Commonwealth v. Banniger

303 A.3d 1085

COMMONWEALTH of Pennsylvania v. Anthony J. BANNIGER, Appellant

No. 1612 EDA 2022

Superior Court of Pennsylvania.

Submitted June 26, 2023

Filed October 11, 2023

Joseph L. Coleman, Philadelphia, appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

OPINION BY KUNSELMAN, J.:

Anthony Banniger appeals from the judgment of sentence entered after he was convicted of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, ¹ and other offenses committed against J.Z., a minor in his extended family. We affirm.

In this case we must determine whether a conviction for a sexual offense "by forcible compulsion" can stand if the victim was unconscious when the assault began. For reasons discussed herein, we hold that evidence that a defendant had intercourse with an unconscious person, without more, is insufficient to prove forcible compulsion. Such conduct is fully proscribed in other statutory subsections. However, the person's unconsciousness is a relevant circumstance as to whether the defendant used force while having intercourse. Further, evidence that a victim is unable to move out of fear of a defendant can be sufficient to prove forcible compulsion.

Banniger had a non-jury trial on October 26, 2021. At trial, J.Z. testified that Banniger started touching her body with his hands when she was 10 years old, first over her clothes and then under them. The escalating physical contact rendered J.Z. unable to move: "[Banniger] would like rub all over me, like, just rub me. And I would be real disgusted, but there was nothing I could do. It was like a fear, like, a frozenness. You can't really move your body." N.T., 10/26/21, at 20.

J.Z. moved out of state at age 14. At age 15, she returned and lived in the same house as Banniger. Banniger would provide marijuana to J.Z., and they would smoke together while they were alone in the house. At times, Banniger told J.Z. that he liked her and wanted to be with her; J.Z. told Banniger to stop. After J.Z. smoked with Banniger, she went to her room to lie down. On two such occasions, Banniger proceeded to sexually assault J.Z.

In the first incident, ² J.Z. woke up in her aunt's room. Her shorts were pulled to the side, and Banniger had his head between her legs and his tongue on and inside her vagina. J.Z. did not testify that she was frozen with fear in the first incident or that Banniger used any force in the first incident. She did not testify how long Banniger continued or how the first incident ended.

In the second incident, J.Z. woke up in her grandmother's room. Like the first time, J.Z.’s clothes were to the side and Banniger's tongue was in her vagina. Banniger then pulled J.Z.’s pants off and penetrated her vagina with his penis. As Banniger progressed, J.Z. was "frozen with fear" and "just let it happen to [her] because [she] didn't know what else to do." Id. at 27–28. J.Z. then "had to fight a little bit" to push Banniger off of her because "[h]e was being forceful." Id. at 29. J.Z. ran to another room. She later told her older sister about the abuse.

The trial court found Banniger guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, unlawful contact with a minor, statutory sexual assault, corruption of a minor, indecent assault of a person less than 13, involuntary deviate sexual intercourse of an unconscious person, and sexual assault. ³ On May 27, 2022, the court sentenced Banniger to an aggregate term of 14 to 34 years of imprisonment, followed by three years of probation.

Banniger filed a post-sentence motion on June 5, 2022, which the trial court denied on June 7, 2022. Banniger timely appealed on June 15, 2022. Banniger filed a concise statement of matters complained of on appeal in compliance with Pennsylvania Rule of Appellate Procedure 1925(b). The trial court entered an opinion on October 13, 2022.

Banniger presents four questions for review:

1. Was the evidence insufficient to prove Banniger guilty of involuntary deviate sexual intercourse by forcible compulsion?

2. Was the evidence insufficient to prove Banniger guilty of rape by forcible compulsion?

3. Did the trial court err by denying Banniger's request for a new trial as the weight of the evidence should have resulted in an acquittal of all charges?

4. Did the trial court err by imposing a manifestly excessive and unreasonable sentence?

Banniger's Brief at 5 (reordered).

