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filed: April 6, 1989.


Appeal from the Judgment of Sentence of December 30, 1987, in the Court of Common Pleas of Chester County, Criminal Division, at No. 1871-87.


David R. Lynch, Assistant Public Defender, West Chester, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, Downingtown, for Com., appellee.

Rowley, Wieand and Beck, JJ. Wieand, J., files concurring opinion.

Author: Beck

[ 383 Pa. Super. Page 129]

Darryl Wagner was found guilty by jury of rape (accomplice liability), indecent assault (accomplice liability), and involuntary deviate sexual intercourse (accomplice liability). His post-verdict motions having been denied, he appeals.

The pertinent facts are as follows. The victim carrying her fourteen month-old son was walking to her parents' home when Darryl Wagner called to her from his car and offered her a ride, which she accepted. She was acquainted with Darryl through her husband. Two of his friends were in the car with Darryl. The party drove to the home of the victim's parents. No one was at home. Darryl then asked the victim if she would like to take a ride. She agreed. After the victim's son started to cry, they drove back to the home of the victim's parents, who had returned. The victim left the child with them. The victim then went for a drive with Darryl and his friends, who were drinking beer. The victim had one beer and stated that she had to go to the bathroom. Darryl stopped the car in a secluded field. Once in the field, Darryl told the victim that he needed to talk about his wife, with whom he had argued, and that he "needed someone else." Darryl started to kiss victim, removed her clothes, and the two had consensual intercourse. When Darryl and the victim returned to the car, the party of four drove off in search of more beer. On the way to the store, Darryl spotted his two brothers who said they had beer. The group then returned to the field along with Darryl's brothers.

When the beer supply ran out again, one of Darryl's brothers and Darryl's two friends drove off to replenish the supply. Darryl and his brother Douglas remained in the field with the victim. Douglas began kissing the victim, who pushed him away. As Darryl held the struggling victim down by her arms, Douglas performed oral sex upon the victim and had intercourse with her.

Darryl appeals the judgment of sentence and raises four issues. Since the first issue is dispositive, we will not address the remaining ones. Darryl asserts that the trial

[ 383 Pa. Super. Page 130]

    judge erred in refusing to permit him to testify about an alleged blackmail offer. The offer was made to his family by an acquaintance of the victim, Billy Jean Guinn. She contacted Darryl's mother, Hazel Mullens. She claimed that the victim would drop the charges against her two sons if Mullens paid Guinn $1,000.00. Darryl admits that after charges were lodged against him he fled the jurisdiction. He asserted that the blackmail was a factor in his fleeing the jurisdiction and that the testimony about the blackmail was essential to rebut the inference that his flight reflected a consciousness of guilt.

At trial, evidence of Darryl's flight was placed on record by the Commonwealth through the testimony of Trooper Yoder and two supervisors who worked for Darryl's former employer. Trooper Yoder, the investigating officer, testified that he was unable to arrest the Wagner brothers because he could not locate them. The Commonwealth underscored Darryl's flight when it introduced the testimony of the two supervisors who stated that Darryl was absent from work during the relevant period of time. The idea of the alleged blackmail also entered the prosecution's part of the case in the cross-examination of the victim. The victim was asked whether she made any statement to Darryl or his family that in exchange for money she would not report the rape. She responded "No. That was not my idea."

Darryl was asked on direct examination how he learned of the charges against him. He began to reply that Billie Jean Guinn had been to his house to see his mother. The prosecutor objected, and after a sidebar discussion, the objection was sustained. Darryl later responded that he left the area approximately a week after learning of the charges against him. When asked why he left, Darryl stated that he believed he would be incarcerated even if he was innocent.

Darryl asserts that he should have been given the chance to explain the alleged blackmail attempt because: (1) Guinn's conversation with his mother was the way in which he learned that charges were being brought against him;

[ 383 Pa. Super. Page 131]

    and (2) the alleged blackmail attempt influenced his decision to leave the area. Darryl argues that the Commonwealth "opened the door" to such testimony when, during direct examination, Trooper Yoder testified that he was unable to locate Darryl and his two supervisors testified that he was absent from work. He contends that testimony relating to the alleged blackmail attempt was essential in order for him to refute the possible inference that he left the area because of consciousness of guilt.

We recognize that the decision whether or not to admit evidence is within the discretion of the trial court, and will not be reversed absent an abuse of that discretion. Commonwealth v. Underwood, 347 Pa. Super. 256, 500 A.2d 820 (1985). Evidence is relevant if it tends to establish a fact material to the case or tends to make facts at issue more or less probable. Commonwealth v. Jackson, 336 Pa. Super. 609, 486 A.2d 431 (1984). Reversal based on the exclusion of evidence requires a showing of abuse of discretion as well as a showing of actual prejudice. Commonwealth v. Sweger, 351 Pa. Super. 188, 505 A.2d 331 (1986).

As long ago as 1938, this Court recognized that "it is well settled that evidence of flight following the commission of a crime is admissible as having a tendency to prove the guilt of accused." Commonwealth v. Myers, 131 Pa. Super. 258, 264, 200 A. 143, 146 (1938). See also Commonwealth v. Graham, 248 Pa. Super. 406, 407, 375 A.2d 161, 162 (1977); Commonwealth v. Liebowitz, 143 Pa. Super. 75, 83, 17 A.2d 719 (1940). In Myers, this Court noted that such evidence is equally admissible "where the accused flees after he has been arrested and admitted to bail." Id. The court noted that when evidence of flight is introduced:

It would then be competent for appellant to show, if he could, that the reason for his avoidance was not a consciousness of guilt, but that it was due to some other cause consistent with his innocence, and to show what that cause was.

200 A. at 146, 131 Pa. Super. at 265.

In the instant case, Trooper Yoder's and the two supervisors' testimony raised the issue of ...

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