Commonwealth v. Simpson, 462 A.2d 821 (Pa. 1983). · Go Syfert
Commonwealth v. Simpson, 462 A.2d 821 (Pa. 1983). Cases Citing This Book View Copy Cite
62 citation events (18 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) Com. v. Thomas, J.
Pa. Super. Ct. · 2025 · confidence medium
See Commonwealth v. Faison, 297 A.3d 810, 831 (Pa. Super. 2023) (finding sufficient evidence for attempted rape where the defendant pinned the victim against a wall, forcibly removed her pants, and made explicit statements indicating his intent to have sexual intercourse with her); see also Commonwealth v. Hoover, 279 A.3d 1252 (Pa. Super. 2022) (unpublished memorandum at *7-8) (noting that a variety of acts, even without a specific sexual act or removal of clothing, could constitute a substantial step towards attempted rape, such as applying pressure to the victim’s throat and starting to r…
discussed Cited as authority (rule) Com. v. Hoover, L.
Pa. Super. Ct. · 2022 · confidence medium
In support, the court cited the following decisional authority: (1) Commonwealth v. Simpson, 462 A.2d 821, 824 (Pa. Super. 1983) (defendant’s applying pressure to victim’s throat and starting to take off his own pants constituted a substantial step toward commission of rape); (2) Commonwealth v. Martin, 452 A.2d 1066, 1070 (Pa. Super. 1982) (grabbing victim, threatening her, and expressing intent to have sex with her “clearly amount[ed] to a substantial step in effectuating an intended rape”); (3) Commonwealth v. Keeler, 448 A.2d 1064, 1072 (Pa. Super. 1982) (telling victim, “I’m g…
discussed Cited as authority (rule) Atlantic States Insurance v. King
pactcomplfayett · 2006 · confidence medium
Commonwealth v. Miller, 897 A.2d 1281 (Pa. Super. 2006) (finding that specific intent to kill may be proved by wholly circumstantial evidence and may be inferred by the defendant’s use of a weapon on a vital part of the victim’s body); Shared Communications Services v. Bell Atlantic Properties, 692 A.2d 570 (Pa. Super. 1997) (establishing that intent to do an unlawful act by unlawful means and malice may be proven circumstantially in a civil conspiracy claim); Commonwealth v. Simpson, 316 Pa. Super. 115, 123 , 462 A.2d 821, 825 (1983) (holding that the specific intent to commit a crime may…
discussed Cited as authority (rule) Williams v. Brooks
E.D. Pa. · 2006 · confidence medium
Commonwealth v. Ford, 539 Pa. 85 , 650 A.2d 433, 438 (1994)(the condition of the victim’s body and her state of undress provided sufficient evidence); Commonwealth v. Kennedy, 499 Pa. 389 , 453 A.2d 927, 929 (1982)(defendant's participation in an assault after entry combined with a preexisting animosity toward the victim was sufficient); Commonwealth v. Lambert, 795 A.2d 1010, 1022 (Pa.Super.2002)(sufficient evidence where defendant entered residence without license or privilege by shattering door and door frame and then caused the death of two people); Commonwealth v. Magnum, 439 Pa.Super. …
discussed Cited as authority (rule) Commonwealth v. Klein
Pa. Super. Ct. · 2002 · confidence medium
Moreover, “it is clear that a jury may believe all or only a part of a witness’ testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.” Commonwealth v. Simpson, 316 Pa.Super. 115 , 462 A.2d 821, 824 (1983) (citation omitted). ¶ 4 The evidence reveals the following: On July 16, 1998, Volunteer Firefighter Joseph Herring was diverting traffic away from a fire scene at the intersection of Club House Road and State Route 851 in York County when a vehicle being driven *427 by Appellant approached the i…
discussed Cited as authority (rule) Commonwealth v. Seibert
Pa. Super. Ct. · 2002 · confidence medium
Moreover, “it is clear that a jury may believe all or only a part of a witness’ testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.” Commonwealth v. Simpson, 316 Pa.Super. 115 , 462 A.2d 821, 824 (1983) (citation omitted). ¶ 3 The facts and procedural history are as follows: On February 13, 1999, at approximately 12:50 a.m., Appellant was operating a Jeep Grand Cherokee northbound on Route 183 when he went into the southbound lane and struck a tractor-trailer head on.
discussed Cited as authority (rule) Commonwealth v. Dobrinoff
Pa. Super. Ct. · 2001 · confidence medium
Moreover, “it is clear that a jury may believe all or only a part of a witness’ testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.” Commonwealth v. Simpson, 316 Pa.Super. 115 , 462 A.2d 821, 824 (1983) (citation omitted). ¶ 3 Based on the aforementioned standard, the evidence reveals the following: Appellant is the owner of several adult entertainment clubs including “Fantasies” located in Harrisburg.
discussed Cited as authority (rule) Commonwealth v. Boyd
Pa. Super. Ct. · 2000 · confidence medium
Moreover, “it is clear that a jury may believe all or only a part of a witness’s testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.” Commonwealth v. Simpson, 316 Pa.Super. 115 , 462 A.2d 821, 824 (1983) (citation omitted). ¶ 11 18 Pa.C.S.A. § 2703.1 provides the following: *424 A person who is confined in or committed to any local or county detention facility, jail or prison, or any State penal or correctional institution or other State penal or correctional facility located in this Commonwea…
