No. 492 April Term, 1978, Appeal from the sentence imposed by the Honorable Joseph F. O'Kicki, on August 5, 1977, and filed to Nos. C-954 a, 1976; C-954 b, 1976; C-954 e, 1976; and C-954 f, 1976; of the Criminal Division of the Court of Common Pleas of Cambria County, Pennsylvania.
Michael L. Stibich, Assistant Public Defender, Ebensburg, for appellant.
Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
Price, Hester and Lipez, JJ.
[ 264 Pa. Super. Page 446]
Following a jury trial, appellant Edward Barnosky, on December 14, 1976, was found guilty of rape, felonious restraint, involuntary deviate sexual intercourse, and kidnapping.*fn1 Post-trial motions were argued and denied and an aggregate sentence of eleven to twenty-five years imprisonment was imposed. On this direct appeal, appellant advances three issues for our determination:
1) whether the lower court should have quashed the information as to involuntary deviate sexual intercourse (IDSI);
2) whether the lower court should have charged the jury to carefully scrutinize the testimony of two juvenile witnesses;
[ 264 Pa. Super. Page 4473]
) whether the lower court should have charged the jury on an adverse inference it may draw from the failure of the Commonwealth to call certain witnesses.
We find these arguments without merit and will affirm.
Testimony adduced at trial revealed the following scenario. In the early evening hours of September 14, 1976, the victim, a 17 year-old woman, was playing kickball with some younger children near her home in Nanty Glo, Cambria County, Pennsylvania. Appellant, driving a 1959 Volkswagen convertible, drove up and asked the children the whereabouts of one Brenda Henry. When the children replied they did not know who Miss Henry was, appellant said he was getting cold and requested aid in putting up the roof of his car. The victim, who did not know appellant before this incident, got in the car and was assisting him with the roof latch when appellant grabbed and restrained her and quickly drove away with her.
Via a circuitous route, appellant drove to his apartment in Barnesboro, approximately 15 miles distant from the point of abduction. Continuing to restrain the victim, appellant escorted her to his first floor flat and locked the door behind them. When she began to scream and struggle, appellant told her he was taking her home. Another drive around the area ensued at the conclusion of which appellant again forced the victim into his apartment, locking the door. He removed the victim's clothing, told her he had a gun and was going to kill her, and ...