author: PER CURIAM:

text:
    609 A.2d 1338
    COMMONWEALTH of Pennsylvania v. Robert A. BERKOWITZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1990.
    Filed May 19, 1992.
    Petition for Allowance of Appeal Granted Sept. 22, 1992.

      Michael M. Mustokoff, Huntingdon, for appellant.
    Jane Roach, Asst. Dist. Atty., Stroudsburg, for Com., appellee.
    Before WIEAND, KELLY and CERCONE, JJ.
   OPINION

PER CURIAM:

Appellant appeals from judgment of sentence imposed following convictions of rape and indecent assault. We are called upon to determine the degree of physical force necessary to complete the act of rape in Pennsylvania. We find that under the totality of the circumstances, evidence of sufficient force was not adduced herein. We are also asked to decide whether the trial court improperly excluded evidence of the victim’s motive to fabricate the charge of indecent assault. We find that it did. Accordingly, we discharge appellant on the rape conviction and reverse and remand for a new trial on the indecent assault conviction.

I. FACTS AND PROCEDURAL HISTORY

In the spring of 1988, appellant and the victim were both college sophomores at East Stroudsburg State University, ages twenty and nineteen years old, respectively. They had mutual friends and acquaintances. On April nineteenth of that year, the victim went to appellant’s dormitory room. What transpired in that dorm room between appellant 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. N.T. 9/14/88 at 24. Roughly ten 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 appellant’s room to look for Earl Hassel, appellant’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].” Id. at 27. She did so, although she had not felt any intoxicating effects from the martini, “for a laugh.” Id.

After the victim had knocked again, she tried the knob on the appellant’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 appellant. She asked appellant which dresser was his roommate’s. He told her, and the victim left the note.

Before the victim could leave appellant’s room, however, appellant asked her to stay and “hang out for a while.” Id. at 31. She complied because she “had time to kill” and because she didn’t really know appellant and wanted to give him “a fair chance.” Id. Appellant asked her to give him a back rub but she declined, explaining that she did not “trust” him. Id. Appellant 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. No physical contact between the two had, to this point, taken place.

Thereafter, however, appellant moved off the bed and down on 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.” Id. at 32. Next appellant “straddled” and started kissing the victim. The victim responded by saying, “Look, I gotta go. I’m going to meet [my boyfriend].” Id. Then appellant lifted up her shirt and bra and began fondling her. The victim then said “no.” Id.

After roughly thirty seconds of kissing and fondling, appellant “undid his pants and he kind of moved his body up a little bit.” Id. at 34. The victim was still saying “no” but “really couldn’t move because [appellant] was shifting at [her] body so he was over [her].” Id. Appellant then tried to put his penis in her mouth. The victim did not physically resist, but rather continued to verbally protest, saying “No, I gotta go, let me go,” in a “scolding” manner. Id. at 36.

Ten or fifteen more seconds passed before the two rose to their feet. Appellant disregarded the victim’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.

Then, in the victim’s words, “[appellant] put me down on the bed. It was kind of like—he didn’t throw me on the bed. It’s hard to explain. It was kind of like a push but no____” Id. at 38. 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.” Id. at 39.

Once the victim was on the bed, appellant began “straddling” her again while he undid the knot in her sweatpants. Id. He then removed her sweatpants and underwear from one of her legs. The victim did not physically resist in any way while on the bed because appellant was on top of her, and she “couldn’t like go anywhere.” Id. She did not scream out at anytime because, “[i]t was like a dream was happening or something.” Id.

Appellant then used one of his hands to “guide” his penis into her vagina. Id. at 41. At that point, after appellant was inside her, the victim began saying “no, no to him softly in a moaning kind of way ... because it was just so scary.” Id. at 40. After about thirty seconds, appellant pulled out his penis and ejaculated onto the victim’s stomach. Id. at 42.

Immediately thereafter, appellant got off the victim and said, “Wow, I guess we just got carried away.” Id. at 43. To this the victim retorted, “No, we didn’t get carried away, you got carried away.” Id. The victim then quickly dressed, grabbed her school books and raced downstairs to her boyfriend who was by then waiting for her in the lounge.

Once there, the victim began crying. Her boyfriend and she went up to his dorm room where, after watching the victim clean off appellant’s semen from her stomach, he called the police.

Defense counsel’s cross-examination elicited more details regarding the contact between appellant and the victim before the incident in question. The victim testified that roughly two weeks prior to the incident, she had attended a school seminar entitled, “Does ‘no’ sometimes means ‘yes’?” Id. at 50, 74. Among other things, the lecturer at this seminar had discussed the average length and circumference of human penises. Id. at 50, 75. After the seminar, the victim and several of her friends had discussed the subject matter of the seminar over a speaker-telephone with appellant and his roommate Earl Hassel. Id. at 76. The victim testified that during that telephone conversation, she had asked appellant the size of his penis. Id. at 50, 76. According to the victim, appellant responded by suggesting that the victim “come over and find out.” Id. at 76. She declined. Id.

When questioned further regarding her communications with appellant prior to the April 19,1988 incident, the victim testified that on two other occasions, she had stopped by appellant’s room while intoxicated. Id. at 51-52. During one of those times, she had laid down on his bed. Id. at 51. When asked whether she had asked appellant again at that time what his penis size was, the victim testified that she did not remember.

Appellant 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 appellant, the victim had begun communication with him after the school seminar by asking him of the size of his penis and of whether he would show it to her. Id. at 124. Appellant had suspected that the victim wanted to pursue a sexual relationship with him because she had stopped by his room twice after the phone call while intoxicated, laying down on his bed with her legs spread and again asking to see his penis. Id. at 125, 127. 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. Id. at 128-129.

Appellant testified that, on the day in question, he did initiate the first physical contact, but added that the victim warmly responded to his advances by passionately returning his kisses. Id. at 130. He conceded that she was continually “whispering ... no’s,” id. at 134, but claimed that she did so while “amorously ... passionately” moaning. Id. at 132-133. In effect, he took such protests to be 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.]” Id. at 139.

According to appellant, the two then laid down on the bed, the victim helped him take her clothing off, and he entered her. He agreed that the victim continued to say “no” while on the bed, but carefully qualified his agreement, explaining that the statements were “moaned passionately,” Id. at 140-142. According to appellant, when he saw a “blank look on her face,” he immediately withdrew and asked “is anything wrong, is something the matter, is anything wrong.” Id. at 143-44. He ejaculated on her stomach thereafter because he could no longer “control” himself. Id. at 144. Appellant testified that after this, the victim “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.” Id. Then, in wholly corroborating an aspect of the victim’s account, he testified that he remarked, “Well, I guess we got carried away,” to which she rebuked, “No, we didn’t get carried, you got carried away’ ” Id. at 145.

After hearing both accounts, the jury convicted appellant of rape and indecent assault. Defense counsel filed post-verdict motions alleging numerous trial court errors. Before the trial court could rule on these motions, appellant retained new counsel who filed supplemental post-verdict motions. The trial court held a hearing on the motions and, finding no merit in them, denied appellant post-verdict relief. Appellant was then sentenced to serve a term of imprisonment of one to four years for rape and a concurrent term of six to twelve months for indecent assault. Post-trial bail was granted pending this timely appeal.

On appeal, counsel for appellant has presented this Court with the following issues.

1. Did the trial court err in failing to define “forcible compulsion” as requested by counsel, in accordance with Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986)?
2. Did the trial court err in its denial of defendant’s pretrial motion to explore complaint’s [sic] sexual infidelity to her boyfriend, which was the basis for continued arguments between them and provided a clear motive to fabricate a rape and thus was exculpatory to the defendant?
3. Is there sufficient evidence of “forcible compulsion” to support a rape conviction where the uncontroverted facts established “reluctant submission”?
4. Was trial counsel ineffective in his failure to explore the use of character witnesses to be called on behalf of the defendant to testify as to his reputation for honesty and peacefulness?
5. Did the prosecutor’s comment during her closing that the jury should “rest assured that somebody in his (the defendant’s) position in a case like this is not treated the same as a brutal stranger”, relieve the jury of its sense of responsibility for its verdict and thus deprive defendant of a fair trial?
6. Did the trial court err in refusing defendant’s motion for reconsideration requesting that defendant’s sentence for indecent assault be vacated because of the doctrine of merger?

