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COMMONWEALTH PENNSYLVANIA v. JOSEPH MLINARICH (08/30/85)

filed: August 30, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOSEPH MLINARICH, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cambria County, No. NT-1981-0148AL.

COUNSEL

Robert D. Gleason, Johnstown, for appellant.

Dennis M. McGlynn, Johnstown, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Wieand, Cirillo, Del Sole, Montemuro, Johnson and Popovich, JJ. Popovich, J., files a concurring and dissenting statement. Spaeth, President Judge, files a dissenting opinion in which Wickersham, J., joins. Johnson, J., files a dissenting opinion.

Author: Wieand

[ 345 Pa. Super. Page 271]

The issue in this appeal is the interpretation to be placed upon the phrase "forcible compulsion" as it was used to define the crime of rape. What did the legislature intend when it defined rape as sexual intercourse with another person " by forcible compulsion " or " by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution"? Did the legislature intend to include within the crime of rape acts of sexual intercourse induced by threats to do non-violent acts? After a careful

[ 345 Pa. Super. Page 272]

    review of the legislative history of Section 3121 of the Crimes Code, 18 Pa.C.S. § 3121, and the legal decisions in this and other jurisdictions, we conclude that the legislature intended the term "forcible compulsion" to mean "physical compulsion or violence."

The complainant in this case had been committed to the Cambria County Detention Home at the age of thirteen after admitting the theft of her brother's ring. Joseph Mlinarich was a neighbor of the child's father. Mlinarich and his wife agreed to assume custody of the juvenile, who was then placed in their home. Shortly thereafter, on the occasion of the child's fourteenth birthday, Mlinarich allegedly asked her to undress and, when she complied, fondled her while she sat on his lap. When the juvenile asked him to stop, Mlinarich did so. The same scenario was repeated four or five times during the succeeding two weeks. Thereafter, on five separate dates, events occurred which led to criminal charges and convictions which are the subject of appellate review.

Because of events occurring on June 15, 1981, Mlinarich was convicted of attempted rape. The testimony of the juvenile was that appellant had threatened to send her back to the detention home if she refused to undress and engage in sexual intercourse. Although she undressed on that occasion, appellant's efforts to achieve penetration were unsuccessful. A similar incident occurred on June 19, 1981. Again, in response to a threat by appellant to send her back to the detention home and amidst her own tears, the juvenile submitted to appellant's unsuccessful attempts to penetrate her vagina. The events of this day were the basis for appellant's second conviction of attempted rape. By virtue of similar threats made on June 26, 1981, appellant was finally able to achieve penetration. For this he was convicted of rape. Because of events occurring on June 29 and July 1, appellant was also convicted of involuntary deviate sexual intercourse. Mlinarich was convicted additionally on five counts of corrupting the morals of a child for his conduct on all five dates and on two counts of

[ 345 Pa. Super. Page 273]

    indecent exposure for conduct occurring on June 29 and July 1. On appeal, he contends that the Commonwealth failed to prove that he engaged in sexual acts with another person by forcible compulsion or threat of forcible compulsion.*fn1

The crime of rape, a felony of the first degree, 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 . . .:

(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.

This provision, we are admonished, "shall be construed according to the fair import of [its] terms." 18 Pa.C.S. § 105. Because it is a penal statute, however, it must be strictly construed. Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (plurality opinion); Commonwealth v. Gordon, 342 Pa. Super. 480, 487, 493 A.2d 691, 695 (1985); Commonwealth v. Darush, 256 Pa. Super. 344, 348, 389 A.2d 1156, 1158 (1978). Strict construction is necessary to avoid the injustice of convicting a person without clear notice to him that contemplated conduct is unlawful. Commonwealth v. Broughton, 257 Pa. Super. 369, 377, 390 A.2d 1282, 1286 (1978). It also serves to prevent courts from creating offenses which the legislature did not intend to create. Commonwealth v. Cluck, 252 Pa. Super. 228, 238, 381 A.2d 472, 477 (1977).

Our task in this case is made more difficult because the victim of appellant's sexual advances was a fourteen year old child. The definition which we adopt, however, will know no age limitation. It is with a view to general application, therefore, that we attempt to define the parameters

[ 345 Pa. Super. Page 274]

    of the legislative proscription against sexual intercourse by forcible compulsion or threat of forcible compulsion.

