No. 1850 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 1028-78.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ. Cavanaugh, J., files a concurring opinion.
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This case comes to us on appeal from the Court of Common Pleas of Montgomery County, Criminal Division, and involves the defendant-appellant's appeal of his convictions by a jury of rape, simple assault-menace, and involuntary deviate sexual intercourse. He was acquitted of terroristic threats and kidnapping. Demurrers were sustained on charges of unlawful restraint, false imprisonment and simple assault-attempted. Verdicts of not guilty were directed on the charge of indecent assault.
On March 3, 1978 at approximately 7:15 P.M., Dolores Contreras, a student at Temple University, was standing on the corner of North Broad and Norris Streets in Philadelphia waiting for a bus which would take her into Center City. She planned to catch a bus at the Center City terminal which would take her to Alabama where she planned to visit her sister. It had been snowing heavily at the time for several hours and the buses were running late. At the above-mentioned time the defendant drove past Ms. Contreras in his automobile and asked her if she wanted a ride. She declined. The defendant turned, proceeded north on Broad Street, turned around, and within a few moments, returned to the scene travelling south on Broad Street and again asked Ms. Contreras whether she needed a ride. This time she accepted.
The defendant then proceeded south on Broad Street toward Center City Philadelphia. Suddenly he changed directions and drove west toward the Schuylkill Expressway. When Contreras asked where he was going the defendant said, "You are going with me, this ought to teach you not to
[ 294 Pa. Super. Page 96]
get in cars with strangers". He then drove onto the Schuylkill Expressway and told her to remain in the vehicle, to shut up and to do everything he said. As she moved to the door on the passenger side of the vehicle the defendant leaned over, bolted the door and threatened to kill her if she attempted to leave the vehicle. The defendant then continued to drive west out of the City of Philadelphia. Ms. Contreras testified at trial that the defendant kept his hand in his pocket at all times and that she believed that he might have been holding a weapon. The defendant then told her that all he wanted was "a little sex." She responded to this statement by asking him whether he would want something like that to happen to his sister. The defendant then threatened to kill her again. He drove to Fairmount Park, stopped the vehicle, got out and looked around, and then returned to the vehicle which he drove to Monument Avenue in Lower Merion Township, Montgomery County. This was a dark area with few homes. At this point Contreras informed the defendant that if he "wanted to proceed with this, to go ahead", because she did not want him to hurt her. The defendant then parked the vehicle and instructed her in the sexual acts he wished her to perform. These included acts of oral sex in the front seat of the vehicle. They then moved to the back seat where he had sexual intercourse with her. After 45 minutes the defendant drove her to the Center City bus terminal where she got out of the vehicle, recorded its license number, and informed the police that she had been raped. The defendant was arrested a few hours later. On July 19, 1978 he was convicted of the charges as set forth previously in this opinion. He was sentenced to a prison term of three and one-half to fifteen (3 & 1/2 -- 15) years. The defendant appealed his judgment of sentence on August 10, 1979.
Defendant's first contention is that the facts adduced at trial are insufficient to sustain the jury's verdict. He argues that the above stated facts negate any finding that he raped Contreras and argues that she gave him permission because she did not fight him, displayed no hysteria after the incident on the way to the bus station, and had stated words to
[ 294 Pa. Super. Page 97]
the effect that defendant might as well get it (the rape) over with as soon as ...