*3 Before WATKINS, President Judge, JACOBS, and HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge: Appellant contends that there was insufficient evidence to sustain his conviction of rape1 and that the lower court erroneously admitted certain alleged hearsay testimony. We disagree with both and, contentions therefore, affirm judgment sentence. Code, 6, 1. The 1972, Crimes 1482, Act of 334, 1, December P.L. No. § 6, 1973; eff. June 18 Pa.C.S. § 3121. 23, 1976, filed a complainant private February On in which she against alleged complaint appellant criminal 19, her on Thursday, February had raped 11:45 m. On p. February at approximately arrested. At a in the Fayette 16-18, Pleas, on June Court of Common County during early evening testified that Feb- complainant children, at home her three 19, 1976, she was with ruary husband, Her years. in from 14 months to 4V2 ranging age m., had left the house who worked from 8:00 m. to 8:00 a. p. thereafter, complainant about m. took p. at 6:30 Soon store where she spent children to a local food about a her home, On the she and her children shopping. way half hour appellant’s parents at the home of whose property stopped that of the and husband. adjoined complainant She that she and her husband had known appellant’s testified often, for more than three visited them and years, parents children referred to them as grandparents. Appel- that her when the complainant lant was not children present parents. visited his and her children returned home at
The about m.2 at 10:00 p. Appellant telephoned approximately p. 9:30 to the According complainant, appellant upset m. had, with someone. In the speak past, appellant wanted occasion, mood. The depressed called while com- said that her husband took the calls and always plainant first, left the house to meet At she appellant. sometimes leave her refused his house and talk suggestion following minutes person. Eventually, twenty with him *4 with him agreed of to meet at Firma- repeated requests, However, she ni’s, emphatic a local bar. she could talk to him for short while because she had work to only a home. do at drove her into Fir- wagon
When station complainant lot, out of mani’s came the bar and parking got persons present appellant’s parents the home of at testified Other complainant departed for the defense that and her children at approximately p. 11:00 m. the wheel of behind her car. He told her that he did not there, want talk but wanted to drive to another bar five miles in order to away get beer. acquiesced, She but again that she did said not want to be out late. very As they bar, drove to the about spoke his domestic prob- and the lems difficulties he was experiencing with his par- ents. When arrived at they bar, appellant went inside while the children waited in the car. returned to the Appellant car and told the complainant that he intended to take a different route back to Firmani’s where he had left his truck. He evaded the complainant’s about questions the circuitous route which appellant selected and her requests that he return to the main road.
Appellant drove the car road, onto a dirt pulled off into a field, car, turned off the and locked the doors. He then knife, out a pulled tore the complainant’s clothes, and de- manded that she engage in various sex acts with him. Appellant also threatened her children who were crying in the rear of the car. The complainant testified that she feared for her life and for the safety her three children. As she struggled, appellant raped her and forced her to other perform sex acts. The next thing she remembered in the awakening passenger seat of her car in the parking lot of Firmani’s bar to the screaming her chil- dren. Her were in the keys ignition. Appellant’s truck was gone. It was about 3:00 a. m. when she returned to her home. awoke at She 9:00 a. m. when she heard her daugh- ter the events of explaining the night to her husband who had just returned from work. case,
Before its resting the Commonwealth also called Zuzak, Magdalene the mother-in-law of the complainant who testified that on Saturday, 23,1976, February two after days the incident in question, the complainant, her husband, and their three children visited her at her home. She said that the complainant was upset, drawn, looked and had bruises neck, arms, on her legs, and abdomen. testified he had sexual relations with the
complainant once or twice in 1975 and an unspecified num- *5 her occasion, telephoned he On each in 1974. of times ber Further, each time had they him. to meet agreed she and were present children relations, the complainant’s sexual the night question described automobile. the to their encounters. previous as similar complainant with the with him. They to meet agreed and telephoned He children sat in while the complainant’s relations sexual had the However, denied car. seat of the back the toward the of force or use threat children. of guilty returned a verdict 18, 1976, the
On June informed of The court then charge rape. of 1123(c), to Rule Pa.R. obligations pursuant and rights his 24, 1976, appellant’s June Crim.P.; On Appendix. 19 P.S. following On the an appearance. entered counsel present motions. He boilerplate post-verdict timely, he filed day, admission of certain lower court’s error the assigned also motion, counsel stated that In his evidence. hearsay alleged motions with “addi- the post-verdict supplement he would notes received complete as soon as the are reasons tional stenographer.” official from the 16, 1976, September show that entries The docket “Motion for Continuance of counsel’s court granted lower of postponement he for the petitioned in which Argument” motions. In on appellant’s post-verdict argument impending represent that “I did motion, counsel averred on a transcript must depend at the trial and defendant However, the a brief.” prepare in order to the evidence filed the stenographer the official court disclosesthat record Court of County in the Fayette of trial testimony *6 . less than five years nor more than fifteen years. This followed.3 appeal
Appellant contends that
the evidence was not suf
ficient
to establish his guilt
beyond
reasonable doubt.
In
whether
determining
evidence is sufficient
to support
verdict,
the guilty
we
accept
Commonwealth’s evidence
true,
all
including
reasonable inferences therefrom. Com
Crider,
monwealth v.
240
403,
Pa.Super.
