No. 2861 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common pleas of Chester County, Criminal Division at Nos. 1221/1223 of 1979.
Dennis D. Brogan, Assistant Public Defender, Norristown, for appellant.
Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Cavanaugh, DiSalle*fn* and Watkins, JJ.
[ 316 Pa. Super. Page 496]
This is an appeal by the defendant-appellant, Michael McBall, from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Chester County, after his conviction by a jury of rape, unlawful restraint and terroristic threats. Post-trial motions were denied.
The facts are as follows: At approximately 1:30 a.m. on June 2, 1979, the victim in this case, Ms. Patricia Cox, was driving home from West Chester to Downingtown when she had a flat tire. She pulled off the road and flagged down the first vehicle she saw. The defendant stopped allegedly to assist her. He changed the victim's tire and told her to drive to a nearby church parking lot where it was safe, so that he could spray something on the spare tire to keep it cool until the victim got home. By the time the victim drove to the church parking lot, her spare tire was flat also. (The spare tire was later tested by police and found to have no leaks).
The defendant then offered to take the victim home. She got into his car and they started off. The defendant turned right and the victim told him he should have gone straight.
The defendant drove a bit further then grabbed the back of the victim's neck and told her to sit next to him. When she refused, he pulled her. She became scared and slid over. The defendant then told the victim that if she gave him all of her money that nothing would happen to her. She gave him her money.
The defendant then told the victim that his pants were open and that she was to suck his penis. She said no, and wanted out of the car, but defendant forced her head down into his lap. She put her mouth on his penis. Two times
[ 316 Pa. Super. Page 497]
she struggled to get free. Defendant told her he would kill her if she kept fighting him.
The defendant finally stopped the car in a wooded area. He told the victim that if she screamed or made any noise he would kill her. Since she was afraid, she did not fight. Defendant pulled the victim out of the car, then shoved and pushed her into the weeds. He undressed her and told her to take her shirt off. ...