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filed: July 15, 1983.


No. 207 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, No. 1221, Criminal Action 1979.


Victor Dell'Alba, York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, York, submitted a brief on behalf of Com., appellee.

Brosky, McEwen and Beck, JJ. Brosky and Beck, JJ., filed concurring opinions.

Author: Mcewen

[ 317 Pa. Super. Page 44]

William Luther was tried by a jury and convicted of rape. He has taken this appeal from the judgment of sentence.*fn1 Appellant contends solely that trial counsel was ineffective for failing to fully advise him prior to his trial of the importance of character witnesses and for failing to call character witnesses on his behalf at the trial. We reverse and remand for a new trial.

The complainant was the principal prosecution witness. She was a 25 year old woman living separate and apart from her husband with her eight year old son and her sister

[ 317 Pa. Super. Page 45]

    in a small apartment. The sister of the complainant was not present in the apartment during the occurrence. The son of the complainant was in a bedroom adjacent to the bedroom of the mother. The complainant indicated that she had known appellant, an 18 year old high school student who was also gainfully employed, for one or two years, and admitted him to her apartment at approximately 6:20 a.m. on November 16, 1979, after being awakened by knocking on the apartment door. When she observed that appellant appeared to have been drinking, she told him that he could "sleep it off on the couch" in the living room. Then, after stopping in the bathroom, she went to her bedroom which was separated from the living room only by a curtain. After a few minutes, appellant asked her for a knife so that he could cut his shoelaces and she responded that one could be found in the kitchen. The complainant testified that she heard nothing for a time, until appellant appeared in her bedroom, clad only in his undershorts with a knife in hand, and proceeded to get on top of her while holding the knife to her throat. She testified that at this point in the encounter her son was beginning to awaken and inquired who was with his mother and that appellant commanded her to "keep him quiet". She stated that she told appellant that "Billy won't be quiet" and gave her son permission to watch cartoons, telling him "to get dressed, get breakfast, get some cereal"; it was necessary for the boy to pass through the bedroom of his mother to do so. She testified that it was after her son was in the living room that appellant, while holding the knife at her throat, removed her panties and raped her and that the incident lasted approximately one hour, during which he penetrated her twice and threatened both herself and her son. She stated that when the sexual encounter had concluded, she directed her son to bring the clothes of appellant from the living room to the bedroom and that while appellant was dressing, he kept the knife next to him. She testified that when appellant completed dressing, he went into the kitchen but did not replace the knife but instead wrapped a paper towel around his hand and "must have slipped the knife up his sleeve." The

[ 317 Pa. Super. Page 46]

    complainant then testified that she ordered him to leave and said "don't ever come back here again, because if you do I am going to kill you"; that appellant said nothing as he left the apartment; and that she soon thereafter left the apartment with her son, delivered him to the school playground and went to the police station to report the incident.

The eight year old son of the victim testified that he saw appellant, with whom he also was acquainted, in bed on top of his mother and that he heard her "crying" on the two occasions that he passed through her bedroom that morning. He further testified that he brought the clothes of appellant to him from the living room at the request of his mother and, that he and his mother left the apartment immediately after appellant had departed.

The testimony of appellant concerning the incident was essentially that the intercourse was not forcible but was consensual and that the complainant exhibited a drastic change of attitude following the sexual intercourse. He testified that after finishing his shift at his place of employment at midnight, he and two friends went to a bar until 2:00 a.m., when the group proceeded to the house of one of them where he had several beers before departing between 3:30 and 4:00 a.m. He then went to the home of his mother and when he determined that nobody was awake, drove to the residence of the complainant. He testified that he did so because the complainant had, when they met at a shopping mall on the previous Sunday, invited him to visit her any night the following week except Wednesday. The appellant testified that the complainant admitted him to her home and told him to sit down and make himself comfortable while she was out of the room; that when she returned to the room, she helped him undress before they proceeded to her bedroom and into her bed. He testified that he took his underwear off after they were in bed and that, after assisting her in undressing, they engaged in consensual sexual intercourse. Appellant testified that when her son awoke and inquired as to who was in the room, she identified him; that the complainant at times during the course of

[ 317 Pa. Super. Page 47]

    the encounter told her son to be quiet and to go back to sleep but indicated that complainant eventually gave her son permission to leave his bed and to watch television in the living room. As the boy did so, he passed through the bedroom where his mother and the appellant were in bed. When asked on cross-examination about the testimony of the son that his mother was crying during the sexual encounter, appellant testified that the complainant was not crying and, on redirect, stated that she was making sounds normally associated with sexual intercourse. Appellant testified that later, while the complainant was out of the bed and getting dressed and appellant was still in the bed, the complainant directed the boy to bring the clothes of appellant from the living room to the bedroom. After he arose and had dressed, the complainant told him "to get the f___ out" and when he expressed confusion, she repeated her initial declaration. He testified that he then left but denied that he had ever requested a knife or that he had taken a butcher knife from the kitchen and also denied that he had a towel wrapped around his hand. He further testified that the complainant and her son left the apartment immediately after he did and that he observed them getting into their vehicle as he was driving away in his car.

The physician who examined the complainant at a local hospital shortly after the incident testified that although his examination revealed the vaginal area was hypertrophic or reddened, he did not find any indication of non-consensual or forced intercourse and specifically stated that he found no bruises, cuts or scratches on any part of her body including her neck. A laboratory report established the presence of sperm in the vagina of complainant.

The two arresting officers testified that after they took appellant into custody at his high school, he made a separate statement to each of them in which he admitted having had sexual intercourse with the complainant but in which he denied having raped her. The two statements were substantially the same and ...

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