No. 987 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Lehigh County, Criminal Division, Imposed on Indictment Nos. 1486-1488-1587 1974
Victor F. Cavacini, Allentown, for appellant.
Richard J. Orloski, Allentown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result.
[ 250 Pa. Super. Page 141]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Lehigh County, Criminal Division, after Defendant's conviction of simple assault, rape, burglary, and theft; and from the denial of post-trial motions. He was sentenced to a term of 10 to 30 years.
On the night in question, the Appellant and two acquaintances were patrons at a taproom owned by the victim. At about 12:15 a. m., the victim left the bar area and retired to
[ 250 Pa. Super. Page 142]
her apartment above the barroom. The victim's employee, Jean Ervin, testified the Defendant and her friends left the premises shortly thereafter. According to the employee, however, the Defendant returned and drank more beer. At about 1:50 a. m., she observed the Defendant walk toward the rear door of the bar. She also testified she heard a slam which would be consistent with a violent opening and closing of the rear door. After the last customers left, she went to the rear door, found it ajar, and re-locked it. Apparently the door was equipped with a bolt lock which could be opened from the inside for exit but which re-locked when closed. After completing her normal clean-up chores, the employee inspected the premises and observed no one remaining, whereupon she left.
The victim, Josephine Michuna, testified that she retired to her apartment at about 12:30 and fell asleep. Later, she awakened and saw a man, whom she identified as the Defendant, walking toward her. She then described the taking of money and the rape. On cross-examination she admitted that she had lost her glasses early in the confrontation and was without their assistance for the duration of the incident. After the attack, the assailant ordered the victim to call a cab and a cab picked him up at approximately 5:00 a. m. On cross-examination of the victim about the call for the cab, the following dialogue took place:
"Q. Now whoever answered, what company did they say they were? Did they say they were Quick Service or some other company?
A. It was a woman. I think she said ...