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COMMONWEALTH PENNSYLVANIA v. PHINAS DEAR (05/03/85)

filed: May 3, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
PHINAS DEAR, JR., APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County at No. 1630 C.D. 1981.

COUNSEL

Paul Lichtenstein, Harrisburg, for appellant.

Katherene Holtzinger, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Wickersham, Wieand and Cercone, JJ.

Author: Wickersham

[ 342 Pa. Super. Page 193]

On July 28, 1981, appellant Phinas Dear, Jr. was arrested and charged with the rape and robbery of Edith Raup. The prosecutrix alleges that on the evening of July 1, 1981, she went to the Verbeke Bar on the corner of Third and Verbeke Streets, Harrisburg, Pennsylvania, with the intention of celebrating her 21st birthday which was to occur the following day. She further testified that appellant came into the bar at approximately 6:00 p.m. that evening and approached her and asked her to have sex with him. Successfully rebuking appellant, the prosecutrix no longer was aware of his presence in the bar.

The prosecutrix further testified that after having several drinks she left the bar around 10:00 p.m. to get some fresh air. As she walked back to the bar, she saw appellant with a handgun. Appellant approached the prosecutrix, called her derogatory names, grabbed her with one hand, and slapped her with the other. She testified that appellant forced her into an alley behind the bar where he robbed her of $100. Appellant then forced the prosecutrix further down the alley where he forcibly raped her, discharged the gun beside her head and subsequently inserted the barrel of the handgun in her vagina. After this incident, the prosecutrix walked with appellant back towards the bar where she saw a friend's car and ran toward it to escape.

Ms. Raup then proceeded to call the police and upon their arrival, gave her statement. She was taken to Harrisburg Polyclinic Hospital and examined by Dr. John O'Shea, who collected evidence by using a sex crimes kit. He said that the patient bordered on being hysterical at that point. An external examination revealed that Edith Raup had bruises on her forearms, face and back and bruising on both breasts that would be consistent with finger marks. Dr. O'Shea's internal examination revealed a tear at the entrance to the vagina, which improbably could have been caused by normal vaginal intercourse, but was more consistent with the type of injury which would result from a blunt instrument being forced into her vagina.

[ 342 Pa. Super. Page 194]

Edith Raup detailed a further incident the next evening with appellant. She testified that appellant abducted her at gunpoint from in front of the Verbeke Bar and drove her to a rural area where he threatened to kill her if she went to the police. Ms. Raup was then returned to the area of the Verbeke Bar and as appellant drove away, she noted the car's license number and reported the number and alleged incident to the police. The auto was traced to appellant's spouse and Edith Raup identified appellant from photos prior to his arrest on July 28, 1981.

At the time of his arrest, appellant denied knowing Edith Raup or being in the area of the Verbeke Bar on July 1, 1981. During an interview on August 10, 1981, appellant denied raping Edith Raup or having sexual intercourse with her. A court order was obtained for the extraction of a public hair from appellant for comparison with a foreign public hair found in the combing of Edith Raup. A chemist with the Pennsylvania State Police Crime Laboratory, James L. Miller, testified that these hair samples were found to be virtually identical when examined under a high-powered microscope.

Appellant testified at trial that he was solicited by Edith Raup and he knew her to be a prostitute. He stated that they left the bar on July 1, 1981 to go to a motel, but decided to have sex in an overgrown vacant lot.

Appellant was found guilty of both rape and robbery. Post-trial motions were filed and denied and on April 8, 1982 appellant was sentenced to not less than five nor more than ten years imprisonment on the rape conviction and not less than two nor more than five years imprisonment on the robbery conviction. A timely appeal was taken.

In this appeal, the following issues are raised:

I. Does exclusion of relevant evidence of prior sexual history of the prosecutrix in a rape case pursuant to the Pa. Rape Shield Law deny the defendant of his constitutional rights under the Sixth Amendment to adequately confront witnesses against him?

[ 342 Pa. Super. Page 195]

II. Are the statements of the prosecutrix to the examining physician discoverable by pretrial motions?

III. Does the use of [peremptory] challenges to remove minority jurors deny the ...


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