Appeal from the judgment of the Superior Court entered July 13, 1984 at No. 3041 Philadelphia 1982, reversing in part and vacating in part the judgment of sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 1471-1476 May Term, 1982. Pa. Super. , 481 A.2d 610 (1984).
Eric B. Henson, Deputy Dist. Atty., Gaele McLaughlin Barthold, Chief/Pros. Appeals, Leslie A. Sudock, Philadelphia, for appellant.
Alexander Hemphill, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, Hutchinson and Papadakos, JJ., join this opinion. Nix, C.j., and Hutchinson, J., filed concurring opinions. Zappala, J., filed a concurring opinion which McDermott, J., joined.
The principal issue raised by this appeal is whether the evidence introduced at trial is sufficient to sustain appellee's conviction for rape under section 3121 of the Crimes Code, 18 Pa.C.S.A. § 3121; to make that sufficiency determination under the circumstances of the instant case, however, it is first necessary to delineate the elements and define the scope of section 3121.
In reviewing the sufficiency of the evidence to sustain a conviction, we apply the usual standard of review:
[W]e must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.
Commonwealth v. Scatena, 508 Pa. 512, 518, 498 A.2d 1314, 1317 (1985). Viewed in that light, the record discloses the following.
At approximately 4:20 p.m. on February 18, 1982, the victim, a third grader at the Hunter School in Philadelphia, left her home to go to a cooking class at the nearby Waterloo Playground. The victim had celebrated her eighth birthday the prior month (January 9th). After playing tag for awhile with a playmate at the playground, she went inside a building there and watched two men playing chess. One of the men was twenty year old Nicholas Rhodes, the appellee in this case. Nicholas Rhodes lived across the street from the victim and her family and knew her for about three years. The victim knew the appellee as "Nicky."
When he was done playing chess, appellee asked the victim if she wanted to go somewhere, whereupon he led her to an abandoned building near the playground and took her upstairs to a dirty, unfurnished room on the second floor. Appellee instructed her to lay down on the dirty floor and to pull her legs up. He then laid on top of her and touched her "butt" with "something" in his pubic area.*fn1 The victim felt pain when appellee "touched her" this way,
and she "told him to stop." In a short while, appellee left the building with the victim who then walked to her home in the dark.
When the victim arrived at her home at about 7:30 p.m.-8:00 p.m., her mother observed her crying, frightened and smelling of dog feces which was on her clothing and in her hair. The victim's mother immediately examined her and found her underwear bloody and turned inside out, her rectum torn and bleeding, and her vagina red. The victim's mother called the police and the child was taken to a hospital where a medical examination tested positively for sperm in both the "vulvular sample" and the "rectal sample", and revealed a "recto-vaginal fissure" (a tear). Lab results confirmed the presence of blood and "seminal stains" on the victim's underwear. Appellee was arrested at his home later that evening, and charged with rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, corruption of minors and unlawful restraint.
Appellee knowingly and intelligently waived his right to a jury trial, and was tried on August 11, 1982 before the Honorable Alfred J. DiBona, Jr., in the Court of Common Pleas of Philadelphia. The Commonwealth presented the above record evidence by testimony of the victim, her mother, the arresting officer and stipulations of fact regarding the medical and laboratory tests. Appellee testified in his defense and denied having seen the victim on February 18, 1982. He claimed to have been home from about 3:30 p.m. until his arrest that evening. Appellee's mother, who resided with appellee, testified that he had been out of the house earlier in the day and that when he returned home (she did not say what time he returned), she did not notice any unusual odors about him (such as the odor of dog feces). In an attempt to discredit the child victim's testimony, defense counsel questioned her about a prior inconsistent statement she had given to the police officer to the effect that the incident had taken place in an alley.
Judge DiBona adjudicated appellee guilty of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure and corruption of minors.*fn2 Post trial motions were denied and appellee was sentenced to a term of imprisonment of six to twenty years on the conviction for rape (a felony of the first degree) and to a concurrent term of imprisonment of six to twenty years on the conviction for involuntary deviate sexual intercourse (a felony of the first degree). Additionally, appellee received a sentence of five years probation on the conviction for corruption of minors (a misdemeanor of the first degree) and a suspended sentence on the conviction for statutory rape (a felony of the second degree). No sentences were imposed on the remaining convictions. Appellee filed a motion for reconsideration of sentences which was summarily denied by Judge DiBona without a hearing.
