Com. v. Prince

• Decision Date: 12 November 1998
• Citation: 719 A.2d 1086
• Parties: COMMONWEALTH of Pennsylvania v. Andre Ledon PRINCE, Appellant.
• Court: Pennsylvania Superior Court

719 A.2d 1086

COMMONWEALTH of Pennsylvania v. Andre Ledon PRINCE, Appellant.

Superior Court of Pennsylvania.

Argued June 2, 1998.

Filed November 12, 1998.

Kirk J. Henderson, Asst. Public Defender, for appellant.

Andrew G. Thiros, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before FORD ELLIOTT, EAKIN and BECK, JJ.

FORD ELLIOTT, Judge:

Following a jury trial, appellant was found guilty of one count of sexual assault and one count of unlawful restraint.¹ He was sentenced to two and one-half to ten years' incarceration on the sexual assault charge, with no additional sentence for unlawful restraint. This appeal followed. We remand for an evidentiary hearing.

Appellant raises the following issues:

I. Did the Commonwealth prove lack of consent for sexual intercourse when the alleged victim's actions indicated that she consented?

II. Does effective counsel request a consent-as-a-defense instruction when the only defense offered was that the alleged victim consented to the sexual intercourse?

III. When a supposed victim fails to report a sexual assault at the first possible opportunity, does counsel offer effective representation by failing to request a prompt-complaint instruction?

IV. Is a person guilty of unlawful restraint when another agrees to have sex with him and then spends the night despite numerous opportunities to leave, especially after the defendant has fallen asleep?

Appellant's brief at 3.

The recently enacted crime of sexual assault provides:

§ 3124.l. Sexual assault

Except as provided in section 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), a person commits a felony of the second degree when that person engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant's consent.

18 Pa.C.S.A. § 3124.l. Sexual assault carries an offense gravity score of 11, the same as aggravated assault and voluntary manslaughter. 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.15. According to the Act's legislative history, it was drafted in response to our supreme court's decision in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), and was intended to fill the loophole left by the rape and involuntary deviate sexual intercourse statutes, 18 Pa.C.S.A. §§ 3121 and 3123, respectively, by criminalizing non-consensual sex where the perpetrator employs little if any force. Sen. Legislative Journal No. 4, January 31, 1995, First Special Session of 1995 at 20-25 (Pa.1995).

The unlawful restraint statute provides in relevant part:

§ 2902. Unlawful restraint

A person commits a misdemeanor of the first degree if he knowingly:

....

(2) holds another in a condition of involuntary servitude.

18 Pa.C.S.A. § 2902. It was intended to cover restraints which do not reach the magnitude of kidnapping but are somewhat more serious than mere false imprisonment. 18 Pa.C.S.A. § 2902, Official Comment—1972. We must therefore measure the sufficiency of the evidence against these statutory provisions.

In evaluating a challenge to the sufficiency of the evidence, we are to view all of the evidence admitted at trial in the light most favorable to the verdict winner, along with any reasonable inferences to be drawn therefrom. We must then determine whether the evidence was sufficient to have permitted the trier of fact to find that the Commonwealth established each and every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Nicotra, 425 Pa.Super. 600,, 625 A.2d 1259, 1261 (1993). The facts and circumstances presented at trial need not preclude every possibility of innocence. Id. Viewed in the light most favorable to the Commonwealth as verdict winner, we set forth the relevant facts, taken from the trial court's opinion and supported by the record:

In the summer of 1996, the victim, Andrella Prince, and her eight year old daughter Erin, resided with Prince's sister, Elizabeth Long, at 314 Mayfield Avenue, in the North Side of Pittsburgh. (T-34,50) Ms. Prince had known the defendant since high school. (T-34) They were married in 1994, but separated five months later. In 1995, they were divorced. (T-35)

The defendant had been living in Georgia but returned to Pittsburgh shortly before the incident in question. (T-36) Upon arriving in Pittsburgh the defendant called and came over to see Ms. Prince. (T-37) Both her sister and daughter were there. (T-38) Twice during the course of that visit the defendant attempted to become intimate with his former wife, but she refused.² (T-41;42-45) Eventually, the defendant left.

