Felony of first degree when sex with a complainant:

1. Force or lack of consent
2. or threat of force that would prevent resistance by reasonable resolution
3. unconscious or unaware that sex is occurring
4. substantially impaired from resisting
5. Suffers from mental disability incapable of consent

Force and lack of consent / overcoming consent re relevant

Consent is a positive agreement by words, actions, to engage in a specific sexual act

PA does not require a prompt complaint, does not require corroboration, resistance is not required

Victim under 16 and defendant at least 4 years older

If under 14, mistake of fact is not a defense - strict liability

Neither force nor lack of consent required

If over 14, defendant may prove beyond a preponderance that he believed she was 16 - state must then disprove by reasonable doubt

per os, anus, or with objects with person under 16 per the statutory rape requirements.  

Applies to minors where genital sex does not occur - oral or anal sex

Sexual Assault 

and 

Institutional sex assault

Engage in intercourse (genitals) or deviant sex act (oral or anal) without consent - does not need force (Berkowitz)

Institutional sex assault between agent/employee and inmate or patient - also includes schools.  Lack of consent or force not required.    

Broadly applies to people in position of authority

Any penetration of anus or genitals by a part of the defendants body (fingers, etc)

1. Without consent (lack of consent alone is sufficient)
2. Force
3. threat of force
4. unconscious
5. impaired
6. mentally disabled
7. under 13
8. Less than 16 and defendant more than 4 years older

Similar to aggravated indecent except does not require penetration - contact intended to arouse sexual desire (petting, breasts, kissing, etc)

Needs:

1. intent to harass, annoy or alarm a
2. current or former sexual or intimate partner,
3. disseminate a visual image of that person in a state of nudity or engaged in sexual conduct.

Consent to dissemination is a defense

Must show intent to harass, annoy or harm

Under the MPC, stressors may be cumulative over time and include a broader range than those accepted for "serious provocation" under the common law approach.

There is no requirement of a specific trigger occurring contemporaneously with the killing. The statute understands that a person can brood over stressors and they ultimately explode.

Because there is no trigger there is no consideration of a cooling off period.

The stressors are seen from the viewpoint of the defendant but must meet the ordinary reasonable person standard as reasonably giving rise to the extreme emotional disturbance. In other words, one can not argue that, subjectively, they are stressed by factors that would not be seen as stressful to the ordinary reasonable person.

Homicide is killing another human

Two types: Justifiable - not a crime due to authority of law (defense of self, others, war, execution)

Excusable - accidental or without elements to rise to the level of crime - auto accident, accident on your property

intentionally (conscious decision),

knowingly (can be practically certain),

recklessly  (consious disregard fo substantial and unjustified risk - gross deviation of standard or conduct)

or

negligently (def should know that there is a substantial and unjustified risk)

Cause the death of another human being.

intentionally (conscious decision),

knowingly (can be practically certain),

recklessly  (consious disregard fo substantial and unjustified risk - gross deviation of standard or conduct)

or

negligently (def should know that there is a substantial and unjustified risk)

Cause the death of another human being.

Need Corpus (the dead body)

and direct/proximal causal relation between defendants act and the death (can be chain of events leading to death)

Corpus delicti is combination of body and criminal causation (must be solid medical opinion of causation)

even without body, corpus delicti can be met with circumstantial or corroborated evidence 

1st deg-intentional premeditated with MALICE (Death Pen)

Malice=intent to kill, willful, deliberate& premeditated

2nd Deg-Felony murder-"violent" felonies variable

Existence of felony reoplaces malice/intent 

,

3rd Deg-all other killings with malice

wickedness, reckless, unjustified disregard, indifference

Killing by:

1. sudden and intense passion resulting from serious provocation with reasonable excuse OR
2. defendant has unreasonable belief that he was justified in killing in self defense

reasonableness based on viewpoint of actors situation under the circumstances he believes them to be

Mistake of fact is a defense.  

