No. 2981 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County at No. 1501/1512 Mar Term 1980.
Frank Palumbo, Jr., Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, McEwen and Popovich, JJ.
[ 296 Pa. Super. Page 26]
Walter Adams, appellant herein, was tried before the Honorable Stanley L. Kubacki sitting with a jury at a trial commencing June 23, 1980 and was convicted of numerous offenses involving the abduction and rape of a young woman.
The evidence at trial established that on two separate occasions Adams committed sexual crimes against a young woman named Kim Walker. The victim testified that on November 28, 1979, she was approached by Adams inside the Pony Trail Bar, 52nd and Stiles Street, Philadelphia. Adams tried to have a conversation with the victim, but she cut him short and stated she had to go out on an errand. She was pregnant at the time and not interested in his company. Adams persisted in his attempts to become intimate with her and offered to talk with her. Using the pretext that he would protect her on the streets against unknown dangers,
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he accompanied her. He persuaded her to stop with him, for a moment, at his sister's house. On their way back to the Pony Trail Bar, he took a knife from his pocket, stuffed a bandana in the victim's mouth, pulled her into an alley, and pushed her to her knees. He demanded that she perform an act of deviate sexual intercourse. When she refused, he punched her in the stomach and the face. He pulled her to her feet, dragged her out of the alleyway, down 51st Street and into a cemetery located at 51st Street and Girard Avenue. Adams pushed the victim and punched her again. He forced her to partially disrobe. He hit her in the face and made her commit oral sex on him. The victim vomited. At that point Adams took her wristwatch and left her in the cemetery. The victim made her way back to the Pony Trail Bar where she told some friends what had happened. The police were summoned and the victim was taken to the hospital.
Several weeks later, on December 18, 1979, Adams and several unknown cohorts abducted the victim from the street at the intersection of 52nd and Warren Avenue in Philadelphia. The victim, on this second occasion, was taken to a nearby house, stripped of her clothing, tied to the bedstead and raped repeatedly.
The men, with the exception of defendant also forced her to commit oral sex on them. One of the men gave her injections which caused her to become somewhat disoriented, nervous, and confused. The victim estimated that her ordeal lasted four days during which she was subjected to frequent sexual abuse. She was injected with drugs, denied food and drink, and left tied to a bed. Finally, on what she estimated to be the fourth day she managed to escape when the men forgot to tie her up. She managed to gather her clothes together, open a window, jump out, and run away. The police were summoned and Adams was arrested shortly thereafter. The victim was hospitalized. It was determined in the hospital that she had been injected with a quantity of methamphetamine. For these crimes, Adams was sentenced to terms which, in the aggregate, constitute a sentence of twelve to twenty-five years.
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I. WHETHER THE CHARGE OF INVOLUNTARY DEVIATE SEXUAL INTERCOURSE MERGED IN THE RAPE CHARGE WHEN BOTH OF THE CHARGES AROSE OUT OF THE ONE CRIMINAL EPISODE, MAKING IMPOSITION OF SEPARATE CONSECUTIVE SENTENCES FOR BOTH CRIMES AMOUNT TO DOUBLE JEOPARDY?
In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) the applicable rule for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was set forth:
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb.' It has long been understood that separate statutory crimes need not be identical -- either in constituent elements or in actual proof -- in order to be the same within the meaning of the constitutional prohibition . . . .
[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense . . . .' Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense . . . .
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition
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of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180  76 L.Ed. 306 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . .
This test emphasizes the elements of the two crimes. 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes . . . .'
Id. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 193-94.
Walter Adams alleges that he was placed twice in jeopardy due to the imposition of separate consecutive sentences after his conviction for two counts of involuntary deviate sexual intercourse and one count of rape. Although rape, 18 Pa.C.S.A. § 3121 and involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123, may constitute the same crime for the purposes of the double jeopardy clause, where the defendant's actions constitute separate injuries to the "peace and dignity of the Commonwealth," then each separate act may be punished separately.
Here, the first criminal act of Adams occurred during the November 29 incident when he coerced Ms. Walker into an act of oral sodomy. For this act, he was convicted and sentenced on Bill 1507, charging involuntary deviate sexual intercourse during the November 29 incident [N.T. 5.67]. Because the act of Adams leading up to his conviction on Bill 1507 was separate from the other charges of rape and involuntary deviate sexual ...