At common law, rape was defined as unlawful carnal knowledge of a woman, not a spouse, forcibly and against her will. Commonwealth v. Stephens, 143 Pa. Super. 394, 396, 17 A.2d 919, 920 (1941). This common law definition was incorporated into the statutory law of Pennsylvania from earliest times. It is the same definition which was included in Section 721 of the Penal Code of 1939.*fn2 The phrase "against her will" was held by the courts to be synonymous with absence of consent. The decided cases placed great emphasis on the presence or absence of consent in determining whether the crime of rape had been committed. Force, however, was also a necessary ingredient. Commonwealth v. Jaynes, 137 Pa. Super. 511, 10 A.2d 90 (1939). "The only relaxation of this rule [was] that this force [might] be constructive. Under this relaxation, it [was] held that where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force." Commonwealth v. Stephens, supra, 143 Pa. at 399, 17 A.2d at 921.

The common law definition of rape was determined to be unsatisfactory. It was found inadequate not because of its insistence that force or violence be an essential element but because of its inordinate emphasis on "lack of consent." This element of the offense had been construed to require a woman to resist to the utmost. Therefore, whether she resisted sufficiently was deemed an issue for the jury in most cases where the charge was rape. The rule worked to the unfair disadvantage of the woman who, when threatened with violence, chose quite rationally to submit to her assailant's advances rather than risk death or serious bodily injury.

[ 345 Pa. Super. Page 275]

Because of the often unjust result achieved by the common law definition, the American Law Institute determined to find a more satisfactory approach. The original draft of the Model Penal Code proposed the establishment of separate crimes of "rape" and "intercourse without legally effective consent." The proposed crimes were defined as follows:

Section 207.4. Rape and Related Offenses.

(1) Rape by Force or Its Equivalent. A male who has carnal knowledge of a female not his wife commits a felony of the second degree if:

(a) He compels her to submit by force or violence or out of fear that death or serious physical injury or extreme pain is about to be inflicted on her or a member of her family, or by threat to commit any felony of the first degree; or

(b) For the purpose of preventing resistance he administers to her or employs, without her knowledge or consent, drugs, intoxicants, or other substance or force resulting in a major deficiency of the victim's power to appraise or control behavior; or

(c) The female is unconscious or physically powerless to resist; or

(d) The female is less than 10 years old (whether or not the actor is aware of that).

An offense within this subsection shall constitute a felony of the first degree if the actor inflicts serious physical injury upon the victim, or if the victim is not a voluntary social companion of the actor and has not previously permitted him sexual liberties.

(2) Intercourse Without Legally Effective Consent. A male who has carnal knowledge of a female not his wife, in situations not covered by subsection (1), commits a felony of the third degree if:

(a) He compels her to submit by any intimidation [which would prevent resistance by a woman of ordinary resolution] [reasonably calculated to prevent resistance]; or

[ 345 Pa. Super. Page 276]

(b) He knows that her submission is due to substantially complete incapacity to appraise or control her own behavior, but this paragraph shall not apply where a woman over 18 years of age loses that capacity as a result of voluntary use of [intoxicants or] drugs in the company of the actor; or

(c) He knows that the female submits because she is unaware that a sexual act is being committed upon her or because she falsely supposes that he is her husband; or

(d) The female is less than 16 years old and the actor is at least 5 [?] years older than she is; but it shall be a defense under this paragraph if the actor proves that the girl was a prostitute.

Model Penal Code, § 207.4 (Tentative Draft No. 4 1955) (emphasis added). The Commentary explained that paragraph (a) of subsection (1) was intended to cover "the classic rape cases, where the woman [had been] overpowered by violence or the threat of it." By requiring only that the victim be "compelled to submit," and not that she resist "to the utmost," it was intended to eliminate to a great extent the requirement that a woman struggle when struggle would be useless and dangerous. Subsection (2), on the other hand, was designed to emphasize the absence of voluntary consent. The Comment stated:

As the gravity of the threat diminishes, the situation gradually changes from one where compulsion overwhelms the will of the victim to a situation where she can make a deliberate choice to avoid some alternative evil. The man may threaten to disclose an illicit affair, to foreclose the mortgage on her parent's farm, to cause her to lose her job, or to deprive her of a valued possession. The situation may move into a shadow area between coercion and bargain. A bargain for gain is not within the present section; but subsection 2(a) is designed to reach all situations of actual compulsion, i.e., where the female's submission is determined by fear of

[ 345 Pa. Super. Page 277]

    harm, with an objective test of the efficiency of the coercive element.

(Emphasis added). Under this proposed statute, subsection (1) was designed to cover sexual intercourse accomplished by physical force or by threats which instilled fear of grave physical consequences to the victim or a member of her family, or fear of the perpetration of a serious crime. Subsection (2), on the other hand, sought to criminalize intercourse obtained by psychological duress rather than physical violence or threats thereof.

