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filed: February 6, 1989.


Appeal from the Judgment of Sentence of November 9, 1987, in the Court of Common Pleas of Chester County, Criminal Division, at No. 1503-86.


Kimberly M. Preston, Assistant Public Defender, West Chester, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, Downingtown, for Com., appellee.

Montemuro, Beck and Popovich, JJ. Beck, J., concurs in the result.

Author: Popovich

[ 381 Pa. Super. Page 356]

David Andrew Meadows was tried before a jury in the Court of Common Pleas of Chester County and convicted of rape, indecent assault and corruption of minors. 18 Pa.C.S.A. §§ 3121, 3126, 6301. Following the denial of post-trial motions, he was sentenced to five to ten years imprisonment, and this appeal followed. We affirm.

In this direct appeal from his judgment of sentence, the appellant contends that the evidence against him was legally

[ 381 Pa. Super. Page 357]

    insufficient to support the convictions for rape and indecent assault. He also contends that the lower court erred in refusing to grant his motion for a mistrial on the following grounds: 1) the prosecutor was erroneously permitted to question the appellant on his post-arrest silence and comment on the silence in his closing argument; 2) a counselor from the Crime Victims' Center was erroneously permitted to console the victim while she was on the witness stand in view of the jury; and 3) the prosecutor was erroneously allowed to admit into evidence the victim's blood-stained panties. Finally, he contends that he was deprived of a fair trial when the judge gave erroneous instructions to the jury.

The facts of the case are as follows: In 1986, when the appellant was twenty-three years of age, he became acquainted with the complainant, Becky M. Becky was the younger sister of the appellant's brother's girlfriend. She was fifteen years of age and was deaf. The appellant visited Becky at her parents' home on six or seven occasions during a three-month period. Becky developed a strong attachment to appellant and considered him to be her boyfriend. N.T. 11/3/86 at 29. She looked forward to his visits and tried to teach him some sign language.

On June 8, 1986, Becky and the appellant met behind a barn located on her parents' property and voluntarily engaged in petting activities. After they were interrupted by Becky's sister, they left the barn and walked for five minutes until they came to a nearby dirt field. N.T. 11/3/86 at 43. Becky kissed the appellant and voluntarily laid down on the ground. The appellant maintains that, thereafter, he had consensual sexual intercourse with Becky and that Becky did not object or protest in any way. However, at the appellant's preliminary hearing, Becky testified that while the appellant was pulling down her zipper, she said aloud, "No." and "Off." N.T. 11/3/86 at 60. At trial, Becky provided additional details. She testified through an interpreter as follows:

[ 381 Pa. Super. Page 358]

Q. What did you say to Dave when he had sex with you there?

A. I said: Why you have sex? I don't want any.

Q. And what did you say when he pulled your pants down?

A. I said: Why are you pulling my pants down.

Q. What did you say when he put his penis into your vagina?

A. I said: I -- I don't -- he said he wanted to have me pregnant.

N.T. 11/3/86 at 59.

Becky also said that she pushed hard against the appellant but could not move his body off hers. N.T. 11/3/86 at 12.

After the act of intercourse was completed, the couple returned to Becky's parents home. Becky admitted that she again kissed the appellant, but she said that she was now afraid of him. N.T. 11/3/86 at 25, 52. The following day, Becky arranged an appointment with a school nurse. She told the nurse that a boy named Jimmy had forced her to have sex and that she thought she was pregnant. After speaking to the police, Becky said that, in fact, the appellant had forced her to have sex.

In November, 1986, the appellant was tried before a jury on charges of rape, indecent assault, and corruption of minors. After retiring for deliberations, the jury returned with two questions for the judge concerning the definition of the crime of rape. According to the Pennsylvania rape statute, "A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse . . . by forcible compulsion . . . ." 18 Pa.C.S.A. § 3121. The jury foreman asked the judge to define "forcible compulsion".*fn1 The foreman also asked the judge, "Can Becky consent to a point and then say no? (Prior to the act) In other words, can she consent 95 percent and just prior to intercourse say: No, no. Off, off. Is this forcible compulsion.?" N.T. 11/6/86 at 72. Defense counsel's

[ 381 Pa. Super. Page 359]

    position was that the court should respond to these questions by defining "forcible compulsion" as the use or threatened use of physical force or violence. The trial court, however, noted that in the case of Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), the Pennsylvania Supreme Court had held that psychological, moral, and intellectual force can also rise to the level of "forcible compulsion." Over defense objection, the Court read excerpts from the Rhodes case to the jury and then made the following comments:

It is up to you as the jury to take what I have just read to you, consider everything to determine whether you have forcible compulsion of the various types; whether it was physical -- and you have to keep in mind what the evidence was with regard to any physical coercion, with regard to moral, intellectual, or psychological. The essence of the offense is that there was some exercise of conduct on the part of the Defendant that was against the will of the victim in this case, Miss [M.]. And I can do no more that tell you that the Supreme Court says it's one of four varieties at this point in time.

And, again, the Court tells you to look at all of the circumstances that were occurring that day from -- and I say to you you should look from the time Mr. Meadows arrived until the time that they were in the field and what was occurring and to distill those facts and ask yourself: Is it physical force; is it moral; is it intellectual; is it psychological? And I can give to you no more guidance than that.

N.T. 11/6/86 at 75-76.

The jury then convicted the appellant of all charges. On November 11, 1987, he was sentenced to a mandatory minimum five year term of imprisonment for rape. The judge determined that the convictions for indecent assault and corruption of minors merged with the rape conviction.

The appellant contends on appeal that there is insufficient evidence of rape and indecent assault. We disagree. When reviewing a sufficiency of the evidence claim, we

[ 381 Pa. Super. Page 360]

    must view all of the evidence in the light most favorable to the Commonwealth, and resolve all conflicts in the evidence in favor of the Commonwealth. See, e.g., Commonwealth v. Pearsall, 368 Pa. Super. 327, 329, 534 A.2d 106, 108 (1987). As appellant concedes, a defendant is clearly guilty of rape if he has sex with another person who is not his spouse through the use of physical force or violence. Moreover, a defendant is guilty of indecent assault if he has indecent contact with another person who is not his spouse without that other person's consent. 18 Pa.C.S.A. § 3126. Viewing the evidence in the light most favorable to the prosecution, a jury could find that appellant pinned Becky to the ground and knowingly disregarded her efforts to communicate the idea that she did not want to have intercourse. Accordingly, we find that the trial court was correct in denying appellant's motion in arrest of judgment.

Next, we will discuss the appellant's opposition to the trial court's denial of his motion for a mistrial. "The decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of discretion. Commonwealth v. Hamm, 325 Pa. Super. 401, 412, 473 A.2d 128, 133 (1984); Commonwealth v. Seigrist, 253 Pa. Super. 411, 418, 385 A.2d 405, 408 (1978)." Commonwealth v. Thomas, 361 Pa. Super. 1, 14, 521 A.2d 442, 449 (1987), allocatur denied 516 Pa. 617, 532 A.2d 1119. Moreover, when prompt curative or cautionary instructions are given by the court, an abuse of discretion will not readily be found. Commonwealth v. Hoffman, 301 Pa. Super. 312, 316, 447 A.2d 983, 985 (1982); Thomas, 521 A.2d at 449; Seigrist, 385 A.2d at 409. "A mistrial must be granted 'only when [the prejudicial effect of] an incident is of such a ...

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