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COMMONWEALTH PENNSYLVANIA v. RICHARD LEE HURLBERT (05/25/84)

filed: May 25, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD LEE HURLBERT, APPELLANT



No. 72 Pittsburgh, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Erie County, Criminal Division, at No. 320 of 1981.

COUNSEL

William F. Cercone, Jr., Pittsburgh, for appellant.

Timothy J. Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.

Brosky, McEwen and Beck, JJ.

Author: Brosky

[ 329 Pa. Super. Page 121]

Appellant Richard Hurlbert appeals from the judgment of sentence imposed upon him following his conviction by a jury of rape and criminal conspiracy.

On appeal Mr. Hurlbert argues: (1) that the trial court erred in refusing to give him access to records made at a rape crisis center and a hospital; (2) that he should have been granted a new trial because the Commonwealth failed to disclose an exculpatory statement; (3) that the trial court

[ 329 Pa. Super. Page 122]

    should have directed a verdict on the conspiracy charge; and (4) that his trial counsel rendered him ineffective assistance because he failed to introduce at trial or sentencing evidence of the psychological effects of using marijuana.

The facts of this case were summarized by us in the opinion we issued in appellant's co-defendant's appeal. In Commonwealth v. Hicks, Pa. Super. , A.2d (filed ___ 1984) we wrote:

[O]n the evening of February 18, 1981 the complainant was a patron at a lounge known as the Indian Head Inn in Waterford. She arrived at approximately 10:00 p.m. Miss Patterson knew a Martin Rice, whom she saw at the lounge and who introduced her to two of his friends, appellant and appellant's co-defendant, Richard Hurlbert. Mr. Rice invited Miss Patterson to join Hurlbert, appellant and him in Hurlbert's van, where the group smoked a marijuana cigarette. The group returned to the van two more times that evening, accompanied the third time by two of Miss Patterson's friends. One of those other women left the van after a few minutes, the other, Chris Johnson stayed for approximately ten minutes. Miss Johnson had accompanied the group comprised of Hurlbert, Rice, appellant and Miss Patterson on the second and third trips to the van on all of which occasions marijuana was smoked.

Miss Johnson testified that when she left the van on her last trip it was raining and she ran back to the lounge, but turned as she was running and saw appellant put his hands on Miss Patterson's shoulders and suggest that she stay.

Miss Patterson did remain in the van smoking marijuana and in fact shared a marijuana cigarette with appellant by a means known as "shotgunning". That is, one of the pair put the lit end of the cigarette in his or her mouth and the other inhaled from the other end. The couple also kissed and Miss Patterson indicated that she did not resist a kiss from Mr. Hicks.

[ 329 Pa. Super. Page 123]

Miss Patterson believed that Mr. Hurlbert, who was seated in the driver's seat of the van, would drop her off at the door to the lounge. Instead, he drove away explaining that he was going to get cigarettes. The van passed the store where Miss Patterson had expected the cigarette purchase to be made apparently because it was closed. After a time the van was travelling on a road unfamiliar to Miss Patterson and she suggested that she should be taken back to the lounge where she was to meet friends. Instead Mr. Hurlbert continued to drive in territory unfamiliar to Miss Patterson. He eventually stopped the van. Mr. Hurlbert, then Mr. Rice, and then Mr. Hicks exited the van. Mr. Hurlbert returned and entered the rear of the van where Miss Patterson had been sitting with Mr. Hicks. Miss Patterson then testified:

And then he [Mr. Hurlbert] had his hands on my shoulders and he was pushing me back down, and that's when I kept asking him not to, and he said that if I didn't, he would call the other two.

Miss Patterson then related that Mr. Hurlbert removed her slacks and underwear. When asked whether she resisted Mr. Hurlbert, Miss Patterson replied: "Enough to get beat up or something?" "Whenever he was pushing me back, I kept pushing forward and asking him not to, and then he said he was going to call the other guys and pushed me back down, and he took my clothes, and I told him that I had a bad stomach."

After describing Mr. Hurlbert's sexual assault upon her, Miss Patterson described her encounter with Mr. Hicks . . . .

She said that while she and Mr. Hurlbert were alone in the van Mr. Rice and appellant tried to enter but were told by Mr. Hurlbert to get out. Mr. Rice and appellant then stood outside looking in the van windows. Eventually Mr. Hicks entered the van, removed his pants and had intercourse ...


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