No. 662 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County at No. 590 Feb. 1979.
John P. Cotter, Philadelphia, for appellant.
Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Hoffman, JJ.
[ 294 Pa. Super. Page 252]
This is an appeal from judgment of sentence for rape.*fn1 We have concluded that appellant was properly convicted, but that the judgment of sentence must be vacated and the case remanded for a hearing on appellant's petition for reconsideration of the sentence.
Appellant was tried before a jury. The principal witness was the complainant, a seventeen year-old high school student, who testified as follows. At 11 p. m. on January 5, 1979, while she was on her way home from visiting a
[ 294 Pa. Super. Page 253]
girlfriend, appellant, whom she knew slightly, offered her a ride the rest of the way. It was snowing, and she accepted. However, rather than taking her directly home, appellant told her that he needed to stop at his girlfriend's house to explain why he would be late. When they arrived at the girlfriend's house, appellant insisted that she go inside with him to meet his girlfriend. She did go inside, but the girlfriend was not there. After some conversation, appellant forced her to go to an upstairs bedroom, where he removed her clothes and had sexual intercourse with her. When she screamed in pain, appellant told her that the longer she screamed the longer it would take. After finishing, he insisted that she wash up and allowed her to dress. She managed to escape and ran to her father's house, which was near by. The police were called and took her to a hospital, where she was examined, and a tampon, which she had been wearing and which had been forced deep into her body, was removed.
The victim's father, the examining physician, two police officers, and appellant's girlfriend also testified for the Commonwealth. Their testimony was consistent with that of the victim.
Appellant did not take the stand nor did he present any other witnesses on his behalf. His trial counsel told the jury that appellant was not denying that intercourse had taken place but that it was his position that it had been consensual. Counsel had vigorously cross-examined the victim, asking her why she did not try to leave the house as soon as she discovered that appellant's girlfriend was not there, and emphasizing the lack of any signs of force on her body or damage to her clothing. He suggested to the jury that the victim claimed that she had been raped in order to explain to her mother why she was not home on time and why she needed to go to the hospital for removal of the tampon.
Appellant first argues that the testimony of the victim was not sufficient to establish that a forcible rape occurred. We have no difficulty in agreeing with the lower court that ...