Killing by a defendant who acted in a reckless or grossly negligent manner

Almost never met - EXTREME negligence

Other specific acts resulting in death also manslaughter:

Causing or aiding suicide

Drug delivery resulting in death

Homicide of unborn child

Homicide by vehicle (with and w/o DUI)

Treated as adults in regards to guilt/culpability

However neuroscience and developmental science show that juveniles are different than adults

Cannot get DP cannot get life w/o parole

Presumption of Innocence

Lesser degree

Alibi

Justification

Insanity

Voluntary intox / diminished capacity

J A I L Inn Dim Capacity

1972 - DP as currently applied, is unconstitutional because it is arbitrary and capricious

unfettered discretion of jury, not proportional, unfair

Moved to mandatory death penalty (also unconstitutional) or life without possibility of parole

Gregg solution in 1976

DP guided by jury discretion

Bifurcated trials (sentencing separate from merits/guilt)

Automatic appellate review

Proportionality review (did current circumstances equal typical circumstances)

Death and life qualified jurors

Weigh aggravating and mitigating factors

DP only for INTENTIONAL murder

Willing to impose the DP if the facts and law support it - Life qualified juror must consider mitigating factors

many jurors believe the DP mandatory for 1st degree murder if vicious or heinous if defendant poses danger

Jurors don't believe life means life-->more DP sentences

PA is only state that does not require capital jurors to be told life is life without possibility of parole.  

Non capital - fair and impartial

Jurors are rejected, remaining serve on jury

Capital - must also be death and life qualified

Must also consider aggravators and mitigators in the case

For capital, Jurors selected (must be life/death qualified)

Selected randomly (voter registration or driver license) & 

Complete standard form for basic qualifications

Orally questioned by judge or attorney re unusual elements of the case (child, elderly, emotionally charged)

For DP, jurors are questioned directly by attorneys - values, beliefs, DP qualified, etc. 

Limited number of peremptory challenges (no reason required)

Selected randomly (voter registration or driver license) & 

Complete standard form for basic qualifications

Orally questioned by judge or attorney re unusual elements of the case (child, elderly, emotionally charged)

For DP, jurors are questioned directly by attorneys - values, beliefs, DP qualified, etc. 

Limited number of peremptory challenges (no reason required)

Informational questions (initial questions) open ended followed by probing- a conversation, getting juror to talk

"what do you think premeditation means"

"what things would you consider as a mitigating factor"

"when is the DP appropriate"

Confirming questions conclusory yes or no -also known as  leading questions - simple, one fact - supports conclusion wanted by the questioner

More appropriate to impose DP

Limited number of factors defined by law

proven beyond a reasonable doubt (high standard)

Must be unanimously decided by jury

But jurors are biased, consider non statutory aggravators

Evidence that makes life sentance more appropriate

Unlimted scope - anything is relevant - like puppies

Only requires preponderance of evidence (lower standard)

Individually determined by each juror

But jurors get confused, are mitigation impaired

Information given to jurors about the deceased and impact of their death on survivors during sentencing phase

Procedural issues of when, juror guidance/instructions and how to apply

Philosophical issues include does the "value" of victim matter - single mother vs gang banger?

Becomes a "super" non statutory aggravating factor

Are they impacted by jury selection process?

Death qualification predisposes juries to more convictions

Does juror have enough info to impose DP sentence?

Does juror have enough training re agg and mitigating factors?

Police officer, firefighter, public official

Defendant was paid by another person

Ransom or reward for victim

Victim was Prosecution witness

Killing during a separate felony (#6)

Defendant created risk of death to others

Torture leading to death (#8)

Significant history of prev murder, felonies or threats

Involved with sale of illegal drugs

Victim under the age of 12 or pregnant

Prevents evidence of prior sex encounters or prior sexual hx

1) prevent harassment and humiliation

2) excludes evidence not relevent

3) Jury focuses on relevant issues

4) Encourages victims to come forth

Prev sex history can be included only if patterns are similar, reason to make up charges (show prev lies) reason for bias

Younger case-emails or statements to doc OK

Allows previous sexual behavior when

1) sex behaviour between complainant and def

2) Instances that tend to show that the act was not done by defendant

3) Distinctive pattern suggesting consent

4) Evidence that victim fantasized or invented the act charged.