J. S07035/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: 

L.D.W., A MINOR

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: L.D.W., A MINOR : No. 3361 EDA 2017

Appeal from the Dispositional Order, August 28, 2017,

in the Court of Common Pleas of Carbon County

Criminal Division at No. CP-13-JV-0000074-2015

BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2018

L.D.W. (the “Juvenile”) appeals from the August 28, 2017 juvenile 

dispositional order entered in the Court of Common Pleas of Carbon County 

adjudicating him delinquent and placing him in a residential treatment 

facility for juvenile sex offenders for delinquent acts constituting the crimes 

of rape by forcible compulsion, involuntary deviate sexual intercourse by 

forcible compulsion (“IDSI”), sexual assault, aggravated indecent assault

without consent, and indecent assault without consent.

1

 We affirm.

The trial court set forth the following factual history:

On the evening of August 23, 2015, [J.C. (“Victim”), 

then 15 years old,] was staying at the house of 

Marlon Kirk in Lansford, Carbon County, 

Pennsylvania. The Victim’s mother, [S.T.], was a 

former girlfriend of Marlon Kirk from whom she had 

separated in June 2015. In addition to the Victim 

and Marlon Kirk, also in the home that evening were 

 

1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3125(a)(1), and 

3126(a)(1), respectively.
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[S.T.] and her son, [C.C.], the Victim’s brother, as 

well as the Juvenile, [then 14 years old,] and his 

mother, brother and sister, [F.S.], [M.K.], and

[K.K.], respectively.

[F.S.], who was also a former girlfriend of Mr. Kirk 

with whom she had several children, was moving 

into the home that same day from New York with her 

children. The Victim testified that the morning of 

August 23, 2015, was the first time she could recall 

meeting the Juvenile. 

Mr. Kirk’s home is a three-story home with three 

bedrooms on the second floor. On August 23, 2015, 

arrangements had been made for [F.S.] to sleep on 

the first floor in the living room with her son, [M.K.], 

and her daughter. Mr. Kirk and [S.T.] slept that 

night in one bedroom on the second floor of the 

home; [C.C.] and the Juvenile were to sleep in a 

middle bedroom on the second floor; and the Victim 

occupied the third bedroom at the other end of the 

hall.

That evening, the Victim went to bed sometime 

between 10:30 and 11:00 P.M. Approximately 

forty-five minutes later, while the Victim was lying in 

bed on her side facing the door, the Juvenile opened 

the bedroom door, entered, and closed the door 

behind him. The Victim was tired and believes she 

was most likely using her iPhone when this occurred. 

Before going to bed, the Victim had taken 

Trazodone, to help her sleep, and Lamictal for 

depression and a mood disorder. Both of these 

medications are prescribed and, according to the 

Victim, have no side effects.

Upon entering the bedroom, the Juvenile first sat at 

the foot of the bed for a short period during which 

time the Victim and the Juvenile spoke briefly. When

the Victim began to fall asleep, the Juvenile crawled 

onto the bed behind the Victim and laid down facing 

her back. The Juvenile began kissing the Victim on

her neck, which offended the Victim, but which she 

did nothing to stop.
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The Juvenile next pulled the Victim’s sweat pants 

and underwear down and began to insert his penis 

into her rectum. The Victim said nothing at first, she 

was scared and froze, but as the Juvenile continued

and began thrusting and penetrating her anus, the 

Victim, who was in pain, began crying and 

repeatedly asked the Juvenile to stop. The Juvenile 

continued despite these requests, telling the Victim 

that it would be over soon, and that she should “just 

keep going with it.”

When the Juvenile was finished, he withdrew his 

penis, grabbed the Victim’s hand, and made the 

Victim touch his penis. After a minute or two, the 

Victim removed her hand from the Juvenile’s penis 

and the Juvenile again put his penis inside the 

Victim’s rectum and began thrusting, 

notwithstanding that the Victim was crying, saying 

“no,” and begging him to stop. When the Juvenile 

finished penetrating the Victim a second time, the 

Victim needed to ask him to leave several times 

before he did so. To keep the Juvenile from 

re-entering the room, the Victim barricaded her 

door, placing furniture and other items in front of the 

door to prevent the Juvenile from returning.

