Commonwealth v. Berkowitz

HISTORY

Robert Berkowitz (defendant) (B) was charged with and convicted of rape in the Court on Common Pleas, Monroe County, of rape. He was sentenced to one to four years. The intermediate court of appeals (The Pennsylvania Superior Court) affirmed the conviction. The Pennsylvania Supreme Court, in a unanimous decision ruled that the evidence at trial didn't support finding of "forcible compulsion." Butthe court found that the evidence did support a finding of the lesser offense of "indecent assault." Indecent assault required proof that Berkowitz engaged in "indecent contactany touching of the sexual or other intimate parts of another personwithout the consent of the other person. [Indecent assault is a misdemeanor. Berkowitz was sentenced to six months to a year, and was granted parole after serving the minimum six months.]

PER CURIAM [by the whole court]

FACTS

In the spring of 1988, Robert Berkowitz and the victim were both college sophomores at East Stroudsburg State University, ages 20 and 19 years old, respectively. They had mutual friends and acquaintances. On April 19 of that year, the victim went to Berkowitz's dormitory room. What transpired in that dorm room between Berkowitz and the victim thereafter is the subject of the instant appeal.

During a one-day jury trial held on September 14, 1988, the victim gave the following account during direct examination by the Commonwealth. At roughly 2:00 on the afternoon of April 19, 1988, after attending two morning classes, the victim returned to her dormitory room. There, she drank a martini to "loosen up a little bit" before going to meet her boyfriend, with whom she had argued the night before. Roughly 10 minutes later she walked to her boyfriend's dormitory lounge to meet him. He had not yet arrived.

Having nothing else to do while she waited for her boyfriend, the victim walked up to Berkowitz's room to look for Earl Hassel, Berkowitz's roommate. She knocked on the door several times but received no answer. She therefore wrote a note to Mr. Hassel, which read, "Hi Earl, I'm drunk. That's not why I came to see you. I haven't seen you in a while. I'll talk to you later, [Victim's name]." She did so, although she had not felt any intoxicating effects from the martini, "for a laugh."

After the victim (V) had knocked again, she tried the knob on Berkowitz's door. Finding it open, she walked in. She saw someone lying on the bed with a pillow over his head, whom she thought to be Earl Hassel. After lifting the pillow from his head, she realized it was Berkowitz. She asked him which dresser was his roommate's. He told her, and the victim left the note.

Before the victim could leave Berkowitz's room, however, he asked her to stay and "hang out for a while." She complied because she "had time to kill" and because she didn't really know Berkowitz and wanted to give him a "fair chance." Berkowitz asked her to give him a back rub but she declined, explaining that she did not "trust" him. He then asked her to have a seat on his bed. Instead, she found a seat on the floor, and conversed for a while about a mutual friend.

On the cross-examination, the victim testified that during this conversation she had explained she was having problems with her boyfriend. No physical contact between the two had, to this point, taken place.

Therefore, however, Berkowitz moved off the bed and down the floor, and "kind of pushed [the victim] back with his body. It wasn't a shove, it was just kind of a leaning-type of thing." Next B "straddled" and started kissing the V. The V responded by saying, "Look, I gotta go. I'm going to meet my BF." Then B lifted up her shirt and bra and began fondling her. The V then said "no."

After roughly 30 seconds of kissing and fondling, B "undid his pants and he kind of moved his body up a little bit." The V was still saying "no" but "really couldn't move because B was shifting her body so he was over me." B then tried to put his penis in her mouth. The V did not physically resist, but rather continued to verbally protest, saying "No, I gotta go, let me go", in a "scolding" manner.

Ten or 15 more seconds passed before the two rose to their feet. B disregarded the V's continual complaints that she "had to go," and instead walked two feet away to the door and locked it so that no one from the outside could enter. The V testified that she realized at the time that the lock was not of a type that could lock people inside the room.

Then, in the V's words, "He put me down on the bed. It was kind of likehe didn't throw me on the bed. It's hard to explain. It was kind of like a push but no..." She did not bounce off the bed. "It wasn't slow like a romantic kind of thing, but it wasn't a fast shove either. It was kind of in the middle."

Once the V was on the bed, B began "straddling" her again while he undid the knot in her sweatpants. He then removed her sweatpants and underwear from one of her legs. The V did not physically resist in any way while on the bed because B was on top of her, and she "couldn't like go anywhere." She did not scream out at anytime because "it was like a dream was happening or something."

B then used one of his hands to "guide" his penis into her vagina. At that point, after B was inside her, the V began saying "no, no to him softly in a moaning kind of way because it was just so scary." After about 30 seconds, B pulled out his penis and ejaculated onto the V's stomach.

Immediately thereafter, B got off the V and said, "Wow, I guess we just got carried away." To this the V retorted, "No, we didn't get carried away, you got carried away." The V then quickly dressed, grabbed her school books, and raced downstairs to her BF who was by then waiting for her in the lounge. Once there, the V began crying. Her BF and she went up to his dorm where, after watching the V clean off B's semen from her stomach, he called the police.

Defense counsel's cross-examination elicited more details regarding the contact between B and the V before the incident in question. The V testified that roughly two weeks prior to the incident, she had attended a school seminar entitled "Does, 'no' sometimes mean 'yes'?" Among other things, thelecturer at this seminar had discussed the average length and circumference of human penises. After the seminar, the V and several of her friends had discussed the subject matter of the seminar over a speaker-telephone w/ B and his roommate, Earl Hassel. The V testified that during the telephone conversation, she had asked B the size of his penis. According to the V, B responded by suggesting that the V "come over and find out." She declined.

