This assumption is insupportable. Individuals who consume large amounts of alcohol 7 may have difficulty remembering events clearly even if they do not actually lose consciousness during the period of intoxication. Thus, notwithstanding the aforementioned testimony, appellant had reason to believe that the prosecutrix's consciousness would not be at issue in the trial, and that his account of a consensual sexual encounter consummated without the use of force might be deemed more credible in light of the prosecutrix's testimony that she could not remember what happened. In sum, we determine that appellant suffered prejudice when the Commonwealth violated Rule 229 by shifting the focus of the trial to proving the victim's unconsciousness. Because the other charges are lesser included offenses relative to the major charges, we grant appellant's request for a new trial as to all charges.
Jurisdiction is relinquished.
3 Review was also granted to determine whether trial counsel was ineffective for failing to seek a continuance to obtain expert testimony pertaining to whether the victim was unconscious at the time of the incident. However, in light of our disposition of the primary issue herein, we find it unnecessary to resolve this latter issue. The victim, who weighed 108 pounds at the time of the party, testified that she consumed at least six beers during the party.