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COMMONWEALTH PENNSYLVANIA v. EDWARD C. WESTCOTT (02/19/87)

filed: February 19, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
EDWARD C. WESTCOTT, JR.; COMMONWEALTH OF PENNSYLVANIA V. EDWARD C. WESTCOTT, JR., APPELLANT



Appeals from the Order and Judgment of Sentence of the Court of Common Pleas, Westmoreland County, Criminal Division, at No. 1564 C of 1984.

COUNSEL

John W. Peck, Assistant District Attorney, Arnold, for Com., appellant in No. 247 and appellee in No. 296.

Dennis J. Clark, Pittsburgh, for appellant in No. 296 and appellee in No. 247).

Brosky, Rowley and Popovich, JJ. Popovich, J., files a concurring and dissenting opinion.

Author: Brosky

[ 362 Pa. Super. Page 182]

These are cross appeals before us for review. At No. 247 Pittsburgh, 1986, the Commonwealth of Pennsylvania appeals from that portion of an Order dated January 31, 1986, arresting judgment on cross-appellant's jury conviction of

[ 362 Pa. Super. Page 183]

    involuntary deviate sexual intercourse. Edward C. Westcott, Jr.*fn1 cross appeals at No. 296 Pittsburgh, 1986 from the judgment of sentence following his conviction by a jury for the crime of attempted rape.

The Commonwealth presents the following issue for our review: whether cunnilingus is an act prohibited by 18 Pa.C.S.A. § 3123.

Appellant raises on cross appeal the following allegations of error:

I. Whether the Commonwealth waived its right of appeal of the trial court's order granting the motion in arrest of judgment.

II. Whether, under 18 Pa.C.S.A. § 3101, and § 3123 and various principles of statutory construction, "involuntary deviate sexual intercourse" requires proof of penetration with a penis, and, in the absence of such proof, whether the trial court erred in granting appellant's motion in arrest of judgment.

III. Whether § 3123 is unconstitutionally vague, both on its face and as it is applied to the evidence of the instant case.

IV. Whether the admission of certain prejudicial hearsay statements by Commonwealth witnesses constitutes reversible error and entitles appellant to a new trial and whether the failure of trial counsel to object to the admission of these statements constitutes ineffective assistance of counsel and entitles appellant to a new trial.

V. Whether the court erred in certain instructions to the jury, and whether trial counsel was ineffective by failing to object to these instructions and by failing to request certain other instructions.

VI. Whether the failure of the court to instruct on lesser included offenses constitutes reversible error and entitles appellant to a new trial and whether the failure of trial counsel to request an instruction on these lesser

[ 362 Pa. Super. Page 184]

    included offenses, or to object to the failure of the court to so instruct constitutes ineffective assistance of counsel and entitles appellant to a new trial.

VII. Whether the failure of the court to instruct the jury on the defense of renunciation under 18 Pa.C.S. § 901(c) constitutes reversible error and entitles appellant to a new trial and whether the failure of trial counsel to argue the renunciation defense, to request the renunciation instruction, and/or to object to the omission of said instruction constitutes ineffective assistance of counsel and entitles appellant to a new trial.

VIII. Whether trial counsel was ineffective for injecting into the trial the fact that the victim obtained a weapon during the incident.

We reverse the grant of appellant's motion to Arrest Judgment on the charge of involuntary deviate sexual intercourse and affirm the judgment of sentence on the charge of attempted rape.

I. The Commonwealth's Appeal

Preliminarily, we note that the proper mode of attack upon the sufficiency of trial evidence is by a post-verdict motion in arrest of judgment. Commonwealth v. Taylor, 324 Pa. Super. 420, 471 A.2d 1228 (1984). An adverse ruling on this question of law permits the Commonwealth to appeal therefrom. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Driver, 343 Pa. Super. 13, 493 A.2d 778 (1985).

The effect of a motion to arrest judgment is to admit all facts which the Commonwealth's evidence tends to prove. Thus, in reviewing this type of motion, we must consider the sufficiency of the evidence, gleaned from the entire record, in the light most favorable to the Commonwealth, the verdict winner here, as well as all reasonable inferences deducible therefrom. Commonwealth v. Rawles, supra. All the evidence admitted at trial, whether rightly or wrongly, must be assessed. Commonwealth v. Maldonado, 343 Pa. Super. 154, 494 A.2d 402 (1985).

[ 362 Pa. Super. Page 185]

We address the Commonwealth's appeal of the arrest of judgment and, accordingly, consider the first three contentions of error*fn2 raised by appellant in this respect.

The trial court, in its opinion accompanying the order partially arresting judgment, assumed that even if sufficient evidence existed that appellant penetrated the victim with his tongue, that conduct could not be the basis for a conviction of involuntary deviate sexual intercourse because that crime requires penetration by the penis (Opinion, pp. 13-14). Appellant argues that the evidence is insufficient to sustain the charge because the specific act involved, cunnilingus, does not fall within the scope of the statute purportedly limiting deviate sexual conduct to penetration of the mouth or the anus by the penis.

The theories postulated by the trial court and appellant are related, and we will consider them together. However, we disagree with both contentions and conclude that cunnilingus is an act proscribed by 18 Pa.C.S.A. § 3123.

The Crimes Code*fn3 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 1962 (Proposed Official Draft) and the recommendations of the Pennsylvania Bar Association's Special Commission

[ 362 Pa. Super. Page 186]

    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).