Banniger's first two issues concern the sufficiency of the evidence. "Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Woodard , 634 Pa. 162, 129 A.3d 480, 489 (2015) (citing Commonwealth v. Sanchez , 614 Pa. 1, 36 A.3d 24, 37 (2011) ). Our inquiry is "whether viewing all of the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Spence , 290 A.3d 301, 309 (Pa. Super. 2023) (quoting Commonwealth v. Gause , 164 A.3d 532, 540 (Pa. Super. 2017) ( en banc )). Further, a complainant's testimony does not need to be corroborated to constitute sufficient evidence of a sexual offense. Commonwealth v. Poindexter , 435 Pa.Super. 509, 646 A.2d 1211, 1214 (1994) (citing Commonwealth v. Gabrielson , 370 Pa.Super. 271, 536 A.2d 401 (1988) ); see 18 Pa.C.S.A. § 3106.

The crimes of rape and involuntary deviate sexual intercourse are defined in relevant part as follows:

(a) Offense defined. --A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:

(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 where the person knows that the complainant is unaware that the sexual intercourse is occurring.

(4) Where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance.

(5) Who suffers from a mental disability which renders the complainant incapable of consent.

18 Pa.C.S.A. § 3121(a) (rape).

(a) Offense defined. --A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant:

(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 where the person knows that the complainant is unaware that the sexual intercourse is occurring;

(4) where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance; [or]

(5) who suffers from a mental disability which renders him or her incapable of consent[.]

18 Pa.C.S.A. § 3123(a)(1)–(5) (involuntary deviate sexual intercourse).

Both statutes require proof that a defendant engaged in a form of intercourse, as well as an additional element. "Sexual intercourse," used in Section 3121, is defined: "In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required." 18 Pa.C.S.A. § 3101. "Deviate sexual intercourse," used in Section 3123, is: "Sexual intercourse per os or per anus ⁴ between human beings," as well as intercourse with an animal and certain penetration with a foreign object. Id.

Oral sex, intercourse per os, is included in the definitions of both sexual intercourse and deviate sexual intercourse. Commonwealth v. Brown , 159 A.3d 531, 534 (Pa. Super. 2017). This includes licking a vagina. Commonwealth v. Westcott , 523 A.2d 1140, 1145–47 (Pa. Super. 1987) (holding "penetration of the vagina by the tongue" meets these definitions); Interest of J.R. , 436 Pa.Super. 416, 648 A.2d 28, 33 (1994) (holding "some form of oral contact with the genitalia of the female victim" sufficient for deviate sexual intercourse, even without "actual" penetration).

Vaginal sex—inserting a penis into a vagina, the "ordinary meaning" of sexual intercourse—is not included in the definition of deviate sexual intercourse. See Commonwealth v. Kelley , 569 Pa. 179, 801 A.2d 551, 555 (2002) (citing Commonwealth v. Brown , 551 Pa. 465, 711 A.2d 444, 450 (1998), for the ordinary meaning of sexual intercourse).

Under Subsections 3121(a)(1) and 3123(a)(1), the Commonwealth must prove that the defendant engaged in intercourse "by forcible compulsion." By statute, forcible compulsion includes "[c]ompulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied." 18 Pa.C.S.A. § 3101. Thus, in addition to "sheer physical force or violence," forcible compulsion encompasses "an act of using superior force, physical, moral, psychological or intellectual[,] to compel a person to do a thing against that person's volition and/or will." Commonwealth v. Gonzalez , 109 A.3d 711, 720–21 (Pa. Super. 2015) (citing Commonwealth v. Ables , 404 Pa.Super. 169, 590 A.2d 334, 337 (1991) ). For these sexual offenses, the object of the force is "to compel a person to engage in sexual intercourse [or deviate sexual intercourse] against that person's will." Commonwealth v. Rhodes , 510 Pa. 537, 510 A.2d 1217, 1226 (1986).

Whether a defendant used forcible compulsion depends on the totality of the circumstances, including this non-exhaustive list of factors:

the respective ages of the victim and the accused, the respective mental and physical conditions of the

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