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COMMONWEALTH PENNSYLVANIA v. DELMAR D. THOMAS (05/27/88)

decided: May 27, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DELMAR D. THOMAS, APPELLEE



Appeal No. 29 W.D. Appeal Dkt.1987, from Order of Superior Court, 360 Pa. Super. 626, 517 A.2d 205 (1986) entered August 20, 1986, at No. 1298 Pittsburgh 1985, Vacating Judgment of Sentence of Court of Common Pleas of Fayette County, Criminal Division, entered September 30, 1985, at Criminal Nos. 814, 815 and 816 of 1984.

COUNSEL

Gerald R. Solomon, Dist. Atty., James R. Nesser, Uniontown, for appellant.

Grayce R. Kovacs, Charleroi, Mark F. Geary, Washington, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, Former J., did not participate in the consideration or decision of this case. McDermott, J., files a dissenting opinion in which Larsen, J., joins.

Author: Per Curiam

[ 518 Pa. Page 122]

ORDER

Appeal dismissed as having been improvidently granted.

McDERMOTT, Justice, dissenting.

The Commonwealth seeks reversal of an order of the Superior Court which vacated a judgment of sentence of the Court of Common Pleas of Fayette County. Appellee was convicted by a jury on three counts each of involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123, indecent assault, 18 Pa.C.S. § 3126, and corruption of minors, 18 Pa.C.S. § 6301. Following post-trial motions, the trial court granted a new trial on the indecent assault charges and imposed a sentence of imprisonment of five to ten years.

The facts that gave rise to the charges are briefly and regretfully told. Ora Thomas moved in with appellee in 1981 along with her three minor children. She married appellee in 1982. Thereafter, there were numerous sexual contacts between appellee and the children between 1982 and 1984. The eldest, Gypsy, alleged that appellee had repeatedly touched her chest and vaginal area and subjected her to anal intercourse on many occasions. The next oldest, Angel, testified that appellee also touched her vaginal area and forced her to have anal intercourse with him on many occasions. The youngest, Orin, testified that

[ 518 Pa. Page 123]

    appellee forced him to engage in oral and anal intercourse, and appellee touched his penis on several occasions. In addition, Orin testified that on one occasion appellee had anal intercourse on him and his sister Angel in succession and then forced him to lick her "private part." On another occasion as testified by Gypsy appellee forced the two girls to lick each other's "privates" and then had anal intercourse with Angel.

On appeal, appellee contended, inter alia, that the trial court improperly allowed the consolidation of nine separate criminal informations for trial, i.e., three offenses against each of the three child victims. The Superior Court held that the crimes charged were neither temporally related, nor did they share common issues of law and fact, and therefore were not part of a single criminal episode. As a consequence the court concluded that the charges were not subject to the statutory bar of serial prosecutions for offenses arising in the same criminal episode, 18 Pa.C.S. ...


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