A Centre County judge yesterday denied several post-sentence motions filed on behalf of a man convicted of raping a Penn State student.
Brian M. Conway, then an American University student, was convicted in late July of rape, sexual assault and aggravated indecent assault of an unconscious person in connection with a 2005 sexual encounter with a Penn State student. Conway, of Bethesda, Md., was sentenced in November to three to six years in prison, although he was granted freedom on bail pending his appeal.
The victim, a freshman at the time, told police she became heavily intoxicated, passed out and later woke up to find a man on top of her engaging in sexual intercourse.
Conway was represented at trial by Joseph Amendola, but retained Philadelphia-based attorney Norris Gelman immediately after his sentencing. Gelman filed a pair of post-sentence motions in November alleging Amendola was an ineffective counsel and challenging the sufficiency of the evidence used to convict Conway.
Among other things, Gelman alleged Amendola was ineffective counsel for failing to object to prosecutor Lance Marshall's closing argument, in which he characterized Conway as a "sexual predator," "sexual offender" and "the devil."
Centre County Judge Thomas Kistler ruled that such statements were "oratorical flair" and that he found no misconduct in the prosecutor's statements during the trial.
Gelman also wrote that Amendola was ineffective for failing to object to the court's instructions to the jury, which failed to define the statutory meaning of "unconscious," and failing to raise a due process argument to the court's jury charge of consent. Kistler rejected both arguments.
Gelman also argued that the conviction should be overturned based on insufficient evidence of the victim's inability to consent. The victim testified at trial that she could not remember whether or not she had consented to sexual intercourse, but Gelman wrote that some of her answers indicated she could remember certain moments of the assault, which contradicts the element of unconsciousness that must be shown beyond a reasonable doubt.
Kistler ruled that the jury was properly instructed on the element of consciousness and inability to consent.
"Viewing all the evidence in the light most favorable to the commonwealth, this court holds that the evidence was sufficient to have the trier of fact conclude that [the victim] was unable to give meaningful consent based on [her] own testimony and the other witnesses that testified to [her] intoxicated state during the night in question," Kistler wrote.
