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ROBERT PATRICK MCDONOUGH (05/22/81)

filed: May 22, 1981.

IN THE INTEREST OF ROBERT PATRICK MCDONOUGH, INFANT. APPEAL OF ROBERT PATRICK MCDONOUGH


Nos. 98 and 295 October Term, 1979, Appeal from the Adjudication of Delinquency and Disposition of Adjudicated Delinquent by the Court of Common Pleas of Berks County, Juvenile Division at No. 1111-S - 1978.

COUNSEL

Charles B. Coleman, Assistant Public Defender, Reading, for appellant.

J. Michael Morrissey, District Attorney, Reading, for Commonwealth, participating party.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 287 Pa. Super. Page 328]

Appellant was arrested and charged with rape and criminal conspiracy. At the time of the alleged criminal incident appellant was seventeen years of age.*fn1 Proceedings were held in juvenile court. The court found that appellant had committed the criminal acts alleged and found him to be delinquent. Appellant appealed to this court at No. 98 October Term, 1979, from the adjudication of delinquency.

[ 287 Pa. Super. Page 329]

Subsequently the lower court held a dispositional hearing after which appellant was placed in Forestry Camp No. 2. Appellant appealed this disposition at No. 295 October Term, 1979.

Appellant makes four challenges to the lower court proceedings; two of which go to the adjudication and two which question the disposition. We will discuss the adjudication first.

Appellant first contends that the evidence was insufficient to support the finding of delinquency. Appellant argues that the Commonwealth's case was dependent upon the testimony of the victim, while other evidence offered both by the Commonwealth and the defense contradicted the victim. In particular appellant claims that the court should have found that the victim consented to the acts.*fn2 Appellant also argues that the state failed to show penetration and the existence of a conspiracy.

The testimony of the victim established that she was forcibly raped, first by appellant's adult companion and then by the appellant himself. The lower court placed weight upon the victim's testimony that her jeans had been ripped off of her and thrown into the surrounding brush. Testimony of both a police officer and the appellant established that the victim had difficulty in locating her pants. The court found this to contradict appellant's claim that the victim freely removed her pants in order to entice him. Appellant testified that neither he nor his adult companion had intercourse with the victim nor had exposed themselves to her. The court heard testimony of conflicting results from laboratory examinations of specimens taken from the victim shortly after the reported rape. A doctor employed by the hospital where the victim was examined reported that his laboratory examination showed no indication of recent sexual activity. A laboratory technician employed by the state police testified that one sample (taken at the same time as the hospital samples) contained traces of an enzyme present

[ 287 Pa. Super. Page 330]

    in semen. The doctor stated that the two sets of results were not necessarily contradictory; the samples possibly may have been taken ...


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