No. 437 January Term, 1978, Appeal from Order of the Superior Court at No. 2269 October Term, 1976, Reversing Judgment of Sentence of the Court of Common Pleas, Criminal, of Lycoming County, at No. 75-10, 695
Robert F. Banks, First Asst. Dist. Atty., Kenneth A. Osokow, Asst. Dist. Atty., for appellant.
Kevin H. Way, Asst. Public Defender, Lycoming, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., concurs in the result. Nix, J., concurs in the result, believing that circumstances surrounding the two incidents are not sufficiently similar to permit admission of the prior crime. Larsen, J., files a dissenting opinion which Kauffman, J., joins.
Larry C. Shively, appellee herein, was convicted by a jury of rape, involuntary deviate sexual intercourse, aggravated assault and felonious restraint. Post-verdict motions were denied and appellee was sentenced to a prison term of three-to-ten years. An appeal was taken to the Superior Court, which granted appellee a new trial. Commonwealth v. Shively, 254 Pa. Super. 173, 385 A.2d 581 (1978). We granted the Commonwealth's petition for allowance of appeal and this appeal followed.
The facts, according to the testimony of the victim, a twenty year old female, are as follows. On April 26, 1975, the victim was driving home at 11:00 P.M. in a rural portion of Lycoming County. The victim observed a car traveling in the opposite direction make a U-turn and begin following her, intermittently blinking the bright lights. Because of the blinking lights and because the victim thought she had recognized the other car's driver when they passed, she pulled off the side of the road and stopped. Appellee approached the victim's car and asked if she knew where someone lived. When she replied that she couldn't help, appellee reached into the car and with a knife in hand, grabbed the victim's wrist. Appellee then ordered the victim to turn off the motor and get out of the car. Without releasing the victim from his grasp, appellee picked up the car keys and pulled the victim toward the rear of her car. When he was unable to open the victim's trunk, he pulled the victim toward his car, which he shut off. Appellee then forced the victim into her own car. He drove a few miles before turning on a dirt road. After stopping the car, appellee ordered the victim to undress. He then ordered the victim to get out of the car and to lay down on the grass. When the victim protested that it was too cold, appellee agreed that they should get in the back seat. Appellee then removed the victim's underwear and ordered her to lean over the back of the front seat. Appellee then inserted, first, his finger and later his tongue into the victim's vagina.
Subsequently, appellee ordered the victim to turn around and sit on his lap. After penetrating her vagina, appellee forced the victim to engage in intercourse for a few minutes until he ordered her to get off him. While the victim remained in the back seat, appellee got in the front seat and drove to the location where his car was parked. Appellee then told the victim to lay down in the back seat and to remain there until he got in his car and drove off.
At trial, appellee presented an alibi defense, alleging that he had been at home, in Milton, Union County, the entire day of the crime. Appellee's mother corroborated his testimony.
The Commonwealth, on rebuttal, was allowed to introduce into evidence a copy of a court record from Montour County where appellee had pled guilty to sodomy. The Commonwealth also proffered the testimony of a state trooper who had investigated the prior criminal conduct. According to the trooper's testimony, appellee had, on September 8, 1971 accosted a twenty year old lady in a hospital parking lot as she was entering her car. Appellee forced the woman into his car and drove her to an isolated area of Montour County. Appellee forced the victim to kneel on all fours when he noticed that she was menstruating. At gunpoint, appellee forced the woman to perform sodomy. Following completion of this act, appellee drove away, leaving the woman behind.
Appellee was arrested for this incident on February 10, 1972. He subsequently pled guilty and was incarcerated on April 28, 1972. The instant criminal episode occurred six ...