concurring and dissenting.
Although I join in that part of the majority opinion affirming appellant’s convictions of murder of the first degree and burglary, I strongly dissent from the majority’s conclusion that the jury could not find that rape had been committed.
The majority states that “[although the evidence supports a conclusion that appellant was responsible for the presence of sperm in the eighty year old victim’s vagina, there is no evidence to support a conclusion beyond a reasonable doubt that penetration occurred before the killing. .. . Nor was there presented any evidence of force . . . . ” At 1380 (emphasis added). However, in the instant case, there can be no doubt that the requirement of “forcible compulsion” for rape, 18 Pa.C.S.A. § 3121(1), cannot be separated from that force which was employed to commit t1 e instant murder.
This Court has consistently decided “that if a homicide occurs in the perpetration of or attempt to perpetrate a robbery or other statutorily enumerated felonies, a conviction of [felony] murder . . . will be sustained regardless of when the design to commit the robbery or other felony was conceived or the felony committed.” Commonwealth v. Tomlinson, 446 Pa. 241, 246-47, 284 A.2d 687, 690 (1971) (emphasis added).
While this language is admittedly ambiguous, it is nevertheless based upon sound policy as it recognizes the difficulty in attempting to ascertain when the intent to rob was conceived in a given factual situation. This difficulty was emphasized in Commonwealth v. Hart, [403 Pa. 652, 170 A.2d 850 (1961)] when we noted that “defendant would require a televised stop-watch in every robbery or felony-killing to prove that the felonious intent existed before the attack. It is rare, we repeat, that a criminal telephones or telegraphs his criminal intent and consequently such intent can be properly found by the jury from the facts and circumstances in a particular case.” 403 Pa. at 658, 170 A.2d at 853-54. In all probability the rule would be better restated to indicate that if the killing *308is used to effectuate the robbery then it is immaterial that the intent to kill preceded the intent to rob since the force resulting in death is the force used to accomplish the robbery.
Commonwealth v. Butcher, 451 Pa. 359, 363, 304 A.2d 150, 152 (1973) (emphasis added).
Similarly, the mere fact that penetration may have occurred within moments after a brutal murder rather than immediately prior to the murder does not negate the obvious fact that the force employed to kill is one and the same to that force which is sufficient to constitute “forcible compulsion” under 18 Pa.C.S.A. § 3121.
In addition, the majority admits that on cross-ex'amination, the Commonwealth’s expert admitted that he could not tell how long the sperm had been in the victim’s vagina. Moreover, the majority’s reliance on 18 Pa.C.S.A. § 55101 is misplaced. It would be absurd to construe this section as encompassing a situation, such as here, where the killing and the intercourse occurred within such a short span of time and the person responsible for the intercourse was the person who also committed the murder.
While it is true the legislature intended the crime of rape to encompass indignities to the living, the crime of rape may also be committed when the rape and murder are committed during the same criminal episode. Penetration in the instant case was the culmination of the forcible attack and killing of the victim. Whether this occurred immediately prior to or immediately subsequent to the moment of death is irrelevant and the conviction for rape should be affirmed.
KAUFFMAN, J., joins in this opinion. LARSEN, Justice, concurring and dissenting.I dissent from the majority’s reversal of the judgment of sentence for rape.
*309There is no question that the eighty year-old victim was alive when appellant began his murderous assault, and that brutal and lethal force was used on her. Further, as the majority correctly notes, “the evidence supports a conclusion that appellant was responsible for the presence of sperm in the victim’s vagina.” This would certainly seem to justify the jury’s finding that appellant engaged in sexual intercourse with the victim by forcible compulsion. See 18 Pa.C.S.A. § 3121.
The majority, however, finds this evidence insufficient because there is no proof that the elderly victim was alive at the time of appellant’s penetration of her vagina. In my opinion, it is of absolutely no moment if a victim who is alive at the time a rapist begins his assault breathes her last dying gasp before or after the assailant achieves penetration, and the definition of rape which is contained in section 3121 of the Crimes Code1 admits of no such requirement. Further, the portion of the Model Penal Code quoted by the majority does not support reading such a requirement into the crime of rape, but rather, militates against it. That portion of the Model Penal Code addresses itself to penal provisions concerning the mistreatment of corpses and provides:
There are occasional legislative provisions penalizing sexual relations with or disrespectful treatment of corpses. The section is included here rather than in the chapter on sexual offenses because there we were concerned primarily with preventing physical aggressions, whereas here we deal with outrage to the feelings of surviving kin, outrage which can be perpetrated as well by mutilation or gross neglect as by sexual abuse, (emphasis supplied).
*310American Law Institute, Model Penal Code § 250.10 Comment at p. 40 (Tent. Draft No. 13). Certainly the primary interest at stake in the instant situation is that of the victim to be free of appellant's ruthless onslaught of physical aggression, and not that of her surviving kin in having their feelings protected. Accordingly, appellant’s conduct should be held to be rape without regard to whether the victim passed away before or after appellant completed his sexual objectives.
Applying Mr. Justice Roberts’ view renders it impossible for the Commonwealth to obtain a conviction for the crime of rape or the crime of having intercourse with a corpse whenever either crime has been accompanied by the murder of the victim. If charged with rape the defendant says “prove the victim was still alive during the actual rape”; and if charged with intercourse with a corpse, the defendant says “prove the victim was dead during the sexual act” . . . and, unless there were eyewitnesses during the savagery, the matter is incapable of proof. All of which makes the law absurd.
The judgment of sentence should, therefore, be affirmed.
KAUFFMAN, J., joins in this dissenting opinion.. 18 Pa.C.S.A. § 5510 provides:
Except as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary sensibilities commits a misdemeanor of the second degree.
. That section provides:
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his 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.