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COMMONWEALTH PENNSYLVANIA v. NICHOLAS A. VITACOLONNA (03/26/82)

filed: March 26, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
NICHOLAS A. VITACOLONNA, APPELLANT



No. 11 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania, at Nos. 848 AND 849 May Term, 1978.

COUNSEL

Jack J. Bulkin, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Cirillo and Popovich, JJ. Cirillo, J., files a concurring opinion.

Author: Popovich

[ 297 Pa. Super. Page 286]

In a bench trial before the Hon. Alfred J. DiBona, J., the appellant, Nicholas Vitacolonna, was found guilty of tampering with a witness (18 Pa.C.S.A. § 4907) and simple assault (Id. at § 2701).*fn1 Post-verdict motions were timely filed and denied. The trial judge, on December 4, 1979, sentenced appellant to five (5) years probation for tampering with a witness and two (2) years concurrent probation for simple assault. Appellant appeals the judgment of sentence, claiming that the evidence was insufficient and that the trial judge erred in limiting his counsel's cross-examination of a Commonwealth's witness. We disagree and, accordingly, affirm the judgment entered below.

The facts, viewed in a light most favorable to the verdictwinner, consist of the following: On March 18, 1978, complainant, Colleen O'Hare, reported to the police that appellant had attempted to rape her the previous night. Appellant was arrested, charged with attempted rape and released on bail that same day. That evening, appellant phoned Miss O'Hare and offered her $2,000 and a one-way airline ticket to Florida if she would not appear in court to testify; Miss O'Hare refused the offer. (N.T. 13-14, 18) In the ensuing weeks, appellant persisted in calling the complainant to get her to drop the charge and escalated the offer from $2,000 to $10,000. Complainant's position did not change.

The first time the complainant saw the appellant after the March 18th incident was on April 5th. The encounter took place outside the courtroom of Judge Jenkins, located in the Philadelphia City Hall, where Miss O'Hare was subpoenaed to appear for a preliminary hearing on the attempted rape

[ 297 Pa. Super. Page 287]

    charge. At this time, the appellant stalked and harassed Miss O'Hare, telling her that he had the District Attorney and the judge "in his pocket" and that it would be "easier if [she would] just take the money and . . . walk right out." (N.T. 21) This matter was reported to the District Attorney and a Det. Jack Warren. (N.T. 22-23) A couple of days later, the complainant saw the appellant on Frankford Avenue in Philadelphia, as she was exiting a dress shop. The complainant tried to avoid the appellant by walking fast, but he caught up with her, "grabbed [her] arm, and pulled [her]. Then [she] went to go on to walk faster and he just yanked [her] back again." (N.T. 23-24) Appellant told Miss O'Hare that he wanted her to drop the charge and that he would give her money to do so. The complainant answered, "no way." (N.T. 25) The witness also testified that appellant "told [her] he could have had [her] knocked off . . . ." (N.T. 49) Such threat caused the witness to become "very upset." Id.

On the stand, appellant did not deny calling Miss O'Hare. However, he stated he did so to inquire as to why the attempted rape charge had been filed by her. Additionally, appellant's version indicated that it was the complainant who first said, "well, you give me a couple thousand and a one way ticket to Florida and I'll drop the charges." (N.T. 65) As to the occurrence on the date set for the preliminary hearing, appellant denied "threatening" the victim and admitted to no more than "pass[ing] her in the hallway." (N.T. 67) In like fashion, the accused did not dispute seeing the victim on Frankford Avenue, but he stated he just "talked to her." (N.T. 69)

No one contests the point that appellant and complainant had been friends for about six months prior to the attempted rape incident, and had dated on occasion. Appellant, however, contends that the complainant moved in after his common law wife became disenchanted with him. According to appellant, the reason behind complainant's conduct stemmed from the fact ...


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