Commonwealth v. Walker
| Decision Date | 06 July 1976 |
| Citation | 362 A.2d 227,468 Pa. 323 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Vurlie WALKER, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued March 11, 1976. [Copyrighted Material Omitted]
John J. Dean, John R. Cook, Office of Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Campbell, Asst. Dist Atty., Pittsburgh, for appellee.
Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appellant, Joseph Vurlie Walker, was tried before a jury and convicted of rape (commonly referred to as forcible rape), statutory rape, violation fo the liquor laws and corrupting the morals of a minor. Post verdict motions were filed and denied. Walker was sentenced to five to ten years imprisonment on the rape conviction; five to ten years imprisonment on the statutory rape conviction; three to twelve months imprisonment on the violation of the liquor laws conviction and one to three years imprisonment on the corrupting the morals of a minor conviction. All sentences were to run concurrently. Walker appealed to the Superior Court which affirmed all judgments of sentence. This Court granted allocatur restricted to a single issue: namely, did the imposition of sentences on the statutory rape conviction and the rape conviction violate Walker's right against double jeopardy since both convictions were based upon the same and one act of sexual intercourse.
The facts which gave rise to this prosecution are as follows. On May 9, 1973, Walker, age 26, picked up a fourteen- year-old female and her fifteen-year-old female companion who were hitchhiking in suburban Pittsburgh. Walker inquired as to their ages and they responded with their correct ages. Walker suggested that they go riding in his automobile and the girls agreed. Some wine was produced and the three drank it. They later made several stops so that either Walker or the girls could run their own errands. Afterward Walker bought some wine and a quantity of marijuana which all three shared. The girls became intoxicated and ill; in fact, the fourteen-year-old began to vomit and became unconscious. Walker attempted to register all three at a motel so he could 'sober up' his companions; however, they were refused. The fifteen-year-old then said she wanted to go home and Walker suggested she take a cab. He gave her five dollars in cash and a check, with his name printed on it, to pay for the transportation and she left. Walker then rented a room in a motel where he took the fourteen-year-old. Later when the young girl began to regain consciousness, she became aware Walker was having sexual relations with her. She screamed, but was warned to be quiet or she would be killed. She again lapsed into unconsciousness and upon reawakening was sent home in a cab.
As stated above, only one issue is presently before this Court. Our inquiry is limited to whether the imposition of separate but concurrent prison sentences on the rape conviction [1] and the statutory rape conviction [2] constitute duplicitous sentences in the constitutional sense where both convictions grew out of the same and single act of intercourse. Initially, the Commonwealth contends that this issue has been waived since Walker failed to object to the sentences when imposed. See Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). However, unlike the appellant in Tisdale, Walker is not attacking the propriety of being twice convicted for a single act and, as such, is not making a disguised attack on the validity of the convictions underlying the sentences. On the contrary, Walker's challenge is directed exclusively at the lawfulness of the sentences imposed upon these convictions. As such the claim has not been waived and is properly before us. [3] Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792 (1972), allocatur refused, 222 Pa.Super. xxxii (1972). Second, the Commonwealth maintains that since the sentences were concurrent, Walker has suffered no prejudice and cannot be heard to complain at this point. However, concurrent sentences, at least because of their collateral consequences have been held to be sufficiently prejudicial to a defendant to constitute a justiciable controversy and, as such, can constitute double punishment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Commonwealth v. Wolfe, 220 Pa.Super. 415, 289 A.2d 153 (1972).
Substantively, Walker requests relief from allegedly duplicitous sentences based on the double jeopardy clause of the Constitution of the United States. It is well-settled that this constitutional provision was designed to prevent an accused from being twice punished for the same offense as well as from being twice tried for it. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1903); Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873). Accordingly, our task is to determine whether Walker has been punished twice in the constitutional sense.
Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth. One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, Commonwealth v. Veley, 63 Pa.Super. 489, 496 (1916). See also Commonwealth v. Carroll, 131 Pa.Super. 357, 200 A. 139 (1938); Commonwealth v. Ernesto, 93 Pa.Super. 339 (1928); Commonwealth v. Camwell, 89 Pa.Super. 339 (1926). Therefore, in order to support the imposition of two sentences in this case, it must be found that Walker's conduct constituted two injuries to the Commonwealth.
Without here considering the convictions for corrupting the morals of a minor and violation of the liquor laws or the facts supporting those convictions, we look to Walker's conduct to determine how many offenses against the Commonwealth have been committed. At Walker's urging, the victim ingested intoxicants until she became unconscious. Then, by taking advantage of her advanced intoxication and by threatening to kill her, Walker had sexual relations with her. His use of force to procure relations without the victim's consent constitutes but a single act and his single act constitutes but a single offense against the peace and dignity of the Commonwealth.
That there is but one offense against the Commonwealth instantly is clear from the statute applicable to this case. [4] 18 P.S. § 4721 defines the crimes of rape and statutory rape in such a manner that the crimes are mutually exclusive. Under 18 P.S. § 4721(a), unlawful carnal knowledge of any female, regardless of age, which is procured by force and accomplished against the victim's will is the crime of rape. Under 18 P.S. § 4721(b), consensual carnal knowledge of a female under the age of sixteen years, by a male, not her husband, older than sixteen, is made a crime and that crime is statutory rape. Under Section 4721(a) rape can be perpetrated against any female, whether or not the victim is under age; the crux of the offense is force and lack of the victim's consent. The statutory rape provisions are only applicable when the victim is under age and has consented, thereby excluding the crime of rape. Accordingly, under the statute, intercourse may be the offense of statutory rape only if the female is under the age of sixteen and has consented; however, all intercourse procured by force against the victim's will, regardless of the victim's age is the crime of rape. In sum, a female's consent to sexual intercourse excludes the possibility of a conviction for the offense of rape and makes the act of intercourse criminally cognizable only if the consenting female is under the age of sixteen. On the other hand, lack of the female's consent excludes the possibility of a conviction for statutory rape but is criminally cognizable as the crime of rape if the non-consensual intercourse was initiated through the use of force. [5]
Further, the penalties imposed under 18 P.S. § 4721 manifest a legislative intent to deter and punish the use of force. Unlawful non-consensual intercourse, that is rape, is punishable by either (1) a fine of up to $10,000 or fifteen years to life imprisonment or both, where serious bodily injury is inflicted upon the victim during commission, or (2) a fine of up to $10,000 or up to twenty years imprisonment or both where no serious bodily injury is inflicted during commission. Consensual, but unlawful, sexual intercourse with an underage female, that is statutory rape, carries a penalty of a fine up to $7,000 or imprisonment of up to fifteen years imprisonment or both. [6] Throughout the statute, the penalty increases as the degree of force used in commission increases. The deterrent effect of the legislative scheme is intended to be the prevention of forcible, non-consensual intercourse and, therefore, the protection of all women from forcible invasions of the person. On the other hand, the primary consideration in prohibiting unlawful, consensual intercourse with an underage female has been traditionally attributed to the legislative desire to protect those who are too unsophisticated to protect themselves.
From the foregoing, the legislative scheme to protect all females from invasions of the person can be determined....
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