Com. v. Smolko

• Decision Date: 10 October 1995
• Citation: 446 Pa.Super. 156,666 A.2d 672
• Parties: COMMONWEALTH of Pennsylvania, v. Kenneth S. SMOLKO, Appellant.
• Court: Pennsylvania Superior Court

Page 672

666 A.2d 672

446 Pa.Super. 156

COMMONWEALTH of Pennsylvania, v. Kenneth S. SMOLKO, Appellant.

Superior Court of Pennsylvania.

Argued April 5, 1995.

Filed Oct. 10, 1995.

Laura Dunhoff, Pittsburgh, for appellant.

Christian A. Fisanick, Assistant District Attorney, Barnsboro, for Commonwealth, appellee.

Before POPOVICH, FORD ELLIOTT, and BROSKY, JJ.

FORD ELLIOTT, Judge:

In this appeal from the judgment of sentence entered in the Court of Common Pleas of Cambria County on August 16, 1994, we are asked to decide, inter alia, whether a physical deficiency that prevents a person from defending himself against unwanted sexual encounters can be the basis for a finding of forcible compulsion beyond a reasonable doubt. We hold that it can.

The facts giving rise to this appeal in general, and the aforementioned issue in particular, have been aptly summarized by the trial court, which was also the finder of fact:

The victim ... suffers from an affliction known as Pelizaeus-Merzbacher Syndrome. This disease, which effects [sic] the central nervous system, causes [the victim] to have the inability to speak, control his motor movements, restricts him to a wheel chair, and has left him with very little strength. [The trial court's] first-hand observation of the victim supported the fact that the victim suffers from these symptoms. On April 1, 1993, [appellant] was employed by the victim's parents as a home health aide to care for the victim and his two uncles, who also suffer from Pelizaeus-Merzbacher Syndrome. While performing this job, [appellant] was alone with the victim and his uncles. Moreover, these men relied on the [appellant] to assist or perform all of the duties which were necessary for them to survive. Based on this, the court found that the victim was in a vulnerable position and [appellant] acted from a position of authority....

The victim testified that [appellant] performed oral sex on him four times during a period when the victim's father was away. The victim further testified that he did not want [appellant] to do this to him, but was unable to stop him....

Trial court opinion, 1/9/95 at 3 (citations to notes of testimony omitted). The testimony of victim, who could only indicate "yes" by raising his arm or "no" by crossing his arms, was as follows:

Commonwealth [Q]: When Dom [appellant's nickname] was working there, did something bad happen?

Victim [A]: Raises arm.

Q: Did something bad happen to you?

A: Raises arm.

Q: Did Dom do something bad to you?

A: Raises arm.

Q: Did Dom touch a part of your body?

A: Raises arm.

Q: Did you want Dom to touch that part of your body?

A: Crosses arms.

Q: Could you stop Dom from touching that part of your body?

A: Crosses arms.

Notes of testimony, 6/28/94 at 51-52. ¹

Based upon the foregoing testimony, appellant was convicted of one count of involuntary deviate sexual intercourse [IDSI] and two counts of indecent assault. ² He was sentenced to serve three (3) to six (6) years for IDSI, with concurrent sentences of six (6) to twenty-three (23) months for each of the indecent assault convictions.

Appellant challenges his IDSI conviction based upon his claim that, even if the victim's testimony were believed by the trial court, there was insufficient evidence to prove that appellant engaged in deviate sexual activity with the victim by forcible compulsion. ³ Our standard of review of sufficiency of the evidence claims is well-settled In reviewing a sufficiency of the evidence claim this Court must determine whether the evidence, and all reasonable inferences deducible therefrom, when viewed in a light most favorable to the Commonwealth, are sufficient to establish all the elements of the crime beyond a reasonable doubt.

Commonwealth v. Riley, 434 Pa.Super. 414, 643 A.2d 1090, 1091 (1994) (citation omitted). The test for forcible compulsion under the IDSI section of the Crimes Code is identical with the test for forcible compulsion under § 3121, the rape statute. Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982). As a result, we may look to those cases addressing the issue of forcible compulsion under § 3121 for guidance.

