Com. v. Ritchie

• Decision Date: 03 April 1984
• Parties: COMMONWEALTH of Pennsylvania v. George F. RITCHIE, Appellant.
• Court: Pennsylvania Superior Court

Page 220

472 A.2d 220

324 Pa.Super. 557

COMMONWEALTH of Pennsylvania v. George F. RITCHIE, Appellant.

Superior Court of Pennsylvania.

Argued March 31, 1983.

Filed Feb. 3, 1984.

Reargument Denied April 3, 1984.

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Melinda G. Tell, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.

CAVANAUGH, Judge:

Appellant George Ritchie was tried by a jury and convicted of rape, involuntary deviate sexual intercourse, incest, and corruption of minors. Post-verdict motions were denied and appellant was sentenced to a term of three to ten years incarceration. The instant appeal followed. For the reasons discussed below, we now vacate the judgment of sentence and remand for further proceedings.

The instant charges arose out of an incident involving appellant's daughter, Jeanette, who was thirteen at the time of trial. Jeanette testified that she was watching television on the evening of June 11, 1979, when appellant entered the room and demanded that she perform oral sex on him "or else." (N.T. at 24.) Jeanette testified that based on past experience, she knew that the "or else" meant that if she did not do as appellant requested, she would be hit. Appellant forcibly removed Jeanette's clothes when she refused to do so and then forced her to commit oral intercourse. He then attempted to have normal intercourse with Jeanette, which caused pain to her. When the incident was over, appellant told Jeanette to go to bed.

Several days later, Jeanette told her cousin about sexual contacts between herself and appellant and the cousin told her mother, Jeanette's aunt. The aunt took Jeanette to the police station.

Appellant denied that he ever sexually molested Jeanette.

One of the claims raised by appellant is that the evidence was insufficient to convict appellant of rape. Specifically, appellant alleges that the Commonwealth failed to establish penetration. In reviewing the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Stockard, 489 Pa. 209, 212-13, 413 A.2d 1088, 1090 (1980).

We stated in the recent case of Commonwealth v. Ortiz, 311 Pa.Super. 190, 457 A.2d 559, 560-61 (1983), that:

[i]t is quite clear ... that the definition of "sexual intercourse" found at [18 Pa.C.S.A. § 3101] does not specify "penetration of the vagina," but instead specifies "some penetration however slight." ... Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950) ... is the only Pennsylvania appellate case specifically delineating what penetration means in this context. That case stated that entrance in the labia is sufficient: "To constitute the crimes of rape there must be penetration, however slight. (Res in re, but entrance in the labia sufficient: 44 Am.Jur., Rape, § 3)." Id. at 628, 74 A.2d at 796 (emphasis in original). We therefore will not hold that a finding of penetration of the vagina is necessary for the jury to find "penetration however slight ...." ... [P]enetration of the vagina, in essence the father reaches of the female genitalia, is not necessary to find penetration under Section 3101.

It is clear that the testimony of the victim alone can be sufficient to establish penetration so as to sustain a conviction of rape. Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.2d 352 (1976). Jeanette testified that she was lying on her back on the floor and appellant was lying on top of her and that he tried to push his penis into her vagina. This caused her pain and appellant finally desisted and told Jeanette to go to bed. We feel that Jeanette's testimony is sufficient to support a finding of penetration as defined in Commonwealth v. Ortiz, supra. ¹

Appellant next claims that the trial court erred in allowing Jeanette to testify that appellant had been sexually molesting her three or four times a week for a period of about four years, in spite of the fact that she could not remember the exact dates of any attack other than the one on June 11, 1979.

