Commonwealth v. Berkowitz

The Court reviewed sufficiency in the light most favorable to the Commonwealth, accepting the evidence and reasonable inferences supporting the verdict. Even under that deferential standard, a conviction could stand only if the evidence established every statutory element of rape.

Pennsylvania’s rape statute required sexual intercourse by forcible compulsion, by a threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, or under specified incapacitation circumstances. Although a rape complainant need not resist, the force required must be sufficient to establish nonconsent and induce submission without further resistance; its degree depends on the circumstances.

The complainant’s testimony did not clearly describe physical force or a threat of force. She characterized Berkowitz’s act of putting her on the bed as something between a push and a shove, testified that it was not forceful, and agreed that he did not restrain her during penetration. His body weight while on top of her was the only force she identified, and he made no verbal threat.

Her repeated statements of “no” were highly relevant to consent, but they did not themselves prove forcible compulsion. Likewise, although Berkowitz locked the door, the complainant knew it could be easily unlocked from inside and did not attempt to reach, unlock, or open it.

The Court read Commonwealth v. Mlinarich to require something beyond nonconsent: physical force, a threat of physical force, or psychological coercion sufficient to overcome resistance by a person of reasonable resolution. Because the evidence showed none of those forms of compulsion, the rape conviction could not stand.

The statutory contrast reinforced this conclusion. Indecent assault expressly criminalized indecent contact without consent, whereas rape used the distinct term “forcible compulsion.” Strict construction of penal statutes required giving that difference effect rather than treating lack of consent alone as enough for rape.

Berkowitz sought to introduce evidence that the complainant’s boyfriend was jealous, believed she had been unfaithful, and argued with her about that alleged infidelity. He argued that fear of the boyfriend’s reaction supplied a motive for falsely accusing Berkowitz of rape.

The Superior Court drew a distinction between evidence that the complainant actually engaged in prior sexual conduct and evidence merely showing that she and her boyfriend argued over allegations of such conduct. The Supreme Court rejected that distinction because the alleged arguments were inseparably connected to the question of her sexual fidelity.

The Rape Shield Law excludes evidence of specific instances, reputation, and opinion evidence concerning an alleged victim’s past sexual conduct, subject to a limited exception for past sexual conduct with the defendant when consent is at issue. Allegations that the complainant had been unfaithful to her boyfriend fell within the core concern of the statute.

Allowing the proposed evidence would risk turning the sexual-assault trial into an inquiry into the complainant’s chastity and sexual reputation—the precise harm the Rape Shield Law was designed to prevent. The trial court still permitted evidence that the complainant and her boyfriend fought frequently; it properly excluded the sexual subject matter of those fights.

Unlike rape, indecent assault did not require proof of forcible compulsion. The relevant statutory question was whether Berkowitz had indecent contact with the complainant without her consent.

Indecent contact includes touching sexual or other intimate parts for the purpose of arousing or gratifying sexual desire. Berkowitz’s own testimony established indecent contact, including the sexual touching at issue.

The complainant testified that she repeatedly said “no” throughout the encounter. Viewed in the Commonwealth’s favor, that testimony allowed the jury reasonably to infer that she did not consent to the sexual touching. The evidence therefore supported the jury’s indecent-assault verdict.