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submitted: January 16, 1986.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County at No. 227-1983.


John R. Kelsey, III, Lebanon, for appellant.

John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.

Wickersham, Del Sole and Popovich, JJ. Del Sole, J., files a dissenting opinion.

Author: Popovich

[ 353 Pa. Super. Page 484]

This is an appeal from a judgment of sentence (two to four years imprisonment) for criminal conspiracy by the appellant, Robert Wolf. We affirm.

The facts, when viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that on the 26th of January, 1983, thirteen-year-old Crystal Swisher was playing video games in the Circle B Laundromat in the City of Lebanon when she was approached by one Dean Stofko, someone she had met once. He asked her for $1.50 to help purchase a bottle of grain alcohol. Ms. Swisher not only gave him the money, she agreed to join him and his friends in drinking it.

The two waited outside the laundry until Stofko's friends (Timothy Kramer, Dave Weatherholtz, Mitch Miller and the appellant) had secured the alcohol. The six then walked across the street to an apartment, but they left when it was discovered that there was no orange juice to mix with the liquor. As a result, Stofko and his friends decided to repair to Weatherholtz's premises. Ms. Swisher went along.

The group arrived at the apartment around 5:00 p.m. and found Weatherholtz's wife (Lori) and two children there. The appellant and Dave Weatherholtz then proceeded to the kitchen to mix the 190 proof grain alcohol in a punch bowl with orange juice. The others, i.e., Kramer, Stofko and Miller, stayed in the living room with Swisher. At this time, Lori advised her husband that she was going to the store to buy cigarettes, and that she would take their daughter along. He was to watch the one-year-old son while she was gone.

Thereafter, the appellant brought in drinks and set one on a table in front of Swisher. At this point, Kramer sat on one arm of a chair and Stofko rested on the other arm as Swisher was in the middle.

[ 353 Pa. Super. Page 485]

Swisher had three drinks of grain alcohol mixed with orange juice at first and later she drank the "grain straight." She became dizzy and on the verge of passing out. Somehow, although she was initially sitting on a chair, she found herself on the couch, from which she eventually slipped or fell onto the floor. Two of the individuals present carried her upstairs. Thereafter, she recalls being placed on the bed. Her clothing was removed, and she was tied to the bed by her ankles and wrists. Next, the victim recounted how each of the five males took turns sexually assaulting her. The assault lasted no more than twenty-five minutes, for this was the length of time Lori Weatherholtz was away from the apartment. When she returned, she discovered what was going on in her bedroom and directed everyone to leave.

The victim said that after she left the premises, she was pursued for some distance by members of the group. A crowd had gathered, and this attracted the attention of Officer Robert Bowman. Upon investigation, the officer found the victim "having a fit. She was kicking the wall, the ground and saying 'Leave me alone. I want to die.'" Seeing that the victim was intoxicated and emotionally upset, the officer decided to transport her to the emergency room of the Good Samaritan Hospital.

On the way to the hospital, the victim was obstreperous. When asked by the officer why she was acting in such a manner, she reportedly stated, "How would you feel if you were just raped by five guys?"

Once at the hospital, the officer checked the victim's ankles and wrists and detected what he termed "rope burns and indentations on the inside of both ankles and on the wrists." Two detectives from the Lebanon Police Department confirmed the "very hysterical" condition of the victim while at the hospital.

Test results from the hospital established that the victim had engaged in sexual intercourse. There was also evidence at trial that the appellant, following his arrest but prior to any incarceration, approached one of the detectives

[ 353 Pa. Super. Page 486]

    investigating the case to strike a "deal" to minimize any potential sentence he might receive if the case went to trial. This same detective testified that the appellant, in the second of three contacts, admitted witnessing the victim being sexually assaulted. However, he stated he never participated in this attack. This point, interestingly enough, was corroborated by the tests performed by the Federal Bureau of Investigation on the bed linen, i.e., ...

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