Appellant’s Brief at 1-3. Since a finding of merit in the third issue would require the most encompassing relief for appellant, it is best addressed first.

II. SUFFICIENCY OF THE EVIDENCE

Appellant’s argument in this regard was well summarized by appellant’s counsel in his brief.

The issues on appeal are real. At sentencing, they were recognized by the trial court as being on the cutting edge of the criminal jurisprudence of this Commonwealth:

The Court: Well, I’m comforted by the knowledge that whatever happens here today will certainly not end this case. This is going to go on and on for some time for just the very reason you suggested Mr. Mustokoff [present counsel for appellant], and that being that this case is on the cutting edge. (R.R. 499a). ters between what may have been unacceptable social conduct and the criminal conduct necessary to support the charge for forcible rape.

Mr. Berkowitz prays that this Court overturns his rape conviction. He asks that this Court define the parame-

We contend that upon review, the facts show no more than what legal scholars refer to as “reluctant submission”. The complainant herself admits that she was neither hurt nor threatened at any time during the encounter. She admits she never screamed or attempted to summon help. The incident occurred in a college dormitory in the middle of the afternoon.
There has never been an affirmed conviction for forcible rape under similar circumstances. Not one factor which this Court has considered significant in prior cases, exists here. The uncontroverted evidence fails to establish forcible compulsion.

Appellant’s Brief at 10.

The Commonwealth counters:

Viewing the evidence and its inferences in the light most favorable to the Commonwealth, the jury’s conclusion that the Defendant’s forcible conduct overcame [the victim’s] will is reasonable. The assault was rapid and the victim was physically overcome. Because she was acquainted with the Defendant, [the victim] had no reason to be fearful or suspicious of him and her resorting to verbal resistance only is understandable. More importantly, perhaps, it is only her lack of consent that is truly relevant. It is entirely reasonable to believe that the Defendant sat on her, pushed her on the bed and penetrated her before she had time to fully realize her plight and raise a hue and cry. If the law required active resistance, rather the simple absence of consent, speedy penetration would immunize the most violent attacks and the goal-oriented rapist would reap an absurd reward. Certainly a victim must communicate her objections. But, contrary to the Defendant’s arguments, Pennsylvania law says she can “just say no.” [The victim] said “no.” She said it repeatedly, clearly and sternly. She was rapidly, forcibly raped and deserves the protection of the law.

Commonwealth’s Brief at 6. With the Commonwealth’s position, the trial court agreed. We cannot.

In viewing the evidence, we remain mindful that credibility determinations were a matter solely for the fact finder below. Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). On appeal, we must examine the evidence in the light most favorable to the Commonwealth drawing all reasonable inferences therefrom. Commonwealth v. Bryant, 524 Pa. 564, 567, 574 A.2d 590, 592 (1990); Commonwealth v. Ables, 404 Pa.Super. 169, 173-77, 590 A.2d 334, 336-37 (1991); Commonwealth v. Rue, 362 Pa.Super. 470, 476, 524 A.2d 973, 976 (1987); Commonwealth v. Sanders, 339 Pa.Super. 373, 378, 489 A.2d 207, 209 (1985); Commonwealth v. Robinson, 316 Pa.Super. 152, 155, 462 A.2d 840, 841 (1983); Commonwealth v. Combs, 298 Pa.Super. 527, 529, 445 A.2d 113,114 (1982). If a jury could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict.

In Pennsylvania, the crime of rape is defined by statute as follows:

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.

18 Pa.C.S.A. § 3121. A statutory caveat to this rule may be found in section 3107 of title 18.

Resistance Not Required
The alleged victim need not resist the actor in prosecution under this chapter: Provided, however, that nothing in this section shall be construed to prohibit a defendant from introducing evidence that the alleged victim consented to the conduct in question.

The contours of Pennsylvania’s rape statute, however, are not immediately apparent. As our Supreme Court explained in the landmark case, Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986):

“[Forcible compulsion” as used in section 3121(1) includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.
Closely related to section 3121(1) is section 3121(2) which applies to the situation where “forcible compulsion” is not actually used but is threatened. That section uses the phrase “by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” The Model Penal Code used the terminology “compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution” and graded that offense as gross sexual imposition, a felony of the third degree. The Pennsylvania legislature rejected the concept that sexual intercourse compelled by “gross imposition” should be graded as a less serious offense and, therefore, enacted section 3121(2). By use of the phrase “person of reasonable resolution,” the legislature introduced an objective standard regarding the use of threats of forcible compulsion to prevent resistance (as opposed to actual application of “forcible compulsion.”)
The determination of whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion (which we have defined to include “not only physical force or violence, but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will,” supra, at 1226), or by the threat of such forcible compulsion that would prevent resistance by a person of reasonable resolution is, of course, a determination that will be made in each case based upon the totality of the circumstances that have been presented to the fact finder. Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is by no means exclusive.

Id., 510 Pa. at 557, 510 A.2d at 1226-27 n. 15 (footnote 14 omitted) (emphasis added).

Before us is not a case of mental coercion. There existed no significant disparity between the ages of appellant and the victim. They were both college sophomores at the time of the incident. Appellant was age twenty; the victim was nineteen. The record is devoid of any evidence suggesting that the physical or mental condition of one party differed from the other in any material way. Moreover, the atmosphere and physical setting in which the incident took place was in no way coercive. The victim walked freely into appellant’s dorm room in the middle of the afternoon on a school day and stayed to talk of her own volition. There was no evidence to suggest that appellant was in any position of authority, domination or custodial control over the victim. Finally, no record evidence indicates that the victim was under duress. Indeed, nothing in the record manifests any intent of appellant to impose “moral, psychological or intellectual” coercion upon the victim. See and compare Commonwealth v. Rhodes, supra (position of authority, isolated area of the incident and explicit commands sufficient to prove mental coercion); Commonwealth v. Abies, supra, 404 Pa.Superior Ct. at 177-179, 590 A.2d at 338 (position of trust and confidence coupled with emotional exploitation sufficient to establish moral coercion); Commonwealth v. Ruppert, 397 Pa.Super. 132, 579 A.2d 966 (1990) (father-daughter relationship coupled with showing of sexually explicit pictures sufficient to establish psychological coercion); Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990) (therapist-patient relationship coupled with threat sufficient for psychological coercion); Commonwealth v. Dorman, supra (appellant’s position of authority and trust and remote location of the incident sufficient to establish psychological coercion).

Nor is this a case of a threat of forcible compulsion. When asked by defense counsel at trial whether appellant had at any point threatened her in any manner, the victim responded, “No, he didn’t.” N.T. 9/14/88 at 67, 71. Moreover, careful review of the record fails to reveal any express or even implied threat that could be viewed as one which, by the objective standard applicable herein, “would prevent resistance by a person of reasonable resolution.” 18 Pa.C.S.A. § 3121(2). Compare Commonwealth v. Poindexter, 372 Pa.Super. 566, 539 A.2d 1341 (1989) (father’s reproaches and threats sufficient to establish coercion toward daughters); Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982) (threat that victim would be killed if she resisted sufficient to establish forcible compulsion).

Rather, the Commonwealth contends that the instant rape conviction is supported by the evidence of actual physical force used to complete the act of intercourse. Essentially, the Commonwealth maintains that, viewed in the light most favorable to it, the record establishes that the victim did not consent to engage in the intercourse, and thus, any force used to complete the act of intercourse thereafter constituted “forcible compulsion.”

In response, appellant urges that the victim’s testimony itself precludes a finding of “forcible compulsion.” Appellant essentially argues that the indisputable lack of physical injuries and physical resistance proves that the evidence was insufficient to establish rape.

In beginning our review of these arguments, it is clear that any reliance on the victim’s absence of physical injuries or physical resistance is misplaced. Although it is true that the instant victim testified that she was not “physically hurt in any fashion,” N.T. 9/14/88 at 68, and that it was “possible that [she] took no physical action to discourage [appellant],” id. at 59, such facts are insignificant in a sufficiency determination. As our Supreme Court has made clear, “ ‘rape ... is defined, not in terms of the physical injury to the victim, but in terms of the effect it has on the victim’s volition.’ ” Commonwealth v. Rhodes, supra, 510 Pa. at 555, 510 A.2d at 1226 (quoting Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042, 1044 (1978)); see also Commonwealth v. Dorman, supra, 377 Pa.Superior Ct. at 429, 547 A.2d at 762; 18 Pa.C.S.A. § 3121 (defining rape by the quality or magnitude of forcible compulsion employed by the actor, not by the presence or severity of the victim’s injuries). Similarly, our legislature has expressly commanded that the “victim need not resist the actor in prosecutions under” Chapter 31. See 18 Pa. C.S.A. § 3107 (emphasis added). As the Rhodes Court observed, this legislative mandate was intended to make it clear that “lack of consent is not synonymous with lack of resistance.” Commonwealth v. Rhodes, supra, 510 Pa. at 557, 510 A.2d at 1227 n. 14. Thus, while the presence of actual injury or physical resistance might well indicate “forcible compulsion,” we are compelled to conclude that the absence of either or both is not fatal to the Commonwealth’s case.

