Commonwealth v. Rhodes , 332 Pa. Super. 273 ( 1984 )

WIEAND, Judge:

Nicholas Rhodes was tried non-jury and was found guilty of corrupting a minor,¹ indecent exposure,² indecent assault,³ involuntary deviate sexual intercourse,⁴ statutory rape,⁵ and forcible rape⁶ as a result of sexual acts committed with an eight year old, female child. Post-trial motions were denied, and Rhodes was sentenced on the rape and ■ involuntary deviate sexual intercourse convictions to concurrent terms of imprisonment for not less than six (6) nor more than twenty (20) years. He was also sentenced to probation for five years on the conviction for corrupting the morals of a child. Sentence was suspended on the conviction for statutory rape, and no sentences were imposed on the remaining convictions. On direct appeal, Rhodes contends that the evidence was insufficient to sustain the convictions and that the sentences were excessive. We agree that the evidence was insufficient to prove a forcible rape. There is no merit in any other of appellant’s contentions.

An examination of the sufficiency of the evidence in this case can best begin by examining and comparing the statutory definitions of the offenses commonly known as rape, statutory rape and involuntary deviate sexual intercourse. Rape is defined at 18 Pa.C.S. § 3121 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.

Statutory rape is defined at 18 Pa.C.S. § 3122 as follows:

A person who is 13 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.

Forcible rape, it will be observed, is a felony of the first degree; whereas, statutory rape has been made only a felony of the second degree.

Compare these sections of the Crimes Code, then, with the definition of involuntary deviate sexual intercourse which appears at 18 Pa.C.S. § 3123.

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.

Specifically, it should be observed that it is a felony of the first degree to engage in deviate sexual intercourse with another person, with or without force, who is less than 16 years of age.

The testimony of the child in the instant case was as follows:

Q. What did you do when you went into the room? What happened?

A. He told me to lay down.

Q. Now Tanya, when you lay down, did you lay down? A. Yes.

Q. When you lay down, did you lay down on your stomach or lay down on your back?

A. On my back.

Q. Now Tanya, when you laid down what happened? A. He told me to pull my leg up.

Q. Did you put your legs up?

A. Yes.

Q. What happened after you put your legs up? What did Nicky do?

A. (There is no response.)

Q. Tanya, what did Nicky do after you put your legs up? A. (There is no response.)

Q. Was Nicky standing, was he sitting, was he kneeling, was he laying down, do you remember?

A. He was standing.

Q. And did he stand the whole time you were in the room or did he do something else?

A. He did something else.

Q. What else did he do?

A. He laid down.

Q. Now, when he laid down, did he lay down on the floor or did he lay on top of some one or some thing? A. Yes.

Q. What did he do?

A. He laid down.

Q. What did he lay down on?

A. Me.

Q. Now, what did Nicky do when he laid down on you?

A. (There is no response.)

Q. Tanya, did Nicky touch you any where?

A. Yes.

Q. Where did he touch you?

A. On my butt.

Q. When you say your butt, why don’t you stand up for the Judge, and show him where you mean. Okay?

A. (Indicates) right here.

Q. Go ahead, you can sit down. Now Tanya, with what did Nicky touch you on your butt? Did he touch you with something?

A. Yes.

Q. What did he touch you with, what do you call it, what did he touch you with9

A. (There is no response.)

Q. Did he touch you with his hand?

A. No.

Q. Would you point for the Judge where it is, what thing, that is, he touched you with, where it is on Nicky. Stand up.

A. Right here.

Q. I can’t see you.

A. Right here.

MRS. TUCKER: Turn around, the Judge has to see you, Honey.

Indicating, for the record, the pubic area.

Q. Now, Tanya, did you see Nicky, did you see the thing

that Nicky touched you with, did you see it?

A. Yes.

Q: Now, what did you do or what did you say when

Nicky touched you there?

A. I told him to stop.

Q. And what did Nicky say to you?

A. Nothing.

Q. And how long did you stay in the room, a long time

or a short time?

A. A short time.

A medical examination of the child was positive for rectal and vulvular sperm and disclosed a recto-vaginal fissure about IV2 centimeters in length. Her panties contained blood and seminal stains.

When this evidence is viewed in the light most favorable to the Commonwealth, which won the verdict, its sufficiency to show that appellant engaged in natural and unnatural sexual intercourse with the child in violation of Sections 3122 and 3123 of the Crimes Code is readily apparent. The weight and credibility of the child’s testimony, of course, were for the trier of the facts. The credibility of her testimony was not destroyed and her testimony was not rendered incompetent merely because she initially told police that the sex act had taken place in an alley. See: Commonwealth v. Whack, 482 Pa. 137, 140, 393 A.2d 417, 418-419 (1978); Commonwealth v. Williams, 290 Pa.Super. 209, 214, 434 A.2d 717, 719 (1981). This is particularly so where, as here, the child’s testimony regarding sexual contact has been corroborated in large part by medical evidence.

It is equally apparent, however, that the Commonwealth failed to prove a forcible rape. There is not one iota of evidence that sexual intercourse was accomplished by forcible compulsion or by threat of forcible compulsion. Similarly, there was no evidence that the child was unconscious or mentally deficient. Although we do not minimize the heinous nature of appellant’s act, it seems clear that the act of vaginal intercourse was criminal because of the provisions of 18 Pa.C.S. § 3122 defining statutory rape and not because it was a forcible rape as defined in 18 Pa.C.S. § 3121.⁷

The conviction and sentence for rape, therefore, will be reversed and set aside. We have also reviewed the sentences imposed for involuntary deviate sexual intercourse and corrupting the morals of a minor, as well as the court’s reasons for these sentences. Contrary to appellant’s contention, we perceive no abuse of discretion. The sentence was warranted by the nature of the crimes committed, appellant’s prior criminal and psychiatric record, and the potential threat which he presented to the community if he were not confined. However, we cannot be certain that the trial court’s sentences for such offenses would have been the same if it had known that the conviction for forcible rape would be set aside. Therefore, we will vacate all judgments of sentence and remand for resentencing. See: Commonwealth v. Conrad, 285 Pa.Super. 571, 578, 428 A.2d 192, 196 (1981); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 480, 400 A.2d 184, 186 (1979).

The conviction for forcible rape and the judgment of sentence imposed therefor are reversed and set aside. The judgments of sentence for the remaining convictions are vacated, and such cases are remanded for resentencing.

Jurisdiction relinquished.

CAVANAUGH, J., files a dissenting opinion.

1 . 18 Pa.C.S. § 6301.

2 . 18 Pa.C.S. § 3127.

3 . 18 Pa.C.S. § 3126.

4 . 18 Pa.C.S. § 3123.

5 . 18 Pa.C.S. § 3122.

6 . 18 Pa.C.S. § 3121.

7 . If we were being asked to define the common law crime of rape, our inclination would be to agree with the author of the dissent and infer necessary force from a young child’s lack of capacity to give consent. However, we are required in this case to construe the provisions of the Crimes Code which, it will be recalled, abolished all common law crimes. 18 Pa.C.S. § 107(b). When we examine the provisions of Sections 3121 and 3122 of the Code “according to the fair import of their terms,” as we are required to do by 18 Pa.C.S. § 105, we conclude that appellant’s conduct violated Section 3122, not Section 3121. We cannot expand the offense of forcible rape, as defined in 18 Pa.C.S. § 3121, to include any and all sexual intercourse with an eight year old child without rewriting the clearly expressed intent of the legislature.