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COMMONWEALTH PENNSYLVANIA v. EDWARD USHER (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD USHER, APPELLANT



Appeal from the Judgment of Sentence imposed February 9, 1976, of the Court of Common Pleas of Delaware County, Criminal, at Nos. 466/469 December Term, 1974. No. 1177 October Term, 1976.

COUNSEL

Donald E. Schlater, Norwood, for appellant.

Ralph B. D'Iorio, Assistant District Attorney, Media, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 246 Pa. Super. Page 604]

On February 4, 1975, appellant Edward Usher was found guilty by a jury of rape, statutory rape, indecent assault, and corrupting the morals of a minor. On appeal, he contests the sufficiency of the evidence to convict him. We affirm in part and reverse in part the judgment of sentence of the lower court.

The evidence, viewed in a light most favorable to the verdict-winner, establishes that on August 25, 1974, Mrs. Hoyt stopped with her two children at the Italian-American Club in Twin Oaks. Mrs. Hoyt took a seat at the bar while the two children, aged eleven and nine years respectively, occupied themselves with the jukebox and a snack.

Shortly after Mrs. Hoyt's arrival, appellant entered the bar and assumed the seat next to her. Appellant was employed as a truck driver by Herr's Motor Express Company, located across the highway from the Italian-American Club. While appellant consumed two bottles of beer, he and Mrs. Hoyt conversed.

Appellant left the club to go to work at approximately 7:30 p. m. The events that followed were described primarily by the younger child. She testified that she and her sister, the victim, were playing together outside of the Italian-American Club when appellant came through the door. Appellant offered to give the girls some money that he kept in the cab of his truck. When they reached their destination, appellant helped the two girls up into the cab. There, he showed them magazine photographs of nudes and asked the victim to remove her clothing. When she refused, appellant forcibly removed her short pants and underclothing. According to the victim's sister, appellant then "got on top of her," and "his

[ 246 Pa. Super. Page 605]

    body [was] going up and down." The victim "was screaming and crying, telling him to stop." Finally, Mrs. Hoyt arrived at the door of the truck and "pulled him off of her. . . ."

Mrs. Hoyt testified that when she discovered that her children were missing, she ran across the highway to the truckyard. She spotted her younger daughter inside one of the cabs, screaming and waving her arms. When Mrs. Hoyt opened the door to the cab, she discovered appellant with her two children. Both children were hysterical and the victim was partially undressed, wearing only her blouse. Appellant and the victim were next to each other and appellant's pants and undergarments were around his knees.

Mrs. Hoyt managed to extract her two children from their predicament and hurried them back across the highway to the Italian-American Club. While the police were called, Mrs. Hoyt conducted her daughter to the bathroom. Her underclothing was sullied with dirt and fresh blood. She was taken to Sacred Heart Hospital where she was treated and examined by Dr. Romeo Sangalang. Dr. Sangalang's ...


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