Appellee's appeal to the Superior Court challenged the sufficiency of the evidence to sustain his convictions,*fn3 challenged the sentences as "too harsh and severe for a sexual assault upon a young girl without violence or injury" and alleged an abuse of discretion in the denial of his motion for reconsideration without a hearing or written statement explaining the denial. A panel of the Superior Court (per Wieand, J., joined by Cirillo, J.; Cavanaugh, J., dissenting) found the evidence sufficient to sustain the convictions for
involuntary deviate sexual intercourse,*fn4 statutory rape,*fn5 and corruption of minors,*fn6 but insufficient to sustain the conviction for rape under 18 Pa.C.S.A. § 3121. 332 Pa. Super. 273, 279, 481 A.2d 610, 613 (1984). The Superior Court further held that since "we cannot be certain that the trial court's sentences for [involuntary deviate sexual intercourse and corruption of minors] would have been the same if it had known that the conviction for forcible rape would be set aside . . . we will vacate all judgments of sentence and remand for resentencing." Id. In effect, the Superior Court's disposition reduces appellee's potential maximum sentence, since rape, a felony of the first degree, carries a twenty years maximum sentence of imprisonment, while statutory rape, a felony of the second degree, carries with it a ten years maximum sentence of imprisonment. See 18 Pa.C.S.A. § 1103(1) and (2).
We granted the Commonwealth's petition for allowance of appeal from the Superior Court's order, and we now reverse.
Section 3121 of the Crimes Code establishes the crime of rape and its elements as follows:
Code worked major substantive changes in the criminal law and did not simply recodify and reclassify existing laws, although the Crimes Code did draw from the concepts of and experience under the Penal Code of 1939 and the common law. Three Prosecutors Look At The New Pennsylvania Crimes Code, 12 Duq.L.Rev. 793, 804 (1974). One of the drafters of the Crimes Code, Sheldon S. Toll, has remarked that perhaps the most significant departure from the Penal Code of 1939 and the early common law was the rejection of the very strict approach to interpretation of substantive criminal laws in favor of a more common sense and flexible approach. Criminal Law Reform in Pennsylvania: The New Crimes Code, S.Toll, 78 Dick.L.Rev. 1, 3 (1973) (hereinafter Toll).
Thus, the Crimes Code provides:
The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved. The discretionary powers conferred by this title shall be exercised in accordance with the criteria stated in this title and, in so far as such criteria are not decisive, to further the general purposes stated in this title.
18 Pa.C.S.A. § 105 (emphasis added). The preceding section of the Crimes Code sets forth its purposes:
The general purposes of this title are:
(1) To forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or public interest.
(2) To safeguard conduct that is without fault from condemnation as criminal.
(3) To safeguard offenders against excessive, disproportionate or arbitrary punishment.
(4) To give fair warning of the nature of the conduct declared to constitute an offense, and of the sentences that may be imposed on conviction of an offense.
(5) To differentiate on reasonable grounds between serious and minor offenses, and to differentiate among offenders with a view to a just individualization in their treatment.
The Crimes Code's provisions on Sexual Offenses are an amalgam of prior criminal law (judicial and statutory), the Model Penal Code promulgated by the American Law Institute in October, 1962 (Proposed Official Draft), and the recommendations of the Pennsylvania Bar Association's Special Commission on Crime and Juvenile Delinquency in conjunction with the Joint State Government Commission. Comment, Revision of the Law of Sex Crimes In Pennsylvania and New Jersey, 78 Dick.L.Rev. 73, 77 (1973) (hereinafter Comment). The Penal Code of 1939 defined the crime of rape, as did most jurisdictions, in accordance with the common law as "unlawful carnal knowledge of a woman, forcibly and against her will."*fn8 The essential elements of the crime of rape under this definition were penetration, however slight, force and the lack of consent of the woman. Wharton's Criminal Law, Torcia, C., (14th ed.) § 283 (hereinafter Wharton's); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Brown, 184 Pa. Super. 494, 136 A.2d 138 (1957). The "force" required in this formulation of the crime of rape was not the force inherent in the act of penetration but, rather, the force actually used or threatened to overcome or prevent resistance by the victim. Wharton's supra at § 288. Since the focus of the element of force was on its use to overbear a victim's will and demonstrate lack of consent,*fn9 the cases held that the "requisite force need not have been actually
applied, but may have been constructive or implied", as where the victim was unconscious, insane, drugged, or so young as to have been legally incapable of consenting to the act of sexual intercourse. Comment, supra at 74; Commonwealth v. Brown, supra; Commonwealth v. Stephens, 143 Pa. Super. 394, 17 A.2d 919 (1941); Wharton's, supra at § 287, "Without Consent."
The Penal Code of 1939 also contained a provision defining the crime of statutory rape as the "unlawful carnal knowledge and abuse of a woman child under the age of sixteen (16) years, if the jury shall find that the woman child was" of good repute and did not consent.*fn10 See Commonwealth v. Walker, supra.
Sexual assault crimes have always presented perplexing, controversial and emotionally charged problems for the criminal justice system. A non-exclusive list of these problems under the common law and the Penal Code of 1939 would include: what constitutes "unlawful carnal knowledge" or "sexual intercourse" (are intercourse "per os" or "per anus" included)?; the quality and quantity of force necessary to constitute "forcible rape", or conversely, the degree of resistance required and/or expected of the victim; when will a victim be deemed incapable of consent?; when will consent be deemed vitiated by fraud, deception, intoxication, incapacity, etc.?; perceived doubts about the reliability of a victim's accusations; etc. See, ...