No. 18 March Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division, No. 935 CA 1977.
Kent D. Mikus, Lancaster, for appellant.
Richard H. Horn, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ.
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This is an appeal from the judgment of sentence by a judge and jury on the charges of unlawful restraint,*fn1 rape,*fn2 involuntary deviate sexual intercourse,*fn3 indecent assault,*fn4 and a violation of the Uniform Firearms Act.*fn5 After being sentenced to 3 1/2 to 7 years each on the rape and involuntary deviate sexual intercourse charges, such sentences to run concurrently, Mr. Schilling received a suspended sentence on the remaining convictions. This appeal follows.
On appeal Mr. Schilling attacks several of his convictions on three theories: (1) he contends that his conviction under the Uniform Firearms Act for committing a crime with a firearm was improper because the gun in question did not meet the statutory definition of a "firearm;" (2) he contends that he was improperly convicted of "unlawful restraint" because he did not expose the victim to an actual danger of
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"serious bodily injury;" and (3) he contends that his convictions for the three sex crimes were improper because the Commonwealth failed to adequately prove the absence of a spousal relationship between Mr. Schilling and the victim. Finding Mr. Schilling's first and second contentions persuasive, we vacate his convictions for unlawful restraint and for committing a crime with a firearm, but affirm his other convictions concerning rape and involuntary deviate sexual intercourse because we find his final contention to be without merit.
On the evening of August 3, 1977, Mr. Schilling and the prosecutrix, whom he met only three days before, went out on a date in Mr. Schilling's car. During the course of the evening appellant Schilling drove to a rural area and parked. The two talked for about half of an hour and thereafter engaged in petting and kissing. The prosecutrix asked to be taken home, but Mr. Schilling continued in an attempt to seduce her. The prosecutrix then insisted on going home, but Mr. Schilling responded by asking her if she would have intercourse with him. In an attempt to discourage his romantic advances, she told him that she was menstruating, Mr. Schilling, however, simply changed his request to one for oral intercourse. He suddenly pulled out a pistol from the glove compartment of his car and placed it to the prosecutrix's left temple. Out of fear for her life, she agreed to comply with anything Mr. Schilling requested. After the gun was placed in the back seat, the act of oral intercourse was consummated whereupon Mr. Schilling became remorseful and asked her to forgive him. Subsequently, Mr. Schilling put the gun into a holster in a compartment in front of the car and informed the prosecutrix that it was only a pellet gun. Testimony at trial indicated that the instrument in question was, in fact, a pellet gun operable on CO cartridges. This type of gun is also referred to as an "air pistol."
Appellant Schilling's first assignment of error concerns his conviction under the Uniform Firearms Act for committing a crime with a firearm. The basis of this contention is that the lower court erred in ruling as a matter
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of law that the gun used by the defendant was a "firearm" under the Act. We find this contention to be persuasive and hold that a pellet or "B-B" gun is not contemplated as a "firearm" under the Uniform Firearms Act.*fn6 In Commonwealth v. Lowary, 463 Pa. 408, 345 A.2d 170 (1978) the Supreme Court of this Commonwealth specifically found that a spring-activated pellet gun was not a "firearm" under the Uniform Firearms Act. As the trial court, in its opinion, correctly points out, the act was amended effective after the pertinent date in the Lowary case so as to provide a definition of the term "firearm." See 18 Pa.C.S. § 6102.*fn7 The definition promulgated in this statutory amendment deals solely in terms of the barrel-length of the weapon in question.*fn8 Id. Nevertheless, contrary to the decision of the trial court, we are of the opinion that the efficacy of Lowary was not obviated by the intervening amendment concerning barrel-length. Rather, we hold that the Lowary common usage definition of the term "firearm" is generally applicable except that it is qualified by the length limitations specified in the statute. This ...