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COMMONWEALTH v. WALKER (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
WALKER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1973, No. 5426A, in case of Commonwealth of Pennsylvania v. Joseph Vurlie Walker.

COUNSEL

John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.

Robert L. Campbell and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Spaeth, J., concurs in the result. Concurring and Dissenting Opinion by Hoffman, J.

Author: Jacobs

[ 234 Pa. Super. Page 434]

Appellant, Joseph Vurlie Walker, was found guilty

[ 234 Pa. Super. Page 435]

    after a jury trial of rape,*fn1 statutory rape,*fn2 corrupting the morals of a minor,*fn3 and violation of the liquor laws.*fn4 These charges were based on the following facts: On May 9, 1973, the 14-year-old prosecutrix and a 15-year-old girlfriend were hitchhiking on a road outside the city of Pittsburgh. Appellant picked them up and the trio drove around for awhile. After they drank some wine and smoked some marijuana, both of which had been obtained by appellant, the girlfriend decided to go home. The prosecutrix, who had become intoxicated and sick, stayed with appellant. Appellant then took the prosecutrix to a motel room where he engaged in sexual intercourse with her. Afterwards the prosecutrix was sent home in a taxi.

Appellant was given two 5-10 year concurrent sentences on the rape and statutory rape convictions and other shorter concurrent sentences on the two remaining convictions. On this appeal, several issues are raised which we find to be without merit.

Appellant first claims that the Commonwealth failed to prove that he was over the age of 16 at the time of the rape which is an element of the statutory rape charge. However, the prosecutrix testified that appellant told her that he was 21 years old. Although such evidence was not conclusive, it along with other facts and circumstances tended to prove that appellant was over the age of 16. See Commonwealth v. San Juan, 129 Pa. Superior Ct. 179, 195 A. 433 (1937).

[ 234 Pa. Super. Page 436]

Appellant next claims that the lower court erred in stopping him from cross-examining the girlfriend as to the reputation of the prosecutrix. Although the reputation of the prosecutrix may have been a relevant issue, the cross-examination of the girlfriend was not the proper time for its development. The reputation of the prosecutrix was not covered on the direct examination of the girlfriend, and thus, these questions were not within the scope of cross-examination. Moreover, as suggested by the prosecutor at trial, appellant was free to call the girlfriend as his own witness if he wanted to question her on this issue. We find no abuse of discretion by the lower court in limiting the scope of cross-examination. See Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973).

Appellant also contends that the prosecution failed to establish a competent chain of custody as a foundation for the admission into evidence of the results of vaginal smears taken of the prosecutrix shortly after the crime which disclosed the presence of spermatazoa. At trial, the Commonwealth presented the testimony of the doctor who took the vaginal smears from the prosecutrix at the hospital. He testified that he turned them over to the emergency room nurse who put them on slides, placed them in a folder and labeled it. A police officer then testified as to the procedure followed by the police in transferring such evidence from the hospital to the crime lab. Although he did not specifically remember the case, the officer stated that the envelope containing the smears was similar to those he had delivered to the crime lab and that it was his signature that appeared on the crime lab receipt for the same envelope. A criminologist at the crime lab testified that he ...


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