant.

Superior Court of Pennsylvania.

Submitted December 18, 1995.

Filed March 15, 1996.

Jeffery M. Cook, Gettysburg, for appellant.

Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

Before BECK, POPOVICH and BROSKY, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Adams County, following appellant's convictions on two counts of rape, one count of indecent assault and one count of simple assault. The lower court imposed a sentence of three to six years incarceration on one rape count and did not impose any sentence for the remaining convictions. Upon review, we reverse the judgment of sentence and remand for new trial.

Herein, appellant contends the evidence was insufficient to support his rape convictions because the Commonwealth failed to present evidence of forcible compulsion or threat of forcible compulsion. Appellant also contends that the lower court's jury instruction on lack of prompt complaint was erroneous and prejudiced his right to a fair trial.

"The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 555, 488 A.2d 29, 31-32 (1985). Applying the foregoing standard, the lower court set forth the facts of this case as follows:

... In April, 1994, the victim, S.B., then age 19, and five months pregnant, was living alone in Room # 3 at the Homeless Shelter in Gettysburg, Pennsylvania. [Appellant], his girlfriend, Angela Clark, and their three children were residing in Room # 1, across the hallway from S.B.'s unit. Occasionally when Ms. Clark was not nearby, [appellant] would utter sexual remarks or make sexual overtures towards S.B. who thought he was joking at the time.

On April 5, 1994, S.B. retired for the evening at 11:00 P.M. Sometime between 12:30--1:00 A.M., S.B. was awakened by [appellant's] entry into her room. [Appellant] approached S.B.'s bed and asked if she was going to have sex with him. S.B. refused. [Appellant] hit S.B. in the face several time with a pillow which "kind of hurt". Then while holding her shoulders down, he pulled her shirt off and began kissing her breasts. S.B. protested but [appellant] told her to be quiet or he would tell Ms. Clark that S.B. invited him to her room and Ms. Clark would "beat her up". S.B., who appears shy and lacking in self-confidence, was afraid of Ms. Clark because she looked "rough". S.B. was also afraid that [appellant] would hit her in the stomach. [Appellant] then pulled off S.B.'s pants, penetrated her vagina with his penis, and continued telling her to be quiet when she protested. When [appellant] finished, he left the room.

At the time of the incident approximately 15 persons were staying at the Shelter, including S.B.'s friend, plus two staff persons. S.B. did not cry out for help. The next day S.B. went to work and spent time with another friend but told no one about the incident with [appellant] out of embarrassment. On the evening of April 6, 1994, Defendant again entered S.B.'s room, went through her wallet, removed her medical card, Social Security car and identification card and said he would keep them unless S.B. gave him some money from her next paycheck. After [appellant] left the room, S.B. reported both incidents to her friend, and a staff person, and the police.

[Appellant] acknowledged seeking S.B. earlier on April 5, and asking "Are you going to give me good loving tonight?" He admitted entering S.B.'s room and engaging in sexual intercourse but claimed it was consensual. When departing the room within 10 minutes after entry, he thought it important to say "Thank you."

[Appellant], age 20, stood 6'1"', weigh[ed] 220 pounds and was in good physical shape. He displayed an attitude of being able to take whatever pleased him whether that be sex or important personal documents.

Trial Court Opinion, pp. 1-2.

Rape is defined in 18 Pa.C.S.A. § 3121(1) and (2) 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[.]

Appellant, citing Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), contends that the Commonwealth failed to prove forcible compulsion or threat of forcible compulsion, and appellant argues that this case is factually similar to and, therefore, controlled by Berkowitz, supra. In Berkowitz, 641 A.2d at 1163, our supreme court reiterated that:

The victim of a rape need not resist. 18 Pa.C.S.A. § 3107. "The force necessary to support a conviction of rape ... need only be such as to establish lack of consent and to induce the [victim] to submit without additional resistance.... The degree of force required to constitute rape is relative and depends on the facts and particular circumstances of the case." Commonwealth v. Rhodes, 510 Pa. 537, 554, 510 Pa. 537, 554, 510 A.2d 1217 (1986) (citations omitted.)

Our high court further noted that "where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the 'forcible compulsion' requirement under 18 Pa.C.S.A. § 3121 is not met." Berkowitz, 641 A.2d at 1164. In reaching its decision in Berkowitz, supra, the supreme court wrote: "In regard to the critical issue of forcible compulsion, the complainant's testimony is devoid of any statement which clearly or adequately describes the use of force or the threat of force against her." 641 A.2d at 1164. Presently, however, we find that there was sufficient evidence of the use of force and the threat of force.

Appellant hit the victim in the face with a pillow which "kind of hurt" each time she refused to engage in intercourse with him. Appellant, a large man, held down the victim's shoulders before and during intercourse and removed the victim's clothing. In addition, appellant threatened to tell his girlfriend that they had engaged in consensual sex and his girlfriend would then "beat up" S.B., if she continued to refuse his advances. Further, the victim was pregnant and concerned for the well-being of her unborn child. In sum, we find that the facts sub judice, unlike those presented in Berkowitz, supra, were sufficient to establish the rape elements of physical force and threat of physical force necessary to sustain appellant's conviction. Cf., Commonwealth v. Garaffa, 440 Pa.Super. 484, 656 A.2d 133 (1995) (evidence was sufficient to sustain rape conviction despite victim's admissions that she willingly accompanied defendant into hotel room and failed to attempt to leave the room when given the opportunity, coupled with fact that defendant did not verbally threaten her, where defendant "pushed" victim onto bed, victim was "fighting" defendant's advances and she "pushed" him away); Commonwealth v. Pride, 252 Pa.Super. 34, 380 A.2d 1267 (1977) (evidence was sufficient to sustain rape conviction where defendant placed pillow over victim's face when she refused his advances and threatened to harm her and her baby if she continued to resist). ¹

Next, appellant complains that his right to a fair trial was unduly prejudiced when the lower court erroneously instructed the jury regarding the lack of prompt complaint by the victim. In Commonwealth v. Snoke, 525 Pa. 295, 300, 580 A.2d 295, 297 (1990), our supreme court wrote:

Under common law, the promptness of a complaint or the "hue and cry" was considered an element for a jury to consider when weighing the veracity of a complainant. See, e.g., Commonwealth v. Allen, 135 Pa. 483, 19 A. 957 (1890); Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746 (1949); see also, IV Wigmore on Evidence § 1135. The theory is based on the principle that a victim of a violent assault would be expected to complain of the assault at the first safe opportunity. Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246 (1989); Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979); Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987); Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982). This principle has been codified in our crimes code at 18 Pa.C.S.A. § 3105. Section 3105 states:

Prompt reporting to public authority is not required in a prosecution under this chapter: Provided, however, that nothing in this section shall be construed to prohibit a defendant from introducing evidence of the alleged victim's failure to promptly report the crime if such evidence would be admissible pursuant to the rules of evidence.

It has been said that "hue and cry follow rape like smoke follows fire." Commonwealth v. Freeman, 295 Pa.Super. at 476, 441 A.2d at 1332. The presumption follows that if a complaint is made promptly after the alleged offense, the victim has not had time to fabricate the story and the story is given more credibility. See e.g., Commonwealth v. Krick, supra. Conversely, if a complaint is delayed substantially without any reasonable explanation, an inference can be drawn regarding the credibility of that complaint and against whether the incident in fact occurred.

Presently, the record reveals that S.B. did not complain of the sexual assault after appellant left her room despite the fact that there were fifteen residents plus two staff members in the Homeless Shelter at the time. Further, appellant did not complain the next morning, nor while at work that...