Commonwealth v. Berkowitz

In the spring of 1988, appellant and the victim were both college sophomores at East Stroudsburg State University. On April 19, 1988, the victim planned to meet her boyfriend at the dormitory which appellant also lived in. She drank a martini to “loosen up a bit.” When her boyfriend didn’t come, the victim went to a dorm that appellant and Hassel shared. Hassel was not there, but appellant was.

Before the victim could leave appellant’s room, he asked her to stay and “hang out for a while.” She complied because she “had time to kill” and because she didn’t really know appellant and wanted to give him “a fair chance.” The victim sat on the floor, and according to the victim, appellant joined her and began kissing her. The victim said no, but appellant ignored her and started to fondle her. He then attempted to have her perform oral sex on him. The victim said no many times, but did not physically resist. The appellant got up to lock the door, and then put her down on the bed. The victim testified that “it wasn’t slow like a romantic kind of thing, but it wasn’t a fast shove either. It was kind of in the middle.” They had sexual intercourse. She did not scream at any time because “it felt like a dream was happening or something.” The victim did softly say no to him.

Immediately after, appellant said, “Wow, I guess we just got carried away.” The victim responded, “no, we didn’t get carried away, you got carried away.” She quickly got dressed and left. Once downstairs, the victim began crying. Her boyfriend and she went up to his dorm room where, after watching the victim clean off appellant’s semen from her stomach, he called the police.

At trial, appellant took the stand and offered an account of the incident and the events leading up to it which differed only as to the consent involved. He conceded that she was continually “whispering . . . no’s,” but claimed that she did so while “amorously . . . passionately” moaning. He was convicted of rape.