Appeals, Nos. 24, 25, and Oct. T., 1962, from judgment of Court of Quarter Sessions of Philadelphia County, Nov. T., 1960, Nos. 560, 561, and 562, and case of Commonwealth of Pennsylvania v. Barry Pouls. Judgment of sentences set aside and case remanded.
Donald J. Goldberg, with him Garfield W. Levy, for appellant.
Arlen Specter, Assistant Attorney, with him Louis F. McCabe, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 597]
Barry Pouls appeals to this Court from the sentences imposed in the Court of Quarter Sessions of Philadelphia on the charges of rape, solicitation to commit sodomy and indecent assault.*fn1
On a Sunday night in August 1960, Geraldine Galazyk and her friend, Kathleen McGuire, went to a public dance. There they danced and had a soda with "Bob" and "Vic", whose names they later learned to be Barry Pouls and Sheldon Friedman. They had never seen the boys before and were not introduced. The boys asked the girls to go with them in Sheldon's car to get something to eat. The girls accepted the invitation,
[ 198 Pa. Super. Page 598]
and the four of them left the dance after eleven o'clock and went to a restaurant where they ate.
When they left the restaurant, Barry and Geraldine entered the back seat of Sheldon's four door sedan. Kathleen sat in the front seat with Sheldon who drove. Instead of taking the girls directly home, Sheldon drove into a building development and parked in a dark area. Barry made advances to Geraldine. At Sheldon's suggestion, Kathleen and he left the car and stood directly in front of it. A few minutes later Barry and Geraldine left the car and went into a partially constructed house. The floor was not completed in front of the door, and Barry fell into the cellar. Geraldine waited for him to crawl out of the cellar, and then the two went into the house and had intercourse on the floor. They returned to the car, and the boys took the girls to Geraldine's home. When they arrived at Geraldine's home, Barry shook hands with her and said, "We are still friends." The girls made no effort to get the license number of the car, although at that time they knew Sheldon Griedman only as "Vic" and Barry Pouls only as "Bob".
When Geraldine arrived home, her mother was waiting for her. It was then 2 o'clock, and Geraldine had never before been out after 11:30 o'clock. Her mother immediately questioned her, and after she said she thought she was bleeding, undressed her and examined her. Geraldine's father and mother then took her to a hospital. The physician who examined her was not called, so we do not know what he found. From the hospital, Geraldine's parents took her to the police station where a charge of rape was filed, and a description of the boys was given to the detectives. The boys were apprehended by the policy two weeks later at the same dance hall where they picked up Geraldine and Kathleen. Barry promptly admitted that he was with Geraldine during the night in question and that he had intercourse with her, but he denied using any force or threats. He also denied the sodomy charges.
[ 198 Pa. Super. Page 599]
These facts are all undisputed. But there is more to Geraldine's story, and we must view the disputed facts in the light of the jury's verdict. We thus accept as true the following testimony of Geraldine concerning what happened after they parked at the housing development: "I went to get out of the car with Cass, and I reached for my pocketbook, and I had my hand on the door. Cass assumed I was getting out with her, but when I went to open the door Harry Pouls leaned over and said that I was not going anywhere, and he locked the door.
"He said he wanted to kiss me and also said what he wanted to do - all he said is that he wanted to play. I asked Sheldon Friedman if he would help me, and he said, 'No.' I tried to talk to Bob and try to tell him what kind of girl I was, but he would not listen. Then he started to pull me down on the seat, and when I reached for the handle of the door to try to pull myself back up again, I managed to pull myself up but he pulled me back down again on the seat. I was fighting and trying to get him off of me. I screamed for Cass to help me. The Bob had pulled up by dress.
"I screamed again for Cass, but I did not hear any noise outside or anything, and I screamed again, and I was still trying to fight Bob when he said to me, 'If you don't stop and take your hands away, I am going to kill you.' When he said that, it was like everything in me stopped moving. I said a prayer because I thought I was going to die. Bob said all he wanted to do was suck it ... After that he put his private part of his body into my body. After that he stopped and got up, and he said to me that he wanted to do it five minutes more and then he would take me home, and he said if not it would be a long drawn-out night.
"He opened the car door and took me by the hand, and we went to one of those unfinished houses, and when we walked in he ...