discussed Cited as authority (rule) Commonwealth v. Tilghman (2×)
Pa. · 1987 · confidence medium
Legislative intent controls ..... (c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: (1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute. [3] …
discussed Cited as authority (rule) Commonwealth v. Jackson
Pa. · 1984 · confidence medium
“Evidence is relevant if it tends to prove or disprove the matters in controversy.” Commonwealth v. Simp *620 son, 316 Pa.Super. 115, 120 , 462 A.2d 821, 823 (1983) (emphasis added); accord Commonwealth v. Doe, 316 Pa.Super. 1, 6 , 462 A.2d 762, 765 (1983) (evidence which tends to establish facts material to a criminal prosecution or which tends to make a fact at issue more or less possible, is relevant.); Commonwealth v. Sinwell, 311 Pa.Super. 419, 423 , 457 A.2d 957, 959 (1983) (evidence is relevant when it tends to establish facts in issue.) We fail to see how appellant’s proffered ev…
discussed Cited as authority (rule) Commonwealth v. Bennett (2×)
Pa. · 1983 · confidence medium
See: Commonwealth v. Todt, 318 Pa.Super. 55, 64-65 , 464 A.2d 1226, 1230 (1983); Com monwealth v. Simpson, 316 Pa.Super. 115, 121-22 , 462 A.2d 821, 824 (1983); Commonwealth v. Krajci, 283 Pa.Super. 488, 495 , 424 A.2d 914, 917-918 (1981).
discussed Cited "see" Com. v. Mays, L.
Pa. Super. Ct. · 2021 · signal: see · confidence high
See Commonwealth v. Simpson, 462 A.2d 821, 825 (Pa. Super. 1983) (observing that “if a simple assault is used to overcome the volition of a rape victim and force her submission, the assault and the rape would be a single act.”).
discussed Cited "see" Commonwealth v. Harrison (2×)
Pa. Super. Ct. · 1995 · signal: see · confidence high
Knowledge is not an element of the crime of burglary, and “thus, one defending against a burglary charge would have no reason to establish that (albeit falsely), he believed his pres *109 ence in a building or occupied structure was privileged or licensed.” Commonwealth v. Carter, supra at 277, 393 A.2d at 661 ; Commonwealth v. Casella, 312 Pa.Super. 375, 376 , 458 A.2d 1007, 1008 (1983); see Commonwealth v. Simpson, 316 Pa.Super. 115, 126 , 462 A.2d 821, 826 (1983) (stating that the test for determining whether an offense is a lesser included offense is whether or not all of the key eleme…
examined Cited "see" Commonwealth v. Nieves (4×)
Pa. · 1990 · signal: see · confidence high
See Commonwealth v. Simpson, 316 Pa.Super. 115, 122 , 462 A.2d 821, 824 (1983); Commonwealth v. Schilling, 288 Pa.Super. 359, 368 , 431 A.2d 1088, 1092 (1981).
discussed Cited "see" Commonwealth v. Whetstine (2×)
Pa. · 1985 · signal: accord · confidence high
Accord, Commonwealth v. Simpson, 316 Pa.Super. 115 , 462 A.2d 821 (1983).
discussed Cited "see, e.g." Com. v. Malliard, J.
Pa. Super. Ct. · 2023 · signal: see also · confidence medium
See also Commonwealth v. Simpson, 462 A.2d 821, 824 (Pa. Super. 1983) (affirming attempted rape conviction where defendant went inside victim’s bedroom, put an object to her throat and began loosening his -7- J-A29032-22 jogging pants, but victim’s yells for help caused defendant to flee); Commonwealth v. Owens, 462 A.2d 255, 257 (Pa. Super. 1983) (concluding defendant took substantial step toward attempted rape when he forcibly led child into garage and removed her clothing but stopped whenever an adult entered the garage); Commonwealth v. Bullock, 393 A.2d 921, 923 (Pa. Super. 1978) (con…
discussed Cited "see, e.g." Com. v. Turner, C.
Pa. Super. Ct. · 2018 · signal: see also · confidence low
See also Commonwealth v. Simpson, 462 A.2d 821 (Pa.Super. 1983) (attempted rape conviction affirmed where defendant went inside victim’s bedroom and put sharp object to her throat along with loosening his pants; victim’s screams for other family members caused perpetrator to flee); Commonwealth v. Owens, 462 A.2d 255 (Pa.Super. 1983) (substantial -7- J-S74012-17 step towards attempted rape where appellant forcibly led child into garage and removed her clothing but stopped attempt when woman entered garage); Commonwealth v. King, 434 A.2d 1294 (Pa.Super. 1981) (attempted rape affirmed where…
examined Cited "see, e.g." Commonwealth v. Spotts (4×)
Pa. · 1985 · signal: see also · confidence low
Commonwealth v. Ford, 451 Pa. 81 , 301 A.2d 856 (1973); see also Commonwealth v. Simpson, 316 Pa. Super. 115 , 462 A.2d 821 (1983), where the court held that the fact that there was no positive identification of the jogging pants affected the weight not the admissibility of the relevant evidence.
Retrieving the full opinion text from the archive…
COMMONWEALTH of Pennsylvania
v.
Duran J. SIMPSON, Appellant
1907.
Supreme Court of Pennsylvania.
Jul 8, 1983.
462 A.2d 821
Charles R. Bernsee, Philadelphia, for appellant., Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Rowley and Montgomery.
Cited by 34 opinions  |  Published
[*120] ROWLEY, Judge:

