Commonwealth v. Berkowitz,

Facts

D 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. The victim went to D's dormitory room. After attending two-morning classes, the victim returned to her dormitory room. She drank a martini to 'loosen up a little bit' before going to meet her boyfriend, with whom she had argued the night before. Roughly ten minutes later she walked to her boyfriend's dormitory lounge to meet him. He had not yet arrived. The victim walked up to D's room to look for Earl Hassel, D'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].' She knocked again, and then tried the knob, and upon 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 D. She asked appellant which dresser was his roommate's. He told her, and the victim left the note. D asked her to stay and 'hang out for a while.' D asked her to give him a back rub, but she declined, explaining that she did not 'trust' him. D 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. D moved off the bed and down on the floor, and 'kind of pushed [the victim] back with his body. Next D 'straddled' and started kissing the victim. The victim responded by saying, 'Look, I gotta go. I'm going to meet [my boyfriend].' D lifted up her shirt and bra and began fondling her. The victim then said 'no.' After thirty seconds of kissing and fondling, D 'undid his pants and he kind of moved his body up a little bit.' The victim was still saying 'no' but 'really couldn't move because D was shifting at [her] body, so he was over [her].' D 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. The two rose to their feet. D 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. D then shoved her down on the bed. D began 'straddling' her again while he undid the knot in her sweatpants. 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.' She did not scream out at any time because 'it was like a dream was happening or something.' D then used one of his hands to 'guide' his penis into her vagina. At that point, after D was inside her, the victim began saying 'no, no to him softly in a moaning kind of way . . . because it was just so scary.' After about thirty seconds, D pulled out his penis and ejaculated onto the victim's stomach. D got off the victim and said, 'Wow, I guess we just got carried away.' To this, the victim retorted, 'No, we didn't get carried away, you got carried away.' 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. Her boyfriend and she went up to his dorm room where, after watching the victim clean off Ds semen from her stomach, he called the police. On cross-examination, it was learned that D and the victim had attended a school seminar entitled, 'Does 'no' sometimes means 'yes'?' After the seminar, the victim and several of her friends had discussed the subject matter of the seminar over a speaker-telephone with D and his roommate Earl Hassel. The victim testified that during that telephone conversation, she had asked D the size of his penis. According to the victim, D responded by suggesting that the victim 'come over and find out.' She declined. On two other occasions, she had stopped by D's room while intoxicated. During one of those times, she had laid down on his bed. When asked whether she had asked D again at that time what his penis size was, the victim testified that she did not remember. According to D, 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. 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. 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. D testified that he did initiate the first physical contact, but added that the victim warmly responded to his advances by passionately returning his kisses. He conceded that she was continually 'whispering . . . no's,' but claimed that she did so while 'amorously . . . passionately' moaning. 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.]' 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.' When he saw a 'blank look on her face,' he immediately withdrew and asked, 'is anything wrong, is something the matter, is anything wrong.' He ejaculated on her stomach thereafter because he could no longer 'control' himself. The jury convicted D of rape and indecent assault. D 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.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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