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COMMONWEALTH PENNSYLVANIA v. MARCELL GREEN (12/21/79)

decided: December 21, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MARCELL GREEN, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. HARVEY LEEDY, APPELLANT



No. 51 January Term 1978, Appeal from the Order of the Superior Court at No. 623 October Term 1977, affirming the judgment of sentence of the Court of Common Pleas of Lebanon Country, Criminal Division, at No. 66 of 1975, No. 55 January Term 1978, Appeal from the Order of the Superior Court at No. 625 October Term 1977, affirming the judgment of sentence of the Court of Common Pleas of Lebanon County, Criminal Division, at No. 600 of 1974.

COUNSEL

John E. Feather, Jr., John C. Tylwalk, Lebanon, for appellants.

Thomas S. Long, Asst. Dist. Atty., Robert W. Feeman, Lebanon, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion in which Nix, J., joins. Flaherty, J., filed a dissenting opinion.

Author: Eagen

[ 487 Pa. Page 324]

OPINION OF THE COURT

On March 18, 1975, Marcell Green and Harvey Leedy were convicted of raping Trudy Jo Groff by a jury in Lebanon County.*fn1 Post-verdict motions were denied by the Lebanon County Court of Common Pleas, en banc, on September 21, 1976. Sentences were imposed on October 18, 1976. On appeal, the Superior Court affirmed without opinion. We granted the petitions of Green and Leedy for allocatur. The record discloses the following:

At trial, Groff testified that, at 1:30 a. m. on November 21, 1974, she was forcibly removed from the automobile of

[ 487 Pa. Page 325]

Candace Troutman, which was parked at the Illusion Nite Club in Annville, Lebanon County, and forced into an automobile operated by Larry Lampkin in which Meade, Green and Leedy were passengers; that she was then driven to the residence of Kim Jones at 1027 Willow Street, Lebanon, where she was raped by Meade, Green and Leedy; that, after the alleged rapes, she was driven home by Green, where they arrived at 4:10 a. m.; that, later that same morning, she told her mother of the alleged rapes; that Patrolman George Gruber of the Lebanon City Police Department arrived at the Groff home and received her statement; that he then summoned Detective Carl Capello who arrived at the Groff home at approximately 7:30 a. m. on November 21, and also received a statement from Groff.

The appellants offered a defense of consent. Each testified that no force or threats of force had been used at the Illusion Nite Club, in the automobile, or at 1027 Willow Street, the site of the alleged rape, and that Groff had willingly accompanied them, even sitting on the lap of Green and kissing him during the drive to Lebanon. Appellants further testified that, on the morning in question, Groff consented to sexual intercourse with Green, Leedy, Meade and Lampkin. Green also testified that he had previously had intercourse with Groff. Charles Ditzler, Kim Jones and Lampkin appeared as witnesses for the defense and their testimony supported that of the appellants. These witnesses also testified Groff's reputation for chastity was not good.

For the reasons that follow, we conclude Green and Leedy are entitled to a new trial.

Over objection, Detective Capello was permitted to testify to Groff's prior statement concerning the facts of the alleged rape. The trial court admitted this testimony under the res ...


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