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decided: July 9, 1986.


Appeal from the June 1, 1984 Order of the Superior Court at No. 125, Philadelphia 1982, Affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, Philadelphia County, imposed on Information Nos. 581-583, August Session, 1979. 329 Pa. Super Ct. 558; 478 A.2d 56 (1984).


Steven J. Zwicky, Philadelphia, for appellant.

Robert B. Lawler, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion. Larsen, J., files a dissenting opinion which Papadakos, J., joins.

Author: Flaherty

[ 511 Pa. Page 203]


Brent Eubanks was convicted of rape, aggravated assault, simple assault and unlawful restraint by a jury sitting in the Court of Common Pleas of Philadelphia. He was sentenced to seven to twenty years for rape and two and a half to five years for aggravated assault, the sentences to run concurrently. Sentence on the other charges was suspended. Judgment of sentence was affirmed by Superior Court per curiam, 329 Pa. Super. 558, 478 A.2d 56. This Court granted Eubanks' petition for allowance of appeal.*fn*

Eubanks and Tracy Lomax, the complainant, gave conflicting versions of the events underlying the convictions. Lomax testified that on June 30, 1979, she returned to her apartment in the early hours of the morning after having spent the evening with her family. At approximately 5:00 a.m. she left her apartment and entered the common hallway of her apartment building to go to the bathroom. While she was in the hall, Eubanks, who lived one floor below Lomax, grabbed her and pulled her downstairs to his apartment. Although she fought and resisted, both in the hall and in the apartment, Eubanks overpowered her and finally raped her in his apartment. Nevertheless, she continued to scream and fight. Lomax was finally rescued when a police officer, who had been alerted by a neighbor that screams were coming from the building, managed to enter the building and burst into Eubanks' room.

Eubanks' testimony was that he encountered Lomax on the stairs of his apartment building during the early morning hours of June 30, 1986, and she invited him to her apartment to smoke marijuana cigarettes. After three cigarettes, they had consensual sex. When Eubanks prepared to leave, Lomax asked him to play a "game" with her. She explained that she was experiencing difficulty becoming sexually aroused because she had shot someone in the head. She then asked Eubanks to go to his apartment and wait for

[ 511 Pa. Page 204]

    her without putting any clothes on. Eubanks agreed to do this, thinking that she would come down and they would again have sex. Eubanks went to his apartment and Lomax arrived apparently fully clothed. After Eubanks closed the door, however, Lomax said, "I'm going to fix you," and threw a pair of panties on the floor which she had been holding in her hand. She then began to shout, "Rape. Help. Rape." Eubanks testified that he tried to quiet her by grabbing her and covering her mouth, but she continued to shout and fight him. He testified that the shouting and scuffling continued for ten minutes until the police arrived.

One Mr. Holmes testified that he heard the screams while he was visiting the house next door between 5:00 a.m. and 5:30 a.m. Someone was shouting, "Please don't kill me. Somebody help me." Shortly after Holmes left the neighbor's house at 5:30 a.m., he encountered a police car and told the officer about the screams. He accompanied the officer to the house and both could still hear the screams from outside. The officer testified that he entered the house, heard a woman screaming "Help me, please. Don't do it no more," and "Rape." In the hall outside Eubanks' apartment, he heard a male voice say, "Shut the f -- up." He then burst in the door and discovered Lomax, whom he described as crying hysterically and bruised, with her face swollen. Eubanks was naked.

Eubanks asserts nine claims of error, but because of our disposition of this case, we address only two of these claims. First Eubanks asserts that the attorney for the Commonwealth engaged in a pattern of improper cross-examination which denied him a fair trial. During his testimony, Eubanks stated that he was planning to install drywall in the parish house of a church later in the day on June 30, 1979. Cross-examination included the following exchanges:

Q. Is it correct that you were working for the parish?

A. Yes.

Q. It's because you were a good Christian?

DEFENSE COUNSEL. Objection, Your Honor.

[ 511 Pa. Page 205]

THE COURT. Sustained. It will be stricken from the record. The jury is instructed to ignore it.

Q. Does this church teach smoking marijuana?


THE COURT. Sustained.

Q. Premarital sex?


THE COURT. Sustained.

Q. Did you think smoking marijuana with Tracy Lomax at 5 in the morning was going to help you do a good job for the church, so you could get to the Marine Corps and serve your country in a week?


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