Com. v. Montgomery

• Decision Date: 26 December 1996
• Citation: 687 A.2d 1131,455 Pa.Super. 202
• Parties: COMMONWEALTH of Pennsylvania v. Myron MONTGOMERY, Appellant.
• Court: Pennsylvania Superior Court

Page 1131

687 A.2d 1131

455 Pa.Super. 202

COMMONWEALTH of Pennsylvania v. Myron MONTGOMERY, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 15, 1996.

Filed Dec. 26, 1996.

Edward C. Greco, Kulpmont, for appellant.

Robert B. Sacavage, District Attorney, Mt. Carmel, for Commonwealth, appellee.

Before FORD ELLIOTT, SAYLOR, and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

Following a jury trial, appellant, Myron Montgomery, was convicted of rape, aggravated indecent assault and indecent assault. He now appeals from the judgment of sentence.

On December 3, 1994, JH and her friend LL, both minors, were visiting with friends in the Milton Village apartment complex. While there, the girls were introduced to appellant. Over the course of the next several hours, appellant made a number of sexual advances towards LL. His overtures were rebuked, however, and appellant turned his attention towards JH.

After chatting casually for a brief time and taking a short walk to a local convenience store, JH agreed to accompany appellant to his apartment, which was located in the same housing complex. Prior to walking with appellant to his apartment, JH gave appellant a piece of paper with her name and phone number on it.

There were several people congregated in appellant's living room and kitchen listening to music and smoking marijuana, and appellant asked JH to go upstairs with him to his bedroom. JH told appellant that she had to leave and began to walk away.

Appellant followed JH out of his apartment and enticed her back inside, again asking her to join him upstairs. JH complied and walked to the top of the staircase with appellant. At that time, appellant pulled JH towards him and kissed her. JH attempted to push appellant away and told him that she wanted to return to her friend. Appellant, however, continued to grab and kiss JH and then picked her up and carried her into his bedroom. JH tried to squirm away from appellant and to grab onto the door jam, but her attempts were futile.

Once inside the bedroom, appellant pushed JH onto his bed and removed most of her clothing. After being told to do so by appellant, JH removed her own shirt. JH began to scream for help and repeatedly told appellant to stop. In response to this, appellant placed his hand over JH's mouth and throat area and threatened to kill her if she didn't stop screaming. Appellant then removed his own clothes and raped JH.

Afterwards, appellant told JH that she "probably wouldn't like him anymore," and asked if he could walk her back to her friend's apartment. JH complied, but then half way to the apartment, told appellant that she would walk the rest of the way herself. Appellant asked JH if he could kiss her, and JH agreed.

JH then told her friend that she had been raped and the police were called. Appellant was placed in custody and interrogated for several hours. After initially maintaining that JH consented to having sex, appellant confessed that he forced JH to have sex with him and gave both written and videotaped oral statements to the police.

An examination conducted at Evangelical Community Hospital revealed that JH had bruising on her neck as well as a severe perineural laceration which required suturing to stem the blood-flow.

In appealing the judgment of sentence, appellant presents a number of issues for our review. Appellant argues that: 1) the Commonwealth failed to sustain its burden of proof with respect to the threat of forcible compulsion element of the rape charge; 2) the trial court erred in admitting the testimony of LL relative to appellant's advances towards her earlier on the evening in question; 3) the trial court erred in instructing the jury that deadlock as to two of the counts would mean the possibility of a retrial and would entail additional delay and expense; 4) the lower court erred in permitting a Commonwealth witness to use personal notes while testifying and 5) the sentence of the trial court was illegal because the rape and aggravated indecent assault convictions should merge for sentencing purposes. ¹

With respect to appellant's initial claim, that of insufficient evidence to sustain the rape conviction, our standard of review is well settled. This Court must view the evidence and all reasonable inferences derived therefrom in the light most favorable to the Commonwealth, as verdict winner, and determine whether sufficient evidence was presented to prove each element of the crime beyond a reasonable doubt. See, e.g., Commonwealth v. Berkowitz, 537 Pa. 143, 147, 641 A.2d 1161, 1163 (1994); Commonwealth v. Smolko, 446 Pa.Super. 156, 162-64, 666 A.2d 672, 675 (1995).

