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COMMONWEALTH PENNSYLVANIA v. KENNETH CLAIR GOEHRING (11/06/81)

SUPERIOR COURT OF PENNSYLVANIA


November 6, 1981

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KENNETH CLAIR GOEHRING, APPELLANT

No. 1519 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Centre County, Criminal Action, No. 1979-471.

Before Cavanaugh, DiSALLE and Montemuro, JJ.

MEMORANDUM OPINION:

Appellant, Kenneth Clair Goehring, was convicted by a jury of kidnapping,*fn1 rape,*fn2 and involuntary deviate sexual intercourse.*fn3 This direct appeal followed the denial of his post-trial motions.

The chief witness for the Commonwealth was the victim. She testified that she was leaving her place of employment at approximately 12:30 A.M. (after locking up for the night) when appellant forced his way into her pick-up truck and kidnapped her at knife-point. Appellant drove the victim to a secluded area where he raped her and had deviate sexual intercourse with her. Appellant, after the denial of his demurrer to the charge of kidnapping, took the stand and admitted to having intercourse and deviate sexual intercourse with the victim but claimed that she had initiated and consented to it.

Appellant's first contention, that the trial court erred in permitting hearsay evidence into court, is clearly in error. The alleged hearsay evidence was given by the victim's mother who testified that in response to her question to the victim asking what was wrong, the victim answered "I've been raped. Call the police." This exchange occurred immediately after the victim's return home following the assault. The admission of this testimony, even if hearsay, was harmless error because the victim had previously testified that she had been raped. Appellant had an opportunity to cross examine the declarant and the jury had an opportunity to observe her. Therefore, the reasons for excluding hearsay were not present. Commonwealth v. Sanders, 260 Pa. Super. 358, 394 A.2d 591 (1978); Commonwealth v. Dugan, 252 Pa. Super. 377, 381 A.2d 967 (1977).

Appellant was sentenced to three consecutive prison terms: five to ten years on his kidnapping conviction; six to twelve years on his rape conviction; and five to twelve years on his involuntary deviate sexual intercourse conviction. Appellant contends that these sentences were manifestly excessive*fn4 because the lower court did not adequately consider his rehabilitative needs with regard to his drug and alcohol problem. We disagree.

The sentencing record discloses that the lower court considered appellant's drug and alcohol problem (and also his two prior convictions for similar sexual offenses). Reflecting this consideration is the lower court's order that a recommendation be placed on appellant's records that his problem be diagnosed and that he be treated at the appropriate facilities in the State Correctional System. This order was made after the lower court discussed appellant's drug and alcohol problem with him and agreed with appellant that he needed help. The lower court is not required to place every defendant with a drug or alcohol problem in a special treatment institution. The court's consideration of appellant's drug and alcohol problem was therefore more than adequate.

Appellant's final two allegations are that the verdict is (1) contrary to the evidence and (2) contrary to the weight of the evidence. Applying the appropriate scope of review as found in Commonwealth v. Rose, 483 Pa. 382, 396 A.2d 1221 (1979) and Commonwealth v. Farquharson, 497 Pa. 50, 354 A.2d 545 (1976), respectively, we find that the facts of this case render appellant's final two allegations meritiess.*fn5

Judgment of sentence affirmed.


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