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COMMONWEALTH PENNSYLVANIA v. ELROYAL IRVIN (11/08/78)

decided: November 8, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ELROYAL IRVIN, APPELLANT



No. 34 April Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division entered on July 21, 1976, at No. CC7506687A.

COUNSEL

Lester G. Nauhaus and John H. Corbett, Jr., Assistant Public Defenders, Pittsburgh, for appellant.

Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 260 Pa. Super. Page 124]

After a non-jury trial, appellant was convicted of rape*fn1 and involuntary deviate sexual intercourse*fn2 and sentenced to serve a term of imprisonment of one and one-half (1 1/2) to five (5) years on the rape count, while sentence on the second count was suspended. Appellant was originally charged with a third count, aggravated assault,*fn3 but was found not guilty of this offense. He now contends that since all three charges arose out of the same set of facts, his acquittal on the aggravated assault count is inconsistent with his conviction on the rape and involuntary deviate sexual intercourse counts. This contention is without merit, and the judgment of sentence is affirmed.

Viewing the evidence in the light most favorable to the Commonwealth, as we must, Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975), the following was adduced at trial. On August 12, 1975, the victim, Miss Barbara Moore, was at the Tourist Club, a Pittsburgh bar. She began talking with appellant, and at approximately 3:30 a. m., asked him if he would give her a ride to another bar. Appellant refused, but agreed to drive Miss Moore to her mother's home. According to Miss Moore, instead of driving her to her mother's home, appellant drove to a secluded spot in a park. This was followed by an exchange of verbal obscenities between the parties. The appellant allegedly became violent, and started choking Miss Moore and tearing off parts of her clothing.

According to the victim, appellant forced her to commit oral sex and then tore off her remaining clothing and raped her. After the rape, Miss Moore escaped from the auto and

[ 260 Pa. Super. Page 125]

    ran to the porch of a nearby home. Appellant followed and once again began to choke her. The victim's screams aroused the occupant of the home, who testified that she peered out of her window and saw a naked woman on her porch and a man bending over the woman choking her. The occupant opened the door leading to the porch and the assailant fled.

The police were summoned and, with Miss Moore accompanying them, started to search the area. Miss Moore pointed out the appellant's car and identified appellant as her assailant. He was placed under arrest, and a search of his vehicle revealed Miss Moore's purse and some of her clothing. During the Commonwealth's case, the occupant of the home, along with the victim's mother and older sister, testified to observing bruises on the victim's neck.

Appellant's primary contention is that the acquittal on the aggravated assault count is inconsistent with his conviction on the rape and involuntary deviate sexual intercourse counts. As support for this contention appellant has advanced a two step argument. First, he alleges that his acquittal on the aggravated assault charge necessarily implies an acquittal on simple assault, a lesser included offense in the crime of aggravated assault. Second, without a finding that even a simple assault was committed, there is insufficient evidence to establish the element of forcible compulsion necessary to support the convictions for rape and involuntary deviate sexual intercourse. With neither of these contentions can we agree.

First, the degree of force involved in the crime of aggravated assault is not the same as that involved in the crimes of forcible rape and involuntary deviate sexual intercourse. The force necessary for the crime of aggravated ...


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