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filed: July 22, 1983.


NO. 32 PITTSBURGH 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Butler County, at No. 700 of 1977.


Alexander H. Lindsay, Jr., Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

Popovich, Montgomery and Van der Voort, JJ. Popovich, J., files a dissenting opinion.

Author: Van Der Voort

[ 318 Pa. Super. Page 473]

Appellant's original conviction for statutory rape and attempted homicide was reversed by this court in Commonwealth v. Fulton, 271 Pa. Superior Ct. 430, 413 A.2d 742 (1980); he was granted a new trial due to a defective voir dire of the jury. At a second trial, the appellant was found guilty of statutory rape and attempted homicide. His appeal raises seven contentions of error. We will discuss the seven contentions in the same order as addressed by appellant's counsel. As we find no merit to such claims, we affirm.

I. Did the Court err in holding that the crime of statutory rape, a violation of 18 Pa.C.S. § 3122, is a lesser included offense of the crime of forcible rape, a violation of 18 Pa.C.S. § 3121?

The information filed in this case charged that appellant, in company with others, did "wilfully and unlawfully, knowingly and intentionally engage in sexual intercourse with one ___ Strothers, age 13, by forcible compulsion or threat of same . . .", citing 18 Pa.C.S. § 3121, (forcible rape) but not citing specifically § 3122 (statutory rape). In his charge, at the end of the first trial in March 1978, Judge Dillon gave the jury the alternatives of returning one of three verdicts: guilty of rape; guilty of statutory rape; and not guilty. The jury returned the second verdict.

[ 318 Pa. Super. Page 474]

In the second trial, which took place in January 1981, with Judge Kiester presiding, the court limited the Commonwealth to the charge of statutory rape, and attempted murder, as to which there had also been a verdict of guilty in the first trial. Guilty verdicts were returned on both counts.

It is the appellant's contention, relying upon the case of Commonwealth v. Walker, 468 Pa. 323, 332, 362 A.2d 227, 231 (1976) that (forcible) rape (§ 3121) and statutory rape (§ 3122) are two separate and distinct crimes, mutually exclusive, and that the information filed against this appellant charged a crime of forcible rape. Therefore, appellant contends the evidence submitted by the Commonwealth, to the extent it establishes statutory rape (presumably consensual) constitutes a fatal variance from the offense charged in the information ("by forcible compulsion or threat of same . . ."). Therefore, he believes the statutory rape charge should be dismissed.

Appellant misreads Walker, as requiring his discharge. Walker does demonstrate that forcible rape and statutory rape are two different offenses against the Commonwealth. The court found, that under the facts of that case, the two offenses were "mutually exclusive." Walker could not be sentenced for both as there was only one criminal act accomplished. Appellant overlooks two important aspects of that decision. First, the prosecution was based on the 1966 version of 18 P.S. § 4721. Subsection (a) provided for prosecution for unlawful carnal knowledge against the will of the victim of any age, while (b) pertained only to consensual sexual relations with a female under the age of 16. The current enactments provide:

§ 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 reasonable resolution;

[ 318 Pa. Super. Page 475]

(3) who is unconscious; or

(4) who is so mentally deranged or deficient that such person is incapable of consent.

§ 3122 Statutory rape

A person who is 18 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age.

A close reading of § 3122 reveals that consent is not required for a statutory rape conviction. Unlike the preceding § 4721, intercourse by force or with consent is punishable under the current enactment. Therefore, an acquittal of forcible rape does not bar a conviction for statutory rape arising from the same incident.

This brings us to the second point which appellant overlooks in his analysis of Walker, 468 Pa. 323 at 333 n. 5, 362 A.2d 227 at 232 n. 5. Footnote number 5 reads:

Although convictions for the crimes of statutory rape and rape based on a single act of intercourse are mutually exclusive under 18 P.S. § 4721, we express no opinion concerning the right of the Commonwealth to charge a defendant in an information or indictment with both crimes in the alternative. Indeed, given the proof problems inherent in the law of rape, there may well be situations where it is necessary and proper to charge both crimes as alternatives.

The court thereby, explicitly refused to address the issue whether both crimes could be alleged when only one act was performed. Implicitly therefore, the court also did not determine whether statutory rape was a lesser included offense of rape and hence need not be specifically charged in a criminal information. This brings us to the focus of the problem. Appellant argues that since Walker distinguishes between the two crimes, the second jury is barred from finding that the victim consented since the first jury found she had not. Therefore, he claims, the Commonwealth should have charged him in a second count with consensual, but underage sexual intercourse.

[ 318 Pa. Super. Page 476]

The trial court however found that the information, even if "not artistic enough", was adequate to charge appellant with statutory rape as it indicated the victim was "age 13." In the alternative, the trial court found ...

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