Joseph Solomon, New Castle, for appellant.
Sherman K. Levine, Dist. Atty., John S. Powers, Asst. Dist. Atty., New Castle, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ. Dithrich and Ross, JJ., dissent.
[ 169 Pa. Super. Page 308]
Defendant has appealed from convictions on two bills of indictment, charging, inter alia, robbery and rape, and the sentences thereon. On bill No. 2, September Term, 1950, in the Court of Oyer and Terminer of Lawrence County, charging robbery, defendant was sentenced to undergo imprisonment in the Western State Penitentiary for a term of not less than one and one-half years nor more than three years to begin to be served after sentence at No. 3, September Term, 1950, in the Court of Oyer and Terminer of Lawrence County, charging rape. On the latter bill defendant was sentenced to the Western State Penitentiary for a term of not less than two and one-half years nor more than five years. Defendant was also indicted on bill No. 4, September Term, 1950, in the Court of Oyer and Terminer of Lawrence County for robbery, larceny, receiving stolen goods, and assault and battery upon the person of one Gisella Morganti. Defendant's counsel moved to consolidate the three cases for trial. It was ordered that defendant be tried on bills Nos. 2 and 3, September Term, 1950, before the same jury, involving the same victim, Helen Brasile; separate verdicts of guilty were rendered. The court ordered a separate trial on bill No. 4, September Term, 1950. Defendant's motion for a new trial was refused by the court below, and he has appealed from the sentences imposed on the robbery and rape convictions.
[ 169 Pa. Super. Page 309]
Appellant alleges that the court below erred in refusing his motion for a new trial. He questions the admissibility of evidence of other offenses, the correctness of the charge of the court to which only a general exception was taken, and the sufficiency of the evidence as to identity. He also avers that the verdict was against the weight of the evidence.
A brief recital of the facts as established by the evidence is necessary to an understanding of appellant's contentions. The Commonwealth showed by the evidence which it produced that about midnight on May 23, 1950, or in the early morning of May 24, 1950, Helen Brasile was attacked while she was walking east near the intersection of East Washington Street and Almira Avenue in the City of New Castle, Lawrence County. She was accosted and grabbed by a man who said, 'No use trying to struggle sister, you are not getting away.' He forced his fingers down her throat and dragged her into an alleyway. She there lost consciousness. She was then raped, and this was confirmed by the medical testimony. Her assailant also robbed her of her purse which contained $28 in cash. Miss Brasile, the victim, was positive in her identification of appellant as her assailant. She identified him from his appearance on the night of the attack and by his voice. She testified:
'Q. In other words, you were able to turn around and face this man? A. I certainly was.
'Q. And in the light of the street light you saw him? A. Yes, I did. * * *
'Q. Did the man that reached his arm around you, dragged you ten feet, is he in the court room at the present time? A. Yes, he is.
'Q. Will you point him out to the jury? A. ...