No. 530 October Term 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Delaware County, entered October 23, 1978, No. 1362-1977.
Robert F. Pappano, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn* Being of the view that the issue of prosecutorial misconduct warrants the grant of a new trial, Eagen, J., dissents.
[ 281 Pa. Super. Page 63]
In September of 1976, Dale "Bill" Walls, age 19, was arrested on a charge of burglary, and being unable to post bail, was committed to the Delaware County Prison. He was placed in "B" Block-Cell 13. According to his sworn testimony in the trial of Stephen DeMarco,*fn1 Walls was returning from breakfast on December 12, 1976, when he was confronted by DeMarco and another prisoner named Fumano, grabbed by them and pushed into a cell. They were joined by another prisoner named Rush, a co-defendant, whereupon the victim was punched and beaten. He was then partially stripped of his clothing and sexually assaulted. When finally released he made immediate complaint to prison guards and filed a written report.
DeMarco was arrested and charged with simple assault, involuntary deviate sexual intercourse, forcible compulsion and criminal conspiracy. Following a jury trial before the Honorable John V. Diggins, he was found guilty of all three charges on July 20, 1977. Post-verdict motions were filed, heard and dismissed and the appellant, DeMarco, was sentenced to a term of imprisonment of from one to three years.
We have before us the direct appeal with the defendant being represented by the assistant public defender, who replaced defendant's private trial counsel. Four alleged errors are asserted which we will consider seriatim.*fn2
The first contention of the defendant is that he was prejudiced by the fact that he was arrested two and one-half
[ 281 Pa. Super. Page 64]
months after the offense occurred. His point being that the lapse of time caused difficulty in establishing an alibi defense and because of the transient nature of his fellow inmates it was difficult for him to garner his witnesses.
The legislature has determined certain periods of limitation for various offenses and specifically has provided that a prosecution relating to involuntary deviate sexual intercourse must be commenced within five years after it is committed. Section 108 of the Crimes Code provides:
"(a) Murder. -A prosecution for murder of the first degree or of the second degree may be commenced at any time.
"(b) Other offenses. -Except as otherwise provided in this section, prosecutions for other offenses are subject to the ...