— On the evening of December 9,1988 and the early morning hours of December 10, 1988 the paths of Judy Mulryne and defendant crossed. Ms. Mulryne had left her place of employment, Whitehorse Farms, Phoenixville, with the intention of traveling to the Harleysville Hotel in Harleysville, Montgomery County to meet her boyfriend, Dennis Dougherty. Mr. Dougherty was employed as a truck driver and as his place of employment was nearby the hotel, it was a convenient meeting place.
During the course of the evening, defendant and one Bob Szakal were also present in the bar. Messrs. Szakal and Blakeslee knew Mr. Dougherty as they
When the threesome left the parking lot, defendant was driving the vehicle, but mindfiil of licensing problems, defendant quickly stopped the vehicle and Mr. Szakal took over as driver. The testimony of the victim, Mr. Szakal and defendant are essentially in agreement up to this point. However, the description of the ride home varies significantly, depending on who is relating the events. Ms. Mulryne asserted that the defendant, contrary to her wishes, made certain sexual advances which culminated in her being forcibly raped. Defendant indicated that Ms. Mulryne. instituted the sexual activity and consented to intercourse. Mr. Szakal was a reluctant and hesitant witness who did his best to extricate defendant from the current charges through his testimony. He confirmed that sexual activity had occurred but was unable or unwilling to assert who had initiated same or whether same was voluntary or involuntary. In contrast to his trial testimony, Mr. Szakal had previously indicated (December 14, 1988) to Trooper Brose, that Ms. Mulryne had repeatedly requested defendant to cease his sexual
Following a jury trial defendant was convicted of rape and indecent assault. Defendant timely filed post-trial motions in arrest of judgment and for a new trial.
LEGAL ISSUES
Defendant has cited eight gounds in support of his motions, all of which essentially boil down to the following arguments: that the verdict was against the weight of the evidence because Ms. Mulryne had engaged in consensual sexual foreplay up to a point where it was biologically impossible for defendant to desist; and that the verdict was contrary to the law because the law to date makes no provision for bifurcating the issue of consent. In ruling on a motion in arrest of judgment the trial court shall view the evidence in a light most favorable to the commonwealth which is entitled to all reasonable inferences arising therefrom. Commonwealth v. Meadows, 471 Pa. 201, 205, 369 A.2d 1266, 1268 (1977).
“In order for a trial court to properly grant a criminal defendant’s motion to arrest of judgment on the ground of insufficient evidence, ‘it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged.’ ” Id. at 205-6, 369 A.2d at 1268, quoting Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421, 422 (1973). Like
This case involves a slight deviation from what is generally encountered in rape cases. Generally speaking, the victim testifies to her unwillingness to participate and (in cases similar to this) the defendant asserts that the conduct was consensual. During the course of their deliberations, the jury sent out a note which read in pertinent part, “How far can a woman go before she says stop and it be rape?” Defendant asserts that his question indicates that the jury believed that Ms. Mulryne had instituted and/or voluntarily engaged in sexual foreplay and that having once opened the floodgates of passion, ought not to be permitted at the moment defendant was biologically ready, to close them by simply saying “no.” Unfortunately, we will never know if that is truly what the jury was thinking or if there was another reason for the question. I answered the question by repeating the definition of rape. Counsel has not cited me any authority for his position other than the opinion of my brother Wood in Commonwealth v. Tyndall, 35 Chester L. Rep. 125 (1987). Tyndall is so factually inapposite as to be of no assistance in this matter.
Defendant asserts that the verdict is contrary to the law because the law to date makes no provision for bifurcating sexual foreplay from consummation
The Pennsylvania Suggested Standard Criminal Jury Instructions 15.3121A,1 as utilized in this court’s initial instructions to the jury2 and repeated in the court’s later response to the jury’s note, clearly bifurcate the question of consent at the moment of penetration. The law, as thus stated to the jury, is consistent with Pennsylvania statutory
As to defendant’s argument that the verdict was against the weight of the evidence, it is of no importance that neither side presented the facts as a case of initial consent followed by change of mind and withdrawal of consent. “The factfinder is free to believe all, part, or none of a defendant’s testimony.” Commonwealth v. Sirbaugh, 347 Pa. Super. 154, 165, 500 A.2d 453, 458 (1985), citing Commonwealth v. Hinchcliff, 479 Pa. 551, 338 A.2d 1068 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978). It would clearly have been reasonable for the jury to give credibility to only a portion of defendant’s testimony, rejecting the credibility of defendant’s factual testimony in favor of the testimony of Ms. Mulryne as to events occurring later that evening.
ORDER
And now, September 25, 1989, defendant’s motions in arrest of judgment and for new trial are hereby denied.
The Adult Probation Department of Chester County is directed to prepare a pre-sentence investigation forthwith.
The Court Administrator’s Office is directed to list this matter for sentencing within 10 days after notice that the pre-sentence investigation has been filed with the court.
1.
15.3121A (Crim.) provides in pertinent part:
“(1) In order to find the defendant guilty of rape you must be satisfied that the following three elements have been proven beyond a reasonable doubt:
“First, that the defendant engaged in sexual intercourse with _, a woman;
“Second, that_,_was not the spouse of the defendant; and
“Third, that the defendant engaged in the intercourse by forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
“(2) To constitute sexual intercourse, there must be some penetration however slight (of the female organ by the male organ) ...
“(4) [F]or there to be rape,... the woman must be unwilling and the man must compel the intercourse. The man must have intercourse without the consent of the woman and he must employ force or threat of force that are sufficient, in the particular circumstances, to induce the woman -to submit without further resistance and to establish that the woman is not consenting.” Pa. SSJI (Crim.) 15.3121A.
2.
At trial the initial instructions to the jury set forth the suggested charge in its entirety, see Pa- SSJI (Crim.) 15.3121A.