“[Defense Counsel]: examination, laid for that Your Honor. or foundation had was whether he talked question “THE COURT: Your to him about what? the con- depressed District About Attorney]:
“[Assistant The victim dition, Honor, that we have talked about. Your Mr. Thomas the he evening said that depressed has how or asking I am this witness whether not she called and had of the state he been particular depressed knows occasions. on various against weight Appellant argues that the verdict is the of the also Zapata, v. 447 Pa. 290 A.2d In Commonwealth evidence. 114, Supreme grant (1972), 117 Court said that of a new “[t]he the against weight ground the verdict the of the trial on the is court, the trial committed to the sound discretion of evidence is omitted). credibility conflicting, (citations the Where the evidence is solely finding supported if is is for the and its the witnesses of record, by new court’s denial of a motion for a trial will disturbed, omitted).” Having (citations reviewed the evi- not be dence, no the lower court’s denial of find abuse discretion in we ground. appellant’s a new trial on this motion for against Finally, charge that the verdict asserts whole, charge reviewing v. After Commonwealth the court. 631, (1968); Peterman, A.2d 723 v. 430 Pa. 244 Commonwealth (1975), Coleman, Pa.Super. A.2d the evidence 341 528 and trial, inconsistency. no at we find adduced How would she know. She never counsel]:
“[Defense talked this fellow. Well we will permit
“THE COURT: her to answer your or no. That would be if she question yes knows. is Attorney]: District That what I exactly “[Assistant Honor, Your if she . asked knows Do “Q. you know whether son your on different would to talk to Mr. when go occasions Thomas Mr. Thomas felt he needed to talk to? somebody I know just me,
“A. what son only my told which he has told me that— Well I don’t want to know
“Q. anything your son told is because that inadmissible. you I mean haven’t “A. I been in the presence of them to him that, know, hear one or the other you would call.” it is exchange, From this clear that the witness did not as to statements which have been testify may by made short, other third In any son or because the party. witness did not utter which could have any hearsay served as the for such an evidentiary objection, foundation we conclude that this claim is meritless. next refers following exchange be the Assistant Attorney
tween District complainant’s mother-in-law:
“Q. you particular Did notice anything about her body? *8 Well after she me “A. told what the problem was— “Q. that? What was objected That is to as hearsay. counsel]:
“[Defense She raped “A. told me by— Well “THE COURT: we will sustain objection. the You able, Zuzak, are Mrs. to say what else somebody you told not Zuzak, Now “Q. Mrs. I don’t want to tell me what you told you, the Court has ruled is Terry that for inadmissible want you say. to All I to do is to you describe me what her physical condition like.” the answered ques- that witness the acknowledge we
While daughter-in-law, statement of her we the hearsay with tion could did it to everything prevent court also note that the witness as she the interrupting the uttered response by the Moreover, after the court sustained statement. out-of-court the Assistant District Attorney objection, counsel’s defense reference to it in his by not to the statement try exploit did witness, of that witness or other any examination further Further, trial counsel did including appellant’s appellant. to the either a instruction request cautionary All of factors us declared. these convince that a mistrial be contention lacks merit. appellant’s that affirmed. of sentence Judgment President did not in WATKINS, Judge, participate former or decision case. consideration this the SPAETH, J., a concurring opinion. files SPAETH, concurring: Judge, with I majority’s I in all discussion. agree respects add, however, in his brief to makes quite wish counsel’s son alarming his trial and law allegation: an an suit represented partner equity the same time appellant’s during that this against parents tried, being case was and that counsel and his criminal to use this action settle the “attempted son [criminal] offering charges suit should the by drop equity grant right of the another to the way parents [complainant Appel- sold to property husband].” true, Brief If this is it be allegation may lant’s at 14. counsel not represent appellant that trial could demonstrable effectively. notes,
Since, as claim was not majority this raised counsel, (now appellate) by post-verdict motions post-verdict now it has If any not consider whether merit. may we alleged now before the counsel learned facts post-verdict motions, he court decided his should have lower If he supplemental leave to file a motion. learned asked *9 after post-verdict denied, facts motions were but before he should have sentencing, asked court to vacate the order motions and to denying grant him leave to file a motion. If supplemental he learned the facts after before he filed sentencing appeal, but this he should have filed a for petition reconsideration for a hearing after-discovered evidence. If he learned the facts after he this his appeal, only filed recourse was to raise the claim us, his brief to us when telling he had facts, learned the so to enable tous decide whether we should remand for hearing.
None these steps Therefore, if taken. to pursue wishes the claim that his counsel was ineffec- interest, of a tive because conflict he must do so aby Act, under Post-Conviction petition Hearing raising first question of effectiveness of post-verdict/appellate coun- sel.
Arthur Lee Superior Pennsylvania. Court of
Argued Dec. 1976. April Decided notes The record also shows 5, 1976. August Pleas on Common motions. file supplemental did not counsel en banc issued the 11, 1977,the court follow May On consideration, 11th, 1977, after now, May “And order: ing on May for argument been listed having case this Thomas, a new defendant, Robert for ex parte the motion will for appear Defendant dismissed. is overruled and May District On Attorney.” by when notified sentence 26,1977, the lower court sentenced appellant pay costs prosecution, $300.00, a fine of imprisonment for not
Notes
notes
that he
the court for a
argument
continuance
In
post-verdict
of the date set for
of his
motions.
Perillo,
(1977),
Commonwealth v.
474 Pa.