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COMMONWEALTH PENNSYLVANIA v. ROBERT FULTON (08/17/79)

August 17, 1979

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT FULTON, APPELLANT



No. 605 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at Nos. 1106 - 1107 April 1976.

COUNSEL

Norman Ackerman, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Van der Voort, Wieand and Lipez, JJ.

Author: Van Der Voort

[ 268 Pa. Super. Page 549]

Early in the afternoon on March 28, 1976, appellant Robert Fulton, age 26, paid a visit to a 47-year old woman who lived in an apartment in the same house on North Sixteenth Street in Philadelphia. Appellant lived on the second floor, the woman lived on the third floor.*fn1 Appellant had been living in the building approximately one month, and was casually acquainted with the woman. On the afternoon in question, he asked permission to use the phone, then requested some food. When the woman agreed to fix him "a small platter", appellant went to his own apartment and brought back a phonograph and some records. After playing one or more records, appellant asked if the woman would get a radio, then followed her into the bedroom when she went to get it. When the woman pushed appellant and said that she "didn't attend men in [her] bedroom", appellant grabbed her throat, forced her onto the bed, and threatened to hurt her if she attempted to call for help. Appellant forced her to remove all of her clothes, keeping her naked throughout the rest of the afternoon, until the wee hours of the morning. During this time, appellant performed cunnilingus on the woman, and forced her to engage in repeated acts of conventional sexual intercourse. When the woman wanted to use the bathroom, which was in the hall on the third floor, appellant required her to go without clothes, presumably to deter her from attempting to escape or summon help. Between 4:30 and 5:00 A.M., appellant finally left, and the woman phoned the police, who arrived to find appellant standing on the steps in front of the building. Appellant was arrested, charged with involuntary deviate sexual intercourse and rape.

Appellant was tried, non-jury, on June 22, 1976, was found guilty, and was sentenced on September 7, 1976, to serve consecutive terms of two to five and four to ten years imprisonment. The sentences were later vacated and identical

[ 268 Pa. Super. Page 550]

    concurrent sentences were imposed. An appeal was filed with our Court, and we remanded for an evidentiary hearing to determine whether or not appellant was ineffectively represented by trial counsel. A hearing was held on February 27, 1978, after which the lower court, by order dated March 7, 1978, found appellant's claim to be "frivolous and unmeritorious". Once again before our Court, appellant argues that the victim's testimony was so totally unworthy of belief, so full of contradictions, that he should be granted a new trial "in the interest of justice". Appellant also argues that his trial counsel was ineffective in several respects. We find no merit to appellant's arguments.

We have carefully examined the notes of testimony in this case, and, contrary to appellant's assertions, there are no "glaring contradictions" in the testimony of the victim. Apart from the fact that the purported contradictions in the victim's testimony were trivial (for example, whether appellant's hand was in front or in back of the victim's neck, whether the victim made one or two trips into the kitchen), it is for the trier of fact to weigh the testimony and resolve any inconsistencies. Commonwealth v. Bryant, 247 Pa. Super. 460, 462, 372 A.2d 917 (1977); Commonwealth v. Bartell, 184 Pa. Super. 528, 136 A.2d 166 (1957). The "interest of justice" does not require that appellant be given a new trial.

As part of his argument that he was ineffectively represented by trial counsel, appellant alleges that trial counsel failed to adequately investigate the background of the victim, and was therefore unable to competently cross-examine her. Appellant points to the inability of counsel to produce a written report of an investigation. At the hearing on February 27, 1978, counsel testified that her office did attempt to investigate the victim's background, and that the investigation failed to disclose anything that would have been favorable to appellant's defense. The lower court obviously believed counsel's testimony. Counsel had no obligation to present appellant with a written report of such investigation.

[ 268 Pa. Super. Page 551]

Appellant argues that trial counsel failed to ask the victim questions on cross-examination ...


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