What is comparatively uncertain, however, in the absence of either an injury or resistance requirement, is the precise degree of actual physical force necessary to prove “forcible compulsion.” As the Rhodes Court has made clear, no precise definition of the term “forcible compulsion” may be found.

The “force necessary to support convictions for rape and involuntary deviate sexual intercourse need only be such as to establish lack of consent and to induce the woman to submit without additional resistance ... The degree of force required to constitute rape [or involuntary deviate sexual intercourse] is relative and depends upon the facts and particular circumstances of the case.” Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765, 768 (1982); Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980).

Commonwealth v. Rhodes, supra, 510 Pa. at 554, 510 A.2d at 1226. See also Commonwealth v. Abies, supra, 404 Pa.Superior Ct. at 176, 590 A.2d at 337; Commonwealth v. Dorman, supra, 377 Pa.Superior Ct. at 423, 547 A.2d at 758. The Rhodes Court specifically refused to “delineate all of the possible circumstances that might tend to demonstrate that sexual intercourse was engaged in by forcible compulsion or by threat of forcible compulsion within the meaning of [title 18] section 3121(1) and (2).” Commonwealth v. Rhodes, supra, 510 Pa. at 556, 510 A.2d at 1226. Rather, the Court left that delineation to evolve “in the best tradition of the common law—by development of a body of case law____ [W]hether there is sufficient evidence to demonstrate ... that an accused engaged in sexual intercourse by forcible compulsion ... is, of course, a determination that will be made in each case based on the totality of the circumstances____” Id., 510 Pa. at 556, 510 A.2d at 1226 (emphasis added); see also Commonwealth v. Abies, supra, 404 Pa.Superior Ct. at 176, 590 A.2d at 337. Thus, the ultimate task for the fact finder remains the question of whether, under the totality of circumstances, “the victim ... was forced to ... engage in sexual intercourse ... against his or her mil.” Commonwealth v. Rhodes, supra, 510 Pa. at 557, 510 A.2d at 1227 (emphasis added).

Here, the victim testified that the physical aspects of the encounter began when appellant “kind of pushed me back with his body. It wasn’t a shove, it was just kind of a leaning-type thing.” N.T. 9/14/88 at 32. Compare Commonwealth v. Rough, supra (victim forced to floor and struck). She did not testify that appellant “pinned” her to the floor with his hands thereafter; she testified that he “started kissing me ... [and] liftpng] my shirt [and] bra ... straddling me kind of ... shifting at my body so that he was over me.” N.T. 9/14/88 at 32-34. Compare Commonwealth v. Meadows, 381 Pa.Super. 354, 356-60, 553 A.2d 1006, 1008-09 (1989) (victim “pinned” to the ground despite physical resistance). When he attempted to have oral sex with her, appellant “knelt up straight ... [and] tried to put his penis in my mouth ... and after he obvious-. ly couldn’t ... he, we got up.” N.T. 9/14/88 at 34-36. Although appellant then locked the door, his act cannot be seen as an attempt to imprison the victim since she knew and testified that the type of lock on the door of appellant’s dorm room simply prevented those on the outside from entering but could be opened from the inside without hindrance. Id. at 61. Compare Commonwealth v. Rhodes, supra (victim imprisoned in car brought to isolated area). Appellant did not push, shove or throw the victim to his bed; he “put” her on the bed, not in a “romantic” way, but not with a “fast shove either.” N.T. 9/14/88 at 39. Once on the bed, appellant did not try to restrain the victim with his hands in any fashion. Id. at 64. Compare Commonwealth v. Irvin (victim choked and her screams muffled by defendant’s hands). Rather, while she was “just kind of laying there,” he “straddled” her, “quick[ly] undid” the knot in her sweatpants, “took off” her sweatpants and underwear, placed the “weight of his body” on top of her and “guided” his penis inside her vagina. N.T. 9/14/88 at 39-41.

Even in the light most favorable to the Commonwealth, the victim’s testimony as to the physical aspects of the encounter cannot serve as a basis to prove “forcible compulsion.” The cold record is utterly devoid of any evidence regarding the respective sizes of either appellant or the victim. As such, we are left only to speculate as to the coercive effect of such acts as “leaning” against the victim or placing the “weight of his body” on top of her. This we may not do. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Scott, 409 Pa.Super. 313, 315, 597 A.2d 1220, 1221 (1991). Moreover, even if the record indicated some disparity in the respective weights or strength of the parties, such acts are not themselves inconsistent with consensual relations. Except for the fact that appellant was on top of the victim before and during intercourse, there is no evidence that the victim, if she had wanted to do so, could not have removed herself from appellant’s bed and walked out of the room without any risk of harm or danger to herself whatsoever. These circumstances simply cannot be bootstrapped into sexual intercourse by forcible compulsion.

Similarly inconclusive is the fact that the victim testified that the act occurred in a relatively brief period of time. The short time frame might, without more, indicate that the victim desired the sexual encounter as easily as it might that she didn’t, given the fact that no threats or mental coercion were alleged. At most, therefore, the physical aspects of the encounter establishes that appellant’s sexual advances may have been unusually rapid, persistent and virtually uninterrupted. However inappropriate, undesirable or unacceptable such conduct may be seen to be, it does not, standing alone, prove that the victim was “forced to engage in sexual intercourse against her will.”

The only evidence which remains to be considered is the fact that both the victim and appellant testified that throughout the encounter, the victim repeatedly and continually said “no.” Unfortunately for the Commonwealth, under the existing statutes, this evidence alone cannot suffice to support a finding of “forcible compulsion.”

Evidence of verbal resistance is unquestionably relevant in a determination of “forcible compulsion.” At least twice previously this Court has given weight to the failure to heed the victim’s oral admonitions. See Commonwealth v. Meadows, supra, 381 Pa.Superior Ct. at 358, 553 A.2d at 1009 (evidence sufficient to convict for rape where “appellant pinned [the victim] to the ground and knowingly disregarded her efforts to communicate the idea that she did not want to have intercourse”) (emphasis added); see also Commonwealth v. Dorman, supra, 547 A.2d at 761 (finding evidence of rape sufficient where “[d]espite the victim’s protests, appellant ... disrobed her, pushed her down on the seat of the car and had intercourse with her.”) (emphasis added). In each such case, however, evidence of verbal resistance was only found sufficient where coupled with a sufficient threat of forcible compulsion, mental coercion, or actual physical force of a type inherently inconsistent with consensual sexual intercourse. See, e.g. Commonwealth v. Meadows, supra; Commonwealth v. Mlinarich, 345 Pa.Super. 269, 286, 498 A.2d 395, 403 (1985) (en banc), aff'd 518 Pa. 247, 542 A.2d 1335 (1988) (plurality) (holding that “rape, as defined by the legislature at 18 Pa.C.S. § 3121(a) ... required actual physical compulsion or violence____”). Thus, although evidence of verbal protestations may be relevant to prove that the intercourse was against the victim’s will, it is not dispositive or sufficient evidence of “forcible compulsion.”

If the legislature had intended to define rape, a felony of the first degree, as non-consensual intercourse, it could have done so. It did not do this. It defined rape as sexual intercourse by “forcible compulsion.” Compare 18 Pa. C.S.A. § 3126 (defining indecent assault as “indecent contact with another not [the actor’s] spouse ... without the consent of the other person.”) (emphasis added). If the legislature means what it said, then where as here no evidence was adduced by the Commonwealth which established either that mental coercion, or a threat, or force inherently inconsistent with consensual intercourse was used to complete the act of intercourse, the evidence is insufficient to support a rape conviction. Accordingly, we hold that the trial court erred in determining that the evidence adduced by the Commonwealth was sufficient to convict appellant of rape.

