Commonwealth V. Berkowitz

Title: Commonwealth v. Berkowitz 609 A.2d 1338 (Penn.Sup. 1992) 609 A.2d 1161 (Penn.1994)
Facts: The victim and defendant attended East Stroudsburg University. The victim had returned to her dorm and drank a martini, before leaving to see her boyfriend who had not arrived. The victim walked to her friend Earl Hassel dorm room, she knocked numerous times, no reply. The victim begin to write a note, when she notice the door was not lock, as she entered the dorm room she seen the defendant in the bed asleep with a pillow over his head. Realizing it was not Earl, she ask the defendant which dresser belonged to Earl and place the note on the dresser which said “Hi Earl, I’m drunk”. Then the defendant, asked her if she wanted to “hang out for a while”, she accepted. The defendant begin making sexual advances towards her, and begin kissing and lifting her shirt and bra, the victim said “no”. The defendant locked the door, and had sexual intercourse with the victim. The defendant said they had gotten carried away, and the victim stated “no we did not” you got carried away.” However the victim did testified she was never restrained, or resisted but she tried leaving and said “no” throughout the sexual encounter.  History: Berkowitz were convicted by the jury of rape and indecent assault. The Superior Court, Philadelphia reversed the rape conviction. The Pennsylvania Supreme Court affirmed the Superior’s Court’s reversal of Berkowitz rape conviction.
Issue: The issue in Berkowitz case was whether an indictment of rape can be legally sustained when there is a lack of consent, but is expressed with no force being used.  
Rule of Law: The degree of physical force, threat of physical force, or psychological coercion required under 18 Pa.C.S. 3121 must be sufficient to prevent resistance by a person of reasonable resolution, but the “peculiar situation” of the victim and other subjective factors should be considered by the court in determining resistance, asset, and consent.
Application of Law:  Where there is a lack of consent, but showing of either physical force, a threat of physical force, or psychological coercion, the forcible compulsion requirement under 18 Pa.C.S. 3121 was not met in this case. The requirement to sustain a conviction for rape in Pennsylvania must be more than a verbal resistance, threat, or actual force.
Conclusion: The defendant was convicted of rape and indecent assault. The Superior Court reversed the rape conviction and did not err in reversing and the case was affirmed.