Appellant was convicted of attempted rape, burglary, simple assault, possessing an instrument of crime and criminal trespass. Post-trial motions were filed and denied and appellant was sentenced to concurrent terms of three to ten years imprisonment on the burglary and attempted rape convictions and two years probation on simple assault. Sentence on the convictions of possessing an instrument of crime and criminal trespass was suspended. This direct appeal followed.

Appellant raises three issues on appeal: 1) Did the court err in admitting into evidence (a) a pair of pants allegedly worn by appellant and (b) three photographs of the victim’s neck? 2) Was the evidence sufficient to support the convictions of attempted rape, burglary, simple assault, possession of an instrument of crime and criminal trespass?; and 3) Did the trial court improperly sentence appellant to double or multiple punishments for offenses arising out of the same act?

The facts of the case, as developed at trial, are as follows. At approximately 6:00 A.M. on October 22, 1979, the seventeen year old victim was asleep in her third-floor bedroom. She suddenly awoke to find appellant, whom she recognized from the neighborhood, standing beside her bed. The victim felt a pressure and a sharp point at her throat. Appellant was loosening the strings at the front of his pants and had lowered them to about two inches below his waist when the victim began to scream and pushed his hand away from her throat. Appellant told her to “shut up”. When the victim continued to scream for her mother, appellant pulled up his clothes and ran out of her bedroom and down the stairs. The victim’s younger sister, who was sleeping in the living room, awoke when she heard the victim scream and also recognized appellant as he was fleeing. The police were called. The officer who responded testified that the victim had a small puncture wound on her throat which was bleeding slightly. Both the victim and her sister accompanied the police to appellant’s home, where they identified[*121] appellant as the assailant. Appellant was arrested and a pair of blue jogging pants with a drawstring at the waist was seized.