These definitions were modified when a corresponding provision was inserted into the Proposed Official Draft of the Model Penal Code. It was there proposed as follows:

Section 213.1 Rape and Related Offenses.

(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants, or other means for the purpose of preventing resistance; or

(c) the female is unconscious; or

(d) the female is less than 10 years old.

Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and has not previously permitted him sexual liberties, in which case the offense is a felony of the first degree. Sexual intercourse includes intercourse per os or per anum, with some penetration however slight; emission is not required.

(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:

[ 345 Pa. Super. Page 278]

(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

Model Penal Code, § 213.1 (Proposed Official Draft 1962) (emphasis added). This draft continued the distinction between "classic rape cases" involving force and situations where force was not present but the other person had not freely consented. The latter situation, which the proposed statute designated as "Gross Sexual Imposition," was defined as intercourse compelled "by any threat that would prevent resistance by a woman of ordinary resolution." (emphasis added).

In Pennsylvania, the Joint State Government Commission drafted a proposal similar to the Official Draft of the Model Penal Code. The proposed draft did not receive favorable action by the legislature, which, in 1972, enacted a Crimes Code containing the present definition of rape. The Crimes Code did not divide sex crimes into rape and gross sexual imposition. It did, however, divide rape under the Model Penal Code into two separate crimes. The statutory provision defining forcible rape eliminated language which would have defined rape to include intercourse with a child less than ten years of age. Instead, the legislature created a separate offense of statutory rape, a felony of the second degree, which it defined as sexual intercourse by a person eighteen years of age with a person not a spouse who is less than fourteen years of age. 18 Pa.C.S. § 3122.*fn3 See also: Commonwealth v. Rhodes, 332 Pa. Super. 273, 481 A.2d 610 (1984) (reargument denied September 26, 1984), allocatur granted July 2, 1985.

Instead of creating a separate crime of "gross sexual imposition," the legislature in Pennsylvania created one offense of forcible rape, a felony of the first degree. In

[ 345 Pa. Super. Page 279]

    defining this offense, the legislature substituted for the language of the Model Penal Code, which had spoken of "force or . . . threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted upon anyone," the words "forcible compulsion" or "the threat of forcible compulsion." It is significant that the legislature did not incorporate into the definition of rape those circumstances which, under the Model Penal Code, would have constituted "gross sexual imposition." This appears to have been intentional. Thus, where the Model Penal Code had spoken of " any threat that would prevent resistance by a woman of ordinary resolution" and had used those words to define the crime of gross sexual imposition, the legislature in Pennsylvania, in defining rape, spoke of sexual intercourse by forcible compulsion or " threat of forcible compulsion that would prevent resistance by a person of reasonable resolution." (emphasis added).

The conclusion which must be drawn from this legislative progression is that the legislature in Pennsylvania intended to exclude from its definition of rape those acts of intercourse where the victim's will was not overwhelmed by physical compulsion or violence or a threat thereof and where the victim had made a deliberate choice in order to avoid some alternative evil not amounting to bodily harm. See: Comment, Revision of the Law of Sex Crime in Pennsylvania and New Jersey, 78 Dick.L.Rev. 73, 79 (1973-74).

The term "force" and its derivative, "forcible," when used to define the crime of rape, have historically been understood by the courts and legal scholars to mean physical force or violence. Thus, American Jurisprudence in its second edition uses the terms "force" and "violence" synonymously while defining rape:

The term "by force" does not necessarily imply the use of actual physical force to compel submission of the victim to sexual intercourse, but it may mean threatened force or violence if the female does not comply. The threat of such force or violence may create a real apprehension of

[ 345 Pa. Super. Page 280]

    dangerous consequences, or bodily harm, in order to prevent resistance or extort the consent of the victim, and if it so overpowers the mind of the victim that she dare not resist, it must be regarded in all respects equivalent to force actually exerted . . . .

To constitute rape, where there is no force used, the woman must have been unconscious, or unable fairly to comprehend the nature and consequence of the sexual act. If not, there is no distinction between rape, where the force used is constructive, and seduction.

65 Am.Jur.2d Rape § 4 (1972) (emphasis added) (footnotes omitted).

The legislatures of at least nine other states have employed the term "forcible compulsion" to define the crime of rape. Illustrative is the statute in New York which provides:

A male is guilty of rape in the first degree when he engages in sexual intercourse with a female:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old.

