No. 2653 October Term, 1978, Appeal from the Judgment of Sentences Imposed on October 13, 1978 by the Honorable John M. Kurtz Of the Court of Common Pleas, Chester County, Pennsylvania (No. 1527-76)
R. Kerry Kalmbach, Assistant Public Defender, West Chester, for appellant.
Dolores Troiani, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Wieand, Robinson and Louik, JJ.*fn* This decision was reached following the death of Robinson, J.
[ 274 Pa. Super. Page 541]
Appellant has appealed his conviction by a jury of Rape, 18 P.S. § 3121(4) and Indecent Assault § 3126(1). In his appeal, eight issues are presented to the court. However, the court finds one issue particularly troublesome and, therefore, directs its attention to the question of whether the Court's instructions were sufficient to support a verdict of guilty on charges of rape and indecent assault beyond a reasonable doubt.
Viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, as we must, Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978), the following evidence was established at trial. Mary Finley was an in-patient at Pennhurst State School, an institution for the mentally retarded. The Appellant was an employee of the institution at the time of the incident, and he knew Ms.
[ 274 Pa. Super. Page 542]
Finley was a patient. On the day in question, two security guards observed appellant and Ms. Finley in the act of sexual intercourse in the presence of Donald Simmons, also a patient at Pennhurst in the basement boiler room. Ms. Finley was "adjudged" incompetent to testify at the preliminary hearing based upon the testimony of a psychologist. At trial, she was determined to be competent to testify. A Dr. Kool also testified at trial that at the time of the incident, she was not capable of giving informed consent.
Appellant argues that under subsection (1) of 3126 and subsection (4) of 3121 it is part of the Commonwealth's burden to prove the defendant knew such a person is incapable of consent, and that the Commonwealth did not prove, even by circumstantial evidence that appellant had such knowledge.
The rape section and subsection of which the appellant was found guilty provides:
"A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse;
(4) who is so mentally deranged or deficient that such person is incapable of consent."
While the subsection of rape dealing with incompetents does not state that a person must "know" of victim's condition, it is nevertheless an element of proof in the Commonwealth's case to prove mens rea. Section 302 of the Crimes Code provides the intent required to establish culpability when it is not expressly stated in the particular section charged. Section 302(a) of the Crimes Code provides in part:
". . . a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect ...