No. 930 October Term 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Div. at No. 1326 A-J and No. 1471 A-F, 1978.
Allen H. Tollen, Chester, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, Cavanaugh and O'Kicki, JJ.*fn*
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Appellant was tried before a jury on two counts of rape, two counts of simple assault, one count of unlawful restraint, and one count of involuntary deviate sexual intercourse. The jury found him guilty on one of the two counts of rape, one of the two counts of simple assault, and the one count of unlawful restraint; it acquitted him of the other charges. Post-verdict motions were denied and appellant was sentenced to total concurrent sentences of three to six years imprisonment. On this appeal he argues (1) that the evidence was insufficient to support his convictions; (2) that the lower court erred in refusing to order a new panel of
[ 280 Pa. Super. Page 237]
jurors following a comment made by one of the panel members; (3) that the lower court erred in refusing to order lie detector tests; and (4) that the sentences were excessive.*fn1
The victim testified as follows. On March 20, 1978, while at her home in Toby Farms, she answered a telephone call from appellant. Appellant told her that he was conducting a survey concerning household products, and she agreed to answer some questions over the telephone. He also invited her to a products demonstration that he said he was holding on March 22 at the Howard Johnson's Restaurant in Chester. She agreed to attend, and on March 22 took the bus to the restaurant. Appellant met her there but told her that there would not be a demonstration because too few people had come. When she left the restaurant to wait for the bus, appellant offered her a ride home in his automobile, stating that the next bus would not come for an hour. She accepted his offer and left with him in his automobile. When he drove in a direction away from where she lived, she asked to be let out of the automobile. Appellant screamed at her, shoved her down under the dashboard, and put his foot on top of her back. She was frightened; appellant was much larger than the victim, and he threatened to hurt her baby, who was at home with the victim's sister. Appellant drove to a liquor store and went inside, telling the victim to remain in the automobile or he would hurt her baby. Before she could make up her mind whether or not to attempt to escape, appellant returned to the automobile with a bottle of liquor. He drove away, holding her down with his foot. He stopped at a telephone booth in a relatively deserted area so that the victim could call her husband. Appellant directed her to say that everything was all right. She did so and he then took her to his home in Folcroft, forced her to enter, and once inside forced her to commit oral and vaginal intercourse with him. When they left his home, appellant
[ 280 Pa. Super. Page 238]
again pushed her beneath the dashboard. She said that she wanted to go home, but he took her to a tavern. He promised her that he would take her home if she kissed the bartender. She did so and they left but appellant still refused to take her home and instead drove to a spot near the Tinicum marshes, punched her, and forced her to submit again to sexual intercourse. After this he drove her to a spot near her home and let her out of the automobile. She observed the license number of the automobile and reported the incident to the police.*fn2
Besides extensively cross-examining the victim as to why she did not escape or notify someone of her predicament when she had a chance at the liquor store, the telephone booth, and the tavern, appellant testified in his own defense, as follows. He did not deny that he engaged in sexual activities with the victim, but maintained that she consented to and initiated the activities. He said the victim called him on March 20 by mistake, but that instead of hanging up their telephones, they talked to each other and decided to rendezvous on March 22. She asked appellant to meet her in his automobile at a store near her home. He did, and together they drove to the liquor store and then to the back door of his home. He testified that she entered voluntarily and that once inside she consented to, and voluntarily engaged in, the sexual activities. Afterwards, he took the ...