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July 17, 1952



Lee B. Sacks, R. P. Alexander, Philadelphia, for appellants.

Michael von Moschzisker, First Asst. Dist. Atty., Malcolm Berkowitz, Asst. Dist. Atty., Richardson Dilworth, Dist. Atty. Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 171 Pa. Super. Page 178]

HIRT, Judge.

The defendants were jointly tried and were convicted of common law rape and robbery. On return of the verdicts the trial judge peremptorily refused their motions for new trials, without argument, and sentenced the defendants. Their present counsel in arguing these appeals impugned the fairmindedness of the judge in the trial in these cases. We have serious doubt as to the validity of the convictions of these defendants on the present record. And regardless of whether inadequacies in this record amount to reversible error, this is a case in which we are impelled to grant new trials in the exercise of the broad powers of

[ 171 Pa. Super. Page 179]

    review conferred upon us in § 8 of the Act of June 24, 1895, P.L. 212, 17 P.S. § 192. Cf. Com. v. Tracey, 130 Pa. Super. 15, 96 A. 549; Commonwealth v. Balles, 160 Pa. Super. 148, 50 A.2d 729.

The jury accepted testimony which standing alone convicted the defendants of the crimes, to this effect: Otis Daniels, since his separation from his wife, has lived alone in an apartment near the corner of 18th and Wilder Streets in Philadelphia. In the early morning of April 1, 1951 he with Hazel Jackson, a widow, were visiting friends in the neighborhood of his home. She referred to him as her 'boy-friend'. About 3 a.m. he was standing on the corner with her, intending to hail a taxicab to take her home, when they were accosted by the defendants. Defendant Fields was so aggressive in his approach to Mrs. Jackson that she became frightened. To protect her from his advances Daniels took her to his apartment over a nearby store. Both defendants followed them into the apartment and there Fields forced the woman into the bedroom and after threatening her to induce her to acceded to his demands, raped her while Aygelotte stood over Daniels with a 'pen knife'. Fields then restrained Daniels in the same manner, while Aygelotte raped the woman. The acts were repeated several times by the defendants, alternately, until about 6 o'clock in the morning when the defendants left. As to the robbery charges there is testimony that one of the defendants took $12 from the victim's purse and the other robbed Daniels of $13. Mrs. Jackson went home in a taxicab. Daniels reported the affair to the police shortly after the occurrences and later in the same morning took Mrs. Jackson to the detective headquarters. She fainted in the police station and was taken to a hospital where after treatment she was returned to her home the same day. She had been steadily employed but was unable to return to her work for two weeks.

[ 171 Pa. Super. Page 180]

In their defense each of the defendants admitted one act of intercourse with the woman but they testified that it was with her consent. They denied threatening either her or Daniels with a knife. They said that Daniels invited them to his apartment and there offered the woman to them for $25. In response Fields told Daniels that he had $25 and accepted the offer for himself and for Aygelotte. Their testimony is that they left the apartment about 4 a.m.; that just before they left, in response to Daniels' demand for the payment of $25, Fields admitted that he didn't have any money; Daniels then said to him: 'I will fix you if is the last thing I do'. The defendants denied the robberies.

Daniels was an essential witness for the Commonwealth and there are circumstances which question his credibility. He intended to give the impression that he retreated to his rooms with Mrs. Jackson as a refuge for her and that the defendants forced their way into his apartment against his will. What he said at the trial does not support the contention. He testified that when he started to close the street door behind him and Mrs. Jackson, Fields said: 'Oh no, you can't do this on me' I was tricked because he knew me -- I didn't think he meant it, and I said, 'Well, all right, come on in.' At that time Daniels knew what was in Field's mind for when he first accosted Daniels with Mrs. Jackson on the street Fields said to Daniels: 'I want her.' There then followed a conversation, between Fields and Daniels apart from Mrs. Jackson, on the street. All of the circumstances raise a grave suspicion that the defendants came to Daniels' apartment, if not on his invitation, ...

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