When questioned further regarding her communications w/B prior to the April 19, 1988, incident, the V testified that on two other occasions, she had stopped by B's room while intoxicated. During one of those times, she had laid down on his bed. When asked whether she had asked B again at that time what his penis size was, the V testified that she did not remember.

B took the stand in his own defense and offered an account of the incident and the events leading up to it which differed only as to the consent involved. According to B, the V has begun communication w/him after the school seminar by asking him of the size of his penis and of whether he would show it to her. B had suspected that V wanted to pursue a sexual relationship w/him because she had stopped by his room twice after the phone call while intoxicated, while lying down on his bed with her legs spread and again asking to see his penis. He believed that his suspicions were confirmed when she initiated the April 19, 1988, encounter by stopping by his room (again after drinking) and waking him up.

B testified that, on the day in question, he did initiate the first physical contact, but added that the V warmly responded to his advances by passionately returning his kisses. He conceded that she was continually "whispering no's," but claimed that she did so while "amorously.... Passionately" moaning. In effect, he took such protests thinly veiled acts of encouragement. When asked why he locked the door, he explained that "that's not something you want somebody to just walk in on you doing."

According to B, the two then lay down on the bed, the V helped him take her clothing off, and he entered her. He agreed that the V continued to say "no" while on the bed, but carefully qualified his agreement, explaining that the statements were "moaned passionately." According to B, when he saw a "blank look on her face," he immediately withdrew and asked "is anything wrong, is something the matter, is anything wrong." He ejaculated on her stomach thereafter because he could no longer "control" himself. B testified that after this, the V "saw that it was over and then she made her move. She gets right off the bed... she just swings her legs over and then she puts her clothes back on." Then, in wholly corroborating an aspect of the V's account, he testified that he remarked, "Well, I guess we got carried away," to which she rebuked, "No, we didn't get carried away, you got carried away."

OPINION

CAPPY, J for a unanimous court

The crime of rape is defined as follows:

3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse w/ another person not one's 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.

The victim of a rape need not resist.

The force necessary to support a conviction of rape need only be such as to establish lack of consent and to induce the victim to submit without additional resistance. The degree of force required to constitute rape is relative and depends on the facts and particular circumstances of the case.

In regard to the critical issue of forcible compulsion, the complainant's testimony is devoid of any statement which clearly or adequately describes the use of force or the threat of force against her. In response to defense counsel's question, "Is it possible that [when Appellee lifted your bra and shirt] you took no physical action to discourage him," the complainant replied, "It's possible." When asked, "Is it possible that B was not making any physical contact with you aside from attempting to untie the knot in the drawstrings of complainant's sweatpants," "It's possible." She testified that "He put me down on the bed. It was kind of likeHe didn't throw me on the bed. It's hard to explain. It was kind of like a push but notI can't explain what I'm trying to say."

She concluded that "it wasn't much" in reference to whether she bounced on the bed, and further detailed that their movement to the bed "wasn't slow like a romantic kind of thing, but it wasn't a fast shove either. It was kind of in the middle." She agreed that Appellee's hands were not restraining her in any manner during the actual penetration, and that the weight of his body on top of her was the only force applied.

She testified that at no time did B verbally threaten her. The complainant did testify that she sought to leave the room, and said "no" throughout the encounter. As to the complainant's desire to leave the room, the record clearly demonstrates that the door could be unlocked easily from the inside, that she was aware of this fact, but that she never attempted to go to the door or unlock it. As to the complainant's testimony that she stated "no" throughout the encounter with B, we point out that, while such an allegation of fact would be relevant to the issue of consent, it is not relevant to the issue of force. Where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the "forcible compulsion" requirement under 18 Pa. C.S. 3121 is not met.

The degree of physical force, threat of physical force, or psychological coercion required under 18 Pa. C.S. 3121 must be sufficient to prevent resistance by a person of reasonable resolution, but the "peculiar situation" of the victim and other subjective factors should be considered by the court in determining "resistance," "assent," and "consent."

Reviewed in light of the above described standard the complainant's testimony simply fails to establish that B forcibly compelled her to engage in sexual intercourse as required under 18 Pa. C.S. 3121. Thus, even if all of the complainant's testimony was believed, the jury, as a matter of law, could not have found B guilty of rape. Accordingly, we hold that the Superior Court did not err in reversing B's conviction of rape.

Accordingly, the order of the Superior Court reversed the rape conviction is affirmed.

1. Explain how the court came to the conclusion that the Pennsylvania rape statute required extrinsic force.
2. List all the facts relevant to deciding whether Robert Berkowitz's actions satisfy the extrinsic force requirement.
3. Assume you're the prosecutor, and argue that Robert Berkowitz did use extrinsic force to achieve sexual penetration.
4. Now, assume you're the Berkowitz's lawyer, and argue that he didn't use extrinsic force to achieve sexual penetration.
5. Was Superior Court "right" to reverse Robert Berkowitz's rape conviction? Explain your answer.
6. Did the complainant share no/little, some, equal, most of the responsibility for the sexual intercourse? The indecent sexual contact? Defend your answers.