Commonwealth v. Hitchcock

565 A.2d 1159, 523 Pa. 248, 1989 Pa. LEXIS 366

• Court: Supreme Court of Pennsylvania
• Decided: November 8, 1989
• Docket: 49 W.D. Appeal Dkt. 1988
• Status: Published

Opinions

OPINION

McDermott, justice.

The appellant in this case conducted a campaign of settled sexual aggression against his twelve-year-old daughter. He was convicted, at a bench trial, of rape, 18 Pa.C.S. § 3121; statutory rape, 18 Pa.C.S. § 3122; involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123; two counts of indecent assault, 18 Pa.C.S. §§ 3126(1) and (3); corruption of minors, 18 Pa.C.S. § 6301 and criminal attempt to commit rape, 18 Pa.C.S. § 901. In this appeal he concedes that whatever else he did, and he did everything his sordid imagination could contrive,¹ he did not rape his daughter as rape is traditionally defined. Starkly put, he contends that anal intercourse is not rape.

First, however, we shall put to rest appellant’s peculiar sensitivity; anal penetration by a male of another person, not his spouse, is rape.

Rape in its traditional sense is a male crime, the essence of which is the forcible sexual penetration of a female. Previous to the Pennsylvania Crimes Code of 1972,² the traditional concept was the forcible vaginal penetration of a woman. That definition has been amplified into forcible “sexual intercourse” of another person not in a spousal relation. The statute defines sexual intercourse as:

“Sexual intercourse.” In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.

18 Pa.C.S. § 3101.

It is a clarifying addition and not a subtraction of the traditional concept. It clearly means that any forcible penetration of the three defined orifices of the body of a female by a male is rape. Therefore, the anal penetration of the twelve-year-old female victim was rape; for which the appellant was properly convicted.

There is a separate sexual offense under the statute known as involuntary deviate sexual intercourse.³ This provision is equally clear, the gravamen is the same as the crime of rape, i.e., forcible sexual penetration of a person by another, the difference is that the crime is not confined to gender or to human beings.

The purpose of the statutes is to protect against forcible sexual penetration of the three orifices of the body by making it a crime to do any or all to a victim. The forcible sexual penetration of another person is not a free choice of the type or method of penetration desired by the perpetrator. If the perpetrator does more than one on the same occasion then the perpetrator violates different protections and different interests of the victim for which separate penalties follow. Where the victim is a woman she may be injured by three different penetrations on the same occasion. Where each is separately charged, as here,⁴ each may be separately punished. See Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987) appeal granted on other grounds, 518 Pa. 617, 541 A.2d 744 (1988); Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982); Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 426 A.2d 674 (1981).⁵ Where the victim is male, he may likewise be separately injured, and separate penetrations charged on the same occasion may be separately punished.

The appellant was separately charged for each occasion and of each he was separately convicted. He was, therefore, susceptible to separate punishments.

It is in the imposition of sentence in this case that error was committed. The trial judge and the Superior Court both fell into error when they allowed discrete and distinct offenses to merge for sentencing purposes.

When the trial judge merged forcible rape and statutory rape into involuntary deviate sexual intercourse, discrete offenses into one offense, and thus termed these acts “a bundle of evils”, he fell into error. The clear teachings of Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), where Mr. Justice Larsen, speaking for the majority, after a learned comparison of the Model Penal Code and the sexual offenses delineated in 18 Pa.C.S. §§ 3121 and 3122, definitively held that forcible rape and statutory rape do not merge into a single offense. We need say no more than such is the clear mandate. The appellant was properly convicted of both and he should have been sentenced for each separately.

The appellant was separately charged and convicted of involuntary deviate sexual intercourse and for that he was properly sentenced. Involuntary deviate sexual intercourse is not a lesser included offense of rape and when there is charged one or more forcible penetrations of a man or woman they are separate offenses under that section.

The appellant was also separately charged and convicted of corrupting a minor, which is equally a separate offense. See Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986). The consequence of which transcends any specific sexual act and is separately punishable.

A trial court in composing a sentence may as justice requires, utilize the options provided under the Sentencing Code, 42 Pa.C.S. § 9721. Whatever sentence is imposed can only be imposed upon a named, specific crime. Where there is more than one, each should be named of record and for each a specific sentence should be imposed according to the penalty prescribed for that offense.

Accordingly, we affirm the convictions, vacate the judgment of sentence and remand for resentencing in accordance with this opinion.

PAPADAKOS, J., files a concurring opinion. NIX, C.J., files a concurring and dissenting opinion in which ZAPPALA, J., joins. ZAPPALA, J., files a concurring and dissenting opinion.

PAPADAKOS, Justice,

1 . The evidence at trial consisted solely of the child’s uncontroverted direct testimony. Initially, appellant had his victim sit on his lap fully clothed and he would fondle her breasts and genital area. This contact progressed to where appellant, on a number of occasions, undressed the child and performed oral sex on her. In one instance, appellant displayed a pornographic movie to her at home. He then removed her clothing and rubbed his hand in and around her vagina. During this incident, appellant requested her to imitate the actors in the movie by performing oral sex upon him. His fixation with oral sex lead him on one occasion to apply icing and jelly to his penis so his daughter would lick it off with her tongue. The child was forced to bathe appellant and at the same time straddle him while he simulated sexual intercourse with her. Finally, on two occasions appellant performed anal intercourse on his daughter. On one occasion he instructed her to place a towel in her mouth to muffle her screams; on the other he inserted into her rectum the tip of a tube of ointment commonly used to soothe teething infants to induce numbing in preparation for his assault.

2 . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 101 et seq.

3 . 18 Pa.C.S. § 3123.

4 . Appellant was charged in the criminal information with violation of the following provisions of the Crimes Code: (1) Rape: anal intercourse; (2) Statutory rape: anal intercourse with another person under the age of fourteen years; (3) Involuntary deviate sexual intercourse: anal intercourse and oral sex; (4) Indecent assault (two counts): anal intercourse, oral sex and indecent contact by sexually fondling another person; (5) Corruption of minors: indecent contact including anal intercourse and oral sex tending to corrupt the morals of a minor less than eighteen years; and (6) Criminal attempt of rape: attempt to engage in sexual intercourse constituting a substantial step toward the commission of the crime of rape.

5 . The Superior Court in Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 426 A.2d 674 (1981) stated:

It is unthinkable that a woman, once having been raped, is in the position where her attacker can then abuse her in any other fashion sexually, such as penetrating her anus or mouth with his penis, without incurring further sanctions for these separate and distinct crimes.

‘Defendant cannot escape criminal liability merely because he chose to subject the victim to every possible kind of aggressive, physically abusive, sexual behavior in his depraved arsenal.'

Id., 285 Pa.Superior Ct. at 9, 426 A.2d at 678 (footnote omitted).