III. RAPE SHIELD LAW

Having found appellant’s rape conviction insufficient, we must determine whether any of appellant’s allegations of trial error relating to the remaining conviction have merit. He argues, inter alia, that the trial court erred in applying the Rape Shield Law to exclude evidence that the victim may have denied consent to avoid the wrath of a jealous boyfriend. In light of the prosecution’s emphasis upon the lack of any motive to fabricate and the possibility of permitting some evidence upon this subject without unduly encroaching upon the legislatively provided Rape Shield Law protections, we agree that reversible error occurred.

In determining whether the application of the Rape Shield Law violates a defendant’s constitutional rights to confront and cross-examine witnesses against him, this Court has recently held,

In Pennsylvania, we have come to resolve this question through a relatively elaborate procedure which is designed to ensure that no evidence of the victim’s sexual history is introduced unless and until it can be established that to exclude such evidence would lay victim to the very raison d’etre of the trial itself: the pursuit of truth. The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense. See Commonwealth v. Smith, supra [410 Pa.Super. 363], 599 A.2d [1340] at 1342 [1991], Commonwealth v. Nieves, supra [399 Pa.Super. 277], 582 A.2d [341] at 347 [1990]. This procedure forces the defendant to frame the precise issues and interests involved, and prevents him or her from embarking upon “fishing expedition style intrusions on Rape Shield law protections.” Id., 399 Pa.Superior Ct. at 292, 582 A.2d at 349. Where the proffer is but vague and conjectural, evidence of the victim’s past sexual conduct will be excluded and no further inquiry need be entertained. Id.; Commonwealth v. Troy, 381 Pa.Super. 326, 335, 553 A.2d 992, 996-97 (1989) (plurality).
Where the proffer is sufficiently specific, the court must then undertake a three part analysis of the substance of the proffer. At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial. Commonwealth v. Smith, supra, 410 Pa.Superior Ct. at 371, 599 A.2d at 1344; Commonwealth v. Nieves, supra, 582 A.2d at 347; Commonwealth v. Black, 337 Pa.Super. 548, 557-58, 487 A.2d 396, 401 (1985) {en banc). On appeal, such evidentiary rulings must be offered due deference and overturned only where there has been an abuse of discretion. Commonwealth v. Johnson, supra, 566 A.2d at 1201. Where, however, the proffered evidence excluded by the Rape Shield law is relevant, noncumulative, and more probative of the defense than prejudicial, it must be admitted. Commonwealth v. Black, supra, [337 Pa.Super. 548], 487 A.2d [396] 401, 402 [1985].

Commonwealth v. Wall, 413 Pa.Super. 599, 613-615, 606 A.2d 449, 457 (1992).

First we consider whether the proffer was sufficiently specific. Appellant’s proffer was as follows:

6. It is also the intention of the Defendant, by and through the testimony of certain non-party witnesses, and by and through the cross-examination of the alleged victim, to place into evidence that the alleged victim had repeated arguments with her boyfriend, [], during the 1987-1988 school year, the subject of which was the alleged victim’s infidelity and the alleged victim’s engaging in sexual intercourse with other men other than the alleged victim’s boyfriend, [].
7. Said testimony describing the above-referenced paragraph would be offered for the purpose of showing that at the time of the sexual relations between the alleged victim and the Defendant on April 19, 1988, the alleged victim had a disharmonious, quarrelsome relationship with her boyfriend, [ ], and further that the alleged victim may have told her boyfriend that she was “raped” in order to obtain sympathy from her boyfriend and to compel her boyfriend to overlook and forgive the past acts of infidelity. Said evidence would furthermore be offered to defeat the alleged victim’s testimony that she had a steady boyfriend, and would therefore not engage in sexual relations with third parties, such as the Defendant, Robert A. Berkowitz.

Appellant’s motion under Rape Shield Law at 2-3. While it would be prudent to identify each proposed witness by name, and to summarize the anticipated testimony in terms of names, dates, locations, and events, we do not find that the proffer, taken as a whole in the context in which it arose, fails to meet a minimum standard of requisite specificity. Essentially, appellant sought to establish that the victim might have lied because she had a jealous boyfriend.

Relevance would be problematic if we were to consider such evidence in a vacuum. Practically every rape case defendant could eviscerate the Rape Shield Law if the mere suggestion of a jealous boyfriend/fabrication theory was sufficient to open the floodgates to permit a wholesale review of the victim’s social, interpersonal, and sexual relationships.

However, under the circumstances of this otherwise highly unusual case, the proffered testimony was unmistakably relevant. Appellant’s defense theory was essentially that the victim consented to the sex with him but had decided after the incident that such consent had been unwise because it may have jeopardized her relationship with her boyfriend. Evidence that the victim had been arguing with her boyfriend over her fidelity might have given the jury cause to question whether the victim had chosen to claim that she had been raped rather than risk the consequences of her boyfriend’s discovery that she had consented to sexual intercourse with someone else, in her boyfriend’s dorm. Given the fact that the victim admitted that it was her boyfriend, not she, who first suggested that she had been raped and who called the police, evidence that the victim and her boyfriend had a history of arguing over her alleged infidelity may have played a significant role in the jury’s determination of whether the claim had been fabricated. As such, the evidence was relevant to appellant’s defense.

We note that our finding of relevance is not altered by the fact that the theory of defense involves not only the victim and the defendant, but also a third party. In Com monwealth v. Wall, supra, this Court was recently presented with a similar question. In that case, a twelve year old child had alleged that her uncle had sexually abused her many times over a period of years while her aunt was at work. There, the record contained evidence that the victim’s aunt had often imposed corporal punishment upon the victim as a means of discipline and that the victim had despised such punishment. Moreover, the victim testified that shortly before she made her first claim of sexual abuse against her uncle, she had called the police to inform them of her aunt’s severe discipline and had run away from her aunt and uncle’s home during a violent argument to avoid such discipline. In an effort to show that the victim had fabricated the claim of sexual abuse against her uncle, defense sought to introduce evidence that the victim had been removed from her mother’s home and placed with her aunt and uncle (the defendant) after participating in the successful sexual abuse prosecution of another adult male, her mother’s paramour. Defense argued that because the previous prosecution was the very impetus for the victim’s removal from her mother’s home, the proffered evidence tended to establish that the victim fabricated a sexual abuse claim against her uncle in an effort to prompt her permanent removal from her uncle’s home and her aunt’s discipline. On appeal, this Court agreed:

[T]he proffer ... established that the victim participated in the successful prosecution of her former abuser, and that participation [in that prosecution] ultimately lead to her removal from her mother’s house. From this, the jury could have inferred that the victim had, at the time she alleged that appellant had sexually abused her, labored under the impression that the making of another sexual abuse claim could result in her removal from her aunt and uncle’s house. The victim’s peculiar knowledge of the content and of the potential consequences of a sexual abuse claim was thus relevant to establish why the victim might have chosen to fabricate a specific type of claim, one of sexual abuse against an adult male in the house in which she lived and wanted to leave. Given the timing of the victim’s allegations of sexual abuse, i.e. immediately after a violent argument with her aunt which was prompted in part by the victim’s unsuccessful attempt to seek police protection from her aunt’s discipline, we conclude that the excluded evidence showing why the victim might have fabricated a claim of sexual abuse against her uncle, was relevant to appellant’s defense.

Commonwealth v. Wall, supra, 413 Pa.Super. at 624, 606 A.2d at 462 (citations omitted).

In so holding, however, the Wall Court made clear that proffered evidence need not, to be considered relevant to a fabrication defense, establish that the victim harbored bias or hostility toward the defendant per se. Rather, the Wall Court held that any evidence which logically tends to show that the claim was fabricated, would be relevant to the defense, as any such evidence tends to “exculpate” the defendant of the charges. See Commonwealth v. Wall, supra, 413 Pa.Super. at 619, 606 A.2d at 459-60 n. 16 (citing Black’s Law Dictionary, 6th Ed. (defining “exculpatory” as “clearing or tending to clear from alleged fault or guilt; excusing.”)); Commonwealth v. Johnson, 389 Pa.Super. 184, 566 A.2d 1197 (1989) (en banc), appeal granted, 525 Pa. 643, 581 A.2d 569 (1990) (holding that evidence which is “exculpatory to the defendant” must be ádmitted to comply with the defendant’s constitutional right to confrontation and cross-examination)). It matters not, therefore, the comparative sophistication or complexity of the fabrication scheme envisioned. Where, as here, or as in Wall, the proffered evidence logically tends to show that the charges may have been fabricated, the evidence must be deemed relevant.