N.Y.Penal Law § 130.35 (effective September 1, 1967). Similar language is used in the statutes of Alabama, Ala.Code § 13A-6-61; Arkansas, Ark.Stat.Ann. § 41-1803 (1977); Hawaii, Hawaii Rev.Stat. § 707-730; Kentucky, Ky.Rev.Stat. § 510.040; Missouri, Mo.Rev.Stat. § 566.030.1; Oregon, Or.Rev.Stat. § 163.375; and Washington, Wash.Rev.Code §§ 9A.44.040, 050.*fn4 The statutes in all these states include express definitions of the term "forcible compulsion" which are similar to the definition of rape included in the Model Penal Code. Thus, forcible compulsion has been legislatively defined to consist of either physical force or a threat thereof which places a person in fear of immediate death or physical injury or, in some

[ 345 Pa. Super. Page 281]

    instances, in fear that the victim or another person will be kidnapped. See: Ala.Code § 13A-6-60(8); Ark.Stat.Ann. § 41-1801(2); Hawaii Rev.Stat. § 707-700(12); Ky.Rev.Stat. § 510.010(2); Mo.Rev.Stat. § 556.061(11); N.Y.Penal Law § 130.00(8); Or.Rev.Stat. § 163.305(2); Wash.Rev.Code § 9A.44.010(5). See also former Conn.Gen.Stat. § 53a-65(8) (repealed in 1975).

The Supreme Court of Pennsylvania has defined "forcible compulsion" consistently with the definition followed by sister jurisdictions. The Court has done so in the context of interpreting the section of the Crimes Code which defines involuntary deviate sexual intercourse. In Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979), the appellant argued that the evidence was insufficient to sustain a conviction for involuntary deviate sexual intercourse. The Supreme Court said: "The crime of involuntary deviate sexual intercourse is committed when a person forces another person by actual physical compulsion or threats thereof to engage in acts of anal or oral intercourse." Id., 484 Pa. at 192, 398 A.2d at 1009-1010. This interpretation of the statute, even though it must be deemed dictum in view of the facts of the case, is worthy of weighty consideration. See: Gordon Lubricating Co. v. Allegheny County Board of Property Assessment, Appeals and Review, 204 Pa. Super. 441, 444, 205 A.2d 704, 706 (1964), aff'd per curiam, 418 Pa. 625, 211 A.2d 284 (1965). It represents an expression by the highest court of this Commonwealth that "forcible compulsion" is equivalent to "physical compulsion" rather than "psychological duress." As an intermediate appellate court we adopt the Supreme Court's interpretation of "forcible compulsion" and apply it to the issue now before us.

This Court has also considered the intent of the legislature in using the term "forcible compulsion." In Commonwealth v. Biggs, 320 Pa. Super. 265, 467 A.2d 31 (1983), a unanimous panel of this Court held that sexual intercourse induced by moral persuasion, in the form of a biblical admonition, was not rape. The Court said: "We cannot

[ 345 Pa. Super. Page 282]

    ignore the clear import of the language of section 3121 by upholding defendant's conviction in the absence of any evidence that Marion Biggs submitted to intercourse out of fear of an exercise of force by her father." Id., 320 Pa. Superior Ct. at 268, 467 A.2d at 32. The definition of "forcible compulsion" which we adopt today is consistent with the holding in Biggs.

The interpretations of "forcible compulsion" advocated by the writers of the separate dissenting opinions are inconsistent not only with the fair import of the word "force" but also with all legally recognized definitions of the term. President Judge Spaeth would define "forcible compulsion" as any "compulsion by physical, moral, or intellectual means or by the exigencies of the circumstances." This definition of "forcible compulsion," however, is sufficiently broad to include "threats." If the threat is itself the forcible compulsion necessary to constitute rape, then the requirement that a threat be such as "would prevent resistance by a person of reasonable resistance" has been rendered unnecessary verbiage and has, for practical purposes, been removed from the statutory definition of the offense. This is illustrated by the facts of the instant case where, according to President Judge Spaeth's definition, appellant's "threat" to return the juvenile to the detention home would itself be the "forcible compulsion" required by the statute for a conviction of rape. Judge Popovich, on the other hand, would simply eliminate the words "of forcible compulsion" as used by the legislature to modify the noun "threat" and would define rape to include sexual intercourse induced by "any threat." In construing a statute, however, a court must assume the legislature intended that every word is to be given effect. Crusco v. Insurance Co. of North America, 292 Pa. Super. 293, 297, 437 A.2d 52, 53-54 (1981). See also: Cerrato v. Holy Redeemer Hospital, 342 Pa. Super. 551, 554, 493 A.2d 728, 729 (1985). Moreover, the interpretation proposed by Judge Popovich, as we observed during our recitation of the legislative history of the rape section of the Crimes Code,

[ 345 Pa. Super. Page 283]

    was unequivocally rejected by the legislature in Pennsylvania. Judge Johnson has not attempted to define "forcible compulsion" and appears to be willing to determine on an ad hoc basis the types of threats which will be deemed sufficient to transform sexual intercourse into forcible rape. It seems clear, however, that he will require something less than physical compulsion or violence or a threat of physical compulsion or violence.

