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COMMONWEALTH PENNSYLVANIA v. JOSEPH RONALD BERRY (07/25/86)

filed: July 25, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH RONALD BERRY, APPELLANT



Appeal from the Judgment of Sentence of August 21, 1985, in the Court of Common Pleas of Dauphin County, Criminal Division at Nos. 1580, 1580-1, 1984.

COUNSEL

Harry B. Goldberg, Harrisburg, for appellant.

Yvonne A. Okonieski, Assistant District Attorney, Harrisburg, for Com., appellee.

Cirillo, President Judge, and Tamilia and Hester, JJ.

Author: Hester

[ 355 Pa. Super. Page 247]

This appeal is from judgment of sentence for convictions of rape, indecent assault and corruption of minors. Appellant, Joseph Ronald Berry, was sentenced cumulatively to three to six years imprisonment. Post-verdict motions were denied.

The charges arose from appellant's assaults of February 9, 1983, and February 16, 1983, upon his fifteen-year-old stepdaughter. On both occasions, it was alleged appellant forced her to submit to sexual intercourse.

Appellant raises the following issues. 1) Whether the evidence was sufficient to sustain the verdict? 2) Whether the verdict was contrary to the evidence? 3) Whether the trial court erred in permitting the Commonwealth to amend the informations? 4) Whether appellant was prejudiced by the delay in arrest? 5) Whether the trial court erred in refusing to read all of appellant's submitted points for charge? 6) Whether the trial court erred in permitting the victim's mother to remain in the courtroom despite an order for sequestration of all witnesses? 7) Whether the trial court erred in denying appellant the opportunity to cross-examine the victim concerning her dating relationship with a man? 8) Whether the trial court erred in overruling appellant's objections to alleged hearsay evidence? 9) Whether the trial court erred in ignoring a task force pre-sentence report and in imposing consecutive sentences? 10) Whether the trial court erred in not conducting an evidentiary hearing on certain pre-trial issues?

We will address all issues, with the exception of the last which we summarily dismiss. The following discussion leads us to affirm.

[ 355 Pa. Super. Page 248]

First, appellant argues that the evidence was insufficient to sustain the verdict and that the verdict was contrary to the evidence. A reviewing court shall review all evidence and inferences therefrom in favor of the verdict winner. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). In this light, we hold that the evidence was sufficient to sustain the verdict.

The victim testified that on February 9, 1983, she was packing in her room for a camping trip. Her mother was at work, her sister was in her room and appellant was in the master bedroom. The victim was conversing with appellant across the hall and moved to his bedroom when it became difficult to hear. As the victim was sitting on the edge of the bed, appellant approached her, rubbed her neck and pushed her on her back when she attempted to pull away. He then disrobed and raped her. The victim did not protest because she feared appellant would strike her; she knew that appellant frequently struck her sister for disciplinary reasons.

One week later, the victim was watching television when appellant approached her again. As appellant began to rub her back, the victim tried to avert his advances. Again, appellant pushed her down and raped her. The victim's mother and sister were not at home.

Appellant complains that the victim waited sixteen months to report the alleged rapes and did so only in retaliation for appellant having beaten her sister. There was evidence that the victim was reluctant to report the rapes because she feared appellant's revenge and the disruption of the household. The victim testified that her mother desperately wanted appellant to be part of the family. Consequently, the victim wanted to wait until she left the household at age eighteen before reporting the rapes. However, when the family was breaking up as appellant continually alienated the victim's mother and sister, the victim came forward. The altercation between appellant and the victim's sister did not cause the victim to fabricate criminal charges; the altercation was the culmination

[ 355 Pa. Super. Page 249]

    of years of bickering and it convinced the victim to report the rapes.

According to appellant, the verdicts were also unsubstantiated because there was no evidence of force, injury or corruption. There was sufficient evidence of force as the victim testified that appellant pushed her down on both occasions and restrained her. Rape does not require injury; it is sufficient if appellant engages in sexual intercourse with the victim by threat of forcible compulsion which prevents her resistance. 18 Pa.C.S. § 3121; See Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), wherein the Pennsylvania Supreme Court held that forcible compulsion is not limited to physical force or violence; it includes moral, psychological and intellectual force. Injury is similarly not required for corruption of minors; corrupting the morals of a minor in itself constitutes the crime. 18 Pa.C.S. § 6301. Finally, sexual intercourse with a minor is considered corruption of morals.

Appellant alleges several incongruities in the evidence and asserts that the victim's testimony lacked corroboration from her teacher and physician. For instance, appellant questions the verdict because the victim did not complain or scream and did not know whether she was bleeding. As alluded to earlier, a rape victim may be too frightened to ...


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