The evidence was not cumulative. No other evidence of its sort was available to the defense to impeach the victim. The defense was allowed only to establish that the victim and the defendant had “argued.” As appellant points out, however, half a loaf was no better than none here. Without bringing to the jury’s attention the fact that the victim and her boyfriend had previously argued about her infidelity, the jury was without reason to believe that she may have lied about consensual sex with appellant to avoid having her boyfriend hear that she had had sex with appellant.

Finally, while there exists a potential for prejudice, it does not outweigh the probative value of the excluded evidence. Here, the evidence was not that the victim had actually been unfaithful to her boyfriend; it was only that her boyfriend and she had argued over the question of her infidelity. The probative value of the excluded evidence, was sufficiently high herein to outweigh any potential for prejudice.

As we have already recognized, the excluded evidence suggested that the victim may have sought to explain away an imprudent act of consensual intercourse with appellant because she feared her boyfriend’s jealous reaction if he learned of her decision to do so. This evidence was the sole means to allow the defense an opportunity to convince the jury of the victim’s possible mind set upon leaving appellant’s dorm room.

However, the excluded evidence gained enhanced relevance and probative value in light of two related developments at trial. First, the prosecution presented evidence that the victim had a steady boyfriend and, inferentially perhaps, that she had no reason to consent to intercourse with another. N.T. 9/14/88 at 23, 90. Second, the Commonwealth took unfair advantage of the exclusion of the motive to fabricate evidence by repeatedly emphasizing the absence of a motive to fabricate in its closing argument:

What you have to ask yourself at this point is this: Why? Why would she lie? You’ve got to examine her testimony and ask yourself if she’s lying. Why ask yourself something like that? You got to have an answer and the real question is why?
******
What are the facts of the case? Girl tells you she was forcibly raped and there’s just really no reason to believe she would lie and go through this. If he jilted her, if she was trying to go out with him and he wouldn’t, if she stole money from him or he from her, if they had a fight, if there was any reason; there’s no reason here. I suggest to you you have to have a reason.

Id., 389 Pa.Super. at 185, 188, 566 A.2d 1197. The combined effect of this conduct by the prosecution was to raise the issue of the victim’s social, interpersonal, and sexual relationships and use it as a sword to promote an inference that a person in the victim’s circumstances would not have consented to intercourse with the defendant. Once the prosecution raised the issue of motivation in terms of the victim’s relationship with her boyfriend and that she had no reason to lie, it then became even more necessary to permit defendant to argue a contrary inference relating to that relationship. The Rape Shield Law was intended to be a shield, not a sword. Here, it was used improperly as a sword.

This is not to say that the defendant should have been granted carte blanche to conduct a character assassination campaign under the guise of a fabrication motivation inquiry. Rather, it would have been sufficient to permit defendant to present evidence that the victim’s boyfriend had engaged in a series of arguments with her regarding his jealousy and her alleged infidelity to the relationship. We specifically reject the suggestion that any evidence regarding the truth or falsity of any alleged instances of infidelity was probative or admissible. To the contrary, the fabrication motivation theory turns upon the existence of the boyfriend’s jealousy, not its validity. Any prejudicial impact of the admission of such evidence could further have been reduced by a carefully constructed limiting instruction.

Finally, we note that on re-trial if the appellant offers or the court requires a more specific proffer, it will then be left to the court to decide what portion of the proffer, if any, is necessary to ensure that the appellant will be able to present his theory of defense consistent with the Rape Shield Law.

IV. CONCLUSION

For the foregoing reasons, we conclude that the evidence adduced by the Commonwealth was insufficient to convict appellant of rape, and that a new trial is warranted on the indecent assault charge. The remaining issues appellant raises need not be addressed in view of this disposition. Accordingly, we discharge appellant as to the rape conviction and reverse and remand for a new trial in accordance with this opinion.

      . On cross-examination, the victim testified that during this conversation she had explained she was having problems with her boyfriend. N.T. 9/14/88 at 54.

      . The victim testified that she realized at the time that the lock was not of a type that could lock people inside the room. N.T. 9/14/88 at 61.

      . The victim was unsure of exactly what date these events took place. See N.T. 9/14/88 at 51.

      . We note that in 1988, a plurality of our Supreme Court decided Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988). To the extent that this plurality decision may be seen to revise the majority holding in Commonwealth v. Rhodes, supra, it has been rejected as non-binding precedent. See Commonwealth v. Ruppert, 397 Pa.Super. 132, 138 n. 6, 579 A.2d 966, 969 n. 6 (1990); Commonwealth v. Dorman, 377 Pa.Super. 419, 427, 547 A.2d 757, 761 (1988). We therefore decline to follow it herein.

      . That the victim need not resist "forcible compulsion” to later prove rape may be seen through an examination of the history of the resistance requirement in Pennsylvania. Traditionally, Pennsylvania law looked with peculiar suspicion upon the rape complaint. Due in part perhaps to Lord Chief Justice Matthew Hale’s now infamous seventeenth century remonstration: “Rape is an accusation easily to be made and hard to be proved, and harder still to be defended by the party accused, tho never so innocent,” Hale, History of the Pleas of the Crown, vol. 1, 634 (R.H. Small 1847), accusations of rape were reviewed with a scrutiny unparalleled by the review given to any other criminal complaint. For example, in 1875, our Supreme Court upheld an instruction that, "in order to guard against false charges in cases of this kind—it has been deemed an important test of the sincerity of the woman, that while the commission of the offense was in progress, she cried aloud, struggled and complained on the first opportunity, and prosecuted the offender without delay.” Stevick v. Commonwealth, 78 Pa. 460, 460 (1875) (referring vaguely to Lord Chief Justice Hale’s remonstration). Thereafter, countless reporters contained admonitions to the trial courts to bring to the attention of jurors the significance of actual “bona fide” resistance, outcry and prompt complaint. See e.g. Commonwealth v. Berklowitz, 133 Pa.Super. 190, 193-94, 2 A.2d 516 (1938) (conviction, based on evidence that the defendants, who were strangers to the victim, kidnapped the victim, drove her to a club seven miles away where she sipped drinks with the defendants and roughly 150 others, drove her thereafter to a vacant lot and had intercourse with her forcibly and against her will, reversed for failure to charge on significance of the absence of a prompt complaint and resistance); Commonwealth v. Moran, 97 Pa.Super. 120 (1929) (conviction, based on evidence that the defendants, with whom the victim had been acquainted, forced the victim into the grandstand of a baseball park, held down her shoulders and had intercourse with her, reversed for failure to charge on meaning of "bona fide" resistance).
      In 1973 and 1976, however, our Legislature enacted several amendments to the Crimes Code which removed many of the obstacles in the path of rape prosecutions. The effect of the reforms was dramatic. The "pernicious 'special rules’” governing rape prosecutions which had become a tradition in Pennsylvania were effectively abrogated by these amendments. Commonwealth v. Rhodes, supra, 510 A.2d at 1223 n. 11. As our Supreme Court made clear, "[mjodern social, legal and psychological thinking has thoroughly discredited these ‘special rules,’ and our Crimes Code, with amendments in 1973 and 1976, has finally discarded the last vestiges of these ill-conceived rules.” Id.

      Among the changes in rape law brought about by the amendments is that which annulled the resistance requirement. See 18 Pa.C.S.A. § 3107. Thus, for us to hold that a victim must resist "forcible compulsion” would be to ignore the history and defy the intent of the present no resistance requirement. This we cannot do.

      . The accounts differed in this respect only as to the tone in which the word was spoken. Appellant claimed it was whispered “passionately.” N.T. 9/14/88 at 134. The victim testified that she voiced her objections before the intercourse in a "scolding” manner. Id. at 36. At trial, it was peculiarly for the jury to determine the credibility of the parties. Commonwealth v. Murray, supra. On appeal, we must view the record in the light most favorable to the Commonwealth. Commonwealth v. Bryant, supra. Viewed in this way, we must consider the victim’s admonitions before the intercourse to be sincere protests. Although the victim testified that during the intercourse she "moaned” the word “no,” N.T. 9/14/88 at 40, the degree of the ambiguity of her protests at that point is inconsequential for a sufficiency determination. By that time, penetration had occurred and the crime, if any, was complete. See Pa.C.S.A. § 3121. Such evidence merely went to the weight to attach to the victim’s credibility. See Commonwealth v. Pearsall, 368 Pa.Super. 327, 329-30, 534 A.2d 106, 108 (1987). Moreover, the victim carefully explained that her "moaning" during intercourse was in no way “passionate.” N.T. 9/14/88 at 65.

