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submitted: April 2, 1987.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 1984-378.


Joseph L. Amendola, State College, for appellant.

Ray F. Gricar, District Attorney, Bellefonte, for Com., appellee.

Wieand, Beck and Cercone, JJ.

Author: Wieand

[ 364 Pa. Super. Page 56]

Percy R. Rhoades was tried by jury and was found guilty of indecent assault*fn1 and corruption of a minor*fn2 because of the sexual molestation of P.S.B., an eight year old female child. Post-trial motions were denied, and Rhoades was sentenced to concurrent terms of imprisonment of not less than one year nor more than two years for indecent assault

[ 364 Pa. Super. Page 57]

    and not less than two and one-half years nor more than five years for corrupting a child. On direct appeal, he argues (1) that inculpatory statements which he made to another prisoner should have been suppressed; (2) that the trial court erred when it held admissible as an excited utterance a hearsay statement by P.S.B. that her father would not have shot her mother if it had not been for what Rhoades had done to her; (3) that the trial court erred by disallowing testimony of prior conduct of the child victim; (4) that he should have been permitted to show the jury his pre-trial willingness to submit to a penile tumescence test intended to show that he was impotent; and (5) that the sentencing court imposed a sentence which exceeded that recommended by the sentencing guidelines. We find no merit in these contentions and, therefore, affirm the judgment of sentence.

The evidence showed that on April 28, 1984, P.S.B. was induced by Rhoades and P.S.B.'s mother to masturbate Rhoades in his trailer at Wingate, Centre County. P.S.B. and her mother were then taken to their home in Curtin Village by Rhoades. When P.S.B.'s father returned home and learned what had happened, he took a gun and shot his wife.

After Rhoades had been formally charged and arrested pursuant to warrant, he was placed in the Centre County Prison. Vincent Carracciolo was housed in an adjoining cell where he was being held for security reasons because of his cooperation with authorities in their investigation of organized crime. Observing that Rhoades was visibly upset, Carracciolo asked him what was wrong. Rhoades told him that he had been involved with P.S.B.'s mother for several years and had lived with her at one time. He told Carracciolo about the incident in which P.S.B. and her mother had masturbated him in his trailer. Rhoades also said that he had "paid" P.S.B.'s mother for the child with a case of beer and that he was trying to "keep her" until she was old enough to have intercourse with him. Rhoades argues that his statements should have been suppressed because his

[ 364 Pa. Super. Page 58]

    admissions were obtained in violation of his Sixth Amendment right to have counsel present during interrogation.

In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Supreme Court said:

The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a "medium" between him and the State . . . . [T]his guarantee includes the State's affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused's right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever -- by luck or happenstance -- the State obtains incriminating statements from the accused after the right to counsel has attached . . . . However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.

Id. at 176, 106 S.Ct. at 487, 88 L.Ed.2d at 496 (citation and footnote omitted). See: Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Hicks, 798 F.2d 446 (11th Cir.1986).

The incriminating statement made by appellant was elicited without any deliberate attempt by representatives of the Commonwealth to interrogate appellant about his molestation of P.S.B. Although Carracciolo had been isolated from the general prison population for his own safety, ...

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