No. 1782 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed On No. 1980, January Sessions, 1975.
John A. Papola, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, joins.
[ 252 Pa. Super. Page 36]
Appellant contends that the Commonwealth did not present sufficient evidence to convict him of indecent assault*fn1 and rape*fn2 and that the lower court lacked the statutory authority to order payment of $500.00 to the Clerk of the Quarter Sessions Court for the use of the Voluntary Defender Association of Philadelphia. We find sufficient evidence to convict appellant of the charges. However, because we agree with appellant's second contention, we vacate the lower court's order requiring appellant to reimburse the Voluntary Defender Association.
[ 252 Pa. Super. Page 37]
On January 5, 1975, appellant and the seventeen year old victim spent the afternoon with some other people at a friend's house. After leaving the friend's house to take one of the people home, appellant took the victim and her three month old baby to a house on the fifteen hundred block of North 8th Street in Philadelphia to meet some people. The victim and her baby remained in the car while appellant went into the house. When appellant returned five minutes later, he asked the victim to come upstairs with him to meet some friends who were playing cards. The victim and her baby then entered a third floor apartment with appellant. As the victim proceeded with her baby to the front room where appellant's friends were supposed to be playing cards, appellant pushed her into a bedroom and onto a bed. Appellant ordered the victim to remove her clothes and when she refused, he held a pillow over her face. When she continued to refuse, appellant threatened to smother her baby. At this point, the victim removed her clothes and appellant had sexual intercourse with her. Although the victim yelled once, when appellant ordered her to stop, she complied. After having intercourse, appellant apologized and drove the victim and her baby to a fast-food restaurant where they remained in the car while appellant went inside for some food. Appellant returned shortly and drove the victim and her baby home. The victim then related the incident to her sister-in-law who called the police.
Appellant was charged with indecent assault and rape. The public defender represented appellant at his preliminary hearing, arraignment, and trial.*fn3 After a trial on July 18, 1975, appellant was convicted of rape. At the lower court's request, appellant presented information at a hearing on October 8, 1975, concerning his age, marital status, dependents, employment, education, and property to enable the lower court to evaluate appellant's financial status. At a subsequent hearing on October, 1975, the court considered the extent of the public defender services appellant had
[ 252 Pa. Super. Page 38]
received, and sentenced appellant to one year's probation and to pay $500.00 to the use of the public defender.*fn4 This appeal followed.
Appellant's first contention is that there was insufficient evidence to support the rape conviction. In reviewing the record to determine whether the evidence supports the verdict, our courts view the evidence and all reasonable inferences derived therefrom in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). Further, the testimony of one witness, the victim, is sufficient to sustain a rape conviction. Johnson Appeal, 445 Pa. 270, 284 A.2d 780 (1971); Commonwealth v. Crider, 240 Pa. Super. 403, 361 A.2d 352 (1976). In the instant case, the victim testified that appellant placed a pillow over her face when she refused to remove her clothes and threatened to harm her and her baby if she resisted. She also stated that she only screamed once because appellant ordered her to stop and she feared his threats. We agree with the lower court that the victim's testimony demonstrated sufficient lack of consent to sustain the verdict.
Appellant's second contention is that the lower court lacked statutory authority to require him to reimburse the public defender for its services. We believe that our Supreme Court has clearly determined that there is no statutory authority to support the lower court's order. Commonwealth v. Terry, 470 Pa. 234, 368 A.2d 279 (1977). In Terry, the Commonwealth charged appellant with possession of a controlled dangerous substance with intent to deliver and the court appointed a public defender to represent him. After acquittal of all charges, the ...