It is clear that "in a prosecution for incest it is 'competent for the commonwealth to introduce evidence of illicit relations between the parties prior to the commission of the specific offense laid in the indictment.' " Commonwealth v. Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1235 (1980) (quoting Commonwealth v. Bell, 166 Pa. 405, 411, 31 A. 123, 123 (1895), and Commonwealth v. Leppard, 271 Pa.Super. 317, 319, 413 A.2d 424, 425 (1979)). Such testimony is relevant to "show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial." Commonwealth v. Buser, 277 Pa.Super. at 455, 419 A.2d at 1235, (quoting McCormick on Evidence § 190 at 449 (Cleary ed. 1972)). Nor does the fact that Jeanette could not remember the exact dates of previous sexual attacks render the testimony inadmissible. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

Appellant admits that Commonwealth v. Leppard, supra, and Commonwealth v. Buser, supra, specifically hold that evidence such as that in question is admissible but he contends that these holdings violate his right to confront his accuser, and that they should therefore not be followed. We are not persuaded by his argument and decline to overrule the precedent. There was, therefore, no error in admitting Jeanette's testimony regarding prior sexual attacks.

Another claim raised by appellant is that the trial court erred in refusing to permit him to enter into evidence certain letters written by Jeanette to other individuals. The letters were offered for the purpose of showing that Jeanette freely communicated with persons outside her home and failed to mention either the sexual attacks by her father or the fear she allegedly had of him. Appellant hoped to discredit Jeanette's testimony by raising a question as to why she waited so long to report the sexual attacks which had allegedly been occurring for several years. The trial court held that the letters were not relevant, and therefore refused to admit them in evidence.

"Any analysis of the admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value." Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976).

Determination of the relevancy of evidence offered at trial requires a two-step analysis. It must be determined first if the inference sought to be raised by the evidence bears upon a matter in issue in the case and, second, whether the evidence "renders the desired inference more probable than it would be without the evidence." Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975) (citations omitted).

The Commonwealth did not contend that Jeanette had no opportunity to report the sexual molestation at an earlier date or that appellant had prevented her from making any complaint. Jeanette freely admitted that she had numerous and frequent contacts with members of her family and friends during the period of time in question. She explained that she was afraid of her father and stated that she never would have gone to the police if she had not been taken to them by her aunt.

Since Jeanette had already testified as to her freedom to contact others, admission of the letters in question would not have made the desired inference "more probable than it would be without the evidence." McCormick on Evidence § 185 (Cleary ed. 1972). Thus there was no abuse of discretion on the part of the trial court in refusing to admit the letters.

Appellant also claims that the trial court erred in permitting the Commonwealth to introduce testimony contrary to Jeanette's birth certificate, the effect of which was to bastardize her, in order to support its charge of incest. Helen Ritchie, Jeanette's mother, was permitted to testify that appellant George Ritchie, and not Thomas Bills, whose name appears on the birth certificate, was the natural father of Jeanette. Ms. Ritchie testified that although she was still married to Thomas Bills when Jeanette was born, she had not had sexual relations with him for three years prior to Jeanette's birth. She further testified that appellant was the only man with whom she had had sexual relations around the time of Jeanette's conception and that appellant had admitted not only to her but to the Welfare Department, that he was Jeanette's father. Mr. Bills testified that he had not had sexual relations with Jeanette's mother for at least a year and a half prior to Jeanette's birth, and that appellant had admitted to him that he (appellant) was Jeanette's father. Ms. Ritchie married appellant after obtaining a divorce from Mr. Bills.

Appellant claims that the testimony outlined above should not have been permitted, claiming that "no authority exists for allowing a child to be bastardized in order to prove the crime of incest." (Appellant's Brief at 25).

Appellant ignores the holding of Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969), which says that a child is not bastardized by the testimony of the mother and her husband as to their non-access to each other at the time of conception in cases where the alleged father later married the mother, thus legitimizing the child. The testimony in the instant case is clearly admissible under the holding in Leider. See also, Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975); Commonwealth ex rel. Meta v. Cinello, 218 Pa.Super. 371, 280 A.2d 420 (1971).

Finally, appellant claims that the trial court erred in refusing to order Child Welfare Services ...