I

Appellant first challenges the admissibility of the jogging pants and certain photographs. However, the issue of the admissibility of the photographs was not raised in appellant’s post-trial motions. Therefore, that issue has been waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Appellant also argues that the court abused its discretion in admitting his jogging pants into evidence because they were irrelevant. Appellant bases this argument on the fact that the victim could not positively identify them as the exact pants worn by her assailant, but rather testified that they were “similar” to what he was wearing. Evidence is relevant if it tends to prove or disprove the matters in controversy. Commonwealth v. Jones, 355 Pa. 594, 50 A.2d 342 (1947). The jogging pants were clearly relevant in this case. The fact that they could not be positively identified affects the weight of such evidence, not its admissibility. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). The trial court did not abuse its discretion in admitting the pants into evidence.

II

Appellant next challenges the sufficiency of the evidence to support his convictions. In reviewing the sufficiency of the evidence to support a conviction, we must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).

The law has long been that “the test of the sufficiency of the evidence ... is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or[*122] crimes of which he has been convicted [citing cases].” Commonwealth v. Chasten, 443 Pa. 29, 31, 275 A.2d 305 (1971). Moreover, we of course must view the evidence in the light most favorable to the Commonwealth, the verdict winner, and the Commonwealth is entitled to every reasonable inference arising from that evidence. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971), Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970). Additionally, it is clear that a jury may believe all or only a part of or none of a witness’s testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury.

Commonwealth v. Neal, 447 Pa. 452, 455-456, 290 A.2d 922, 924 (1972). Using that standard, we find that the evidence was sufficient to support the convictions of attempted rape and burglary.

Appellant argues that the evidence was insufficient to establish an attempted rape for two reasons. They are: 1) the Commonwealth failed to prove that the victim was not appellant’s spouse; and 2) there is no evidence that appellant took a “substantial step” towards the commission of a rape.

Appellant’s first argument is totally without merit. The victim testified that she was not related to appellant and that she recognized him because she had seen him around the neighborhood. This was sufficient to establish that the victim was not appellant’s spouse. See Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981).

We have further concluded that the appellant’s actions in applying pressure to the victim’s throat and in loosening and beginning to remove his pants constituted a substantial step towards the commission of a rape and was sufficient to sustain the conviction for attempted rape.

Appellant also contends that the evidence was insufficient to support the burglary conviction for two reasons. They[*123] are: 1) the Commonwealth failed to prove that appellant was not licensed or privileged to enter the building; and 2) there was no evidence to support a finding that appellant intended to commit a crime when he entered the building. We find both arguments to be without merit.

Appellant entered a family residence in the early morning hours while the occupants were asleep. The victim testified that she had been the last person to enter the house that night, that she had locked the door, and that she had not given appellant permission to enter. This testimony was sufficient to prove that appellant was not licensed or privileged to enter the victim’s home. There was no need to call every person capable of authorizing an entry to testify that appellant was not given permission to do so. Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980).

The specific intent to commit a crime, necessary for a burglary conviction, may be inferred from the defendant’s words or conduct or from the circumstances of the case together with all reasonable inferences therefrom. Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980). We have concluded that based upon the evidence presented at trial, which is set out above, that the finder of fact could reasonably have inferred that appellant intended to commit the crime of rape when he entered the residence.

We have concluded that the judgments of sentence for possessing an instrument of crime and criminal trespass must be vacated on other grounds. Therefore, we need not address the sufficiency of the evidence with respect to those offenses. The question of the sufficiency of the evidence to support the conviction for simple assault was not raised in post-trial motions and, therefore, has been waived. Commonwealth v. Gravely, supra.

Ill

Finally, appellant challenges his multiple convictions and sentences. Specifically, appellant alleges that: 1) he was[*124] improperly convicted of both attempted rape and possessing an instrument of crime; 2) he was improperly convicted of both burglary and attempted rape; 3) the simple assault conviction merged with the conviction for attempted rape; and 4) the conviction for criminal trespass merged with the conviction for burglary.

A.

Appellant’s first argument has merit. Criminal Attempt, 18 Pa.C.S.A. § 901, and Possessing Instruments of Crime, 18 Pa.C.S.A. § 907, are both inchoate crimes. 18 Pa.C.S.A. § 906 provides that:

“A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.”

