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filed: December 18, 1987.




Edward J. Bilik, Assistant Public Defender, Greensburg, for appellant.

Donna J. McClelland, Assistant District Attorney, Greensburg, for Com., appellee.

Cirillo, President Judge, and Brosky and Kelly, JJ. Kelly, J., concurs and dissents with an opinion.

Author: Cirillo

[ 370 Pa. Super. Page 447]

Appellant Edward Vernon Pickford was convicted of rape, conspiracy to commit rape, theft, terroristic threats, and involuntary deviate sexual intercourse. Appellant was sentenced to 6 1/2 to 15 years imprisonment on the charge of rape, 5 to 10 years on the charge of conspiracy to commit rape, 6 1/2 to 15 years on the charge of involuntary deviate sexual intercourse, and 1 to 2 years on the charge of terroristic threats. These sentences were to be served concurrently. On appeal, Pickford raises issues concerning the alleged failure of the Commonwealth to comply with appellant's discovery requests, the admission of testimony relating to the victim's post-rape trauma, the admission of testimony concerning appellant's prior sexual relations with a third party, and the trial court's consideration of certain guidelines established by the Pennsylvania Commission on Sentencing. We affirm.

The evidence established that in the early morning hours of March 15, 1984, appellant and his co-conspirator, Paul Pastor, entered the victim's apartment. At that time, the victim was in her seventh month of pregnancy. Appellant grabbed her, forced her into the bedroom, and proceeded to engage in sexual intercourse with her. It was also established that appellant threatened to kill her if she told anyone of the incident. A short time later Pastor also raped the victim. The testimony revealed that appellant and the victim had known each other since August of 1983.

[ 370 Pa. Super. Page 448]

Following the victim's separation from her husband in January, 1984, the victim and appellant had a sexual relationship, which was terminated by the victim some three weeks prior to the incident.

Appellant's first contention is that the Commonwealth failed to provide him with full discovery of all exculpatory and inculpatory statements, thereby entitling him to a new trial. Prior to trial, appellant's counsel filed a written request for discovery. At a subsequent discovery hearing, the Commonwealth's attorney stated that their entire file had been turned over to appellant's counsel. At trial, it was revealed for the first time that the victim had admitted to a state trooper that she had had a consensual sexual relationship with appellant which occurred approximately one month prior to the incident. Appellant's counsel objected, claiming that the Commonwealth had violated Pa.R.Crim.P. 305 by failing to provide these statements. The court overruled the objection.

Rule 305(B)(1) requires the Commonwealth to provide "[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the Commonwealth." Moreover, Rule 305(E) gives the court broad discretion in fashioning a proper remedy for any violation of the discovery rules, including the granting of a continuance. Here, the trial court recessed during cross-examination of the victim in order to allow appellant's counsel to interview the state trooper regarding the victim's statements. Appellant's counsel utilized this information in cross-examination of both the victim and the state trooper. In these circumstances, it is clear that whatever prejudice may have resulted from the tardy disclosure of this potentially exculpatory evidence was cured by giving appellant's counsel the opportunity to investigate the new information. See Commonwealth v. Woodell, 344 Pa. Super. 487, 496 A.2d 1210 (1985). Thus, appellant's request for a new trial, on this ground, was properly denied.

[ 370 Pa. Super. Page 449]

Appellant also claims that the court erred in not granting a mistrial when the Commonwealth did not disclose until trial certain inculpatory statements made by appellant. On direct examination the victim testified as to certain terroristic threats made by appellant prior to and following the rape. The first threat occurred when the victim terminated her relationship with appellant, when appellant said that he would "mess her up." The victim also testified that, following the incident of March 15, 1984, appellant threatened to "burn her house down," and stated he had "burned other houses down" on prior occasions. However, the information charging appellant with terroristic threats specifically avers that the basis of that charge was that appellant had threatened the victim with murder and arson. Having been put on notice of the nature of the terroristic threats charge, it would appear that appellant was not prejudiced by the failure to disclose these particular statements. Where the only prejudice is surprise to defense counsel, the remedy of declaring a mistrial, as appellant requests, is clearly inappropriate. See Commonwealth v. Johnson, 310 Pa. Super. 385, 395, 456 A.2d 988, 993 (1983). Appellant has not shown that the claimed violation of discovery denied him a fair trial. Hence, the court did not err in denying his motion for a mistrial. Commonwealth v. Cacek, 358 Pa. Super. 381, 386, 517 A.2d 992, 994 (1986).*fn1

[ 370 Pa. Super. Page 450]

Appellant's next contention is that the court erred in allowing the Commonwealth to introduce evidence of the victim's post-rape trauma in order to prove lack of consent. Prior to trial, the Commonwealth sought to have an expert testify regarding the symptoms of rape trauma syndrome, a psychological condition observable in rape victims.*fn2 The court denied this request, but permitted the Commonwealth to introduce evidence concerning the victim's behavior and conduct several days after the incident. The victim testified that, following the rape, she moved out of the apartment for several days and when she returned she was frightened. She also testified that she had difficulty sleeping and eating because her nerves were "shot." The victim's mother testified that for some time following the incident the victim would wake during the night screaming. She also testified that her father stayed with her for several days so as to get her accustomed to living alone again. Appellant objected to this testimony as irrelevant and as being unduly prejudicial because it tended to bolster the victim's credibility.

[ 370 Pa. Super. Page 451]

While there is an abundance of case law dealing with the admissibility of expert testimony concerning rape trauma syndrome, see, e.g., Commonwealth v. Gallagher, 353 Pa. Super. 426, 510 A.2d 735 (1986); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984); State v. Taylor, 663 S.W.2d 235 (Mo. 1984); State v. Saldana, 324 N.W.2d 227 (Minn. 1982); People v. Pullins, 145 Mich.App. 414, 378 N.W.2d 502 (1985), the question of the admissibility of lay testimony has been dealt with only sporadically. In Gallagher, the only Pennsylvania case dealing with rape trauma syndrome, the question presented dealt with the qualifications of the Commonwealth's expert, and not whether the expert testimony was per se inadmissible.*fn3 However, Gallagher does provide a useful summary of the current state of the law in this field. The majority in Gallagher notes that in those states which have excluded expert testimony, the primary factor has been the development of the theory of rape trauma syndrome as a therapeutic tool rather than as a fact finding device. Gallagher, 353 Pa. Super. at 442, 510 A.2d at 743. However, in two of those cases, People v. Pullins, and People v. Bledsoe, supra, the courts have addressed the admissibility of lay testimony of post-rape trauma to prove lack of consent. In Bledsoe, the Supreme Court of California, while excluding expert testimony concerning rape trauma syndrome, held that it was not error to allow the victim, her mother, and several other witnesses to testify as to the victim's post-rape trauma. The court said:

We hasten to add that nothing in this opinion is intended to imply that evidence of the emotional and psychological trauma that a complaining witness suffers after an alleged rape is inadmissible in a rape prosecution. As discussed in the statement of facts, in this case numerous witnesses -- in addition to the rape counselor -- described the severe ...

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