Our supreme court dealt with the issue of the quantum of evidence necessary to support a finding of forcible compulsion beyond a reasonable doubt in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). In Rhodes, the attacker, a twenty-year-old man who had lived across the street from the eight-year-old victim for three years, led the young girl to an abandoned building where he ordered her to lie down. When she complied, he penetrated her vagina and rectum with his penis, despite the victim's asking him to stop. Id. at 539-542, 510 A.2d at 1218-19. Rhodes was convicted of rape, statutory rape, IDSI, indecent assault, indecent exposure, and corruption of minors. On appeal, the superior court set aside the rape conviction and remanded for resentencing. The Commonwealth appealed. In reversing the superior court, the supreme court in Rhodes stated:

'[F]orcible compulsion' ... includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person's will.

Id. at 555, 510 A.2d at 1226. The Rhodes court continued:

The determination of whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion ... is, of course, a determination that will be made in each case based upon the totality of the circumstances that have been presented to the fact finder. Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is by no means exclusive.

It is neither desirable nor appropriate to attempt to delineate all of the possible circumstances that might tend to demonstrate that sexual intercourse was engaged in by forcible compulsion ... That delineation will evolve in the best tradition of the common law--by development of a body of case law applying section 3121 (as it has been here construed) and the principles of construction set forth in the Crimes Code.... When forcible compulsion ... consists of 'moral, phychological [sic] or intellectual force,' the force may be less tangible but is not less susceptible of proof, and the critical circumstances and evidence here will be those which tend to prove or disprove compulsion or lack of consent, i.e. that such force was 'used to compel a person to engage in sexual intercourse against that person's will.'

Id. at 555-558, 510 A.2d at 1226-27 (emphasis added) (citations omitted). The Rhodes court found forcible compulsion based upon the child's physical and emotional helplessness in the face of her neighbor's commands, especially where the child knew and trusted the adult. Id. at 558, 510 A.2d at 1227.

As the Rhodes court predicted, the meaning of forcible compulsion has evolved over the years in the best tradition of the common law. Recently, courts addressing the issue have found forcible compulsion where the victim was asleep when attacked, but woke up and struggled with her attacker. Commonwealth v. Price, 420 Pa.Super. 256, 616 A.2d 681 (1992). Courts have also found forcible compulsion where an adolescent victim, undergoing therapy, submitted to sexual intercourse with the therapist out of fear that the therapist would ruin his chances for adoption or would hurt someone the victim cared about. Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990), allocatur denied, 526 Pa. 629, 584 A.2d 312 (1990), denial of post conviction relief affirmed, 433 Pa.Super. 246, 640 A.2d 904 (1994), allocatur denied, 538 Pa. 665, 649 A.2d 668 (1994). Courts have also found forcible compulsion where a deaf adolescent minor who had a crush on her assailant and thought of him as her boyfriend went to an isolated location with him and lay down on the ground voluntarily, but said "no" and "off" when her assailant pulled down the zipper on her pants. Commonwealth v. Meadows, 381 Pa.Super. 354, 357, 553 A.2d 1006, 1008 (1989), allocatur denied, 524 Pa. 618, 571 A.2d 381 (1989).

In contrast, courts have found the evidence insufficient to support a finding of forcible compulsion where the victim and the accused were both college students of approximately the same age, the victim went voluntarily to the accused's dorm room, and the victim made no attempt to leave the room or call for help, even though the victim repeated "no" throughout the encounter. Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). As the Berkowitz court opined, "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 ... is not met." Id. at 149, 641 A.2d at 1164. Support for this position was found in Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988), reargument denied, 522 Pa. 1, 559 A.2d 504 (1989), in which a divided supreme court affirmed the superior court's finding that the fourteen-year old victim was not forcibly compelled to submit to her attacker, who threatened to return her to a detention home if she did not acquiesce in his demands. The Mlinarich plurality attempted to carve out a distinction between psychological compulsion and intellectual or moral compulsion in arriving at its holding. Id. at 260, 542 A.2d at 1342.

With the relevant case law before us for guidance, we must decide whether sufficient evidence of forcible compulsion exists to sustain a...