Appeal from the Judgment of Sentence of March 7, 1986 in the Court of Common Pleas of Luzerne County, Criminal Division, No. 1511 of 1985.
Albert J. Flora, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellee.
Olszewski, Cercone and Hester, JJ.
[ 359 Pa. Super. Page 113]
This appeal raises an issue of first impression in our Commonwealth: whether the the Spousal Sexual Assault Statute, of December 21, 1984, P.L. 1210, No. 230, 18 Pa.C.S.A. § 3128 (hereinafter referred to as the "statute"), is unconstitutional as violative of an accused's right to privacy and equal protection under the laws.
Appellant Randy Shoemaker was convicted by a jury on December 12, 1985 of one count of spousal sexual assault, 18 Pa.C.S.A. § 3128(a)(2); one count of involuntary spousal deviate sexual intercourse, 18 Pa.C.S.A. § 3128(b)(1); and one count of simple assault, 18 Pa.C.S.A. § 2701(a)(1). He filed a timely pretrial motion to dismiss the indictment, challenging the constitutionality of the statute, which was denied after a hearing thereon. Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of eighteen (18) to thirty-six (36) months, the conviction of involuntary deviate sexual intercourse merged with the sexual assault charge for purposes of sentencing. Appellant was placed on probation for a period of two (2) years for the simple assault conviction.
The sole issue raised in this appeal is whether the lower court erred in denying appellant's motion to dismiss the indictment. We find the trial court was correct in its ruling
[ 359 Pa. Super. Page 114]
and, therefore, affirm the conviction and judgment of sentence.
Viewing the facts in the light most favorable to the Commonwealth, the relevant facts are as follows: The victim was the wife of appellant. In July of 1985, the victim and the appellant were residing together but had separated approximately two weeks prior to the date of the incident when appellant moved from their apartment taking some of his personal effects. Despite this separation, the appellant returned to the apartment each day to visit their child. During this period, no sexual relations occurred between the appellant and the victim. On the evening of July 29th, the victim invited appellant to the apartment to discuss custody of their child, at which time the incident occurred.
The victim testified that she and appellant engaged in a heated argument regarding custody arrangements for their child. She told him to leave the apartment and when he didn't comply, she went to the door to call for help. At that point the two engaged in pushing and shoving resulting in an injury to the victim. At some point, appellant came at the victim with a sharp kitchen knife, threatened to harm both her and the child and proceeded to engage in oral and vaginal intercourse with the victim without her consent. She testified that she had ...