      . It may be argued that our conclusion requires the victim, whose verbal resistance did not deter the sexual advances, to physically resist, in violation of the "no resistance requirement,” 18 Pa.C.S.A. § 3107. See note 5, supra. In this regard, we note the following. Although the "no resistance requirement" does not, on its face, in any way restrict the situations to which it may apply, it appears that the statute must have limits. Section 3121(2) of title 18, which describes the threat element of rape, states that rape occurs when a person "engages in sexual intercourse with another ... by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution” (emphasis added). If the "no resistance requirement" were applied in that setting, the description of the type of threat which is sufficient would be rendered wholly meaningless. To be consistent, therefore, the “no resistance requirement” must be applied only to prevent any adverse inference to be drawn against the person who, while being “forcibly compelled" to engage in intercourse, chooses not to physically resist. See note 5, supra. Since there is no evidence that the instant victim was at any time "forcibly compelled” to engage in sexual intercourse, our conclusion is not at odds with the "no resistance requirement.”

      . We note that it would have been entirely proper for the trial court to have required a more specific proffer.

      . Compare Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) (fabrication theory based directly on victim’s hostility toward defendant).

      . We have noted previously that subsequent events at trial may render otherwise incidental and even inadmissible evidence, highly probative, materially exculpatory and admissible. See Commonwealth v. Santiago, 405 Pa.Super. 56, 104-08, 591 A.2d 1095, 1120-21 (en banc), appeal denied, 600 A.2d 953 (591 E.D.1991, Table).

      . We note additionally that to the extent the Commonwealth sought to draw an adverse inference from the absence of evidence it successfully excluded from trial, such argument was error. See Commonwealth v. Tumpson, 242 Pa.Super. 1, 6, 363 A.2d 1129, 1132 (1976) (prosecutor’s attempt to exploit absence of witness known to exist but unavailable, was a “deliberate attempt to mislead the jury” and constituted reversible error where no curative instruction was given by trial court); see also Commonwealth v. Wright, 255 Pa.Super. 512, 388 A.2d 1084 (1978) (improper to argue inferences from the absence of evidence where such absence was not established at trial); see generally Commonwealth v. Toth, 455 Pa. 154, 158, 314 A.2d 275, 278 (1974) (" ‘The district attorney is a quasi-judicial officer ... [who] should present the Commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate.’ ”) (quoting Commonwealth v. Nicely, 130 Pa. 261, 18 A. 737 (1889).


source: Caselaw Access Project

author: CIRILLO, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    609 A.2d 1352
    COMMONWEALTH of Pennsylvania, Appellant, v. Darryl BROWN.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1992.
    Filed May 22, 1992.

      Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Malcolm W. Berkowitz, Philadelphia, for appellee.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   CIRILLO, Judge:

This is a Commonwealth appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia. We vacate and remand for resentencing.

Darryl Brown was convicted of aggravated assault and possession of an instrument of crime. 18 Pa.C.S. §§ 2702(a)(1); 907. On January 10, 1989, Brown stabbed his former girlfriend ten times with a dry-wall saw. At the time of the attack the victim was seven months pregnant with Brown’s child. Brown entered a guilty plea to both charges.

At sentencing, the court refused to apply the deadly weapon enhancement of the Sentencing Guidelines. See 204 Pa.Code § 303.4, reprinted following 42 Pa.C.S. § 9721. The court reásoned that since Brown was sentenced separately for the aggravated assault conviction and the possession of an instrument of crime conviction, the enhancement was prohibited under double jeopardy principles. Pa.Const., Article I, § 10; Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991). Brown was sentenced to 12 months less one day to 24 months less one day on the aggravated assault conviction, and to 8 months to 16 months for the possession of an instrument of crime conviction. The Commonwealth appealed the judgment of sentence. On February 20, 1991, this court filed an opinion and order vacating and remanding for resentencing. See Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991).

This court’s majority opinion in Brown, authored by Judge Popovich, held:

While we may affirm a sentence that is outside the guidelines provided it is reasonable, 42 Pa.C.S.A. § 9781(c)(3), it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside them____ Instantly, we find that the lower court did not first correctly determine the appropriate sentence under the guidelines____ If, upon remand, the court finds it appropriate to deviate from the proper sentencing range, it may do so by placing sufficient reasons on the record, subject to later review by this court____ Presently, it is clear that [defendant’s] conviction for aggravated assault (causes serious bodily injury), 18 Pa.C.S.A. § 2702(a)(1), carries a gravity offense score of “9,” not “8.” Thus, it is readily apparent that the trial court did not correctly determine the appropriate sentencing range for [defendant]____ It is also clear that application of the deadly weapon enhancement to appellant’s aggravated assault conviction does not violate the principles of double jeopardy---- Moreover, it is important to remember that a sentencing court may, at its discretion, impose a sentence below that suggested by enhanced guidelines ranges____

Id,., 402 Pa.Superior Ct. at 372-74, 587 A.2d at 7-9 (citations omitted) (emphasis added).

On April 26, 1991, pursuant to this court’s order, the defendant was resentenced to 20 to AO months imprisonment for the aggravated assault conviction; the sentence for the possession of an instrument of crime conviction was “suspended by virtue of merger.” The Commonwealth filed a motion for reconsideration of sentence, which was denied. This appeal followed.

Initially, we find that the Commonwealth has raised a substantial question that the sentence imposed is inappropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b); Pa.R.A.P. 2119(f), and therefore we agree with the Commonwealth that yet “another round of review” is warranted. See Commonwealth v. Dotzman, 403 Pa.Super. 325, 588 A.2d 1312 (1991) (the Commonwealth raised substantial question as to appropriateness of the sentence as a result of the trial court’s finding that the deadly weapon enhancement was inapplicable to the defendant, who committed first-degree robbery at knife-point). The Commonwealth raises the following three issues:

1. Did the lower court erroneously construe the sentencing guidelines in concluding that the deadly weapon enhancement provision could not be applied to defendant’s aggravated assault sentence if defendant was separately sentenced to possessing an instrument of crime?
2. Did the lower court err in failing to give reasons for its deviation from the recommended guidelines sentence?
3. Was defendant’s aggravated assault sentence, nineteen months below the bottom of the recommended guidelines mitigated range, unreasonably lenient under the circumstances of this case?

The Commonwealth argues that the sentencing court, upon remand, ignored the relevant law and the law of the case as stated in this court’s February 20,1991 opinion. On remand, the court imposed the same sentence which had been imposed prior to the Commonwealth’s first appeal. This, in itself, is neither error nor an abuse of discretion. The sentencing court, however, suspended sentence on the possession of an instrument of crime conviction, concluding that it “merged” into the enhanced aggravated assault conviction.

In Brown, this court held that “application of the deadly weapon enhancement to appellant’s aggravated assault conviction does not violate the principles of double jeopardy.” 402 Pa.Super. at 373, 587 A.2d at 8. Upon resentencing, the court applied the deadly weapon enhancement to the applicable guideline range for the aggravated assault conviction. The court then determined that it could not sentence separately for both the enhanced aggravated assault charge and the possession of an instrument of crime charge. At resentencing the court stated:

The application of the deadly weapons enhancement makes inappropriate a sentence on the [possession of an instrument of crime] charge. Because once you add the deadly weapons enhancement, you cannot sentence then on the instrument of crime charge because that is the very basis for adding the enhancement---- [I]f you apply the deadly weapons enhancement, then you cannot also sentence on a weapon’s charge____ In any event, the sentence of this court will be on the aggravated assault, the sentence will be a minimum of 20 months and a maximum of forty months. That sentence is to be served in the Philadelphia County Prison. The sentence on the possessing an instrument of crime charge is suspended by virtue of merger, it having been used to enhance the aggravated assault guidelines.

R.R. 145a (Resentencing Hearing). We agree with the Commonwealth that the sentencing court has erroneously interpreted the guidelines.