A few days later, the defendant came over and he and Prince went for a walk around the neighborhood. (T-46) He wanted Prince to hold his hand so that everyone would know she was with him. A friend drove by and Prince tried to talk to him, but the car did not stop. (T-48) A second friend drove by and the defendant said that if she had stopped and gone over to the car, he would have `smacked her.' (T-48,49)

On August 4, 1996, between 11:00 P.M. and midnight, the defendant came over to the house. (T-50,92) Prince's daughter, Erin, was in the house, but her sister was out of town. (T-50,121) The defendant appeared intoxicated. His eyes were red and glassy, he was very loud and smelled like liquor. (T-51) The defendant said, `Come give me a kiss', and Prince said, `No.' The defendant said, `You know you want to give me a kiss,' and Prince repeated, `No, I don't.' The defendant came over to Prince and pulled her off the chair to give him a kiss. Prince gave him a peck, to pacify him, and sat back down. (T-52) It was Erin's bedtime, and the defendant told her to go upstairs. (T-52,53) But she returned shortly thereafter and hid on the steps. (T-54)

The defendant told Prince that he wanted to have sex with her and began pulling on her clothes. (T-53) He pulled out his penis, tried rubbing it against her leg and said, `You know you want me.' (T-53,54) Prince tried to push him away. (T-54) The defendant kept trying to pull her shorts and underwear down. (T-55,56) She kept pulling them back up and asked him to stop. (T-55) Finally, the defendant put his foot between her legs so she could not pull them back up. Prince realized that he was going to force her to have sex and became frightened. (T-56) She was afraid to scream or do anything because there was nobody there to help her and the defendant becomes violent when he drinks and/or does not get what he wants. (T-59,107,131) Fearing AIDS and venereal disease she said to defendant, `if you're going to have sex with me you can use a condom because I don't want to catch no diseases.' (T-57,58) The defendant allowed her to get a condom. When she returned, he started biting her between her legs. (T-58) He then took her shorts off and performed oral sex on her. Prince was unable to prevent the defendant from penetrating her. (T-59) The defendant told her to get on top of him and `ride him.' When she refused, the defendant rolled over, pulled her on top of him, held her shoulders down and had sex with her. Prince kept yelling, `Stop, Andre. You're hurting me.' (T-60) Her yelling was heard by her next door neighbor. (T-132,134,136) The defendant responded, `You're all right. I ain't hurting you. You know it feels good. You know you like this. It feels good to me; it feels good to you.' Every time Prince tried to get up, the defendant pulled her closer. Finally, the defendant flipped her over on her back and ejaculated. Prince was bleeding. (T-60) She asked the defendant to leave, but he refused. He told her to lay down beside him and that she had `better be there' when he got up in the morning. (T-62) The next morning defendant left the house. After speaking with a friend about what had happened, she telephoned defendant and said, `Do you realize what you did to me? You hurt me. Didn't I tell you "no?"' Defendant's response was, `Yes, you told me "no," but you ain't mean it.' When she told the defendant that she was going to call the police he told her that if she did, she `wouldn't be able to walk around Pittsburgh again.' (T-64)

Trial court opinion, 10/03/97 at 2-5.

From the foregoing, we find sufficient evidence to support the jury's finding of guilt as to sexual assault/sexual intercourse and unlawful restraint. If the jury believed Ms. Prince's version of events, it could have found that she did not consent to sexual intercourse, and she stayed near appellant all night out of fear for her safety. (Notes of testimony, 1/22-24/97 at 131). See Commonwealth v. Dehoniesto, 425 Pa.Super. 83, n. 10, 624 A.2d 156, 161 n. 10 (1993) (simply holding an individual subject to the will of another was sufficient to establish unlawful restraint), appeal denied, 535 Pa. 654, 634 A.2d 217 (1993), citing Commonwealth v. Wells, 313 Pa.Super. 557, 460 A.2d 328 (1983).

We find additional support for the jury's verdict in the apparent thoughtfulness with which it evaluated the various charges against appellant. Appellant was charged with rape, involuntary deviate sexual intercourse, simple assault, sexual assault/sexual intercourse, sexual assault/deviate sexual intercourse, and unlawful restraint.³ The jury found appellant not guilty of rape, involuntary deviate sexual intercourse, simple assault, and sexual assault/deviate sexual intercourse. (Notes of testimony 1/22-24/97 at 243.) The verdict of not guilty as to this last count indicates that the jury carefully weighed the evidence, and found insufficient evidence that Ms. Prince did not consent to deviate sexual intercourse, but sufficient evidence that she did not consent to sexual intercourse.⁴

This brings us to appellant's claim that trial counsel was ineffective for failing to request a jury charge as to consent as a defense, and as to prompt complaint. In order to succeed on an ineffectiveness of counsel claim, "Appellant must establish that the underlying claim is of arguable merit, counsel's course of action lacked any...