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COMMONWEALTH PENNSYLVANIA v. CLAYTON LEE NELSON (02/18/83)

filed: February 18, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CLAYTON LEE NELSON, APPELLANT



No. 2711 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division at No. 5382 of 1980.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Media, for appellant.

Helen T. Kane, Assistant District Attorney Media, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ.

Author: Popovich

[ 311 Pa. Super. Page 5]

After a jury trial, appellant, Clayton Lee Nelson, was found guilty of Rape (18 Pa.C.S.A. § 3121), Involuntary Deviate Sexual Intercourse (18 Pa.C.S.A. § 3123), Burglary (18 Pa.C.S.A. § 3502) and Simple Assault (18 Pa.C.S.A. § 2701). Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of 3 to 11 years for Rape, 1 to 2 years for Involuntary Deviate Sexual Intercourse and 1 to 5 years for Burglary. Sentence was suspended for the Simple Assault conviction and all sentences were ordered to be served concurrently. This appeal followed. We affirm.

On appeal, appellant asserts that: 1) the trial court erred in not permitting him full access to the subpoenaed records of the rape crisis center; 2) the trial court erred in refusing to permit him to be asked whether the police had offered him a polygraph test; and 3) trial counsel was ineffective.

The evidence, viewed in the light most favorable to the verdict-winner, the Commonwealth here, Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975), consists of the following: At approximately 5:30 a.m. on the 21st of September, 1980, Ms. Cupelli was awakened by a "stirring" that sounded like breathing coming from the foot of her bed. Upon turning the light on, she saw a man on the floor beside her bed. He had his head down. When she asked who he was and what he wanted, "he turned his face to look at [her] and [she] recognized him immediately as Clay Nelson . . . ." (N.T. 43) Ms. Cupelli knew the intruder because he had lived in a duplex directly across from her apartment for the first six months of 1980, and she had occasion to speak to him about eight times during that period. At this point, when appellant moved toward Ms. Cupelli, she screamed. The appellant reacted by placing an arm lock around the victim's neck, forcing her face into the pillow and turning out the light. The victim struggled for awhile, but her resistance waned when the assailant promised not to hurt her if she refrained from fighting, screaming or making noise. The victim complied, for she thought

[ 311 Pa. Super. Page 6]

    that if she resisted further she would be either strangled or suffocated.

During the ensuing hour, Nelson compelled the victim to submit to oral, anal and vaginal intercourse. When the ordeal was over, the victim phoned a friend to tell her that she had been raped, and that she knew the assailant. The friend advised her to consult the "Women Against Rape" center in Philadelphia. The victim did so and was told to seek treatment at a hospital that had a rape care unit. After the victim had located such a hospital, she contacted the police.

When the police arrived on the scene, the victim showed them the screen that had been pulled out from the living room window and a rolled up paint cloth that had been left on the floor next to her bed by the assailant. The victim also informed the authorities that the guilty party "was the person who used to live across the street . . . in the duplex." (N.T. 56) An examination of the duplex produced a piece of cloth from the porch and something in the door with a name on it. When the police asked the victim, "does Clayton Nelson sound familiar to you? [The victim] said that Clay did. The name Clay, that was the name."*fn1 Ibid. Thereafter, the police transported Ms. Cupelli to Bryn Mawr Hospital where she was treated for rape. Tests conducted upon the victim indicated the presence of sperm in her vagina and other signs consistent with the reported assault.

Based on the evidence secured, an investigation was undertaken leading to the arrest of the appellant on September 22, 1980.

Initially, appellant asserts that the lower court erred in refusing to permit the trial attorney to examine all of the records compiled on the case by the "Women Against Rape" center, since "[t]he interview with the alleged victim was taken under circumstances wherein there was no confidentiality

[ 311 Pa. Super. Page 7]

    involved." (Appellant's Brief at 5) Moreover, appellant urges "that the defense counsel rather than the Court knows best what statements of the witness would be helpful for cross examination relative to impeachment." (Appellant's Brief at 7) An examination of the facts, when aligned against the relevant case law, reveals the fallacy in both of the appellant's averments.

Prior to trial, defense counsel served a subpoena upon "Women Against Rape" (WAR) to compel production of "all documents, memoranda, writings or reports pertaining to said rape incident" in their files. WAR, through its attorney, resisted compliance with the subpoena on the basis of the decision of In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981). In the midst of trial, the court, at an in camera ...


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