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DAVID A. PERRY (04/15/83)

filed: April 15, 1983.

IN THE INTEREST OF DAVID A. PERRY, APPELLANT


No. 847 Pittsburgh, 1981, Appeal from the Orders of the Court of Common Pleas, Juvenile Division, Erie County, at No. 487 of 1981.

COUNSEL

Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Dana S. Jones, Assistant District Attorney, Erie, for Commonwealth, participating party.

Cercone, P.j., and Beck and Montemuro, JJ. Beck, J., concurs in the result.

Author: Montemuro

[ 313 Pa. Super. Page 165]

This is an appeal from an order of the court of Common Pleas, Erie County, which made an adjudication of delinquency on charges of Simple Assault,*fn1 Terroristic Threats,*fn2 False Imprisonment,*fn3 Theft*fn4 and Criminal Attempt to Commit Rape,*fn5 and from the Order of Disposition.

The appellant, David Perry, appeared before Juvenile Court Master, Robert W. Murray, Esquire, in a hearing regarding the above stated charges.*fn6 He was seventeen

[ 313 Pa. Super. Page 166]

    years of age at the time of his hearing. The findings of fact issued by the Master disclose that the appellant was acquainted with one Phyllis Smith on June 11, 1981 and that on that date he and his brother, James, arrived at Mrs. Smith's home to visit her daughter, Kathleen. Kathleen was not home at the time but the boys stayed to help Mrs. Smith with some yardwork. When they finished, the boys went into the house to wash their hands. Mrs. Smith told the appellant and his brother that she had to go to the library and that she would give them a ride to a nearby bus depot.

While in the garage, the appellant grabbed Mrs. Smith from behind and squirted the right side of her face with mace. As she struggled, the appellant ordered his brother to get money, pull the phone plugs and obtain the keys to the car. The appellant then pulled her into the house and down to the basement. Dragging Mrs. Smith across the basement floor, he flipped her onto her back and asserted "I have you down -- I'm going to rape you." Mrs. Smith pleaded that she had recently had an operation and that such activity would kill her. The appellant then turned her onto her stomach, pulled her jeans and underwear down below her hips and said, "I'm not going to do it like you think."

Mrs. Smith was able to pull up her clothing. The appellant dragged her from the floor to a bed placing her onto it face down. His brother brought some rope which the appellant used to tie her legs together. Throughout this confrontation he repeatedly assured Mrs. Smith that he did not intend to hurt her but merely to obtain her automobile so that he can get out of town.

Once Mrs. Smith was secured on the bed, the boys removed the money from her wallet and some assorted change from various places in the house. They left the premises in Mrs. Smith's automobile which was recovered the next day. Mrs. Smith was examined by a physician but she did not sustain any serious bodily injury nor did she

[ 313 Pa. Super. Page 167]

    require hospitalization as a result of the macing and her struggle.

Based on these findings, the Master recommended*fn7 that allegations of Aggravated Assault and Criminal Attempt be reduced to the lesser included offenses of Simple Assault and Indecent Assault, respectively. This was done as a result of a demurrer by appellant's counsel at the hearing. The Master sustained the allegations of Terroristic Threats, False Imprisonment and Theft. Pursuant to Section 6305(d) of the Juvenile Act,*fn8 the lower court issued an order which, for the most part, adopted the Master's recommendations. However, the court rejected the recommended charge of Indecent Assault, concluding, instead, that the findings of fact established beyond a reasonable doubt that the appellant committed the offense of Criminal Attempt to Rape. Counsel for the appellant ...


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