Instantly, appellant was convicted under 18 Pa.C.S.A. § 3121(2), which provides:

§ 3121. Rape

A person commits a felony of the first degree when he or she engages in sexual intercourse with a complainant:

* * *

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

While acknowledging JH's testimony that appellant put his hand around her mouth and throat area and threatened to kill her, it is appellant's position that the Commonwealth failed to prove that the "threat of force was enough to prevent resistance by a reasonable person." Appellant's brief at 8. This argument is purportedly supported by the fact that the victim voluntarily entered appellant's apartment on two occasions, did not attempt to flee the bedroom, took off her own shirt, and gave appellant her phone number. ²

In interpreting § 3121(2), this Court has consistently held that threats of physical violence are sufficient to sustain a conviction; actual violence is not necessary. Moreover, a victim need not actively resist her assailant if such resistance is reasonably believed to be futile or dangerous. See, e.g., Commonwealth v. Riley, 434 Pa.Super. 414, 416-17, 643 A.2d 1090, 1091 (1994); Commonwealth v. Lee, 432 Pa.Super. 414, 416-18, 638 A.2d 1006, 1008 (1994); Commonwealth v. Gabrielson, 370 Pa.Super. 271, 283-85, 536 A.2d 401, 407 (1988); Commonwealth v. Rough, 275 Pa.Super. 50, 55-57, 418 A.2d 605, 608 (1980).

Contrary to appellant's assertion, we believe that ample evidence was adduced at trial to find that appellant threatened the victim with force that would prevent a person of reasonable resolution from further resistance.

JH testified that she made attempts to free herself prior to appellant's threat to kill her, but that appellant's superior physical strength prevented her from doing so. Additionally, she testified that her compliance afterwards was the result of shock, fear, and the desire to keep appellant calm and believing that she would not report the rape. Furthermore, appellant's own oral and written admissions established that the victim said "no" several times and was restrained by appellant. This, in addition to the physical evidence of bruising and bleeding, is more than sufficient to sustain appellant's conviction.

To reach a contrary conclusion, this Court would be compelled to hold that a victim must resist to the death or be threatened with a weapon. To require a victim in a life-threatening situation to make such a Hobson's choice would be palpably illogical and ill-advised. We recognize that there are times when the path of least resistance offers the only viable option, and we re-affirm our earlier holdings to the effect that verbal threats will suffice for a conviction under 18 Pa.C.S.A. § 3121(2).

Appellant next claims that the trial court erred in denying the defense's motion in limine to exclude testimony concerning appellant's advances towards the victim's friend, LL, earlier on the evening in question. Specifically, appellant contends that the testimony detailed a prior bad act that was prejudicial and not within one of the recognized exceptions to the general rule that prior bad acts cannot be used to prove the criminal propensity or disposition of the accused.

Trial judges are afforded broad latitude and discretion in determining the admissibility of evidence. Their learned determinations will not be disturbed on review absent a finding of an abuse of discretion. See, e.g., Commonwealth v. Wharton, 530 Pa. 127, 144-46, 607 A.2d 710, 719 (1992); Commonwealth v. Holloman, 424 Pa.Super. 73, 78-80, 621 A.2d 1046, 1049 (1993).

In the instant matter, the victim's friend, LL, testified that appellant made overt sexual advances towards her several times on the evening in question. Further, she testified that appellant became frustrated at her refusals and told her that he was "going to go downstairs and see if he liked my friend." (TT 58.)

It was the prosecution's theory that appellant approached JH only after being repeatedly rebuked by LL, and that appellant was angry and frustrated at the time. This theory received support directly from appellant, who answered affirmatively when asked if his purpose in introducing himself to LL and JH was to "get laid from a 15 year old girl." (TT 176.)

This Court has long recognized an exception to the rule disallowing testimony of prior bad acts where the testimony is relevant to detail the overall sequence of events leading up to the crime and the evidence is not unduly prejudicial. See, e.g., Wharton, 530 Pa. at 146-48, 607 A.2d at 720; Commonwealth v. Stiffler, 441 Pa.Super. 377, 379-82, 657 A.2d 973, 975-76 (1995); Holloman, 424 Pa.Super. at 78-82, 621 A.2d at 1049-50. Additionally, relevant evidence that aids in determining the accused's intent has long been admissible regardless of the fact that it details a prior bad act, subject only to the limitation that it not be unduly prejudicial. Id.

Recognizing these exceptions, appellant nonetheless argues that they are not applicable to the facts of the instant case. Relying on the case of Commonwealth v. Kramer, 389 Pa.Super. 136, 566 A.2d 882 (1989), appellant contends that our Court has created a separate test for the admission of prior bad acts when the accused is charged with a sex...