J. Stroud Weber, Dist. Atty., Anthony L. Differ, Asst. Dist. Atty., Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 399]
Appellant was indicted for rape. On the second trial*fn1 the court charged: 'You might find one of three verdicts, guilty of rape, guilty of attempt to commit rape, or not guilty.' He was found guilty of attempted rape. His motion for a new trial was allowed, but, upon the Commonwealth's petition for reargument, which was allowed, the new trial was refused. Appellant was sentenced to pay a fine of $1 and undergo imprisonment in the county jail for 4 months. On this appeal he did not question the sufficiency of the
[ 171 Pa. Super. Page 400]
evidence to sustain the conviction and limited his argument to alleged trial errors.
Only enough of the testimony will be stated to furnish a broad background against which the legal problems can be discussed. In the early afternoon of August 24, 1950, Gertrude McKendrick, aged 34, a married woman living with her husband and the mother of 5 children,*fn2 was driving her Chevrolet coupe from her home to her work in a factory. She passed another car, allegedly driven by appellant, who waved to her, followed her, cut in front of her car, and stopped. She stopped and attempted to reverse her car but it stalled. Appellant, so she testified, left his car, came to the left side of her car, asked for a date, grabbed her head through the front window, entered her car, pushed her from the driver's position, placed her left arm against the back of the seat, and her right arm under her body, forced one leg over the back of the seat and the other down toward the floor and, with his feet protruding out of the window, penetrated her sexual organ, apparently without emission.
Against this was the testimony of two witnesses, produced by appellant, friends and co-workers of Mrs. McKendrick, who testified that she told them that she had been accosted by a stranger, who asked for a date, pulled up her her clothes and kissed her, but that she had not been raped.
Appellant's defense was an alibi and a denial that Mrs. McKendrick had been raped. However, he admitted that he had told State police that he had met the woman in the way described by her, talked to her and kissed her while leaning in the door of her car, but
[ 171 Pa. Super. Page 401]
denied that he had entered the car.*fn3 Further reference will be made to this pre-trial statement.
Appellant's contentions will be examined in the order in which they appear in his brief.
I. As stated, the trial judge charged that appellant might be found guilty of rape or attempted rape or acquitted. Appellant argues that he should also have charged that he might be found guilty of simple assault and battery. At the end of the charge the trial judge asked: 'Are there any suggestions or corrections or anything we way have overlooked or misstated?' Appellant entered several objections and exceptions ...