At first, the Victim did not tell anyone what had 

happened, testifying that she was too scared to 

leave her bed. However, the next day, which was 

the first day of school, the Victim asked to see her 

counselor, Kevin Loch, and immediately told him that 

she had been raped: that the Juvenile had forced his 

way onto her and engaged in sexual intercourse as 

she was crying and trying to push him off. Mr. Loch 

described the Victim as being upset and 

uncomfortable. Mr. Loch reported the incident to the

proper authorities.

That same day at approximately 7:00 p.m., the 

Victim was taken to the Scranton Child’s Advocacy 

Center (CAC) by her mother, where a sexual assault 

examination was performed by Cheryl Friedman, a 

board-certified family nurse practitioner, also 
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certified as a sexual assault nurse examiner (SANE). 

As part of a multi-disciplinary team at the Child 

Advocacy Center, Ms. Friedman’s expertise includes 

conducting physical examinations of the victims of 

sexual assault and familiarity with the psychological 

aspects of sexual assault. 

In addition to noting scratches on the Victim’s back, 

skin and abdomen during her genital examination of 

the Victim, Ms. Friedman observed excoriated skin at 

two areas of the Victim’s rectum consistent with the 

sexual assault described by the Victim.

Ms. Friedman testified that the excoriated skin was a

recent injury since this area of the body heals 

rapidly, within several days. Ms. Friedman also 

noted that the Victim was upset and crying during 

the examination, and opined that such behavior, as 

well as the Victim’s testimony that she was 

frightened and froze during the assault and did not 

scream out, that she blamed herself for what had 

happened, and that she had nightmares and was 

depressed for months afterwards was consistent with 

a young person who had just been sexually 

assaulted. It was Ms. Friedman’s opinion, taking into 

account the Victim’s medical history and description 

of what had occurred, together with her observations 

made during her examination of the Victim, that the 

Victim’s behavior was consistent with a sexual 

assault having occurred.

Trial court opinion, 10/18/17 at 2-6 (citations to notes of testimony 

omitted).

The record reflects that following a hearing held on July 20, 2017, the 

trial court adjudicated L.W. delinquent of the above-mentioned offenses. 

Additionally, 

[t]he Juvenile’s placement in a residential treatment 

facility at Abraxas Youth Center Sex Offender 

Program Secure in Morgantown, Pennsylvania, was 
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agreed upon by all parties and accepted by the court 

at a disposition hearing held on August 28, 2017.

An appeal from the disposition order was filed on 

September 12, 2017. This appeal was accompanied 

by the Juvenile’s concise statement of the matters 

complained of and to be raised on appeal [pursuant 

to Pa.R.A.P. 1925(b)].

Id. at 2. Thereafter, the trial court filed its Rule 1925(a) opinion.

The Juvenile raises the following issue for our review:

Whether the evidence was sufficient to establish 

forcible compulsion for the crimes of rape by forcible 

compulsion and involuntary deviate sexual 

intercourse by forcible compulsion when the 

evidence established that [the Juvenile] engaged in 

anal sex with the victim without her consent but 

without facts establishing he used any type of force 

to overcome her will?

Juvenile’s brief at 4.

Our standard of review for a challenge to the 

sufficiency of the evidence is well settled. We must 

view all the evidence in the light most favorable to 

the verdict winner, giving that party the benefit of all 

reasonable inferences to be drawn therefrom. 

Additionally, it is not the role of an appellate court to 

weigh the evidence or to substitute our judgment for 

that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005), 

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v. 

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143 

(Pa. 2004) (citations omitted).

The Crimes Code provides that a person commits rape when “the 

person engages in sexual intercourse with a complainant [] [b]y forcible 
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compulsion.” 18 Pa.C.S.A. § 3121(a)(1). The Crimes Code also provides 

that a person commits ISDI “when the person engages in deviate sexual

intercourse with a complainant [] by forcible compulsion[.]” 18 Pa.C.S.A. 

§ 3123(a)(1).

Common to each of these crimes is the element of 

“forcible compulsion.” The Crimes Code defines “forcible compulsion” as 

“[c]ompulsion by use of physical, intellectual, moral, emotional or 

psychological force, either express or implied. The term includes, but is not 

limited to, compulsion resulting in another person’s death, whether the 

death occurred before, during or after sexual intercourse.” 18 Pa.C.S.A. 

§ 3101.

