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filed: September 8, 1988.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Northumberland County, Criminal At No. CR 86-98.


Michael M. Apfelbaum and Robert B. Sacavage, Sunbury, for appellee.

Michael D. Suders, Assistant Public Defender, for appellant.

Montemuro, Popovich and Melinson, JJ.

Author: Montemuro

[ 377 Pa. Super. Page 421]

Appellant, Valentine Dorman, appeals from the judgment of sentence entered by the Court of Common Pleas of Northumberland County following his convictions of rape, statutory rape, corruption of minors and indecent assault. We affirm.

The facts giving rise to this appeal are as follows. Appellant, who at the time of the incident was 38 years of age, offered to give his thirteen year old niece, Tina W., a ride to the raceway near her home. However, instead of taking Tina to the promised destination, appellant, after a brief detour to procure some marijuana, drove Tina down a dirt road to a secluded, wooded area. After proceeding down the road to a dead end, appellant parked the vehicle. Tina testified that appellant came over to her side of the car and began touching her. When he started to "move down," she said "don't." Nevertheless, appellant continued to fondle her and then removed her clothing, as well as his own. Appellant pushed Tina back onto the seat of the car and proceeded to have sexual intercourse with her. Other than the victim's statement "don't," nothing was said during the entire episode. However, on the way back to Tina's house, appellant instructed her not to mention the incident to anyone or he would tell her father that she smoked marijuana. Tina obeyed and did not tell anyone until several months later, when, believing she was pregnant, she told the school nurse.

Appellant was tried by a jury and convicted of rape, statutory rape, corruption of minors, and indecent assault. Following the denial of his post-trial motions, he was sentenced to a term of seven to fifteen years imprisonment on charges of rape and statutory rape, one to five years for corruption of minors, and six to twelve months for indecent

[ 377 Pa. Super. Page 422]

    assault, the sentences to run concurrently. Appellant's motion to modify his sentence was denied. This timely appeal followed.

Appellant's first allegation of error is that the evidence is insufficient to sustain the verdict on the charge of rape. We begin our analysis by noting our standard of review when examining a claim that the evidence is insufficient to support a verdict:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987).

The offense of Rape is defined as follows:

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;

(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.A. § 3121.

Appellant contends that the Commonwealth failed to establish the element of forcible compulsion or threat thereof, which is required in order to sustain his conviction under 18 Pa.C.S.A. § 3121(1) and (2). More specifically, he claims that the only evidence of force in the instant case is the victim's statement "don't" when he first started to remove her clothing. He argues that in the absence of evidence that he physically compelled the victim or threatened her with violence, this testimony is not enough to prove the

[ 377 Pa. Super. Page 423]

    forcible compulsion element of rape beyond a reasonable doubt.

This court has stated that the evidence necessary to support the element of forcible compulsion need only be such as to establish lack of consent and to induce the woman to submit without additional resistance; it is not necessary that the victim be beaten, cry, become hysterical, or be threatened with a weapon for the crime of rape to occur. Commonwealth v. Williams, 294 Pa. Super. 93, 439 A.2d 765 (1982). The requisite degree of force is relative, and depends on the facts and circumstances of each case. Id. However, the courts of this Commonwealth have not always agreed on the amount of force necessary to support a finding that the victim was forcibly compelled to submit to intercourse. This is particularly so where the forcible compulsion involves psychological, moral or intellectual force rather than physical force. The case law dealing with the element of forcible compulsion or threat thereof has been in a constant state of flux. In order to gain a proper perspective on the present state of the law, we must canvass several significant cases which provide a framework from which we can determine whether forcible compulsion or threat of forcible compulsion existed in this case.

In Commonwealth v. Mlinarich, 345 Pa. Super. 269, 498 A.2d 395 (1985), aff'd, 542 A.2d 1335 (1988), the appellant was convicted of raping a fourteen year old daughter of one of his neighbors. Appellant and his wife had taken custody of the child following her release from a juvenile detention home, where she had been committed by her family in order to "teach her a lesson" after her admission to the theft of her brother's ring. On several occasions appellant fondled the victim, requested her to undress, and engaged in sexual intercourse with her. When the victim objected to appellant's conduct, appellant threatened to send her back to the juvenile home if she failed to comply with his requests. An en banc panel of this court reversed the trial court and held that rape, as defined by the legislature, "requires actual physical compulsion or violence, or a threat of physical

[ 377 Pa. Super. Page 424]

    compulsion or violence, sufficient to prevent resistance by a person of reasonable resolution." Id., 345 Pa. Superior Ct. at 286, 498 A.2d at 403. Applying that definition to the facts of the case, this Court found that a threat to withdraw custodial care and return a juvenile to a detention home was not "forcible compulsion" sufficient to constitute the crime of forcible rape.

In 1986, our supreme court decided the landmark case of Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), which rejected our conclusion in Mlinarich that the term forcible compulsion is tantamount to physical compulsion or violence. Id., 510 Pa. at 553 n. 12, 510 A.2d at 1225 n. 12. See also Commonwealth v. Stambaugh, 355 Pa. Super. 73, 512 A.2d 1216 (1986). In Rhodes, the defendant lived across the street from the 8 year old victim. The victim had known the defendant for approximately three (3) years. The defendant asked the victim if she wanted to go somewhere and then led her to an empty room on the second floor of an abandoned building near a playground. When the defendant began to touch her the victim told him to "stop." Nevertheless, the defendant proceeded to have both vaginal and anal intercourse with the child. The child was taken to the hospital by her mother where tests revealed the presence of semen in her vagina and rectum. In addition, she was treated for a tear in the tissue between her rectum and vagina. In an authoritative opinion authored by Justice Larsen, a majority of the supreme court held that the evidence was sufficient to support a finding of forcible compulsion or threat thereof.*fn1 After a lengthy analysis of the legislative history behind 18 Pa. C.S.A. § 3121 (rape), 18 Pa.C.S.A. § 3122 (statutory rape) and 18 Pa.C.S.A. § 3123 (involuntary deviate sexual intercourse), and a discussion of the common law offense of rape, the court held that the phrase "forcible compulsion" "connotes more than the exercise of sheer physical force or violence."

[ 377 Pa. Super. Page 425]

As used by the legislature, the court determined that the term encompassed "the act of using superior force -- physical, moral, psychological, or intellectual -- to compel a person to do a thing against that person's volition and/or will." Id. 510 Pa. at 553, 510 A.2d at 1225. In determining whether the evidence is sufficient within the above definition to prove beyond a reasonable doubt that the accused engaged in sexual intercourse by forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, the court directed that we follow a totality of the circumstances approach, and set forth a list of factors to aid us in this determination. The factors to be weighed include, but are not limited to:

[t]he respective ages of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.

Id., 510 Pa. at 556, 510 A.2d at 1227. The court went on to conclude that the facts of the case were sufficient to establish the element of forcible compulsion and threat of forcible compulsion. In so concluding, the court reasoned:

There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult ("prevent resistance"), without the ...

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