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decided: April 12, 1979.


No. 332 April Term, 1978, Appeal from the adjudication of delinquency of the Juvenile Division of the Family Division of the Court of Common Pleas of Allegheny County, at No. J. 100 of 1977.


David B. Washington, Pittsburgh, for appellants.

Robert E. Colville, District Attorney, Pittsburgh, for Com., appellee.

Cercone, Wieand and Hoffman, JJ. Cercone, President Judge, joins this opinion and files a concurring statement. Wieand, J., files a concurring and dissenting opinion.

Author: Hoffman

[ 265 Pa. Super. Page 281]

This is an appeal from an adjudication of delinquency of Victor Perry Wright, 17 years old, based on charges that he forcibly raped his stepmother's sister, Marlene Lynch, 22. Wright contends that he should have a new hearing because the court below (1) refused to allow evidence of the results of a polygraph test administered to Wright, (2) refused Wright's request to transfer his case to the adult criminal courts, and (3) refused to allow two witnesses to give their opinion on whether Ms. Lynch was intoxicated during the events in question. Although we find the first two contentions meritless,*fn1 we agree that it was reversible error to exclude the opinion evidence offered on the issue of the credibility of the rape prosecutrix. We will therefore reverse and remand for a new hearing.

Ms. Lynch testified that she arrived at a family picnic at the home of her sister, Carolyn Lynch Wright, between three and four o'clock in the afternoon. She admitted that she drank two, three, or possibly more, bottles of beer there. She met Wright at the picnic and talked with him. She denied embracing or kissing him at any time. Later in the afternoon, when Wright and Joseph Sipior (Wright's older brother-in-law) asked her to go with them to feed the watchdog at Sipior's place of employment, she agreed. She got in the front seat of Sipior's car between Wright and Sipior, and the three proceeded to their destination. Ms. Lynch said that she was merely enjoying social conversation

[ 265 Pa. Super. Page 282]

    with Wright and denied hugging and kissing him in the car. After tending to the dog, they drove to a tavern and purchased a six-pack of beer. She drank some of this six-pack, perhaps a can or two. Sipior then drove them to the home of a friend of his. After leaving the friend's house, they drove back to the tavern and purchased another six-pack. By this time, Ms. Lynch had stopped drinking. Then Sipior drove them to a place called the "Forty Acres." Ms. Lynch testified that she had been to the Forty Acres before and knew it to be a wooded area with riding trails, but she denied that she suggested that they go there.

She continued to testify that Sipior drove very recklessly through the Forty Acres, at one point driving off the road and hitting a tree. The parties then got out of the car, and at Sipior's direction, Wright walked away from the scene. Sipior then threw Ms. Lynch against the car and opened her vest, tearing off a button in the process. She swung wildly at Sipior and screamed for Wright. Sipior knocked her to the ground. His nose was bleeding from where she had struck him, and his blood was all over her. She got up and ran for assistance to Wright, who, after hearing her screams, had returned. She buttoned up her vest and got back into the car. Sipior started driving, but later the car stopped again. Sipior said he needed a wrench to fix the car. Ms. Lynch said she would go to one of the nearby houses and borrow one. She testified that she said this as a ruse to get away and that she walked off with the intention not to return. She then testified that Wright caught up to her, saying he would go with her, but that when they got out of Sipior's sight, Wright pulled her into the woods, knocked her down, pulled off her clothes, and had forcible sexual intercourse with her. Afterwards, when Wright had departed, Ms. Lynch put her clothes back on, and walked back to the car, joining Sipior and Wright. They all drove off but sometime later Sipior had yet another accident. At this point, Ms. Lynch fled from the car, and got a ride from a stranger to a police station. She testified that she simply ran through the station without telling anyone what happened

[ 265 Pa. Super. Page 283]

    and proceeded on foot to the home of her cousins, Ed and Lynn Lutz. A police car followed her there. She told the Lutzes that she had been raped. Later her sisters Carolyn Lynch Wright and Edie Lynch arrived and took her to the hospital.

