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COMMONWEALTH v. HORNBERGER (09/13/62)

September 13, 1962

COMMONWEALTH
v.
HORNBERGER, APPELLANT.



Appeals, Nos. 197, 256, and 257, Oct. T., 1962, from judgments of Court of Quarter Sessions of Philadelphia County, Sept. T., 1960, Nos. 148, 151, and 152, in case of Commonwealth of Pennsylvania v. James Hornberger. Judgments affirmed; reargument refused October 3, 1962.

COUNSEL

David H. Kubert, for appellant.

Arlen Specter, Assistant District Attorney, with him Frank E. Gilbert, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 199 Pa. Super. Page 176]

OPINION BY FLOOD, J.

The appellant, who was convicted of rape and sodomy, contends that he was improperly convicted of rape because there was no outcry, struggle, fresh complaint or prompt prosecution and because the evidence was insufficient to sustain the conviction and indicates consent. He also argues that the charge of the court below was fundamentally erroneous as to resistance and improperly stated the court's belief that an offence had taken place. He contends that his sodomy conviction was improper because there was no evidence of penetration independent of his confession, that the confession was improperly submitted to the jury without evidence as to its meaning, that it was inadmissible without prior proof of the corpus delicti, and that the charge was inadequate with respect to proof of the corpus delicti by circumstantial evidence.

1. Outcry, struggle, fresh complaint and prompt prosecution need not be proved to sustain a conviction of rape. Whether their absence indicates consent depends upon the circumstances. These matters were pointed out to the jury and were adequately covered in the charge. to convict. The prosecutrix testified that she asked Paul Cummings, whom she knew, to drive her home, that the appellant, Hornberger, and four other boys got into the car with them, that they drove to a vacant, unlighted lot and that Hornberger and others forced

[ 199 Pa. Super. Page 177]

    her to submit to sexual intercourse against her will. She testified that she pleaded with Hornberger not to do anything to her, that he threatened to hit her if she did not keep quiet and that she tried to push him away but he was too strong for her.

In support of the argument that the evidence indicates consent and is not sufficient to convict, the appellant points out that the prosecutrix did not deny that she and the defendant were kissing and fondling on the way to the lot, she never asked where she was being taken, she testified that Hornberger helped her to remove her clothes, her clothes were not torn, she did not know how her legs got open, she did not attempt to rebut testimony that she taunted two of the other boys because they could not get erections, she was driven to her home after the alleged attack, she did not complain when the group stopped at a gas station on the way home, she did not tell her husband (from whom she was separated) about the incident when she saw him the next night, and she did not tell anyone about it for four days. However, this evidence does not stand alone. Some of the matters were explained by the prosecutrix and some were denied by her. She testified that the defendant threatened to hit her if she did not keep quiet. The evidence as a whole was conflicting on the matter of consent, and its weight was for the jury.

As to resistance, the appellant complains of the following statement in the charge: "It is expected that resistance will be made, unless the mind of the prosecutrix is so overcome by fear that she is incapable of resistance, or unless there is such an exhibition of force on the part of the defendants as to make resistance useless or impossible." He argues that this is error because most intercourse is consensual and ...


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