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COMMONWEALTH v. PILOSKY (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
PILOSKY, APPELLANT. COMMONWEALTH V. KOMADA, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, Nos. 1192, 1194, 1195, and 1197, in cases of Commonwealth of Pennsylvania v. Frank Pilosky, and Same v. Daniel Komada.

COUNSEL

Malcolm W. Berkowitz, and Berkowitz and Gutkin, for appellants.

Barry H. Oxenburg, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Price

[ 239 Pa. Super. Page 235]

Appellants, Frank Pilosky and Daniel Komada, were co-defendants below. Following a jury trial, which took place from February 6 to February 22, 1974, both

[ 239 Pa. Super. Page 236]

    appellants were found guilty of assault and battery,*fn1 aggravated assault and battery,*fn2 and forcible rape.*fn3 A third co-defendant was found not guilty of all charges.

The record reveals the following facts: On September 25, 1972, the complainant, Kathleen Antipuna, and a friend, Arlene Bradley, entered a bar for the purpose of using the rest room. Kathleen testified that the facility was located at the rear of the bar. She also stated that Arlene sat at the bar while Kathleen used the rest room. As she exited, she was accosted by the appellants and several other men, who dragged her to the second floor, hit her in the face, threw her on a mattress, ripped off her clothes, and raped her repeatedly. After several hours, only the complainant and the appellants remained in the room. At approximately 6 a.m., Kathleen noticed that the men were asleep. She then left the room and proceeded to the bar below, where she placed a call to her mother.*fn4

Shortly thereafter, the mother arrived at the bar, accompanied by the complainant's husband and brother. The men forced entry into the locked bar, and saw Kathleen, who was partially clothed in a T-shirt and a towel. The men then ran to the second floor, where they attacked the sleeping appellants. The police arrived within five minutes, and, following their arrival, the complainant and the appellants were taken to the hospital. Kathleen was examined by a physician and found to have sustained bruises on her face, limbs, and body. Her vagina was red and edematous, consistent with prolonged intercourse and forcible penetration.

The appellants have raised numerous assignments of

[ 239 Pa. Super. Page 237]

    error, all of which are without merit. First, appellants contend that the lower court improperly refused a motion to dismiss the indictments because a potential witness, Arlene Bradley,*fn5 was attacked and beaten by the complainant and two companions. It is the appellants' contention that the attack resulted in the intimidation of the witness, thereby violating appellants' rights to due ...


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