The investigating officer of the Pittsburgh police, Robert Spehar, testified that a vaginal swab test revealed the presence of seminal fluid, and that Ms. Lynch's underclothes contained spermatazoa. Her outer clothing contained light soiling and botanical matter, and type AB blood, but was not torn except for a button missing from her vest. Officer Spehar also exhibited several photographs of her injuries sustained that day which revealed bruises on her feet, right knee, and right back thigh. However, Ms. Lynch identified every injury in the photographs as inflicted upon her by Joseph Sipior when he assaulted her. For that reason, the photographs were excluded from evidence.

Joseph Sipior testified that when he was at Carolyn Wright's picnic, he observed Ms. Lynch drinking beer. She asked him if she could accompany him and Wright to feed Sipior's watch dog. They left at approximately 6:00 p. m. After feeding the dog, Sipior stopped at a bar and purchased a six-pack of beer which he offered and shared with Ms. Lynch. Wright did not drink any beer while they were in the car. They stopped for a short time at the home of James Davis. During all this time, Sipior noticed that Ms. Lynch was continually drinking beer and sitting close to Wright. When they left Davis' house, they drove past a wooded area. Ms. Lynch said she wanted to go there because she remembered it as a favorite place from her childhood, where she used to go horseback riding. However, when Sipior went to reach for his third beer, the six-pack was empty. He then drove back to the tavern for another six-pack, and he and Ms. Lynch continued to drink from it. Sipior had never been to the "Forty Acres", but upon her urging, he returned there. They stopped to look at an old, bullet-ridden Plymouth off the side of the road. As Sipior was opening another beer, he saw Ms. Lynch attempt to

[ 265 Pa. Super. Page 284]

    climb to the top of a little slag and gravel hill, but she kept falling down on the loose surface. When challenged to a "King of the Hill" game, Sipior also slipped and fell trying to climb to the top. The parties then returned to the car and continued driving. At one point Sipior hit a tree, but he was able to back up and keep driving.

Sipior further testified that his car then hit a mud puddle and the engine stopped. Suspecting that moisture from the puddle had gotten into the distributor, he attempted without success to use his knife to pry off the radiator cap. Sipior directed Wright to go to one of the nearby houses and borrow a screwdriver for him. Ms. Lynch insisted on going with him. When after 15 minutes or so they had not returned, Sipior walked after them. He first bumped into Wright who said that he had not gotten a screwdriver because Ms. Lynch had asked him into the woods. Ms. Lynch then joined them and they all got back into the car. However, Sipior admittedly was driving recklessly and hit another tree. Ms. Lynch then jumped out of the car and ran away. Sipior allowed Wright to drive back to the picnic, where they arrived at about 10:00 p. m.

Edward Barrett, Wright's stepfather, testified that he had travelled to the "Forty Acres" and observed, among other things, an old bullet-ridden Plymouth, a slag and gravel hill, and a depression in the ground (a mud puddle on a dry day) where Sipior had testified they were. The court admitted the photographs he had taken of those scenes.

The juvenile, Victor Perry Wright, testified that he arrived at the picnic around two or three o'clock in the afternoon, met Marlene Lynch there, and talked to her. Whenever he saw her, she had a drink in her hand, sometimes liquor and sometimes beer. When he went into the basement to get a soda out of the refrigerator, Ms. Lynch came over and put her arms around his waist, but when his brother Buddy Wright came in, she dropped her arms and staggered back outside. Later, Ms. Lynch called to him from a nearby bedroom, and they sat on the edge of the bed and kissed. The juvenile stopped when he realized that

[ 265 Pa. Super. Page 285]

Robin Wright, his sister-in-law, had seen them. Concerning the circumstances of his departure with Sipior and Ms. Lynch, and their travels which eventually led to the Forty Acres, the juvenile's testimony was substantially identical to Sipior's,*fn2 except that the juvenile stressed that ...

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