Therefore, appellant was improperly convicted of both offenses. In such a case, we have the option of either remanding for resentencing or amending the sentence directly. Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981). Since sentence for possessing instruments of crime, the lesser offense, was suspended, we see no need to remand for resentencing. However, even though appellant did not receive an additional punishment, it has been held that the future prejudice to appellant is sufficient basis upon which to vacate an improperly imposed suspended sentence. Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975). Therefore, the suspended sentence for possessing an instrument of crime will be vacated.

B.

Appellant next argues that he was improperly convicted of both burglary and attempted rape. This argument is without merit. Under 18 Pa.C.S.A. § 3502(d), a defendant may be convicted of both burglary and the offense which he intended to commit after entry if the additional offense constitutes a felony of the first.or second degree. Under 18 Pa.C.S.A. § 905, an attempt to commit a[*125] felony of the first degree is a felony of the second degree. Rape is a felony of the first degree. 18 Pa.C.S.A. § 3121. Therefore, attempted rape is a felony of the second degree and appellant could properly be convicted and sentenced for both that offense and burglary.

C.

Appellant next argues that the offense of simple assault merged with the offense of attempted rape. Under the facts of this case, we agree.

In Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978), the Court held that if a simple assault is used to overcome the volition of a rape victim and force her submission, the assault and the rape would be a single act.

Under the Penal Code 1 , a separate offense was provided for the crime of assault with intent to ravish. The distinction between that crime and rape was that, in the case of rape, the assault resulted in submission. On the other hand, in the case of assault with intent to ravish, the assault failed to force submission. Commonwealth v. Irvin, supra. Since both offenses were part of a single act, the crime of assault merged with the crime of assault with intent to ravish. Com. ex rel. Tokarchik v. Claudy, 174 Pa.Super. 509, 102 A.2d 207 (1954).

We have concluded that in this case, the crime of simple assault merges with the crime of attempted rape. The simple assault in this case, namely the application of pressure to the victim’s throat with a sharp pointed object, was an important element in proving an attempted rape. Once the attempted rape was established, no additional facts were required to prove a simple assault. See Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). The fact that the assault did not succeed in overcoming the victim’s resistance, thereby preventing appellant from com[*126] pleting the act of rape, does not convert appellant’s actions into two separate crimes.

Where a case requires a correction of sentence, this court has the option of remanding for resentencing or amending the sentence directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Since appellant merely received a term of probation for simple assault, we see no need to remand for resentencing on attempted rape. See Commonwealth v. Guenzer, 255 Pa.Super. 587, 389 A.2d 133 (1978). However, the probationary sentence for simple assault will be vacated.

D.

Appellant’s final argument is that the crime of criminal trespass merged with burglary. The doctrines of merger and of lesser included offenses raise essentially the same question. Commonwealth v. Ackerman, 239 Pa.Super. 187, 191 n. 4, 361 A.2d 746, 748 n. 4 (1976). The test for determining whether an offense is a lesser included offense is whether all of the essential elements of the lesser offense are included in the greater offense. Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979). Using this test, criminal trespass is not a lesser included offense of burglary, since one of the elements of the former is knowledge by the defendant that he was not privileged to enter, which is not an element of burglary. Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). However, when discussing merger for sentencing purposes,

“we focus not only in the similarity of the elements of the crime but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence which may be imposed, or more than a single act, in which case there will be no merger and a sentence may be for each act.”

Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818, 820 (1980) (citations omitted).

[*127] Here, as in Crocker, the evidence indicated that appellant committed one criminal act; specifically, one unlawful entry. Therefore, the court erred in sentencing him for both burglary and criminal trespass.

Since the sentence for criminal trespass was suspended, and obviously did not affect the sentence for burglary, there is no need to remand this case for resentencing. We will merely vacate the suspended sentence for criminal trespass, as the lesser crime. See Commonwealth v. Crocker, supra.

Judgment of Sentence for attempted rape and burglary affirmed. Judgment of Sentence for simple assault, possessing an instrument of crime and criminal trespass vacated.

1

. Act of June 24, 1939, P.L. 872, No. 375 §§ 101 et seq., 18 P.S. §§ 4101 et seq., repealed, Act of Dec. 6, 1972, P.L. 1482, No. 334 § 5.