It is well-established that in order to prove the 

“forcible compulsion” component, the 

Commonwealth must establish, beyond a reasonable 

doubt, that the defendant “used either physical 

force, a threat of physical force, or psychological 

coercion, since the mere showing of a lack of consent 

does not support a conviction for rape . . . by forcible

compulsion.” Commonwealth v. Brown, 556 Pa. 

131, 136, 727 A.2d 541, 544 (1999). In 

Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 

1217 (1986), our Supreme Court stated that forcible 

compulsion includes “not only physical force or 

violence, but also moral, psychological or intellectual 

force used to compel a person to engage in sexual 

intercourse against that person’s will.” Rhodes, 510 

Pa. at 555, 510 A.2d at 1226. Further, the degree of 

force required to constitute rape is relative and 

depends on the facts and particular circumstances of 

a given case. Commonwealth v. Ruppert, 397 

Pa.Super. 132, 579 A.2d 966, 968 (1990), appeal 

denied, 527 Pa. 593, 588 A.2d 914 (1991).
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Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010).

Moreover,

A determination of forcible compulsion rests on the 

totality of the circumstances, including but not 

limited to this list of factors:

the respective ages of the victim and the 

accused, the respective mental and 

physical conditions of the victim and the 

accused, the atmosphere and physical 

setting in which the incident was alleged 

to have taken place, the extent to which 

the accused may have been in a position 

of authority, domination or custodial 

control over the victim, and whether the 

victim was under duress.

It is not mandatory to show that the victim resisted 

the assault in order to prove forcible compulsion. Id. 

The victim’s uncorroborated testimony is sufficient to 

support a rape conviction. 

Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa.Super. 2015) 

(internal citations omitted).

In considering the totality of the circumstances, the trial court found 

that:

[t]he Victim was a minor of tender years. Prior to the 

date of this incident, the Victim had not met the 

Juvenile, and had not been involved with him 

romantically. Yet, without being invited, the Juvenile 

came unannounced into the Victim’s bedroom after 

she had gone to bed. Adding to the Victim’s 

vulnerability were the effects of the medication she 

had taken to help her sleep and which caused her to 

be tired, and her petite size. The Juvenile in contrast 

is tall and athletic looking, and appeared from his 

comments to be sexually active and to have had 

frequent short term relationships with females 
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because he is easily bored. These physical 

differences between the Juvenile and the Victim and 

the Juvenile’s attitude toward females are relevant 

factors to be considered, as are the actions of the 

Juvenile in removing the Victim’s clothing without 

any prodding or assistance from her, his penetrating 

the Victim twice without her consent and in the face 

of her repeated requests that he stop, his placement 

of the Victim’s hand on his genitals, and his 

insistence on finishing what he had started – his 

penetration of the Victim – all the while the Victim 

was in tears and saying “no.”

All of this evidences the Juvenile’s “domination” and 

power over the Victim. These facts, combined with 

the Victim’s testimony that she froze, was scared, 

and didn’t know what to do, convinced us that the 

Victim was compelled to engage in sexual 

intercourse with the Juvenile against her will through

forcible compulsion. While the force used was subtle 

and to a large extent psychological and emotional, it 

nevertheless was real and induced the Victim to 

submit against her will under the totality of the 

circumstances.[Footnote 2]

[Footnote 2] That “physical force” was 

used is evidence by the Victim’s 

statements to Kevin Loc[h], her

counselor at school, that the Juvenile 

had forced his way upon her and 

engaged her in sexual intercourse while 

she was crying and trying to push off. 

As a prompt complaint, these statements 

are not admissible for their truth or as 

substantive evidence, Commonwealth 

v. Freeman, 441 A.2d 1327, 1332

(Pa.Super. 1982), but as an excited 

utterance, they are. Commonwealth v. 

Pettiford, 402 A.2d 532 (Pa.Super. 

1979). Moreover, no objection was 

made to this evidence.
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Trial court opinion, 10/18/17 at 10-11 (citation to notes of testimony 

omitted).

Here, we have carefully reviewed the record, and it demonstrates that 

the evidence admitted at the adjudication proceeding, as well as all 

reasonable inferences drawn therefrom, viewed in the light most favorable 

to the Commonwealth as the prevailing party at the adjudication proceeding, 

was sufficient to support the forcible compulsion element of the offenses

rape and IDSI.

Juvenile dispositional order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/25/18