No. 137 Pittsburgh, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 790-3887A.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cavanaugh, Brosky and Montgomery, JJ. Montgomery, J., files concurring and dissenting statement.
[ 324 Pa. Super. Page 560]
Appellant George Ritchie was tried by a jury and convicted of rape, involuntary deviate sexual intercourse, incest, and corruption of minors. Post-verdict motions were denied and appellant was sentenced to a term of three to ten years incarceration. The instant appeal followed. For the reasons discussed below, we now vacate the judgment of sentence and remand for further proceedings.
The instant charges arose out of an incident involving appellant's daughter, Jeanette, who was thirteen at the time of trial. Jeanette testified that she was watching television on the evening of June 11, 1979, when appellant entered the room and demanded that she perform oral sex on him "or else." (N.T. at 24.) Jeanette testified that based on past experience, she knew that the "or else" meant that if she did not do as appellant requested, she would be hit. Appellant forcibly removed Jeanette's clothes when she refused to do so and then forced her to commit oral intercourse. He then attempted to have normal intercourse with Jeanette, which caused pain to her. When the incident was over, appellant told Jeanette to go to bed.
Several days later, Jeanette told her cousin about sexual contacts between herself and appellant and the cousin told her mother, Jeanette's aunt. The aunt took Jeanette to the police station.
Appellant denied that he ever sexually molested Jeanette.
[ 324 Pa. Super. Page 561]
One of the claims raised by appellant is that the evidence was insufficient to convict appellant of rape. Specifically, appellant alleges that the Commonwealth failed to establish penetration. In reviewing the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth Page 561} v. Stockard, 489 Pa. 209, 212-13, 413 A.2d 1088, 1090 (1980).
We stated in the recent case of Commonwealth v. Ortiz, 311 Pa. Super. 190, 193, 457 A.2d 559, 560-61 (1983), that:
[i]t is quite clear . . . that the definition of "sexual intercourse" found at [18 Pa.C.S.A. § 3101] does not specify "penetration of the vagina," but instead specifies "some penetration however slight." . . . Commonwealth v. Bowes, 166 Pa. Super. 625, 74 A.2d 795 (1950) . . . is the only Pennsylvania appellate case specifically delineating what penetration means in this context. That case stated that entrance in the labia is sufficient: "To constitute the crimes of rape there must be penetration, however slight. (Res in re, but entrance in the labia sufficient: 44 Am.Jur., Rape, § 3)." Id., 166 Pa. Superior Ct. at 628, 74 A.2d at 796 (emphasis in original). We therefore will not hold that a finding of penetration of the vagina is necessary for the jury to find "penetration however slight . . . ." . . . [P]enetration of the vagina, in essence the father reaches of the female genitalia, is not necessary to find penetration under Section 3101.
It is clear that the testimony of the victim alone can be sufficient to establish penetration so as to sustain a conviction of rape. Commonwealth v. Crider, 240 Pa. Super. 403, 361 A.2d 352 (1976). Jeanette testified that she was lying on her back on the floor and appellant was lying on top of her and that he tried to push his penis into her vagina. This caused her pain and appellant finally desisted and told Jeanette to go to bed. We feel that ...