Commonwealth v. Mlinarich

542 A.2d 1335 (1988)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

The complainant was living with her brother Gary and his wife and child. The complainant's father and her other siblings resided in the other half of the house. A diamond ring belonging to Gary's wife disappeared. The complainant admitted she took it but lost it. Gary filed criminal charges against her to teach her a lesson. The complainant was committed by court order to the custody of the Cambria County Detention Home. Mlinarich (D), lived with his wife, mother and sister two doors from the home of the complainant's father. D was sixty-three years old. D suffered from emphysema and heart trouble. After the complainant was committed to the detention home, D's wife suggested that the complainant live with her and D. The complainant was released into the custody of D's wife pending further proceedings. On complainant's fourteenth birthday, she and D were watching television and D told her to remove her outer garments and sit on his lap. She complied, and D fondled her for approximately four minutes, during which time the victim 'told him he shouldn't do that . . . .' This type of conduct occurred a number of times. D's wife was always out of the house during these and subsequent episodes. One-day D asked the victim to disrobe and, when she did not remove her bra and undergarments, he ordered her to undress completely. She refused, and D threatened to send her back to the detention home if she did not comply. D then proceeded with an unsuccessful attempt at penetration. A similar encounter also occurred. D finally achieved penetration on a third incident. D also had oral sex with the victim. D was arrested and charged with rape as well as attempted rape and involuntary deviate sexual intercourse, corruption of a minor, indecent exposure and endangering the welfare of a minor. D was convicted on all counts and appealed. The Superior Court reversed the rape and attempted rape convictions. The Commonwealth appealed.