Section 213.2 of the Proposed Official Draft of the Model Penal Code, adopted in May 1962 by the American Law Institute, was originally presented in the same form as § 207.5 of Tentative Draft No. 4 at the May 1955 meeting of the Institute. The model statute reads as follows:

§ 213.2 Deviate Sexual Intercourse by Force or Imposition

(1) By Force or Its Equivalent. A person who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a felony of the second degree if:

(a) he compels the other person to participate 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 the other person's power to appraise or control his conduct, by administering or employing without the knowledge of the other person drugs, intoxicants or other means for the purpose of preventing resistance; or

(c) the other person is unconscious; or

(d) the other person is less than 10 years old.

(2) By Other Imposition. A person who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a felony of the third degree if:

(a) he compels the other person to participate by any threat that would prevent resistance by a person of ordinary resolution; or

(b) he knows that the other person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct; or

(c) he knows that the other person submits because he is unaware that a sexual act is being committed.

[ 362 Pa. Super. Page 187]

The Institute also adopted Section 213.0, relating to definitions, at its May 1962 meeting. This section states in pertinent part:

§ 213.0 Definitions

In this Article, unless a different meaning plainly is required:

(2) "Sexual intercourse" includes intercourse per os or per anum, with some penetration however slight; emission is not required;

(3) "Deviate sexual intercourse" means sexual intercourse per os or per anum between human beings who are not husband and wife, and any form of sexual intercourse with an animal.

In the Crimes Code of 1972, 18 Pa.C.S.A. § 3123 reads as follows:

§ 3123. Involuntary deviate sexual intercourse

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.

Section 3101 of the Crimes Code of 1972, 18 Pa.C.S.A. § 3101, defines "deviate sexual intercourse" and "sexual intercourse" in the following language:

"Deviate sexual intercourse." Sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal.

"Sexual intercourse." In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.

[ 362 Pa. Super. Page 188]

Since neither § 3123 of the Crimes Code nor § 213.2 of the Model Code can be comprehended without resort to their respective definitions, we may liken § 3101 of the Crimes Code to § 213.0 of the Model Code because the legislature adopted, with virtually no change, the Model Code definitions of "deviate sexual intercourse" and "sexual intercourse."

Similarly, 18 Pa.C.S.A. § 3123 is modeled upon § 213.2 of the Model Penal Code. See Historical Note following § 3123. The Comment following § 207.5 of Tentative Draft No. 4 (later renumbered as § 213.2 and adopted at the Institute meeting in May 1962, see supra, p. 1145) declares that the conduct encompassing deviate sexual intercourse was broadened in the Model Code to include digital penetration of a female by another female. Due to the heinous nature of the criminal activity here, we do not discern any difference between penetration by the finger or by the tongue committed by a member of the same or a different sex absent any language in the statute to the contrary. Thus, by analogy, we conclude that penetration of the vagina by the tongue was contemplated as a criminal act by the drafters of § 213.2 of the Model Penal Code and by the Pennsylvania General Assembly by virtue of its adoption of the Model Code's definition of both deviate sexual intercourse and sexual intercourse and its ultimate passage of § 3123 in the form similar to the Model Code provision.

We have found only one authority since the enactment of § 3123 where the victim described in graphic terms the act committed upon her. Commonwealth v. Stoner, 284 Pa. Super. 364, 369, 425 A.2d 1145, 1147 (1981). There, the victim testified that she was forced to bend over the toilet in the women's bathroom. She then recited that the defendant ". . . ate me out and had intercourse with me." Even though the type of deviate sexual conduct was not there specifically labeled, nevertheless, as the trial judge aptly observed, sufficient evidence was gleaned from that testimony to support defendant's conviction of involuntary deviate sexual intercourse because ". . . we all understand what

[ 362 Pa. Super. Page 189]

    that [activity] means." Id., 284 Pa. Superior Ct. at 369, 425 A.2d at 1147. However, our inquiry does not end here, for the Stoner Court did not squarely address the issue now before us.

Under the Penal Code of 1939, Act of June 24, 1939, P.L. 872, 18 P.S. § 4101 et seq., the sodomy provision, § 4501, which was the forerunner of the present § 3123 (see Historical Note following 18 Pa.C.S.A. § 3123), was interpreted by this court to prohibit the act of cunnilingus. Commonwealth ex rel. McDonnell v. Rundle, 200 Pa. Super. 362, 188 A.2d 843 (1963); Commonwealth v. Hornberger, 199 Pa. Super. 174, 184 A.2d 276 (1962); Commonwealth v. Bowes, 166 Pa. Super. 625, 74 A.2d 795 (1950). These authorities have never been overruled by our Supreme Court and, consequently, remain the law today.

Former 18 P.S. § 4501 reads as follows:

§ 4501. Sodomy.

Whoever carnally knows in any manner any animal or bird, or carnally knows any male or female person by the anus or by os with the mouth, or whoever voluntarily submits to such carnal knowledge, is guilty of sodomy, a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding five thousand dollars ($5,000), or to undergo imprisonment, by separate or solitary confinement at labor, not exceeding ten (10) years, or both.

The definitional section of the 1939 Penal Code indicates that "'carnal knowledge' shall be deemed complete upon proof of penetration only." 18 P.S. § 4103. Although we note the absence of this language in both § 3123, itself, and in § 3101, defining deviate and ordinary sexual intercourse, we also note that "carnal knowledge" under the former sodomy statute meant requiring penetration, whereas, in the present definitional statute, "sexual intercourse" requires "penetration, however slight . . ." 18 Pa.C.S.A. § 3101. ...


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