No. 58 March Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, York County, Criminal Division, No. 776 CA 1978
Daniel M. Pell, York, for appellant.
John A. Hall, Assistant District Attorney, Harrisburg, submitted a brief on behalf of Commonwealth, appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ.
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Appellant, John H. King, was convicted of rape. Following the denial of his post trial motions, he was sentenced to a term of imprisonment of two and one-half to five years. The facts giving rise to this conviction are as follows:
Testimony established that appellant, brother-in-law to the victim, Neile Murray, age eighteen, had taken Neile to her Army reserve meeting in Lancaster on the morning of July 15, 1978. Neile instructed appellant to give directions to her mother, Mrs. Noreen Murray, who was to pick up Neile when the meeting ended at 4:00 p. m. At the close of the meeting, however, Neile found appellant waiting for her. Instead of taking Neile directly home, appellant told Neile that her sister, appellant's wife, wanted to talk with Neile. When they arrived at appellant's home, appellant locked the door, pushed and dragged Neile around the house, threatened her with a knife, told her he loved her, choked her, hit her, and finally, forced her to engage in sexual intercourse with him. Afterwards, appellant took Neile home and told her not to reveal the rape to anyone. Neile immediately told her mother. The police were contacted, and Neile was examined at a local hospital. At trial, Neile testified to penetration and her non-consent.
Appellant's first argument alleges that the trial court erred in permitting the district attorney to ask appellant on cross-examination whether he fathered a child to
[ 287 Pa. Super. Page 108]
another woman. Such a question, according to appellant, merited a mistrial, although no motion for mistrial was made by defense counsel.*fn1 Before addressing this issue, it is necessary to place the allegedly prejudicial question in its proper context. Appellant presented evidence of his good reputation and character by calling witnesses. During cross-examination, one of the character witnesses testified that appellant sometimes made passes at other women. Thereafter, appellant took the stand and denied that he "made passes" at other women, but merely "looked at them." On cross-examination, the district attorney then asked appellant if he had a child to another woman in order to impeach the credibility of appellant, and to contradict the evidence of good character and reputation that appellant had presented. Because it is permissible to inquire about the defendant's character and reputation once they have been placed in issue by the defendant, the district attorney's question cannot be deemed an error. See, e. g. Commonwealth v. Albert, 198 Pa. Super. 489, 182 A.2d 77 (1962); Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976). Accordingly, the trial judge cannot be faulted for permitting the district attorney to inquire whether appellant had fathered a child to another woman.
Within the context of his first argument, appellant also claims that a cautionary instruction should have been given to the jury on this point. However, since appellant did not request such an instruction, the issue is waived. See generally Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Moreover, appellant's argument is baseless since the trial judge immediately cautioned the jury that the question could only be used for the limited purpose of impeaching the credibility of appellant and could not be used to prove appellant's guilt of the crime charged.
In his second allegation of error, appellant contends that the court below erred in its ...