Commonwealth v. Pride

380 A.2d 1267, 252 Pa. Super. 34, 1977 Pa. Super. LEXIS 2945

• Court: Superior Court of Pennsylvania
• Decided: December 2, 1977
• Docket: 1782
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant contends that the Commonwealth did not present sufficient evidence to convict him of indecent assault ¹ and rape² and that the lower court lacked the statutory authority to order payment of $500.00 to the Clerk of the Quarter Sessions Court for the use of the Voluntary Defender Association of Philadelphia. We find sufficient evidence to convict appellant of the charges. However, because we agree with appellant’s second contention, we vacate the lower court’s order requiring appellant to reimburse the Voluntary Defender Association.

On January 5, 1975, appellant and the seventeen year old victim spent the afternoon with some other people at a friend’s house. After leaving the friend’s house to take one of the people home, appellant took the victim and her three month old baby to a house on the fifteen hundred block of North 8th Street in Philadelphia to meet some people. The victim and her baby remained in the car while appellant went into the house. When appellant returned five minutes later, he asked the victim to come upstairs with him to meet some friends who were playing cards. The victim and her baby then entered a third floor apartment with appellant. As the victim proceeded with her baby to the front room where appellant’s friends were supposed to be playing cards, appellant pushed her into a bedroom and onto a bed. Appellant ordered the victim to remove her clothes and when she refused, he held a pillow over her face. When she continued to refuse, appellant threatened to smother her baby. At this point, the victim removed her clothes and appellant had sexual intercourse with her. Although the victim yelled once, when appellant ordered her to stop, she complied. After having intercourse, appellant apologized and drove the victim and her baby to a fast-food restaurant where they remained in the car while appellant went inside for some food. Appellant returned shortly and drove the victim and her baby home. The victim then related the incident to her sister-in-law who called the police.

Appellant was charged with indecent assault and rape. The public defender represented appellant at his preliminary hearing, arraignment, and trial.³ After a trial on July 18, 1975, appellant was convicted of rape. At the lower court’s request, appellant presented information at a hearing on October 8, 1975, concerning his age, marital status, dependents, employment, education, and property to enable the lower court to evaluate appellant’s financial status. At a subsequent hearing on October, 1975, the court considered the extent of the public defender services appellant had received, and sentenced appellant to one year’s probation and to pay $500.00 to the use of the public defender.⁴ This appeal followed.

Appellant’s first contention is that there was insufficient evidence to support the rape conviction. In reviewing the record to determine whether the evidence supports the verdict, our courts view the evidence and all reasonable inferences derived therefrom in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). Further, the testimony of one witness, the victim, is sufficient to sustain a rape conviction. Johnson Appeal, 445 Pa. 270, 284 A.2d 780 (1971); Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.2d 352 (1976). In the instant case, the victim testified that appellant placed a pillow over her face when she refused to remove her clothes and threatened to harm her and her baby if she resisted. She also stated that she only screamed once because appellant ordered her to stop and she feared his threats. We agree with the lower court that the victim’s testimony demonstrated sufficient lack of consent to sustain the verdict.

Appellant’s second contention is that the lower court lacked statutory authority to require him to reimburse the public defender for its services. We believe that our Supreme Court has clearly determined that there is no statutory authority to support the lower court’s order. Commonwealth v. Terry, 470 Pa. 234, 368 A.2d 279 (1977). In Terry, the Commonwealth charged appellant with possession of a controlled dangerous substance with intent to deliver and the court appointed a public defender to represent him. After acquittal of all charges, the trial court ordered the defendant to repay the city of Philadelphia $300.00 for the public defender’s services. Our Supreme Court held that the Act of January 19, 1968,⁵ which provides for reimbursement by a defendant to the county for compensation paid to court-appointed counsel, “by its own terms does not apply where, as here, a local non-profit organization represents the defendant. Furthermore, authorization to enter such an order is given only upon petition of the county that paid the compensation.” Commonwealth v. Terry, supra, 470 Pa. at 236, 368 A.2d at 280.⁶

The lower court reasons that the trial court’s reimbursement order was valid because it constituted a fine. However, calling the reimbursement order a fine does not provide statutory authority for the order. Although directing payment to Philadelphia County, the order is specifically designated “for attorneys fees for services of the Voluntary Defender Association.” As our Court has stated, “attorneys fees are not ‘costs’ absent a statutory provision giving them that character.” Commonwealth v. Opara, 240 Pa.Super. 511 at 517, n. 13, 362 A.2d 305 at 308, n. 13 (1975). Additionally, such orders may only be entered in response to a petition of the county that paid for the attorney’s services. Commonwealth v. Terry, supra, 470 Pa. at 236, 368 A.2d at 280.

The Dissent attempts to distinguish Terry from the instant case on the basis of this appellant’s conviction. Thus, the Dissent reasons that the trial court’s reimbursement order constitutes a condition of probation or a fine.⁷ The Dissent then supports the repayment order by interpreting the Act of August 6, 1941⁸ and § 1354(c)(13) of the Sentencing Code⁹ to permit conditioning probation on payment by a defendant of the cost of his representation by the public defender. However, the trial court’s sentencing order did not condition probation on repayment of $500.00.¹⁰ Our Court is bound by the terms of the sentence officially appearing on the record. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). Accordingly, we may not now redefine the reimbursement order as a condition of probation.

Characterizing the repayment order as a probation condition or fine is an attempt to transform a statutorily unauthorized repayment into a permissible order. Our Court, however, has rejected thinly veiled efforts to evade statutory procedures for restitution. Commonwealth v. Martin, 233 Pa.Super. 231, 335 A.2d 424 (1975).

There is no statutory authority to support the lower court’s order of reimbursement to the public defender. Commonwealth v. Terry, supra. Accordingly, we vacate the lower court order of repayment of $500.00 to the use of the county for services rendered by the Voluntary Defender Association.

VAN der VOORT, J., files a dissenting opinion in which WATKINS, President Judge, joins.

1 . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 3126.

2 . The Crimes Code, supra; 18 Pa.C.S. § 3121.

3 . Pa.R.Crim.P.; 19 P.S. Appendix 318 (1977) provides procedures for court appointment of counsel for indigent defendants.

4 . On October 15, 1975, the lower court sentenced appellant as follows: “One year reporting probation. Sentence suspended and, Defendant to pay ($500.00) Five Hundred Dollars to use of County for Attorneys Fees for services of the Voluntary Defender Association.”

5 . Act of January 19, 1968, P.L. (1967) 984, § 3; 19 P.S. § 793 (Supp. 1977-78).

6 . Moreover, the Public Defender Act, establishing public defender offices to represent the indigent accused, is specifically inapplicable to the City of Philadelphia. Public Defender Act, December 2, 1968, P.L. 1144, No. 358, §§ 1-13, § 3; 16 P.S. §§ 9960.1-9960.13, § 9960.3 (Supp.1977-78).

7 . The Dissent discusses Commonwealth v. Opara, supra, which outlined procedures and standards for determining whether a defendant can financially afford the cost of reimbursing court appointed counsel. However, as our Court recognized in Opara, absent a statute authorizing reimbursement for counsel services, such orders are invalid. Opara, supra, at 517, 362 A.2d at 308.

8 . Act of August 6, 1941, P.L. 861, § 25; 61 P.S. § 331.25.

9 . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, added December 30, 1974, P.L. 1052, No. 345, § 1; 18 Pa.C.S. § 1354(c)(13) (Supp. 1977-78) provides that a court may order a defendant “to satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty . . . .”

10 . See note 4, supra.