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COMMONWEALTH PENNSYLVANIA v. JOSE ORTIZ (03/11/83)

filed: March 11, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSE ORTIZ, APPELLANT



NO. 1878 PHILADELPHIA, 1981, Appeal from the judgment of sentence of June 16, 1981 in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 2513-2515 August, 1980.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Beck, JJ.

Author: Beck

[ 311 Pa. Super. Page 191]

Appellant, Jose Ortiz, was convicted by a jury of rape, simple assault, indecent assault and corrupting the morals of a minor. The trial court granted appellant's post-verdict motion in arrest of judgment as to the charge of corrupting the morals of a minor because that charge was not in the original complaint and that complaint was improperly corrected

[ 311 Pa. Super. Page 192]

    to include it. Appellant was sentenced to a period of seven and one-half to fifteen years imprisonment for rape and a consecutive term of three years probation for indecent assault. That sentence was subsequently vacated because the rape and indecent assault offenses were found to merge. Sentence for the simple assault conviction was suspended.

Appellant alleges in this appeal that the lower court erred in its charge on "sexual intercourse" pursuant to 18 Pa.C.S.A. § 3101. "Sexual intercourse" is an element of the rape offense, 18 Pa.C.S.A. § 3121, which states in relevant part:

§ 3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of ...


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