No. 1178 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Mercer County, Criminal Division, No. 667 Criminal, 1977
Charles F. Gilchrest, Sharon, for appellant.
David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Price, Hester and Montgomery, JJ.
[ 275 Pa. Super. Page 55]
Appellant was tried before a jury and found guilty on March 23, 1978, of rape*fn1 and corruption of the morals of a minor.*fn2 Post-trial motions regarding the rape conviction were denied*fn3 and this appeal, which raises nine assignments of trial error, followed. Because we find these assignments of error are without merit, we affirm the judgment of sentence.
All charges arose out of a single act of unlawful sexual intercourse on the evening of November 21, 1977, between appellant and his stepdaughter, Tammy Lynn Davis, who
[ 275 Pa. Super. Page 56]
was fifteen at the time. Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the following facts were adduced at trial. On the evening of November 21, appellant was at home with Tammy. Tammy's mother, Rita Rough, was not at home and the other children were asleep in their bedrooms. Appellant forced Tammy to the living room floor, struck her, and then forcibly led her to the master bedroom. Tammy attempted to run away without avail and her screams were silenced when appellant placed his hand over her mouth. Evidence showed that appellant had struck Tammy on several prior occasions and that she was in fear at this time. Appellant then had sexual intercourse with her.
We will treat appellant's assignments seriatim. He first contends that the evidence was insufficient to convict him of rape. The test in evaluating the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences in its favor, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977).
The only element appellant disputes was sufficiently proved is forcible compulsion. The force necessary to support a rape conviction need only be such as to establish a lack of consent, and it is relative depending upon the particular circumstances. Commonwealth v. Irvin, 260 Pa. Super. 122, 393 A.2d 1042 (1978). "[C]onsent is an act of free will. It is not the absence of resistance in the face of actual or threatened force inducing a woman to submit to a carnal act"; active opposition is not a prerequisite to finding lack of consent. Commonwealth v. Hayden, 224 Pa. Super. 354, 356-57, 307 A.2d 389, 390 (1973). See Commonwealth v. Moskorison, 170 Pa. Super. 332, 85 A.2d 644 (1952). Outcry, struggle and fresh complaint need not be proven to sustain a rape conviction, but are merely factors to be weighed by the trier of fact. Johnson Appeal, 445 Pa. 270, 284 A.2d 780 (1971); Commonwealth v. Hornberger, 199 Pa. Super. 174,
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A.2d 276 (1962). In the present case, the victim's testimony as to her fear and appellant's forceful treatment of her demonstrated sufficient lack of consent to sustain the verdict.
Appellant's second assignment claims error in the trial court's refusal to repeat during supplemental jury instructions appellant's submitted point for charge concerning consent. The omitted instruction had been read during the original instructions, but was deleted later on the trial court's determination ...