Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Mercer County, No. Criminal 1980.
Frances S. Palmer, Hermitage, for appellant.
Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Cavanaugh, Montemuro and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
[ 317 Pa. Super. Page 321]
This is an appeal from the judgment of sentence imposed on the appellant, Daryl Nason Claypool, for rape,*fn1 involuntary deviate sexual intercourse*fn2 and simple assault.*fn3 Appellant contends, inter alia, that the trial court erred in allowing the Commonwealth to introduce evidence of appellant's prior criminal conviction for rape.*fn4 The record before
[ 317 Pa. Super. Page 322]
us supports the appellant's contention, and accordingly, we vacate the judgment of sentence and remand the case for a new trial.
The appellant's contention is centered around the admission of evidence concerning a prior criminal conviction for rape which was alluded to by the prosecutor in his opening statement, brought out in the testimony of the victim and further amplified in the examination and cross-examination of the appellant, and through the testimony of the appellant's wife as a rebuttal witness for the prosecution.
The facts giving rise to this matter occurred in the early morning hours of November 7, 1979. The appellant, a long distance truck driver, had been in Baltimore, Maryland picking up a load of steel. His wife, Patricia Claypool, was in the hospital undergoing minor surgery. Mrs. Claypool's sister, Susan Durney, had agreed to baby-sit for the Claypool children, Nason and Amy, ages 3 and 1 and 1/2 respectively. Mrs. Durney and the children were alone in the Claypool residence on the night and early morning in question.
At about 1:30 A.M., the appellant arrived home unexpectedly, pounded on the door, and was admitted by Mrs. Durney, who was wearing a long-sleeved flannel nightgown. The appellant and Mrs. Durney talked briefly while the appellant drank a beer from a six-pack he had purchased earlier.*fn5 Mrs. Durney then went upstairs to the bedroom in which the Claypool children were sleeping.
Shortly thereafter, she heard her name being called and went to the doorway of her room. The appellant was standing in the doorway of the other bedroom attired only in a T-shirt and briefs and was holding a gun; either a shot gun or a rifle. He pointed the gun toward her and told her to come into the bedroom. At first, she refused, but he repeated his demand and she entered the bedroom. Mrs.
[ 317 Pa. Super. Page 323]
Durney repeatedly asked the appellant to put the gun down because she was scared, but the appellant refused and said to her:
". . . better not try to get away or to scream or holler . . . he would shoot me and anybody else who got in his way and hopefully that if the police came he would get killed too because he would never go to jail again."
Mrs. Durney testified that the appellant told her he had been in jail, a fact of which she was aware. He also told her that he had been in jail for rape, a fact of which she was not aware. She recounted appellant's words:
"He told me that him and another fellow were at his cousin's house and they had been drinking and they tied up his cousin and then they took the cousin's wife upstairs and that he was in jail for that."
She then testified that she was "scared to death because then I knew that that's what he was going to do to me." She also testified that the appellant made various other threats,*fn6 grabbed her wrists, threw her on the bed, pulled off her nightgown and spread her legs, leaving bruises. Appellant proceeded to engage in several acts of sexual intercourse with the victim, both vaginal and oral.
The appellant admitted having sexual relations with Mrs. Durney but claimed the acts were entirely consensual. He acknowledged having the gun while standing in the hallway, but claimed that he had taken it out while contemplating suicide and had ...