Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Somerset County, No. 256 of 1984.
Jerry L. Spangler, Assistant Public Defender, Somerset, for appellant.
David J. Flower, Assistant District Attorney, Somerset, for Commonwealth, appellee.
Rowley, McEwen and Tamilia, JJ.
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This is a direct appeal from Judgments of sentence totaling 8 1/2 to 15 years imprisonment imposed following
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appellant's conviction by a jury on two counts of kidnapping*fn1 and one count of attempted rape.*fn2 Appellant's primary argument on appeal is that the evidence is insufficient to sustain his kidnapping convictions because the Commonwealth failed to prove that he "unlawfully confine[d] another for a substantial period in a place of isolation. . . ." 18 Pa.C.S. § 2901(a).*fn3 Because we agree that the evidence is insufficient to establish that appellant confined his victims in a place of isolation, we vacate the judgments of sentence imposed on his kidnapping convictions.
A review of the evidence in a light most favorable to the Commonwealth, as the verdict winner, Commonwealth v. Taylor, 324 Pa. Super. 420, 424, 471 A.2d 1228, 1230-31 (1984), reveals the following. On April 19, 1984, at approximately 6:00 p.m., Doris Pyle called a local dry cleaner and asked them to pick up her coat for cleaning. Ms. Pyle resided in an apartment located above a clothing store in Somerset Borough, Somerset County. Within five minutes she heard footsteps in the hallway. She opened the door expecting to find someone from the dry cleaning store; instead, she encountered appellant who forced his way into her apartment. When Ms. Pyle asked appellant what he wanted, he replied, "'I'm going to 'F' you.'" N.T. 24. He then placed his hand over her mouth and told her to be quiet. After a brief struggle, Ms. Pyle escaped from appellant's grasp and exited her apartment through a door that opened into a hallway. She entered the apartment of an elderly neighbor, Thelma Maust, who was in her bedroom at the time. Appellant followed Ms. Pyle into the other apartment
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and discovered both women in Mrs. Maust's bedroom. Appellant repeated his earlier statement and threw both women on to Mrs. Maust's bed. He then struck Mrs. Maust in the face and choked Ms. Pyle when she warned that if he did not leave she would call the police. Appellant began to disrobe Ms. Pyle; he also kissed her and grabbed her breasts. Before he could proceed further, appellant passed out, presumably as a result of his intoxication. The women fled from the bedroom and Mrs. Maust ran downstairs to the clothing store where the employees called the police. The police arrived and discovered appellant, unconscious, in Mrs. Maust's bedroom. The events lasted a little more than one hour.
Appellant argues that the evidence is insufficient because the victims were confined for only one hour in their apartments which were readily accessible to relatives and were located above an open business. Appellant, drawing from language appearing in Commonwealth v. Hughes, 264 Pa. Super. 118, 399 A.2d 694 (1979) and the commentary to the Model Penal Code, also maintains that any confinement or movement of the victims during the commission of another crime (here, attempted rape) was incidental and did not substantially increase the risk of harm to the victims. The trial court did not address the issue even though appellant raised it both in his demurrer and in post-verdict motions.
In drafting the portion of the kidnapping statute at issue, the authors of the Model Penal Code sought to proscribe conduct that did not ...