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COMMONWEALTH PENNSYLVANIA v. MICHAEL BARANIAK (01/31/86)

filed: January 31, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL BARANIAK, APPELLANT



Appeal from the Order entered May 8, 1984, imposing Judgment of Sentence, Court of Common Pleas, Somerset County, Criminal Division at No. 251, 1983.

COUNSEL

Joseph B. Policicchio, Somerset, for appellant.

George B. Kaufman, Assistant District Attorney, Somerset, for Commonwealth, appellee.

Cavanaugh, Johnson and Watkins, JJ.

Author: Johnson

[ 350 Pa. Super. Page 461]

This case comes before us on appeal from the judgment of sentence entered against Appellant, Michael Baraniak, on May 8, 1984. For reasons hereinafter set forth, we affirm the judgment of sentence for burglary, vacate the judgment of sentence for indecent assault and attempted rape, and remand for resentencing on the conviction for attempted rape.

Appellant contends: (1) that the trial court incorrectly construed 42 Pa.C.S. ยง 9727 (Disposition of persons found guilty but mentally ill) as mandating the maximum period of probation; (2) that the trial court erred by sentencing Appellant on the charge of indecent assault, which merges with the charge of rape; and (3) that the sentences of incarceration and consecutive probation of long duration are too severe.

Susan Kacsur, the victim of the June 5, 1983 incident, met Appellant in approximately December of 1982. She dated Appellant on several occasions thereafter, but found him to be very possessive, often telephoning her as many as three times a day. At one point Appellant asked Ms. Kacsur to marry him, but she refused his proposal.

At approximately 9:30 p.m. on the evening of June 4, 1983, Appellant paid an uninvited visit to the Kacsur home. Appellant was very upset with Ms. Kacsur, telling her that she was "no good," and "a Daddy's girl" and that she "would never be anything." Appellant stayed approximately 15 minutes, leaving when Ms. Kacsur's parents returned home.

Thereafter, in the early morning hours of June 5, 1983, Appellant climbed through the kitchen window of the Kacsur family home, and entered Ms. Kacsur's bedroom. Upon awakening, Ms. Kacsur observed Appellant standing, almost naked, in her room. Appellant then removed the remainder of his clothing, pinned Ms. Kacsur down, kissed

[ 350 Pa. Super. Page 462]

    her, pulled and ripped her clothing and attempted to have intercourse with her.

Hearing her screams, Ms. Kacsur's parents came to her aid. Mr. Kacsur called the Somerset Borough Police, who arrived almost ...


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