439 A.2d 765 (Pa. Super. Ct. 1982)
This case comes to us on appeal from the Court of Common Pleas of Montgomery County, Criminal Division, and involves the defendant-appellant’s appeal of his convictions by a jury of rape, simple assault-menace, and involuntary deviate sexual intercourse.1 He was acquitted of terroristic threats and kidnapping. Demurrers were sustained on charges of unlawful restraint, false imprisonment and simple assault-attempted. Verdicts of not guilty were directed on the charge of indecent assault.2
On March 3, 1978 at approximately 7:15 P.M., Dolores Contreras, a student at Temple University, was standing on the corner of North Broad and Norris Streets in Philadelphia waiting for a bus which would take her into Center City.3 She planned to catch a bus at the Center City terminal which would take her to Alabama where she planned to visit her sister. It had been snowing heavily at the time for several hours and the buses were running late.4 At the above-mentioned time the defendant drove past Ms. Contreras in his automobile and asked her if she wanted a ride. She declined. The defendant turned, proceeded north on Broad Street, turned around, and within a few moments, returned to the scene travelling south on Broad Street and again asked Ms. Contreras whether she needed a ride. This time she accepted.5
The defendant then proceeded south on Broad Street toward Center City Philadelphia. Suddenly he changed directions and drove west toward the Schuylkill Expressway. When Contreras asked where he was going the defendant said, “You are going with me, this ought to teach you not to get in cars with strangers”.6 He then drove onto the Schuylkill Expressway and told her to remain in the vehicle, to shut up and to do everything he said. As she moved to the door on the passenger side of the vehicle the defendant leaned over, bolted the door and threatened to kill her if she attempted to leave the vehicle. The defendant then continued to drive west out of the City of Philadelphia.7 Ms. Contreras testified at trial that the defendant kept his hand in his pocket at all times and that she believed that he might have been holding a weapon. The defendant then told her that all he wanted was “a little sex.” She responded to this statement by asking him whether he would want something like that to happen to his sister. The defendant then threatened to kill her again.8 He drove to Fairmount Park, stopped the vehicle, got out and looked around, and then returned to the vehicle which he drove to Monument Avenue in Lower Merion Township, Montgomery County. This was a dark area with few homes. At this point Contreras informed the defendant that if he “wanted to proceed with this, to go ahead”, because she did not want him to hurt her.9 The defendant then parked the vehicle and instructed her in the sexual acts he wished her to perform. These included acts of oral sex in the front seat of the vehicle. They then moved to the back seat where he had sexual intercourse with her. After 45 minutes the defendant drove her to the Center City bus terminal where she got out of the vehicle, recorded its license number, and informed the police that she had been raped. The defendant was arrested a few hours later.10 On July 19, 1978 he was convicted of the charges as set forth previously in this opinion. He was sentenced to a prison term of three and one-half to fifteen (3½—15) years. The defendant appealed his judgment of sentence on August 10, 1979.11
Whether the evidence presented at trial was sufficient to sustain the jury's verdicts of guilty on the charges of rape, simple assault-menace, and involuntary deviate sexual intercourse?12
A person commits the crime of rape when he engages in sexual intercourse with another person not his spouse by forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.13 The same criteria apply to the crime of involuntary deviate sexual intercourse.14 The force necessary to support convictions for rape and involuntary deviate sexual intercourse need only be such as to establish lack of consent and to induce the woman to submit without additional resistance.15 It is not necessary that the victim be beaten, that the victim cry, that the victim become hysterical, or that she be threatened by a weapon for the crime of rape to occur.16 The degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case.17
Yes. Applying the rule to the established facts shows that the defendant threatened the prosecutrix with death at least twice during the drive after she accepted the ride.18 The established facts further demonstrate that after these threats the complainant informed the defendant that if he wanted to proceed with the acts to go ahead because she did not want him to hurt her.19 The fact that she ultimately decided that it was pointless to physically resist the defendant after he had so threatened her does not establish conclusively that the prosecutrix gave her consent to the acts.20
This is a jury question.21 The jury properly resolved the issue in favor of Ms. Contreras based on the testimony that the defendant kept his hand in his pocket and she believed he might have been holding a weapon while directing her to perform the sexual acts including oral sex and intercourse.22
The evidence presented at trial was sufficient to sustain the jury's verdicts of guilty on the charges of rape, simple assault-menace, and involuntary deviate sexual intercourse.23
Whether the jury's acquittal on the terroristic threats charge rendered its guilty verdicts on the other charges inconsistent and subject to reversal?24
Consistency in verdicts in criminal cases is not necessary and logical inconsistencies will not serve as grounds for reversal.25 Since the crime of terroristic threats is a specific intent crime in that the intent to terrorize is a necessary element thereof it could very well be the case that the jury believed that defendant’s ultimate goal in threatening to kill the prosecutrix was not to terrorize her but to compel her to have sexual intercourse with him and that therefore in its mind it did not feel that a conviction of the crime of terroristic threats was warranted while conviction on the rape and involuntary deviate sexual intercourse charges which are general intent crimes were warranted.26