Recently, in Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991), the Pennsylvania Supreme Court commented on the relationship between double jeopardy and merger. Justice McDermott, who authored the lead opinion, stated:

In the context of protecting defendants against simultaneous multiple punishments for the “same offense,” the concepts of double jeopardy, greater and lesser included offenses and merger are related but separate legal concepts. See Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981)____ [W]e now hold that in the context of simultaneous convictions of multiple offenses, [footnote omitted] pursuant to guilty pleas or trial verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary.

Id., 526 Pa. at 344-45, 586 A.2d at 377-78. In Burkhardt, the defendant pled guilty to attempted murder and possession of an instrument of crime. The sentencing court imposed separate consecutive sentences for each conviction. On appeal to this court, Burkhardt argued that consecutive sentences violated double jeopardy, and that since the crimes “necessarily involve” each other, they should have been merged for sentencing purposes. Id., 526 Pa. at 343, 586 A.2d at 376. This court rejected both arguments. The Pennsylvania Supreme Court, acknowledging the fragmented and confusing decisions in this area, affirmed the judgment of sentence and concluded that separate consecutive sentences were within the discretionary powers of the sentencing court. The court reasoned that the.relevant statutes did “not express a legislative intent that the offenses merge,” and added that “if the Legislature intends that certain crimes be subsumed by, or merged into, other crimes that intention will be expressly stated.” Id., 526 Pa. at 344, 586 A.2d at 378.

The test enunciated by Justice McDermott departed from the tests set forth in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), and did not receive majority support. Despite the splintered pronouncements on this issue, application of any of the tests formulated by our supreme court requires that we vacate and remand in this instance.

The relevant statutes provide:

§ 2702. Aggravated Assault
(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

18 Pa.C.S. § 2702(a)(1).

§ 907. Possessing instruments of crime
(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(b) Possession of weapon.—A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to use it criminally.

18 Pa.C.S. § 907.

An examination of the statutes indicates that the legislature has not expressly intended that the crime of possession of an instrument of crime be “subsumed by, or merged into” aggravated- assault. Burkhardt, supra Additionally, here, as in Leon Williams, supra, “the same facts are used to support convictions for crimes having different elements, ... [but] the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses.” Leon Williams, 521 Pa. at 563, 559 A.2d at 29. In this particular case, we do not find that possession of instrument of crime, 18 Pa.C.S. § 907, is a lesser included offense of aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). Id. Furthermore, Brown’s act of possessing the saw with the intent to employ it criminally was separate and apart from the aggravated assault. Weakland, 521 Pa. at 363, 555 A.2d at 1233.

The sentencing judge’s rationalization that possession of an instrument of crime merges into the enhanced aggravated assault is flawed. The purpose of the deadly weapon enhancement is to increase by 12 to 24 months the applicable guideline sentence range, enhancing the punishment for the underlying offense because it was committed with a deadly weapon. The enhancement is not a separate sentence, nor is it another element of the crime to which it is attached. See Commonwealth v. Williams, 353 Pa.Super. 207, 210-14, 509 A.2d 409, 411-412 (1986) (204 Pa.Code § 303.4 is not a legislative definition of a crime but is a legislative determination of punishment to be imposed following certain convictions; it does not make the use of a weapon an element of the crime but serves only to define the minimum punishment to be imposed). We perceive no double jeopardy impediment to applying an enhanced sentence for the aggravated assault conviction, and sentencing separately on the possession of an instrument of crime conviction. This does not constitute multiple punishments for the same offense.

In Commonwealth v. Dotzman, 403 Pa.Super. 325, 588 A.2d 1312 (1991), the defendant entered a guilty plea to four counts of robbery, three counts of possession of an instrument of crime generally, two counts of theft, unlawful taking and disposition, and two counts of illegal use of a computer. The sentencing court determined that the deadly weapon enhancement should not be applied to the defendant’s robbery convictions because “each of these robberies became a felony of the first degree because of the use of the weapon ... if the weapon had not been used, the robbery would have risen no higher than a felony of the third degree.” The sentencing court concluded, therefore, that “the use of the weapon ha[d] already been counted to raise the degree of the robbery and to raise the offense gravity score.” Id., 403 Pa.Superior Ct. at 330, 588 A.2d at 1315.

The Commonwealth appealed to this court and we vacated the judgment of sentence and remanded for resentencing. Id., 403 Pa.Superior Ct. at 333, 588 A.2d at 1317. Relying upon Brown, supra, we held that the deadly weapon enhancement was improperly excluded in determining the guideline sentence range. Id., 403 Pa.Superior Ct. at 331-34, 588 A.2d at 1316-1317. Although Dotzman is not dispositive of the precise issue before us, the principles espoused in that case offer some guidance here:

The constitutional protection against double jeopardy precludes one from being punished twice for the same offense____ [Section] 303.4 ... does not provide for sentencing the defendant twice for the same offense, but rather calls for an increase in the guidelines sentence range where a deadly weapon has been used____ [Section] 303.4 does not conflict with the prohibition against double jeopardy, [footnote omitted]. The double jeopardy clause ... “protects against multiple punishments for the same offense.” [citations omitted]. An increase in the guideline sentencing range does not constitute multiple punishment for the same offense.

Id., 403 Pa.Superior Ct. at 330-31, 588 A.2d 1312, 1315-1316 (1991), citing Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991).

Dotzman and Brown presented double jeopardy concerns in the sense that the underlying crime and the attached enhancement were interpreted, erroneously, as double punishments for the same offense. Brown, supra; Dotzman, supra. Cf. 204 Pa.Code 303.4(b). Here too, the sentencing court has mistakenly construed the deadly weapon enhancement as a separate sentence; the distinction in this case, however, is that as a result of the error the court found that double jeopardy barred sentencing on a separate crime, not the crime to which the enhancement attached, as was the case in Dotzman and our previous decision in Brown.

The distinction does not call for a different result because the source of the error in this case, as well as in Brown and Dotzman, is the same; in each case the trial court misconstrued the enhancement as a separate sentence. This point is critical to a clear understanding of the guideline enhancement and the concept of mérger. We conclude, therefore, that a proper application of the deadly weapon enhancement, see 204 Pa.Code § 303.4, does not bar a separate sentence on another conviction. The trial court’s determination that applying the deadly weapon enhancement to the aggravated assault conviction precluded a separate sentence on the possession of an instrument of crime conviction was in error. We vacate and remand for resentencing. Jurisdiction relinquished.

Judgment of sentence vacated; case remanded for resentencing. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

For the second time this court is reversing a sentence imposed by the trial court in this case, and in my view is taking such action for the second time, unjustifiably.

Prefacing the Majority’s ultimate ruling is its initial conclusion that it is appropriate to review the Commonwealth’s claims regarding the defendant’s sentence because “the Commonwealth has raised a substantial question that the sentence imposed is inappropriate under the Sentencing Code.” Majority Opinion at 537. I believe this conclusion is erroneous with regard to the discretionary sentencing issues raised by the Commonwealth and unnecessary with regard to the Commonwealth’s claims concerning the questions of merger and the application of the deadly weapons enhancement.

The Commonwealth's claims which address the leniency of the sentence imposed do not constitute what has been found to be a “substantial question” deserving of appellate review. “In effect, appellant asks this Court to substitute its judgment regarding an appropriate sentence for that of [the sentencing judge]. Such a statement does not raise a substantial question that the sentence imposed was in fact inappropriate.” Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989). The Majority’s failure to adhere to this court’s previous unwillingness to review sentences which are called into question because of their severity, leniency or the court’s failure to mention on the record certain considerations, does nothing but further confuse those seeking an interpretation of the law in this area.

The Commonwealth’s remaining claims do not involve discretionary sentencing questions. The application of a deadly weapons enhancement and the issue of merger are not matters within the discretion of a sentencing court; rather, they implicate the legality of a sentence. See Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986). As such, they may be appealed by a party as of right. 42 Pa.C.S.A. § 9781(a).

Although this court must review these matters, in this case I believe the Majority errs in concluding that the sentencing court wrongly ruled that a separate sentence on the conviction for possession of an instrument of crime was precluded because deadly weapon enhancement was added to the aggravated assault conviction.

