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decided: July 6, 1976.



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.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., joins in this opinion and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion in which Nix, J., joins.

Author: Eagen

[ 468 Pa. Page 328]


Appellant, Joseph Vurlie Walker, was tried before a jury and convicted of rape (commonly referred to as forcible rape), statutory rape, violation of the liquor laws and corrupting the morals of a minor. Post verdict motions were filed and denied. Walker was sentenced to

[ 468 Pa. Page 329]

    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

[ 468 Pa. Page 330]

    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*fn1 and the statutory rape conviction*fn2 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.*fn3

[ 468 Pa. Page 331]

    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.*fn5

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

[ 468 Pa. Page 334]

    imprisonment or both.*fn6 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. The Legislature seeks to protect all females from force and where force is used, the actor is guilty of rape. On the other hand, the Legislature seeks to protect some females from their own lack of sophistication and an actor who trades on unsophistication, as defined in the statute by age, is guilty of the crime of statutory rape. Here, Walker was not taking advantage of the girl's lack of sophistication, per se, to procure her consent, but rather, used force and threats to induce sexual relations. Therefore, it is the Commonwealth's interest in prohibiting and preventing forcible invasions of the person which is offended here, not the Commonwealth's interest in protecting the unsophisticated since sophistication and age become irrelevant once force or violence is used against a victim. Accordingly, the Commonwealth has suffered only one injury from Walker's single act of unlawful sexual intercourse and Walker's single act mandates but one punishment.*fn7

[ 468 Pa. Page 335]

This Court acknowledges that prior to the enactment of 18 P.S. § 4721, courts of the Commonwealth had held that a defendant could be convicted of rape and statutory rape based on a single episode of unlawful sexual intercourse. However, those cases also stated that although dual convictions for a single episode were possible, the defendant could only be sentenced as if there were but one conviction. Commonwealth v. Cox, 209 Pa. Super. 457, 228 A.2d 30 (1967), allocatur refused, 209 Pa. Super. xxxix, habeas corpus denied sub nom. United States ex rel. Cox v. Russell, 283 F.Supp. 171 (E.D.Pa.1968); Commonwealth v. Samyan, 21 Pa.D. & C. 401 (1934). Moreover, whatever wisdom may have influenced that position does not influence this Court in rendering the instant decision since both Cox and Samyan were decided under statutes which preceded the statute applicable to this case and differed materially, at least in the definition of statutory rape, from the statute applicable to the case at bar. Prior to May 12, 1966, when the Legislature amended 18 P.S. § 4721 by creating 18 P.S. §§ 4721(a) and (b) and changing the language of the former statute from "with or without her consent" to "with her consent," statutory rape could be accomplished either consensually or nonconsensually. However, after the amendment, statutory rape was limited to consensual intercourse exclusively.*fn8 We believe that this legislative

[ 468 Pa. Page 336]

    amendment changed the character of the offenses to such an extent that Cox and Samyan are readily distinguishable. While there is no need to overrule these cases, they are not controlling here.

Hence, we rule that under the circumstances Walker was unlawfully sentenced for statutory rape, and that sentence is set aside. The remaining sentences imposed for rape, violation of the liquor laws and corrupting the morals of a minor are affirmed.

Hence, the order of the Superior Court is reversed in so far as it affirmed the judgment of sentence imposed on the statutory rape conviction. In all other respects the order is affirmed.

MANDERINO, Justice (concurring).

I join in the majority opinion by Mr. Justice Eagen. I should like to add that the issue of double jeopardy is similar to an issue of subject matter jurisdiction. It may be raised at any time even initially on appeal. Constitutionally, no court has jurisdiction to try or sentence a person twice, in violation of the Federal and Pennsylvania Constitutions. See Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976) (filed July 6, 1976).

POMEROY, Justice (dissenting).

The Court today reverses the judgment of sentence imposed upon appellant's conviction for statutory rape on

[ 468 Pa. Page 337]

    the basis of an issue that has not been properly preserved for appeal purposes. For this reason, I must dissent.

Although the Court apparently agrees with the Commonwealth that the issue of the propriety of the sentencing of appellant on both his convictions for rape and statutory rape was not raised in the trial court, it nonetheless goes on to consider the merits of appellant's double jeopardy challenge. Assuming that the Court is correct that appellant's claim is solely an attack upon the lawfulness of the two sentences and not merely a disguised attack on his convictions,*fn1 consideration of this issue is foreclosed by this Court's holding in Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974).

In Piper, over my dissent, a majority of the Court held that the failure to object to the constitutionality of the sentence imposed at the time of sentencing constituted a waiver of that issue. While, as my dissenting opinion demonstrated, I did not believe that finding a waiver in that case was in the best interests of justice, 458 Pa. at 312-315, I do believe that the Court should consistently apply its waiver rules. See also my dissenting opinion in Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234. Application of the Piper decision in this case

[ 468 Pa. Page 338]

    should preclude our consideration of the merits of appellant's claim.*fn2 Hence this dissent.

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