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decided: April 28, 1978.


No. 794 April Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Fayette County, Criminal Division, at Criminal Action No. 307 of 1976.


Thomas John Kalman, Uniontown, with him Kalman & Votilla, Uniontown, for appellant.

Joseph E. Ferens, Jr., Uniontown, with him Conrad B. Capuzzi, District Attorney, Uniontown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Spaeth, J., files a concurring opinion.

Author: Hoffman

[ 254 Pa. Super. Page 328]

Appellant contends that there was insufficient evidence to sustain his conviction of rape*fn1 and that the lower court erroneously admitted certain alleged hearsay testimony. We disagree with both contentions and, therefore, affirm the judgment of sentence.

[ 254 Pa. Super. Page 329]

On February 23, 1976, the complainant filed a private criminal complaint against appellant in which she alleged that appellant had raped her on Thursday, February 19, 1976, at approximately 11:45 p. m. On February 27, 1976, appellant was arrested. At a jury trial in the Fayette County Court of Common Pleas, on June 16-18, 1976, the complainant testified that during the early evening of February 19, 1976, she was at home with her three children, ranging in age from 14 months to 4 1/2 years. Her husband, who worked from 8:00 p. m. to 8:00 a. m., had left the house at about 6:30 p. m. Soon thereafter, the complainant took her children to a local food store where she spent about a half hour shopping. On the way home, she and her children stopped at the home of appellant's parents whose property adjoined that of the complainant and her husband. She testified that she and her husband had known appellant's parents for more than three years, visited them often, and that her children referred to them as grandparents. Appellant was not present when the complainant and her children visited his parents.

The complainant and her children returned home at about 9:30 p. m.*fn2 Appellant telephoned at approximately 10:00 p. m. According to the complainant, appellant was upset and wanted to speak with someone. In the past, appellant had, on occasion, called while in a depressed mood. The complainant said that her husband always took the calls and sometimes left the house to meet appellant. At first, she refused his suggestion that she leave her house and talk with him in person. Eventually, following twenty minutes of repeated requests, she agreed to meet with him at Firmani's, a local bar. However, she was emphatic that she could talk to him for only a short while because she had work to do at home.

When the complainant drove her station wagon into Firmani's parking lot, appellant came out of the bar and got

[ 254 Pa. Super. Page 330]

    behind the wheel of her car. He told her that he did not want to talk there, but wanted to drive to another bar five miles away in order to get a beer. She acquiesced, but again said that she did not want to be out very late. As they drove to the bar, appellant spoke about his domestic problems and the difficulties he was experiencing with his parents. When they arrived at the bar, appellant went inside while the complainant and her children waited in the car. Appellant returned to the car and told the complainant that he intended to take a different route back to Firmani's where he had left his truck. He evaded the complainant's questions about the circuitous route which appellant selected and her requests that he return to the main road.

Appellant drove the car onto a dirt road, pulled off into a field, turned off the car, and locked the doors. He then pulled out a knife, tore the complainant's clothes, and demanded that she engage in various sex acts with him. Appellant also threatened her children who were crying in the rear of the car. The complainant testified that she feared for her life and for the safety of her three children. As she struggled, appellant raped her and forced her to perform other sex acts. The next thing she remembered was awakening in the passenger seat of her car in the parking lot of Firmani's bar to the screaming of her children. Her keys were in the ignition. Appellant's truck was gone. It was about 3:00 a. m. when she returned to her home. She awoke at 9:00 a. m. when she heard her daughter explaining the events of the night to her husband who had just returned from work.

Before resting its case, the Commonwealth also called Magdalene Zuzak, the mother-in-law of the complainant who testified that on Saturday, February 23, 1976, two days after the incident in question, the complainant, her husband, and their three children visited her at her home. She said that the complainant was upset, looked drawn, and had bruises on her neck, legs, arms, and abdomen.

Appellant testified that he had sexual relations with the complainant once or twice in 1975 ...

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