Com. v. Widmer

Decision Date08 December 1995
Citation667 A.2d 215,446 Pa.Super. 408
PartiesCOMMONWEALTH of Pennsylvania v. Barry WIDMER, Jr., Appellant, COMMONWEALTH of Pennsylvania, Appellant, v. Barry WIDMER, Jr., Appellee.
CourtPennsylvania Superior Court

Patrick J. Connors, Media, for Barry Widmer, Jr.,

Dennis C. McAndrews, Assistant District Attorney, Wayne, for Commonwealth.


WIEAND, Judge:

Barry Widmer, Jr. was tried by jury and was found guilty of rape 1 and two counts of indecent assault. 2 He was sentenced on his rape conviction to partial confinement for a term of not less than thirty-six (36) months nor more than seventy-two (72) months, pursuant to which he was to be furloughed every week from 8:00 a.m. Monday until 6:00 p.m. Friday. 3 He was also ordered to make restitution to the victim, to pay the costs of prosecution and to perform three hundred fifty (350) hours of community service. Subsequently, pursuant to defense motion, Widmer's sentence of partial confinement was modified to a period of not less than thirty (30) months minus one (1) day nor more than sixty (60) months minus one (1) day, with furloughs to commence every week from 6:00 p.m. Monday until 6:00 p.m. Friday. 4 All other aspects of the original sentence remained unchanged. Thereafter, the Commonwealth filed a motion for modification of sentence, and, when that motion was denied, both the Commonwealth and Widmer timely filed direct appeals.

Widmer's Appeal

On appeal, Widmer has raised the following issues for review:

I. Whether the Trial Court erred in instructing the jury that, with regard to the offense of Rape of an unconscious victim, the term "unconscious" included a sleeping person.

II. Whether the evidence was insufficient to sustain the conviction of Rape since the Commonwealth failed to prove beyond a reasonable doubt that Ms. McCusker was "unconscious" as that term is used in 18 Pa.C.S. § 3121(3).

III. Whether the verdicts herein were against the weight of the evidence since the evidence clearly showed that the sexual relations engaged in by the parties were consensual in nature.

IV. Whether the Trial Court erred when it precluded Appellant from introducing evidence that Ms. McCusker had a proclivity toward "adventuresome" sexual conduct.

In reviewing a challenge to the sufficiency of the evidence to sustain a criminal conviction, this Court must:

determine "whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, the jury could have found that each and every element of the charged offenses was proved beyond a reasonable doubt." Commonwealth v. Sanchez, 416 Pa.Super. 160, 166, 610 A.2d 1020, 1023 (1992). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). "[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Battiato, 422 Pa.Super. 285, 289, 619 A.2d 359, 360-361 (1993).

On the evening of July 29, 1993, Widmer and two friends, Rob Mullin and Edward Brown, went to the home of Widmer's uncle Charles Cress, in Drexel Hill, Upper Darby Township, for the purpose of celebrating Widmer's twenty-first birthday. Among those present at Cress's home were David McAndrew, who also resided there, and McAndrew's girlfriend, Joanna McCusker. After about an hour of drinking, Widmer, Cress, Mullin, Brown and McAndrew went out to a bar to continue their celebration. They remained at the bar for approximately three to three and one-half hours and, then, the group returned to the home of Cress and McAndrew. Widmer went upstairs to use the bathroom, and, after he had been gone for what seemed to be a long time, McAndrew went upstairs to check his whereabouts. Upon doing so, McAndrew found Widmer in McAndrew's bedroom engaged in sexual intercourse with McCusker. Widmer then left the house and McAndrew retrieved a handgun and followed him. Outside McAndrew threatened to kill Widmer, who, after pleading with McAndrew not to shoot him, left the scene with Mullin and Brown. At trial, Widmer testified that he and McCusker had engaged in consensual intercourse. McCusker, however, said that she had been sleeping and had awakened to find Widmer on top of her with his penis in her vagina. According to McAndrew, he entered his bedroom and found Widmer on top of McCusker, with McCusker hitting Widmer on the chest. Widmer had then rolled off McCusker onto the floor. He looked up at McAndrew and appeared to be scared. After Widmer had fled the room, McAndrew said that McCusker had been shaking and crying.

Widmer was convicted of rape under 18 Pa.C.S. § 3121(3), which provides as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:


(3) who is unconscious....

Widmer argues that the evidence at his trial was insufficient to sustain his conviction under subsection (3) of the rape statute because a person who is sleeping is not "unconscious" as that term is used in the statute.

In Commonwealth v. Price, 420 Pa.Super. 256, 616 A.2d 681 (1992), the Superior Court considered this precise issue and "conclude[d] that a sleeping victim is 'unconscious' under § 3121(3)." Id. at 262, 616 A.2d at 683. The Price Court reasoned as follows:

[W]e hold here that the subsection proscribing intercourse with "unconscious" persons was enacted to proscribe intercourse with persons unable to consent because of their physical condition.

Webster defines "unconscious" as "not knowing or not perceiving: unaware." Webster's New Collegiate Dictionary, 9th Ed. Thus, consistent with the common definition of "unconscious," and the legislative intent behind the rape statute, we hold that engaging in sexual intercourse with a sleeping victim was intended to be proscribed by § 3121(3). A person who is asleep is certainly unaware of her surroundings and unable to protect against the serious personal intrusion caused by non-consensual intercourse.

Id. at 262, 616 A.2d at 784 (footnote omitted). See: Toll, Pennsylvania Crimes Code Annotated, § 3121, at p. 368, quoting Model Penal Code Comment: [T.D. No. 4, pp. 246-256] (18 Pa.C.S. § 3121(3) "takes care of the situations where the woman is asleep or unconscious.") (footnote omitted). Although Widmer attempts to distinguish Price on its facts, it is clear that the rationale of Price is controlling. Inasmuch as the evidence, when viewed in the light most favorable to the Commonwealth, established that Widmer had engaged in non-consensual sexual intercourse with Joanna McCusker while she slept, the evidence was sufficient to establish Widmer's guilt under 18 Pa.C.S. § 3121(3).

Having concluded that the term "unconscious", as used in 18 Pa.C.S. § 3121(3), includes a victim who is sleeping at the time the intercourse occurs, it necessarily follows that the trial court did not err by instructing the jury that, for purposes of applying 18 Pa.C.S. § 3121(3), "a sleeping victim is unconscious." This was a correct statement of the law. "A jury instruction given by the trial court will be upheld so long as it 'sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.' " Commonwealth v. Calderini, 416 Pa.Super. 258, 266, 611 A.2d 206, 210 (1992), quoting Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990).

Widmer further contends that the jury's verdicts of guilty were contrary to the weight of the evidence in that his testimony was more credible than that of the victim. This issue, however, was not presented to the trial court in a post-sentence motion for a new trial, but, rather, was first raised in Widmer's statement of matters complained of on appeal. With respect thereto, the trial court observed as follows in its opinion pursuant to Pa.R.A.P. 1925(a):

It is this Court's unshakable opinion that the weight of the evidence lies clearly in Mr. Widmer's favor. " 'A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and [make] the award of a new trial ... imperative so that right may be given another opportunity to prevail.' " [Commonwealth v. Horton, supra, 434 Pa.Super. 478, 482, 644 A.2d 181, 183, (1994) ] quoting Commonwealth v. Whitney, 512 A.2d 1152, 1155-56, 511 Pa. 232, 239 (1986). This Court's sense of justice was indeed shocked. Defendant, by taking a direct appeal, has deprived this court of the opportunity to act on the weight of the evidence question, and left this court with only the ability to express its view on this issue by addressing it in response to the Defendants concise...

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