I believe that the Majority would not dispute that it was well within the sentencing court’s discretion to impose no further sentence on the defendant for his conviction of possessing an instrument of crime. The court imposed a sentence on the aggravated assault conviction recognizing the role the deadly weapon enhancement provision played in structuring the sentencing guidelines for this crime. The fact that the sentencing court failed to impose a further penalty on the possessing an instrument of crime charge, can not, in my view, be deemed an abuse of discretion.

My belief that the sentencing court was well within its discretion, in refusing to impose a sentence on the possessing an instrument of crime charge is supported by the fact that a conviction on such a charge in this case was inappropriate. A dry wall saw is not an “instrument of crime.” Appellant pled guilty to a violation of 18 Pa.C.S.A. § 907 which defines an “instrument of crime” as:

(1) Anything specially made or specially adapted for criminal use; or
(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

In interpreting this statute this court has held that a screwdriver, used to stab and slash at a victim was not an instrument of crime. Commonwealth v. Eddowes, 397 Pa.Super. 551, 580 A.2d 769 (1990). We have also held that a pair of scissors, an icepick, and an ordinary razor blade, which were not objects regularly used by criminals and which were not physically altered in such a fashion as to demonstrate criminal objective, were not “instruments of crime.” See, Commonwealth v. Myers, 376 Pa.Super. 41, 545 A.2d 309 (1988), Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987) and Commonwealth v. Rodriquez, 316 Pa.Super. 203, 462 A.2d 1310 (1983). A dry wall saw, as was used in this case, is not an object commonly used for criminal purposes and there is nothing in the record to suggest that the saw at issue in this case was in any manner altered to aid in the commission of the aggravated assault.

The sentencing court recognized the inherent problem that the facts of this case bring when attempting to formulate a sentence, particularly for the possessing an instrument of crime charge to which Appellant plead guilty. The sentencing court in this case did not engage in a merger analysis, as does the Majority, but rather found that it would be inappropriate to sentence this defendant on the possession conviction. In my view based upon the facts as presented and relevant case law, this action was entirely appropriate.

At sentencing, the court recognized that the aggravated assault conviction was to receive an enhanced recommended range under the Sentencing Guidelines because a deadly weapon was used during the perpetration of the crime. While the dry wall saw constitutes a “deadly weapon” for purposes of the enhancement provisions (see 18 Pa.C.S.A. § 2301), the court was of the opinion that a separate sentence should not be imposed for a conviction of possessing an instrument of crime. The court stated:

The application of the deadly weapons enhancement makes inappropriate a sentence on the PIC charge. Because once you add the deadly weapons enhancement, you cannot sentence then on the instrument of crime charge because that is the very basis for adding the enhancement.
Also it is interesting to note, under Commonwealth v. Morgan, [265 Pa.Super. 225, 401 A.2d 1182 (1979) ], a dry wall saw is probably not an instrument of a crime.
I accepted the plea because I believed that the prosecutor at the time had discussed that with defense counsel. And, that there had been some discussion about this was the plea that was to be presented. In retrospect, I wish I had insisted that it is not an instrument of crime. It might be a deadly weapon. But it is certainly not especially adapted for use in criminal activities.
So under 907 of 18 Purdon’s a dry wall saw would not be a PIC, if I consider that, and don’t apply a sentence on the PIC charge.
In any event, because it is covered by the deadly weapons enhancement, what I have before me now, as far as I am concerned, is a sentence on an aggravated assault with a deadly weapons enhancement, and the guideline range of 9 and a zero.

I find the trial court was well within it’s discretion in refusing to apply a sentence to the possessing an instrument of crime charge. I further note that upon remand it will be free, once again, to formulate this same sentence. The Majority’s actions, in my view are needless and unresponsive to the sentencing court’s recognition that a sentence on the possessing an instrument of crime charge was inappropriate in this case.

      . The Sentencing Guidelines provide, at 204 Pa.Code § 303.4(a):
      When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S.A. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guidelines sentence range which would otherwise have been applicable.
      204 Pa.Code § 303.4(a), reprinted following 42 Pa.C.S. § 9721 (emphasis added).
      "Deadly weapon” is defined as
      Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. (Emphasis added).
      18 Pa.C.S. § 2301.

      . The sentencing court noted that it fashioned the sentence so that Brown could serve his sentence at the county level; this would permit him to continue his psychotherapy. Apparently, Brown was suffering from anxiety and depression.

      . We note that Section 303.4 of the Sentencing Guidelines, entitled "Deadly weapon enhancement,” provides that the enhancement shall not apply to section 2702(a)(4) aggravated assault. Brown was convicted of aggravated assault under section (a)(1), and therefore the enhancement was applicable to that conviction. See 204 Pa.Code § 303.4(b).

      . The Commonwealth’s 2119(f) statement provides:
      [D]efendant’s sentence was at least nineteen months below the recommended guidelines ranges. Although the lower court’s sentence clearly deviated from the sentencing guidelines, the lower court failed to admit it was deviating, offer any reasons for the deviation, or even bother to recite the recommended guideline ranges____ Commonwealth v. Rich, 392 Pa.Super. 380, 383, n. 4, 572 A.2d 1283, 1284 n. 4 (1990)____ Moreover, the lower court ignored the brutal nature of defendant’s aggravated assault ... and disregarded the fact that defendant is not mentally ill, a drug addict, or a product of a disadvantaged background. Rather, in imposing sentence, the court was only concerned with ensuring that defendant would be able to continue seeing his private therapist for his "depression and anxiety.” ... Finally, a substantial question warranting this Court's review is also raised by the lower court’s erroneous construction of the guidelines. The lower court concluded that defendant’s sentence for possession of an instrument of crime merged with the enhanced aggravated assault sentence and suspended sentence on the possession of an instrument of crime charge____ Moreover, the deadly weapon enhancement provision is not even a crime, but a recommended increase in punishment for those who choose to use a weapon to accomplish the underlying offense.
      Brief of the Appellant, at pp. 14-15.

      . We note that the majority decision in Williams, authored by Justice Flaherty, was joined by Justices Zappala and Stout. Chief Justice Nix also joined the majority decision and filed a separate concurring opinion. Justice Papadakos filed a concurring and dissenting opinion, in which Justice Larsen joined. Justice McDermott filed a dissenting opinion, joined also by Justice Larsen. The Weakland decision, also authored by Justice Flaherty, was joined by Chief Justice Nix and Justices Zappala and Stout. Justice Papadakos filed a concurring and dissenting opinion, joined by Justice Larsen, and Justice McDermott filed a dissenting opinion, also joined by Justice Larsen.

      . "Instrument of crime” is defined in section 907 as
      (1) Anything specially made or specially adapted for criminal use; or
      (2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.
      “Weapon" is defined as

        Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have.
      18 Pa.C.S. § 907(c).

      . Compare 18 Pa.C.S. § 2702(a)(1) (defined above) with 18 Pa.C.S. § 2702(a)(4) ("attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon"). We reiterate that Brown was convicted under subsection (a)(1).

      . Section 303.4(b) provides that "there shall be no enhancement for convictions: ... under 18 Pa.C.S. § 907 (relating to possessing instruments of crime)!.]” 204 Pa.Code § 303.4(b).

      . Although the enhancement must be applied in order to determine the correct guideline range, the guidelines as a whole are not mandatory. As the courts of this Commonwealth have repeatedly stated, the guidelines need only be consulted and considered; the sentencing judge may depart from the guidelines, provided an adequate explanation for such departure is included in the record. See Commonwealth v. Riggins, 474 Pa. 115,377 A.2d 140 (1977); Commonwealth v. Rivera, 338 Pa.Super. 199, 487 A.2d 923 (1985); Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984).

      . We find it unnecessary to address the Commonwealth’s remaining two claims, having disposed of this case on the merger issue. We reiterate, however, this court’s concerns in our previous decision in this case:
      [Defendant’s] sentence of 12 months less one day to 24 months less one day for the aggravated assault is over two years less than even the mitigated range of the guidelines. Even if we consider [defendant’s] aggregate sentence of 18 months less one day to 40 months less one day, it is still almost two years less than the suggested sentence (mitigated range) for the aggravated assault alone. In choosing among the various sentencing alternatives, the lower court appears to have focused solely on the needs of Brown to the exclusion of other sentencing factors, including the gravity of the offense and its impact upon the victim. The sentence appears unreasonably lenient for the brutal stabbing, [citations omitted].

        Id., 402 Pa.Superior Ct. at 375 n. 7, 587 A.2d at 9 n. 7.