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COMMONWEALTH PENNSYLVANIA v. JOSEPH MLINARICH (05/26/88)

decided: May 26, 1988.

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



Appeal from the Order of the Superior Court entered August 31, 1985, at No. 473 Pittsburgh 1983, affirming in part, reversing in part, and vacating in part the Judgments of Sentence of Court of Common Pleas of Cambria County, Criminal Division, entered October 19, 1982, at No. C-0448 (A-E), 1981. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, former J., did not participate in the consideration or decision of this case. Nix, C.j., files an Opinion in Support of Affirmance in which Flaherty and Zappala, JJ., join. Larsen, J., files an Opinion in Support of Reversal in which Papadakos, J., joins. McDermott, J., files an Opinion in Support of Reversal.

Author: Per Curiam

[ 518 Pa. Page 248]

ORDER

The Court being equally divided, it is ordered as follows:

The order of the Superior Court is affirmed.

Disposition

Accordingly, for the reasons set forth herein, the order of the Superior Court is affirmed.

[ 518 Pa. Page 249]

OPINION IN SUPPORT OF AFFIRMANCE

NIX, Chief Justice.

In the instant appeal we have agreed to consider the Commonwealth's contention that the threats made by an adult guardian to a fourteen year old girl to cause her to be recommitted to a juvenile detention facility supplies the "forcible compulsion" element of the crime of rape. For the reasons that follow, we are constrained to conclude that they do not and that the appellee's convictions of rape*fn1 and attempted rape*fn2 may not be permitted to stand.

The facts of the instant matter are no longer open to dispute. Immediately prior to the events which culminated in the rape and attempted rape charges under consideration herein, the complainant was living with her brother Gary and his wife and child in one-half of a double house in Vintondale, Cambria County. The complainant's father and her other siblings resided in the other half of the house; her mother was apparently institutionalized during the time of the relevant occurrences in this matter. When a diamond ring belonging to his wife disappeared, Gary asked the complainant if she had taken it, which she admitted. She asserted, however, that she had "lost" the ring, which prompted Gary to file criminal charges against her to teach her a lesson, apparently believing that the experience would lead to the recovery of the ring. As a result, the complainant was committed by court order to the custody of the Cambria County Detention Home.

[ 518 Pa. Page 250]

Appellee, Joseph Mlinarich, lived with his wife, mother and sister two doors from the home of the complainant's father. Appellee was sixty-three years old and suffered from emphysema and heart trouble. He was retired but his wife, who was considerably younger, worked as a nurse's aide. Appellee and his wife had known the complainant's family for approximately six years, and the complainant had done housework for appellee's wife. After the complainant was committed to the detention home, appellee's wife suggested that the complainant live with her and appellee. The complainant's father considered this to be an acceptable arrangement, and, after a juvenile hearing, the complainant was released into the custody of appellee's wife pending further proceedings.

On May 28, 1981, the complainant's fourteenth birthday, she and appellee were watching television in the living room. Appellee told her to remove her outer garments and sit on his lap. She complied, and appellee fondled her for approximately four minutes, during which time the victim "told him he shouldn't do that . . . ." RR. 145. Appellee engaged in similar conduct towards the complainant "[a] couple times a week," RR. 147, over her protestations, desisting only if she began to cry. Appellant's wife was always out of the house during these and subsequent episodes.

In mid and late June of 1981, the perverse character of appellee's unwanted attentions escalated. During one incident, which led to a charge of attempted rape, appellee asked the victim to disrobe and, when she did not remove her bra and under garments, he ordered her to undress completely. When she refused, appellee threatened to send her back to the detention home if she did not comply. The complainant obeyed, and appellee removed his clothing. When she insisted that she "did not want to do anything," RR. 154, appellee repeated his threat to "send [her] back." RR. 155. Appellee then proceeded with an unsuccessful attempt at penetration, during which the complainant experienced pain and "scream[ed], holler[ed]" and cried. RR.

[ 518 Pa. Page 251157]

. A similar encounter on June 19, 1981, resulted in a second charge of attempted rape. Appellee, in yet another attempt to achieve penetration, finally succeeded on June 26, 1981.

Appellee also successfully engaged the complainant in oral intercourse on June 29 and July 1, 1981. The same threat was repeated on those occasions. Finally, on July 2, 1981, when appellee "asked [her] to do that again, and [she] wouldn't," RR. 171, appellee engaged in verbal abuse of the victim which convinced her to leave appellee's home and report his reprehensible conduct to her father.

