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COMMONWEALTH PENNSYLVANIA v. ROBERT R. TITUS (03/29/89)

filed: March 29, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT R. TITUS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, No. 5758/86.

COUNSEL

Robert W. Suter, Deputy Public Defender, Doylestown, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.

Rowley, Wieand and Beck, JJ.

Author: Rowley

[ 383 Pa. Super. Page 56]

This appeal of Robert R. Titus is from the judgment of sentence of five to ten years imprisonment that was imposed following his conviction, by the court sitting without a jury, on charges of rape, 18 Pa.C.S. § 3121, and other related offenses. The victim was appellant's thirteen-year-old daughter, D___. Appellant's sole argument on appeal is that the evidence of forcible compulsion or the threat of forcible compulsion was insufficient as a matter of law to support his conviction on the charge of rape. For the reasons set forth below, we reverse the judgment of sentence.

The facts of the case, as derived from the trial testimony, are as follows: In December 1985, D___, who had been living with her mother in Florida, came to live with appellant and his parents in a two-bedroom apartment in Morrisville, Pennsylvania. D___ slept in one of the two bedrooms and her grandparents in the other; appellant sometimes shared the bedroom with D___. Toward the end of December 1985, appellant came home from a night of drinking, got into bed with D___, who was asleep, and, after she awoke, proceeded to have sexual intercourse with her. D___ then pushed him away, after which he left her alone.*fn1

In September 1986, appellant gave a written statement to the police in which he admitted having had sex with D___. Coincidentally, D___ returned to Florida in September 1986. Following a non-jury trial, appellant was convicted of rape, 18 Pa.C.S. § 3121; statutory rape, 18 Pa.C.S. § 3122; corruption of minors, 18 Pa.C.S. § 6301; incest, 18 Pa.C.S. § 4302; indecent assault, 18 Pa.C.S. § 3126; indecent exposure, 18 Pa.C.S. § 3127; and endangering the welfare of children, 18 Pa.C.S. § 4304. Posttrial motions were filed and denied. On April 8, 1988, appellant was sentenced to a term of imprisonment of five to ten years, five years being the minimum term mandated by 42 Pa.C.S. § 9718(a) when

[ 383 Pa. Super. Page 57]

    the victim of rape is under sixteen years of age. This timely appeal followed.

Section 3121 of our Crimes Code, 18 Pa.C.S. § 3121, provides, in pertinent part, that a person commits the offense of rape "when he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion; [or] (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution . . . ." Appellant's sole argument on appeal is that because there was no testimony that he resorted to forcible compulsion or the threat of forcible compulsion in order to engage in sexual intercourse with his daughter, the evidence is insufficient as a matter of law to support his conviction on the charge of rape.

Where, as here, appellant has preserved his challenge to the sufficiency of the evidence in a post-verdict motion in arrest of judgment,

     we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the ...


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