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filed: December 19, 1979.


No. 809 April Term 1978, Appeal from Judgments of Sentence, Court of Common Pleas, Criminal Division of Indiana County, at No. 114 Crim. 1977.


John H. Armstrong, Indiana, for appellant.

Walter S. Vuckovich, District Attorney, Indiana, for Commonwealth, appellee.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Spaeth

[ 273 Pa. Super. Page 168]

Appellant was convicted after a trial by jury of rape and burglary. On this appeal he argues that the evidence was insufficient to support his convictions; that his conviction of rape was against the weight of the evidence; and that the lower court erred in refusing to affirm a point for charge.

Appellant's argument that the evidence was insufficient for the jury to convict him of rape is frivolous. Appellant admitted at trial that he had sexual intercourse with the victim at the time and place charged in the indictment. Although appellant maintained that the victim consented to intercourse, the jury was entitled to believe the victim's

[ 273 Pa. Super. Page 169]

    testimony that she did not consent.*fn1 Whether the Commonwealth's evidence was sufficient to convict appellant of burglary, however, presents considerable problems. Appellant argues that the evidence was insufficient to show that he entered the victim's dormitory room with the intent to commit a crime therein. See 18 Pa.C.S.A. § 3502 (1973). At most, appellant argues, the evidence showed that he formed the intent to rape the victim only after he entered the room. For the reasons below, we also reject this argument.


When an appellate court holds that the evidence is insufficient to support a conviction, it says to those who were members of the jury: "We know that by announcing your verdict, you told the trial judge you had no reasonable doubt that the defendant had committed the crime. But you were wrong. You should have had a reasonable doubt." This is the most serious intrusion into the trial process that an appellate court can make, for the result of it is that because of the prohibition against double jeopardy, the defendant must be ordered discharged and cannot be tried again. See Commonwealth v. Caye, 465 Pa. 98, 384 A.2d 136 (1975); Commonwealth v. Benaglio, 254 Pa. Super. 100, 385 A.2d 544 (1978).

[ 273 Pa. Super. Page 170]

Given so serious a consequence -- both from the prosecutor's point of view if the defendant is discharged, and from the defendant's point of view if despite what he considers insufficient evidence, he is held -- it is important to achieve a proper balance between the appellate court and the jury. The court must not defer so much to the jury's verdict as to abdicate its responsibility. But neither must it intrude too far into the jury's deliberations. If this balance is to be achieved, the court must review the evidence according to the rule appropriate to the particular case. Generally stated, the cases are of three sorts.

The first sort of case is where the jury was presented with no evidence of an essential element of the offense charged. A garden variety of this sort of case is where the charge is possession of a controlled substance but there has been no evidence that the defendant possessed the substance. See Cmwlth. v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Cmwlth. v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976). In such a case the only question the court must decide is whether, as a matter of law, proof of a certain fact -- for example, possession -- was essential to conviction. By deciding this question, the court in no way intrudes into the jury's deliberations. The jury could only have deliberated about the evidence presented to it. If there was no evidence that the defendant possessed the substance, the jury could hardly have discussed whether or not he did possess it. The jury's verdict therefore represents a statement that the defendant is guilty even without evidence of possession. Since that statement is wrong as a matter of law, the court abdicates its responsibility if it does not vacate the sentence and order the defendant discharged.

The second sort of case is where the jury was presented with conflicting direct evidence of a fact essential to conviction. Suppose, for example, that a witness testified that he saw the defendant with the controlled substance in his hand, but another witness testified that the defendant was somewhere else. For the appellate court to say that the evidence was insufficient to support a conviction because the jury

[ 273 Pa. Super. Page 171]

    should have had a reasonable doubt about whether the defendant possessed the substance will almost certainly represent an unwarranted intrusion into the jury's deliberations. Since the jury saw and heard the witnesses, it was in a far better position than the appellate court to decide that the testimony of the prosecution's witness should be believed and that of the alibi witness should not be believed. To be sure, a case may be supposed where the court's sense of justice will be so offended that it will decide to intrude anyway. Consider the law school hypothetical, in which the prosecution's witness has been convicted of any number of heinous offenses, and the alibi witnesses are seven bishops. See also Cmwlth. v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1973). In practice, however, the court will be so conscious of its vulnerability, because it did not see and hear the witnesses, that in the end it will almost always decide not to intrude, and despite its misgivings, will leave the case as the jury decided it. See e. g., People v. Eisenberg, 22 N.Y.2d 99, 291 N.Y.S.2d 318, 238 N.E.2d 719 (1968), where, over a vigorous dissent, the majority of the Court of Appeals of New York let stand a conviction ...

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