## Facts

- Robert A. Berkowitz and the complainant were college sophomores at the same university and had mutual acquaintances.
- The complainant went to Berkowitz’s dorm room looking for Berkowitz’s roommate; finding the door unlocked, she entered voluntarily and stayed to talk after Berkowitz asked her to remain.
- The complainant testified Berkowitz pressed his body against her, kissed her, and attempted to touch her under her clothing; she repeatedly said “no” and said she needed to leave.
- She testified Berkowitz attempted to have her perform oral sex; she repeatedly refused but did not physically resist.
- The complainant testified Berkowitz locked the door, placed her on the bed without throwing her, positioned himself on top of her, removed her pants and underwear, and had intercourse while she repeatedly said “no.”
- Berkowitz testified the encounter was consensual, stating he interpreted her vocalizations as encouragement and locked the door for privacy.

## Issues

1. Whether the evidence was sufficient to prove rape “by forcible compulsion” where the complainant verbally refused but the record showed no express threats and minimal physical violence.
2. Whether the trial court erred by excluding defense evidence offered to show the complainant’s bias or motive to fabricate the indecent-assault allegation.

## Decision

- The Superior Court held the evidence was legally insufficient to establish “forcible compulsion” and vacated the rape conviction, discharging Berkowitz on that count.
- The court held the trial court improperly excluded evidence bearing on the complainant’s possible motive to fabricate and reversed the indecent-assault conviction.
- The case was remanded for a new trial on indecent assault.

## Legal Principles

- “Forcible compulsion” under the then-applicable Pennsylvania rape statute required proof of force or threats of force beyond mere nonconsent and verbal refusal.
- Whether forcible compulsion is shown depends on the totality of the circumstances, including evidence of threats, violence, restraint, or coercion sufficient to overcome a person’s will as contemplated by the statute.
- Evidence offered to show a witness’s bias or motive to fabricate is generally admissible for impeachment; excluding such evidence can be reversible error where credibility is central.

## Conclusion

The court narrowed rape liability under the “forcible compulsion” theory to cases involving coercive force or threats beyond verbal nonconsent, and it required a new trial on indecent assault because the defense was improperly prevented from presenting impeachment evidence suggesting a motive to fabricate.


Commonwealth v. Berkowitz, 415 Pa. Super. 505, 609 A.2d 1338 (Pa. Super. Ct. 1992)