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submitted: April 25, 1989.


Appeal from Judgment of Sentence June 20, 1988, in the Court of Common Pleas of Philadelphia County, Criminal, No. 4285-93.


John B. Elbert, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

McEwen, Olszewski and Melinson, JJ. McEwen and Melinson, JJ., concur in the result.

Author: Olszewski

[ 387 Pa. Super. Page 356]

Following a conviction by a trial jury for rape and false imprisonment and concurrent sentences of four to ten years and six months to one year incarceration respectively, appellant now asks us to vacate his sentence and order a new trial. We take up the following issues: (1) whether the trial court erred when it (a) precluded questions concerning the relationship between appellant and victim, when it (b) charged the jury on the requisites for common-law marriage, and when it (c) opined as to the sufficiency of some of the evidence; (2) whether the trial court erred in allowing alleged hearsay in the form of a police radio call; (3) whether the prosecutor made prejudicial statements in his closing; and (4) whether there was ineffective assistance of prior counsel for failing to object to a supposedly improper statement during the trial court's jury charge. Because we find merit insufficient to honor appellant's request, we affirm the trial court's judgment of sentence.

Trial counsel was able to make contemporaneous objections concerning the alleged trial court error asserted here.

[ 387 Pa. Super. Page 357]

Appellant also included the issues raised here in his post-verdict motions and his supplemental post-verdict motions. Therefore, appellant has successfully preserved these issues on appeal.

On an early morning in November 1987, appellant used scissors to threaten complainant Alicia Vaughn ("Vaughn") to have sexual intercourse with him in his apartment in Philadelphia. After appellant penetrated Vaughn and climaxed, he drove her back to her sister Chiquita Vaughn's ("Chiquita") house where she had been living. Earlier, around midnight, appellant had confronted Vaughn on the street outside her sister's home and after a brief exchange, grabbed her, pulled her, hit her on the face, took her car keys, got her car, threw her into the car while she resisted, and drove to his apartment. Once there, appellant alternately pulled and dragged Vaughn into the row home and up the stairs to his bedroom.

At 1:00 a.m., Chiquita contacted the police to report her sister missing. Officer Jacobs was dispatched to inquire and advised Chiquita as to the proper procedure. An hour or so earlier, Officer Jacobs had been summoned to an area near Chiquita's house to respond to a radio call that a woman was screaming.

After appellant dropped her off at Chiquita's house, Vaughn contacted the police and reported the incident. Officer Jacobs again responded and took down Vaughn's complaint. The police, pursuant to a warrant, on entering appellant's apartment, found appellant threatening to kill himself. For six and one-half hours, appellant held off the police until they used force to overcome him.

For five years Alicia Vaughn and appellant had an intimate relationship which produced two children. During that time, Alicia Vaughn for months at a time lived either with appellant at his apartment or with Chiquita. Two months before the incident, Vaughn had ended the relationship and "moved out" of appellant's apartment back to her sister's house. (N.T. 3/3/88, 96).

During trial, appellant's counsel asked certain questions in an effort to bring out the nature of the relationship

[ 387 Pa. Super. Page 358]

    between appellant and Vaughn. His purpose was to show that a common-law marriage existed between them. Such a marriage would preclude application of the rape statute which excludes spouses from its purview. 18 Pa.C.S.A. ยง 3121 (see discussion below). On cross-examination of Vaughn, he asked:

[APPELLANT'S COUNSEL] Now, when you said you were close to his family, did they treat you as if you were married to him?

THE COURT: I don't know what that means . . . . I don't know what you're trying to do here. I don't understand that, "Did they treat you -- . . . .

[APPELLANT'S COUNSEL]: This goes to the elements of the crime.

THE COURT: Elements of what crime? Proceed, please. This is way off target.

(N.T. 3/3/88, 136-137).

On cross-examination of Chiquita, he asked:

[APPELLANT'S COUNSEL]: How long have you known him?

A: Personally, it really was just the last few months. I know of him. I knew that [he] was my sister's boyfriend, but we wasn't really close.

Q: Were you [sic] he and your sister living together what they call common-law?

A: Was him and my sister living together?

Q: Yes.

[COMMONWEALTH]: I'm going to object to that question.

THE COURT: I'll sustain the objection.

[APPELLANT'S COUNSEL]: Were they living together as ...

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