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COMMONWEALTH v. ROSS (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
ROSS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Northampton County, Aug. T., 1973, No. 164, in case of Commonwealth of Pennsylvania v. George Ross.

COUNSEL

Philip D. Lauer, Assistant Public Defender, for appellant.

John E. Gallagher, First Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.

Author: Van Der Voort

[ 239 Pa. Super. Page 96]

Appeal is taken from judgment of sentence rendered following jury verdicts of guilt on charges of assault with intent to ravish, rape, aggravated assault and battery, and assault and battery.*fn1 Motions for new trial and in arrest of judgment were filed and denied.

On the evening of October 28, 1972, two young women, aged 17, were attending a social event on the campus of Lehigh University. Following their departure, and while they were on the steps of a dormitory, they were accosted from the rear by a man later identified by them as appellant. Simultaneously, each was grabbed around the neck, forced to accompany appellant to his car, and driven a short distance to a secluded area. Upon threat of death, each girl was ordered to undress. In the back seat of his auto, appellant forced each girl to submit to an act of intercourse, overcoming their efforts to resist by repeated threats of death, blows with his fist, slaps with his hand, and movements to choke the victims. Following this episode, appellant first threatened to kill one of the girls because he was afraid one or the other would tell the authorities; but he retracted this threat and ordered them to dress. Upon attempting to pull the car onto the road, appellant discovered that it was mired in the mud. With the assistance of one of the girls appellant managed to push the car out of the mud. The girls were delivered back to the campus, the total time of about three and one-half hours having elapsed.

Upon their release, they went to a dormitory to call their parents and the police. At or about 4:40 A.M., they were driven to a hospital, whereupon examination revealed that each girl had multiple bruises about the

[ 239 Pa. Super. Page 97]

    face, chest, neck and thigh. Each was emotionally quite upset and near hysteria. One victim's left eye was swollen and bleeding. X-rays proved negative. Gynecological examination was performed: one victim's vagina was covered with blood and clots, and there was a laceration permitting sight through into the rectum; the other victim had a normal-appearing vagina but had a bloody discharge from the rectum near the anal sphincter. Following a cleaning of the affected areas, further examination was withheld because of extreme pain; surgery was required for the victim suffering a lacerated vagina. Testimony from the examining gynecologist was to the effect that no male sperm was identified by way of testing the vagina of the second victim described above; such a thorough examination was not at the time performed upon the former because of the serious laceration and pain. This testimony was offered by the emergency room physician, the gynecologist on duty, and the first victim's private surgeon.

Appellant was apprehended on October 31, 1972, and stood trial beginning February 25, 1974, following on that day denial of his motion to suppress evidence - a photograph which included appellant. Trial resulted in conviction and judgment of sentence, upon which this appeal now rests. Appellant makes numerous arguments; however, because of the disposition hereof, we need only consider his allegation of error as to the charge of the lower court.

Appellant's argument is one of error in the charge to the jury.*fn2 First appellant contends that the lower court should have accepted his point for binding instruction ...


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