No. 764 Pittsburgh 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Cambria County, Criminal Division at No. 0289 of 1981.
Neil W. Price, Johnstown, for appellant.
James A. Nelson, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
Cavanaugh, Popovich and Hester, JJ.
[ 333 Pa. Super. Page 315]
This is an appeal by the appellant, Tracy Adams, from the judgment of sentence for Rape, Simple Assault and Burglary. We affirm.
The facts, viewed in a light most favorable to the verdictwinner, consist of the following: At approximately 11:00 p.m. on the 7th of April, 1981, Diane Rickabaugh was in her living room watching the news. Her two children were asleep on the third floor. As the news was coming to a close, her dog started to bark and headed toward the back door, which was locked as was the front entrance. Ms. Rickabaugh's fiancee was not home at the time, so she made her way to the back door. As she did so, she passed the door leading to the basement. It opened and she was hit on the back of the head. She fell to the floor but was
[ 333 Pa. Super. Page 316]
not unconscious. Although she could see and hear, she could not shout or move.
After Ms. Rickabaugh was struck, her dog attacked the intruder, but he threw the animal down the cellar steps and slammed the door. He then dragged the victim by the arms into the living room. As the assailant was pulling the victim, she "could . . . see him." (N.T. 67) Although "[i]t wasn't . . . long[,]" she had "an opportunity to observe this individual['s] . . . face and head." Id. The victim was dragged to the middle of the living room in front of the television. She lay five feet from the set, which was still on, and about four feet from the lamp that was lit.
At this point, the assailant proceeded to remove the victim's houserobe, nightgown and panties. He then removed his slacks and placed his penis in the victim's vagina. When this occurred, Ms. Rickabaugh passed out. Upon awaking, she found that she had been sexually assaulted with a nightstick kept by her near the front door for protection, and that a white substance, presumed to have been "Dream Whip" because of the empty bowl found next to her, had been placed over her body. She also discovered an empty Miller beer bottle on the floor where she lay.
At 12:15 a.m. the victim's fiancee returned, but, because she was too embarrassed and ashamed, she told him nothing. In fact, she stated she took three showers/baths and was in bed prior to his return. It was only when she got up the next morning with "alot of pains" in her stomach that she called her doctor and told him what had occurred. The doctor directed her to meet him in the emergency room at Memorial Hospital. Upon completion of an examination, a report was prepared by the doctor which read: "In summary, the patient's physical examination was consistent with history of rape with penetration of her vagina."
The hospital personnel, with the victim's arrival, contacted the police. Detective Kiser arrived on the scene and interviewed the victim at the hospital. After her release, he followed her home and she handed over the nightstick, the "Miller's" beer bottle and her nightgown to the detective.
[ 333 Pa. Super. Page 317]
At trial, the attorneys stipulated that the tests conducted on the items proved ...