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.
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
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*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 ...