Appeals from judgments of Court of Oyer and Terminer of Allegheny County, June T., 1963, No. 49 O. & T., in case of Commonwealth of Pennsylvania v. Stephen Dulacy et al.
James A. Danahey, with him J. I. Simon, for appellants.
Louis Abromson, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Wright, J.
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At No. 49 June Term 1963, in the Court of Oyer and Terminer of Allegheny County, the grand jury returned as a true bill an indictment against Stephen Dulacy, William Kohan and Thomas Kohan endorsed as follows: "Rape (Under Age of Sixteen Years)". The
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language of the bill is set forth in the footnote.*fn1 The defendants entered pleas of not guilty. The case was tried before Honorable James A. Reilly, specially presiding, and a jury. After a verdict of guilty, counsel for the defendants filed a motion for a new trial. This motion was refused by the court en banc, and sentences were imposed. These appeals followed.
The principal contention advanced by appellants is that the trial judge charged the jury improperly concerning the effect of testimony that the complainant woman-child was not of good repute. Since we have concluded that there was error in this connection of such serious import as to require the grant of a new trial, we deem it unnecessary to discuss the other two questions which appellants raise.
In the words of the trial judge, "this case must stand or fall on the testimony of Diane Roeder". Briefly summarized, Diane's testimony was that she was born on July 30, 1948. She resided with her mother on Cedar Ridge Road in Allison Park. On May 6, 1963, Diane's mother had an evening appointment at
[ 204 Pa. Super. Page 478]
the office of her physician. She left Diane at a dairy store frequented by young people of the neighborhood. When her mother did not return promptly, Diane started to walk home, a distance of approximately three miles. The exact hour does not appear, but it was not yet dark. When she was less than a quarter of a mile from her home, the three appellants came along in an automobile. Stephen Dulacy and Thomas Kohan were each nineteen years of age, and William Kohan was aged eighteen years. These three young men also lived in the vicinity of Allison Park, and Diane was acquainted with them. They had visited in her home, and a sister of the Kohans was one of her girl friends. Diane entered the car voluntarily. It went by the road to her home, and proceeded on to a tavern several miles distant. One of the appellants went into the tavern and returned with several quarts of beer. Diane made no attempt to leave the car at that time. Instead of taking her home as she requested, appellants drove into an old dirt road and all three violated her forcibly. She resisted, but made no outcry. They then "dropped me off by a dirt road up by my house". When she entered the house her mother "just looked at me and started hollering". Diane refused to talk with her mother, but finally did relate the incident to her aunt who took her to the police station. A vaginal examination at McGee Hospital revealed the presence of sperm. Diane admitted that she had been intimate with other boys on prior occasions, "but not with those three".
Appellant Thomas Kohan testified that he had been at Smith's Sunoco station all that evening. In this regard he was corroborated by an officer of the Hampton Township Police, and by other witnesses. Appellants Stephen Dulacy and William Kohan testified that they had been at the same gas station early in the evening, that they left ...