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COMMONWEALTH PENNSYLVANIA v. NICHOLAS RHODES (03/14/84)

submitted: March 14, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
NICHOLAS RHODES, APPELLANT



No. 3041 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 1471-75 May, 1982.

COUNSEL

Alexander Hemphill, Philadelphia, for appellant.

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

Cavanaugh, Wieand and Cirillo, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Wieand

[ 332 Pa. Super. Page 274]

Nicholas Rhodes was tried non-jury and was found guilty of corrupting a minor,*fn1 indecent exposure,*fn2 indecent assault,*fn3 involuntary deviate sexual intercourse,*fn4 statutory rape,*fn5 and forcible rape*fn6 as a result of sexual acts committed with an eight year old, female child. Post-trial motions were denied, and Rhodes was sentenced on the rape and involuntary deviate sexual intercourse convictions to concurrent terms of imprisonment for not less than six (6) nor

[ 332 Pa. Super. Page 275]

    more than twenty (20) years. He was also sentenced to probation for five years on the conviction for corrupting the morals of a child. Sentence was suspended on the conviction for statutory rape, and no sentences were imposed on the remaining convictions. On direct appeal, Rhodes contends that the evidence was insufficient to sustain the convictions and that the sentences were excessive. We agree that the evidence was insufficient to prove a forcible rape. There is no merit in any other of appellant's contentions.

An examination of the sufficiency of the evidence in this case can best begin by examining and comparing the statutory definitions of the offenses commonly known as rape, statutory rape and involuntary deviate sexual intercourse. Rape is defined at 18 Pa.C.S. § 3121 as follows:

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;

(3) who is unconscious; or

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

Statutory rape is defined at 18 Pa.C.S. § 3122 as follows:

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.

Forcible rape, it will be observed, is a felony of the first degree; whereas, statutory rape has been made only a felony of the second degree.

Compare these sections of the Crimes Code, then, with the definition of involuntary deviate sexual intercourse which appears at 18 Pa.C.S. § 3123.

[ 332 Pa. Super. Page 276]

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious;

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

(5) who is less than 16 years of age.

Specifically, it should be observed that it is a felony of the first degree to engage in deviate sexual intercourse with another person, with or without force, who is less than 16 years of age.

The testimony of the child in the instant case was as follows:

Q. What did you do when you went into the room? What happened?

A. He told me to lay down.

Q. Now Tanya, when you lay down, did you lay down?

A. Yes.

Q. When you lay down, did you lay down on your stomach or lay ...


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