Appellee was subsequently arrested and charged with rape as well as multiple counts of attempted rape, involuntary deviate sexual intercourse, corruption of a minor, indecent exposure, and endangering the welfare of a minor. After a jury trial in the Court of Common Pleas of Cambria County appellee was convicted of all charges. His post-verdict motions were denied with the exception of his challenge to the counts of endangering the welfare of a minor, which were subsequently vacated. Appellee was sentenced to an aggregate term of three to eight years' imprisonment in the county jail.*fn3

[ 518 Pa. Page 252]

Appellee took a direct appeal to the Superior Court, which, after considering en banc the issues raised, reversed the rape and attempted rape convictions, affirmed the involuntary deviate sexual intercourse and corrupting the morals of a minor convictions, and vacated the sentences imposed on the indecent exposure convictions.*fn4 Commonwealth v. Page 252} Mlinarich, 345 Pa. Super. 269, 498 A.2d 395 (1985). Four members of the nine-judge panel dissented and would have affirmed the rape and attempted rape convictions. Id., 345 Pa. Superior Ct. at 288, 498 A.2d at 404 (Spaeth, P.J., dissenting, joined by Wickersham, J.), 345 Pa. Super. at 320, 498 A.2d at 421 (Johnson, J., dissenting); 345 Pa. Super. at 288, 498 A.2d at 404 (Popovitch, J., concurring and dissenting). Both the Commonwealth and appellee responded by filing petitions for allowance of appeal in this Court. After full consideration, appellee's petition was denied; the Commonwealth's petition for allowance of appeal was granted. 512 Pa. 115, 516 A.2d 299 (1986). The prosecution's appeal having been allowed, the matter has been ably briefed and argued and is now ripe for resolution.

I.

Much of the confusion in this matter has resulted from the attempt to focus upon the words "forcible compulsion" out of the context in which it was used by the legislature. When viewed in proper context, the meaning of the phrase at issue becomes clear and the legislative scheme readily apparent. For the reasons that follow, we conclude that the term "forcible compulsion" includes both physical force as well as psychological duress. We are constrained to reject the contention that "forcible compulsion" was intended by the General Assembly, in this context, to be extended to embrace appeals to the intellect or the morals of the victim.

Section 3121 of the Crimes Code has made it a felony of the first degree where:

Rape

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;

[ 518 Pa. Page 253]

(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.

18 Pa.C.S. § 3121.

The General Assembly has also established under section 3123 a felony of the first degree where one engages in involuntary deviate sexual intercourse under these circumstances:

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.

18 Pa.C.S. § 3123.

Instantly apparent is that the treatment of the two types of conduct were intended to be treated identically with the exception that section 3123 has the addition of subsection (5) which addresses the minority of the victim. However, the complete picture is furnished by section 3122.

Statutory Rape

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.

18 Pa.C.S. § 3122.*fn5

[ 518 Pa. Page 254]

Section 3122 supplies to the scheme of punishment for forcible sexual intercourse that facet which is provided for in involuntary deviate sexual intercourse under subsection (5) of section 3123. It is clear that the legislature did consider the impact that should be given the minority of these victims of sexual assaults and specifically provided for it. Thus the arguments raised by the Commonwealth based upon the age of the victim in this appeal can only be considered as provided for under the statutory provisions in question. The courts may not through judicial gloss attempt to either enhance or diminish the consequences the legislature has expressly established for that factor.

The legislative intent to treat assault involving sexual intercourse whether deviate or not in the same fashion except for the minority of the victim is clear. Having made a judgment that deviate sexual intercourse is more offensive when committed upon a minor victim, that concern was addressed by providing that the offense would be a felony of the first degree, without regard to whether submission was compelled or consented to, if the victim was under the age of sixteen. In contrast, a sexual assault under section 3121 does not reflect an intent to accommodate the minority of the victim. Rather, the General Assembly deemed it appropriate to protect this societal interest under section 3122 by defining a felony of the second degree for engaging in sexual intercourse even though consensual if that victim

[ 518 Pa. Page 255]

    was under the age of fourteen and was not the spouse of the actor at the time.

The General Assembly expressly set forth the purpose it sought to achieve in passing the Crimes Code. 18 Pa.C.S. § 104. It expressed one of its objectives as being "[t]o differentiate on reasonable grounds between serious and minor offenses, and to differentiate among offenders with a view to a just individualization in their treatment." Id. In these sections instantly under consideration the legislature has articulated with clarity when the age of the victim is to be relevant and in those instances the extent to which the age should impact upon the seriousness of the act. To give any further consideration to the age of the victim beyond the legislative directive would intrude upon the authority of that body's right to differentiate between the varying ...


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