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COMMONWEALTH PENNSYLVANIA v. WILLIAM MARTIN CLARK (08/01/86)

filed: August 1, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
WILLIAM MARTIN CLARK, APPELLANT



Appeal from the Judgment of Sentence August 27, 1985, in the Court of Common Pleas of Bucks County, Criminal No. 3538 and 3539 of 1984.

COUNSEL

Keith Williams, Assistant Public Defender, Doylestown, for appellant.

Gail Fairman, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Rowley, McEwen and Olszewski, JJ. Rowley, J., concurs in the result.

Author: Olszewski

[ 355 Pa. Super. Page 202]

This is an appeal from a judgment of sentence for rape,*fn1 attempted rape,*fn2 indecent assault,*fn3 and simple assault.*fn4 Post-trial motions were filed and denied. On appeal, appellant alleges that the trial court erred in (1) admitting into evidence the hearsay testimony of a police officer, (2) refusing to allow defense counsel to elicit testimony regarding the victim's prior sexual conduct, and (3) refusing to give a submitted instruction to the jury. Finding these allegations meritless, we affirm.

In a light most favorable to the Commonwealth, the facts indicate that on July 5, 1984, appellant, upon returning from a bar, observed two young girls as they were walking home from a beach party. After driving past the girls several times, appellant parked his car, hid behind several trees, and grabbed both girls as they walked past him. After a brief struggle, the girls freed themselves and ran. Appellant eventually caught the 16-year-old victim. He threw her to the ground and choked her by twisting her blouse and necklace around her neck. Appellant next demanded that she remove her clothes and, when she refused, he took off

[ 355 Pa. Super. Page 203]

    her top and kissed her breasts. He then removed his pants and raped the victim. A police officer responding to a call made by the victim's companion apprehended the appellant after a short chase.

At trial, appellant conceded the charge of assault but denied raping the victim. A police officer testified that immediately following the incident, the victim told him that appellant penetrated her. Later, the victim became uncertain whether penetration occurred. However, at both the preliminary hearing and the trial, the victim positively asserted that appellant had penetrated her. It was deduced at trial that the victim's uncertainty was a result of her misunderstanding of the legal definition of "penetration."

I.

Appellant argues that the trial court erred in admitting into evidence the hearsay testimony of Police Officer Compas concerning statements made by the victim about whether the appellant had physically penetrated her. We find that such evidence was properly admitted under two exceptions to the hearsay exclusion rule of evidence.

Prior declarations of a witness which are consistent with his present testimony may be entered into evidence under the prior consonant statement exception if it is alleged that the witness's present testimony has been recently fabricated. Commonwealth v. Ravenall, 448 Pa. 162, 292 A.2d 365 (1972). Although appellant claims no allegation of recent fabrication has been made, we have held that such allegations need not be explicit, but only that the jury be able to infer that a party is imputing a recent fabrication to the witness. Commonwealth v. Gore, 262 Pa. Super. 540, 396 A.2d 1302 (1978). An examination of the trial record indicates that during cross-examination of the victim, defense counsel pursued a line of questioning implying that the assistant district attorney had ...


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