Research has disclosed neither statute nor judicial decision which supports the approaches advocated by the dissenters. Although this fact, standing alone, does not proscribe the articulation of their respective views, it does suggest an unlikelihood that the legislature, by using the term "forcible compulsion," intended to define the crime of rape in an unprecedented manner to include acts not heretofore contemplated as being within the conceptual boundaries of the crime. As an intermediate appellate court we are not free to move beyond prior legal concepts, reject prior judicial decisions and substitute for the fair import and well defined meaning of "force" a generic definition which contains few, if any, limitations and expands the crime of rape to heretofore unimagined parameters. If a new crime is to be created, it should be created by the legislature.

To define "forcible compulsion" so as to permit a conviction for rape whenever sexual intercourse is induced by "any threat" or by "physical, moral or intellectual means or by the exigencies of the circumstances" will undoubtedly have unfortunate consequences. If a man takes a destitute widow into his home and provides support for her and her family, such a definition of forcible compulsion will convict him of attempted rape if he threatens to withdraw his support and compel her to leave unless she engages in sexual intercourse. Similarly, a person may be guilty of rape if he or she extorts sexual favors from another person upon threat of discharging the other or his or her spouse from a position of employment, or upon threat of foreclosing the mortgage on the home of the other's parents, or

[ 345 Pa. Super. Page 284]

    upon threat of denying a loan application, or upon threat of disclosing the other's adultery or submission to an abortion. An interpretation of forcible compulsion which employs an ambiguous, generic definition of force will create the potential for a veritable parade of threats, express and implied, in support of accusations of rape and attempted rape. To make it even more troublesome, such an interpretation of forcible compulsion will place in the hands of jurors almost unlimited discretion to determine which acts, threats or promises will transform sexual intercourse into rape. Without intending to condone any of the foregoing, reprehensible acts, our use of them serves to illustrate the intolerable uncertainty which a wholly elastic definition of rape will create.

The legislature, we conclude, did not intend to equate seduction, whether benign or sinister, with rape and make it a felony of the first degree. To allow a conviction for rape where the alleged victim has deliberately chosen intercourse in preference to some other unpleasant sensation not amounting to physical injury or violence would be to trivialize the plight of the helpless victim of a violent rape. The latter is truly a felony of the first degree. The former is not. The two scenarios, although reprehensible, are not the same. The legislature has recognized this distinction, and we are not free to ignore its judgment or to redefine the law to meet new and different concepts of justice according to our own philosophical beliefs.

[ 345 Pa. Super. Page 285]

The provisions of the Pennsylvania Crimes Code are in pari materia and must be construed, if possible, as one statute. Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 662, 664 (1983); 1 Pa.C.S. § 1932(b). An interpretation of "force" which would sustain appellant's convictions in this case would have unfortunate consequences if it were to be applied to other sections of the Crimes Code. In Chapter 5, for example, the use of deadly force is held to be justifiable when the actor "believes that such force is necessary to protect himself [or herself] against death, serious bodily injury, kidnapping or sexual intercourse compelled Page 285} by force or threat." 18 Pa.C.S. § 505(b)(2) (emphasis added). If we were to apply definitions of "force," as suggested by the dissenters, the use of deadly force would be justified whenever a person believed that he or she was being coerced to engage in sexual intercourse by moral or intellectual means or by threats of non-violent acts. The complainant in this case would, according to such an interpretation of forcible compulsion, have been justified in using deadly force because appellant attempted to extort sexual favors by threatening to remove her from his home and return her to detention. This was not a result intended by the legislature.

The interpretation of "forcible compulsion" urged upon us by the Commonwealth and also by the dissenters will approach absurdity if one attempts to apply it to the newly created offense of spousal rape. The new crime of "spousal sexual assault" was enacted into law on December 21, 1984 and became effective on February 19, 1985. It provides, in part, as follows:

§ 3128. Spousal Sexual Assault.

(a) Sexual Assault. -- A person commits a felony of the second degree when that person engages in sexual ...


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