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09/04/97 COMMONWEALTH PENNSYLVANIA v. WALTER PALMER

September 4, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
WALTER PALMER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal No. 3709/1996. Before BIESTER, J.

Before: Johnson, Schiller, Brosky, JJ. Opinion BY Schiller, J.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed: September 4, 1997

Appellant, Walter Palmer, appeals from the judgment of sentence entered by the Court of Common Pleas of Bucks County on December 9, 1996. We affirm appellant's conviction, but vacate the sentence and remand for sentencing.

FACTS:

On July 4, 1996, appellant was charged with rape *fn1 involuntary deviate sexual intercourse (IDSI) *fn2 corrupting the morals of a minor *fn3 and related of offenses *fn4 These charges arose from allegations made by a young woman 16 years old *fn5 who, from August, 1991, when she was eleven, until April, 1996, resided in appellant's trailer-home along with her mother (who was appellant's paramour), and her brother. Initially, the relationship between appellant and the minor was that of "father and daughter," but in September 1992, appellant french kissed her. She told no one because she was afraid to ruin her mother's relationship; furthermore, appellant told her that if she told anyone he would be sent away for a long time.

In December 1992, appellant took the minor to Massachusetts to have braces put on her teeth *fn6 staying with her in a motel. On this trip a sexual relationship began: appellant purchased lingerie for the minor, then 12; took Polaroid pictures of her in suggestive poses in the lingerie; and then had sexual intercourse with her. Appellant took the girl to the dentist for check ups roughly every six months, having sex with her each time.

After returning to Pennsylvania, appellant began to have frequent sexual intercourse with the minor in his bedroom in the trailer. *fn7 She testified that a pattern developed involving oral sex followed by normal sexual intercourse; that this occurred approximately four times a week, sometimes more often; and that appellant occasionally had her watch pornographic videos during sex and at other times showed her pornographic pictures of other women. She also alleged that he forced her to have anal sex causing her to cry from pain. Although she occasionally came home late or feigned not feeling well to avoid appellant, the minor never told anyone about what was happening because she was frightened; eventually, she said, she just didn't care anymore.

In May 1996, appellant had a falling out with the minor's mother and the family moved out of his trailer. Subsequently, the girl returned twice to get her mail, and on Father's Day (June 16, 1996). On one of these occasions, appellant forced her to have sex one last time, saying she owed him for everything that he had done for her such as buying her jewelry, clothes and a car.

On July 3, 1996, this relationship came to light when during an argument, the girl blurted out that concerns over sex didn't matter -- "It's too late, I'm not a virgin anymore." She then told her mother about the relationship between her and appellant. Her mother immediately took her to the police.

On July 4, 1996, the police executed a search warrant at appellant's residence. They found the pictures alleged to have been taken in December 1992, as well as lingerie, pornographic films and videos, pornographic pictures of other young women, receipts and credit card bills. *fn8 After a preliminary hearing on August 1, 1996, all charges were held for court. Appellant's omnibus pre-trial motion was litigated on October 9, 1996: the court granted a motion to suppress appellant's statement; denied a motion to suppress physical evidence seized pursuant to a search warrant; and deferred ruling on a motion in limine to bar admission of certain sexually explicit materials. *fn9

Trial by jury began on October 9, 1996, before the same Judge. On October 11, 1996, appellant was found guilty of all charges. The court ordered a pre-sentence investigation and psychological report. On December 9, 1996, appellant was sentenced to not less than ten nor more than twenty years on the rape conviction; a consecutive five to fifteen year term on the involuntary deviate sexual intercourse conviction and a concurrent two and one half to five year sentence on corrupting the morals of a minor. ...


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