Commonwealth v. Pilosky

362 A.2d 253, 239 Pa. Super. 233, 1976 Pa. Super. LEXIS 1920
CourtSuperior Court of Pennsylvania
DecidedMarch 29, 1976
DocketAppeals, 281 and 282
StatusPublished
Cited by27 cases

This text of 362 A.2d 253 (Commonwealth v. Pilosky) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Pilosky, 362 A.2d 253, 239 Pa. Super. 233, 1976 Pa. Super. LEXIS 1920 (Pa. Ct. App. 1976).

Opinions

Opinion by

Price, J.,

Appellants, Frank Pilosky and Daniel Komada, were co-defendants below. Following a jury trial, which took place from February 6 to February 22, 1974, both [236]*236appellants were found guilty of assault and battery,1 aggravated assault and battery,2 and forcible rape.3 A third co-defendant was found not guilty of all charges.

The record reveals the following facts: On September 25, 1972, the complainant, Kathleen Antipuna, and a friend, Arlene Bradley, entered a bar for the purpose of using the rest room. Kathleen testified that the facility was located at the rear of the bar. She also stated that Arlene sat at the bar while Kathleen used the rest room. As she exited, she was accosted by the appellants and several other men, who dragged her to the second floor, hit her in the face, threw her on a mattress, ripped off her clothes, and raped her repeatedly. After several hours, only the complainant and the appellants remained in the room. At approximately 6 a.m., Kathleen noticed that the men were asleep. She then left the room and proceeded to the bar below, where she placed a call to her mother.4

Shortly thereafter, the mother arrived at the bar, accompanied by the complainant’s husband and brother. The men forced entry into the locked bar, and saw Kathleen, who was partially clothed in a T-shirt and a towel. The men then ran to the second floor, where they attacked the sleeping appellants. The police arrived within five minutes, and, following their arrival, the complainant and the appellants were taken to the hospital. Kathleen was examined by a physician and found to have sustained bruises on her face, limbs, and body. Her vagina was red and edematous, consistent with prolonged intercourse and forcible penetration.

The appellants have raised numerous assignments of [237]*237error, all of which are without merit. First, appellants contend that the lower court improperly refused a motion to dismiss the indictments because a potential witness, Arlene Bradley,5 was attacked and beaten by the complainant and two companions. It is the appellants’ contention that the attack resulted in-the intimidation of the witness, thereby violating appellants’ rights to due process of law. The constitutional violation, appellants believe, requires that the indictments be dismissed.

We are not persuaded by appellants’ theory. While an attempt to influence the testimony of a witness may be relevant to the credibility of witnesses at trial, cf., Commonwealth v. Morrison, 180 Pa. Superior Ct. 133, 118 A.2d 263, cert. denied, 352 U.S. 823 (1956); Commonwealth v. Petro, 115 Pa. Superior Ct. 388, 176 A. 46 (1934), it is in no way related to the dismissal of an indictment. Appellants have shown no defects in the indictments, and the lower court correctly refused the motion to dismiss. See, Commonwealth v. Campbell, 116 Pa. Superior Ct. 180, 176 A. 246 (1935).

Appellants next contend that the lower court erred in limiting cross-examination of the prosecutrix by sustaining objections to numerous questions, among them: (a) Weren’t you on Welfare at the time? (b) Your father plans to sue the taproom, does he not? (c) Were you pregnant before you married your husband? Appellants contend that these questions were relevant to attack the complainant’s credibility, to show her pecuniary interest, and to indicate her prior poor reputation for chastity.

We agree with the lower court that these questions were not proper in the instant case. Whether the complainant received welfare payments has no relevance to the issue involved, which is, whether the appellants raped and assaulted her. The question was intended to confuse the issues on trial, and the objection thereto was [238]*238properly sustained. Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288 (1941).

The question concerning the victim’s father’s intention of instituting suit against the tavern was also improper. There was no proof of the father’s intention, nor was there any indication that the victim would be a party to the suit. Therefore, there was nothing of record to show bias or pecuniary interest on the part of the complainant, and this question was correctly omitted from evidence. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). Moreover, appellants’ counsel recognized that the question was improper. See NT 2 at 113. Finally, asking whether the prosecutrix was pregnant before her marriage is not a recognized means of proving her reputation for chastity. It is settled that proof of specific acts of intercourse is not relevant to proof of the victim’s reputation for chastity. Commonwealth v. Sutton, 171 Pa. Superior Ct. 105, 90 A.2d 264 (1952). See also Commonwealth v. Collin, 233 Pa. Superior Ct. 300, 335 A.2d 383 (1975). Therefore, the lower court committed no error in sustaining the objection to this question.

With regard to the complainant’s poor reputation for chastity, appellants allege another error. At trial, appellants offered the testimony of Harry Bell, a private investigator whom they had hired, to show the victim’s bad character. The Commonwealth objected on the basis that ill repute must be shown by testimony of persons who reside in the community where the complainant lived at the time of the offense and who can testify to her reputation. The lower court sustained the objection.

It has been held that “repute” is the reputation of a person for chastity in the community in which she lives, at or about the time of the commission of the offense charged. Commonwealth v. Bonomo, 187 Pa. Superior Ct. 521, 144 A.2d 752 (1958), aff'd, 396 Pa. 222, 151 A.2d 441 (1959). That the definition of community depends largely upon the circumstances of each case is well-established. [239]*239Commonwealth v. White, 271 Pa. 584, 115 A. 870 (1922). The decision of whether to admit testimony under particular circumstances is within the discretion of the trial judge and will not be reversed absent an abuse of discretion. Commonwealth v. Bonomo, supra. We find no abuse in the instant case. There was no testimony to show either that the investigator lived in the community or that he could testify to his familiarity with or personal knowledge of the victim’s repute. Under these circumstances, we can find no error in the lower court’s action. See 3 Wigmore, Evidence §692 (Chadbourn rev. 1970).

Appellants also assert that the lower court erred in refusing to admit into evidence, for impeachment purposes, the complainant’s juvenile record. There is no merit to this contention. Section 27 of The Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, §27 (11 P.S. §50-324 (b)), provides:

“The disposition of a child under this act may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing,

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Bluebook (online)
362 A.2d 253, 239 Pa. Super. 233, 1976 Pa. Super. LEXIS 1920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pilosky-pasuperct-1976.