No. The established facts show the defendant made threats to kill the complainant if she attempted to leave the vehicle and threatened to kill her again after she asked whether he would want something like that to happen to his sister.27 The jury acquitted on terroristic threats yet convicted on rape and involuntary deviate sexual intercourse.28 Such logical inconsistencies in criminal case verdicts are not grounds for reversal.29 The jury could have concluded the threats were made to compel sexual acts rather than to terrorize as a separate end.30
The jury's acquittal on the terroristic threats charge did not render its guilty verdicts on the other charges inconsistent and subject to reversal.31
Whether the trial court's references to the complainant as the "victim" during its jury charge prejudiced the jury against the defendant?32
Reference to the prosecutrix in a rape case as the victim is not an expression of the judge’s opinion as to the guilt of the defendant.33 In reviewing the entire charge to the jury as must be done the court informed the jury on several occasions that it was their recollection of the facts which was controlling and that they had to find the defendant guilty of all facts necessary to constitute the crimes beyond a reasonable doubt.34 The charge taken in its entirety was not so prejudicial to the defendant so as to necessitate a new trial.35
No. The trial court referred to Ms. Contreras as the victim on several occasions during its charge but also referred to her at times as the alleged victim and as a person.36 The established facts indicate the trial court noted in its opinion that perhaps in hindsight it would have been more appropriate to continue to refer to Miss Contreras as the alleged victim or the prosecutrix.37 Nevertheless the references did not constitute an expression of the judge’s opinion as to guilt.38 The charge as a whole properly instructed the jury on its role in determining the facts and applying the reasonable doubt standard.39
The trial court's references to the complainant as the victim during its jury charge did not prejudice the jury against the defendant.40
Whether the trial court's alleged raising of its voice when saying the word "threats" during the jury charge constituted reversible error?41
An appellate court cannot properly resolve from the record issues regarding inflections in the use of one’s voice since they obviously do not appear in the transcript.42 To some extent at least an appellate court must rely on the professionalism and good faith of trial judges in such matters.43 There are limitations on the ability to review effectively each and every minor detail which occurs at trial.44 A reading of the entire charge to the jury convinces the court that the charge read as a whole was fair.45
No. The established facts of the procedural history show that after trial the defendant raised the issue of the court raising its voice when saying the word threats.46 The record contains only the exchange in which counsel noted that every time the judge mentioned threats he raised his voice and the judge responded that he did not mean to emphasize the use of the word and did not recall doing so.47 Counsel sought no further remedy than to call the judge’s attention to the claim and did not request cautionary instructions or take any other action with respect to this conduct by the judge.48 The issue is therefore waived on appeal.49
In any event a fair reading of the charge demonstrates its fairness despite any inadvertent voice inflections.50
The trial court's alleged raising of its voice when saying the word threats during the jury charge did not constitute reversible error.51
Related opinions on this issue
Judge Cavanaugh concurred in the result affirming the judgment of sentence.52 He agreed that the judgment of sentence should be affirmed.53 However he disagreed with the majority’s statement that to some extent at least we must rely on the professionalism and good faith of our trial judges in such matters.54
He also disagreed that there are perhaps some occurrences at the trial level which are impossible to review on appeal.55 In the instant case the record contains only the exchange in which counsel stated that every time the judge mentioned threats he raised his voice and the judge responded that he did not mean to emphasize the use of the word threats and did not recall doing so.56 Counsel sought no further remedy than to call the judge’s attention to the claim that he had raised his voice.57
The issue is waived on appeal as counsel did not request cautionary instructions or take any other action with respect to this conduct by the judge.58 Judge Cavanaugh emphasized that it is the duty of an appellate court to fully review each case on appeal within the parameters of the facts as they appear in the record and the applicable law.59 It is misleading to indicate that there are some areas of review that are beyond the court’s scope.60
Whether the trial court erred in refusing to instruct the jury that a reasonable belief by the defendant that the complainant had consented would constitute a defense to the charges of rape and involuntary deviate sexual intercourse?61
The charge requested by the defendant is not now and has never been the law of Pennsylvania.62 The crux of the offense of rape is force and lack of victim’s consent.63 When one individual uses force or the threat thereof to have sexual relations with a person not his spouse and without the person’s consent he has committed the crime of rape.64 If the element of the defendant’s belief as to the victim’s state of mind is to be established as a defense to the crime of rape then it should be done by the legislature which has the power to define crimes and offenses.65 The court refuses to create such a defense.66
No. The defendant requested that the court instruct the jury that if the defendant reasonably believed that the prosecutrix had consented to his sexual advances that this would constitute a defense to the rape and involuntary deviate sexual intercourse charges relying on an obscure Alabama case.67 The trial court declined to so instruct the jury.68 In so refusing the proffered charge the court acted correctly because the requested charge is not the law of Pennsylvania.69 The established facts show the defendant used threats of death to prevent the complainant from leaving the vehicle and directed her to perform the sexual acts after she stated she did not want him to hurt her.70
The element of the defendant’s belief as to the victim’s state of mind is not a defense under current Pennsylvania law.71
The trial court did not err in refusing to instruct the jury that a reasonable belief by the defendant that the complainant had consented would constitute a defense to the charges of rape and involuntary deviate sexual intercourse.72