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COMMONWEALTH PENNSYLVANIA v. CURT THOMAS (07/11/80)

filed: July 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
CURT THOMAS, APPELLANT



No. 2510 October Term 1978, Appeal from the Judgment of Sentence imposed September 12, 1978 on Information Nos. 1221, 1222, 1223, and 1224 of the January Session, 1978 by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section.

COUNSEL

Dennis H. Eisman, Philadelphia, for appellant.

Ann Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Wickersham and Lipez, JJ.

Author: Wickersham

[ 279 Pa. Super. Page 414]

On December 24, 1977, Germaine Stewart, age 18, was exiting from Wimpys at Broad and Girard Streets in the City of Philadelphia. She was intending to go to her mother's

[ 279 Pa. Super. Page 415]

    home in the West Oak Lane area, when she encountered Curt Thomas, one of the co-defendants and the appellant herein. He identified himself as a hack or taxi and offered to take her to her destination. They reached his car a block away, and as Germaine began to enter the car on the passenger side, she was pushed into the back seat by co-defendant.

She was threatened, told to be quiet, and her right arm was squeezed. The three drove to a vacant building at 15th and Girard Avenues and she was forcibly taken inside and up to a third floor apartment containing only a mattress.*fn1

She was fondled, her clothes were removed, and she was pushed onto the mattress. She cried, protested and resisted. She feared for her life. The appellant, Curt Thomas, had or attempted intercourse with her four times and co-defendant twice. They tried to force oral sex on her and anal sex over a two and one half hour period.

The victim, upon leaving the premises, immediately reported the crime to the police. She identified the vehicle and she picked both defendants from separate line-ups. She took the police to the scene and made positive in-court identification of both defendants in the jury trial before the Honorable Joseph P. Braig of the First Judicial District of Pennsylvania. Neither defendant testified and after jury deliberation both were convicted of rape, attempted involuntary deviate sexual intercourse, simple assault, aggravated assault and criminal conspiracy.

The defendants were sentenced to twelve and one-half to thirty years, and Curt Thomas, appellant, has filed this direct appeal.*fn2

Appellant, who is represented by private counsel in this appeal, and who was represented at trial by an Assistant Public Defender, raises seven issues in seeking a new trial.*fn3

[ 279 Pa. Super. Page 416]

Through cross-examination of Commonwealth witnesses, the defense attempted to establish ...


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