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COMMONWEALTH PENNSYLVANIA v. JAMES EDWARD OWENS (03/23/83)

submitted: March 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES EDWARD OWENS, APPELLANT



No. 43 Harrisburg 1982, Appeal from the Judgments of Sentence of the Court of Common Pleas of York County, Criminal Division, at Nos. 887 and 888 C.A. 1978.

COUNSEL

Louis Andrew Yuhn, York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.

Cercone, P.j., and Cirillo, and Hoffman, JJ.

Author: Hoffman

[ 315 Pa. Super. Page 403]

This is an appeal from appellant's convictions of simple assault, indecent assault and attempted rape. Finding appellant's several contentions without merit, we affirm the judgments of sentence.

Appellant was arrested on August 7, 1978 and charged with attempted rape, indecent and aggravated assault, and two counts of simple assault. He pled guilty on January 22, 1979 to simple and indecent assault and the Commonwealth agreed to nolle prosse the remaining charges. On February 6, 1979, however, appellant withdrew his plea and on March 21, the case proceeded to trial on all charges. The lower court dismissed the aggravated assault charge and the jury found appellant guilty of the other charges. Post-verdict motions were denied and on May 29, 1979, appellant was sentenced to five-to-ten years for attempted rape*fn1 and a consecutive one-to-two year term for the second count of simple assault. After trial counsel failed to file a timely appeal, appellant petitioned for Post Conviction Hearing Act (PCHA) relief alleging counsel's ineffectiveness. Following a hearing, the lower court permitted present counsel to file this instant appeal.

Appellant contends that the evidence was insufficient to convict him of attempted rape. A person is guilty of committing rape if by forcible compulsion he engages in sexual intercourse with a person who is not his spouse. 18 Pa.C.S.A. § 3121. Sexual intercourse, "in addition to its ordinary meaning includes intercourse per os or per anus, with some penetration however slight." 18 Pa.C.S.A. § 3101. A person commits criminal attempt when, "with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901. When an appellant challenges the sufficiency of the evidence supporting his conviction, we must accept as true all of the evidence upon which the finder of fact could properly have reached its verdict and

[ 315 Pa. Super. Page 404]

    give the Commonwealth the benefit of all reasonable inferences arising from that evidence. Commonwealth v. Lewis, 276 Pa. Superior Ct. 451, 454, 419 A.2d 544, 546 (1980). So viewed, the facts are as follows: On August 7, 1978, appellant and his seven-year old victim were walking through an alley to a nearby candy store when appellant struck her, causing her nose to bleed. Appellant then pushed the child into a garage at the end of the alley, held her, pulled down her pants and unzipped his own. At this point a neighbor who had seen appellant push the child down the alley, entered the garage and tried to intercede. Appellant pushed the neighbor away, struck her and left the garage with the child. The neighbor followed him to the alley, whereupon he struck her again, saying that the child was his own. Shortly thereafter the woman's son shouted that the police were coming and appellant fled, leaving the child behind.

Appellant contends that upon finding one candy store closed, he and the child walked through the alley toward another store. He concedes that he struck both the child, out of frustration, and the neighbor who tried to help. He does however, deny that any indecent or sexual assault occurred.

"It is the exclusive province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded their testimony. Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). Furthermore, the trier of fact is free to accept all, part or none of the testimony of any witness. Commonwealth v. Oates, 448 Pa. 486, 490, 295 A.2d 337, 339 (1972). Here, the evidence indicates that appellant struck the child, forcibly led her into the garage, removed her clothing and was about to sexually assault her when a woman entered the garage and aborted the attempt. In so doing, the jury could certainly have inferred that appellant ...


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