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07/23/97 COMMONWEALTH PENNSYLVANIA v. ROLAND ERNEY

July 23, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ROLAND ERNEY, APPELLANT



Appeal from the Order of the Superior Court Entered on October 16, 1995, at No. 314 Philadelphia 1995, Affirming the Order of the Court of Common Pleas of Bucks County, Criminal Division, at No. 5440 of 1992, Entered on January 30, 1995. JUDGE(S) BELOW: CCP - Hon. Edward G. Biester, Jr. / Superior - ROWLEY, PJ, CIRILLO, HOFFMAN, JJ.

Appeal from the Order of the Superior Court dated October 16, 1995 at No. 314 Phila. 1995, affirming the Order of the Court of Common Pleas of Bucks County, Criminal Division dated January 30, 1995 at No. 5440 of 1992. JUDGE(S) BELOW: CCP - Hon. Edward G. Biester, Jr. / Superior - ROWLEY, PJ, CIRILLO, HOFFMAN, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Nigro files a Dissenting opinion in which Mr. Justice Zappala joins.

The opinion of the court was delivered by: Castille

JUSTICE CASTILLE

DECIDED: July 23, 1997

The sole issue raised on appeal is whether the victim in this case was "unconscious" within the meaning of 18 Pa. C.S. § 3121(3) so as to render the evidence sufficient to support appellant's conviction for rape of an unconscious victim. We conclude that there was sufficient evidence to find that the victim was unconscious and therefore affirm.

On March 9, 1993, following a jury trial in Bucks County, appellant was convicted of rape (unconscious victim), *fn1 aggravated indecent assault, *fn2 and corruption of minors, *fn3 for the sexual assault of a teenaged girl who was so intoxicated at the time as to be both unaware of portions of the incident and unable to consent to sexual intercourse or to resist appellant's assault. Appellant filed post-verdict motions, which the trial court denied on August 31, 1993. Sentencing was scheduled for October 1, 1993, but was continued because appellant, who had a history of mental illness, was found to be incompetent. On January 13, 1995, after appellant regained his competency, the trial court sentenced him to a mandatory sentence of five to ten years imprisonment. See 42 Pa. C.S. § 9718 (relating to rape of a person under sixteen years of age).

On appeal to the Superior Court, appellant argued that, because the victim was able to describe with considerable detail certain sexual activity giving rise to these charges, including penetration and intercourse, she was necessarily conscious and, therefore, the evidence was insufficient to support his conviction for rape under 18 Pa. C.S. § 3121(3) (unconscious victim). The Superior Court affirmed. We granted allocatur to address the meaning of "unconscious" under 18 Pa. C.S. § 3121(3).

The evidence adduced at trial established that on an evening during late December, 1991, the victim in this case, fifteen-year old J.R., accompanied her friend, Timothy Beck, to the home of appellant, who was then thirty-three years old. While there, appellant provided marijuana and alcohol to J.R., Beck, and another young man who was friendly with appellant, Duane Weiser. Appellant particularly encouraged J.R. to consume marijuana, at times refusing to allow her to "pass the joint" to others. Eventually, J.R. became so intoxicated as to be unable to move or speak. Indeed, eyewitness Beck described her as incoherent, "not paying any attention to anything that was going on around her," and like "a vegetable." It was at that point that appellant, while on the floor of his second floor bedroom, began fondling J.R.'s breasts and vagina. Beck observed this activity and informed appellant that J.R. was only fifteen years old, to which appellant replied that he has a daughter that age and that J.R. reminded him of his daughter. Appellant then ripped down J.R.'s pants and proceeded to engage in sexual intercourse with her. J.R. testified that throughout the assault, she attempted to tell appellant to stop and believed that she, using her loudest possible voice, did indeed do so. However, the only sound audible from J.R. to the listeners was unintelligible mumbling. Beck questioned J.R. during the assault in an attempt to determine whether she was "okay," but J.R. was wholly unable to respond. The young victim testified that she was unaware of the duration of the assault and for what reason the assault ceased. According to her testimony, appellant just stopped. In fact, appellant ceased the assault when Beck, who had repeatedly told appellant to stop and had stated that he was going to awaken appellant's mother (who was asleep in another bedroom), finally threatened to call police and prepared to leave the premises to do so. J.R. could not recall putting on her pants, but she eventually dressed to leave the residence. Unable to walk, she slid down the stairs and, after sitting for a while in appellant's living room, left the premises with Beck.

The following day, J.R., who was uncertain as to whether the assault had actually occurred, confirmed the events with Beck. She also spoke to appellant on the telephone, and he told J.R. that she had gotten what she deserved. During a subsequent telephone call to J.R.'s home, appellant repeatedly chanted to J.R's mother that the victim "got what she deserved because women are evil and [they] all get what [they] deserve."

When interviewed by police, appellant first acknowledged that the victim was at his home at the time of the crime and that they had smoked marijuana. He later stated that the victim was never even there, and that no females other than family members had been in his home for over two years.

Appellant contends that this evidence is insufficient to support his conviction under 18 Pa. C.S. § 3121(3), which at the time of the crime, provided that:

A person commits a felony of the first degree when he engages in sexual intercourse with ...


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