Commonwealth v. Berkowitz

641 A.2d 1161 (Pa. 1994)

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Nature of the Case

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Facts

Victim went to wait for her boyfriend and walked up to Berkowitz's room in search of Earl Hassel who also lived there. Victim wanted to spend some time with Earl while waiting for her boyfriend. Earl was not there, and Victim eventually went into the room and found someone sleeping to which she discovered Berkowitz (D). Victim then located Earl's dresser and left a note but before leaving D asked Victim to hang out for a while. D asked her give him a back rub but she declined. Eventually D worked his way next to her and straddled her and started to kiss her and started to work on her shirt and bra. The victim said no. D then tried to put his penis in her mouth. Victim did not physically resist but continued a verbal protest. D disregarded her complaints, locked the door, pushed her on the bed, straddled her and removed her clothes. She did not resist and eventually D had intercourse with her with her saying no to him in a soft moaning kind of way. D ejaculated onto her stomach and commented that they had just gotten carried away. The Victim disagreed. The police were immediately called when the Victim left the room and met her boyfriend. Defense counsel established that there had been prior verbal contact between D and the Victim and that she has asked D about the size of his penis. D offered a different version of the events. D testified that she responded to his advances and passionately returned his kisses. D testified that her no's were ones basically laced with passion. D was convicted of rape. D appealed. A number of appeals resulted. See Rom Law COMMONWEALTH V. BERKOWITZ 609 A.2d 1338 (1992)