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COMMONWEALTH v. CHISENA (04/13/60)

April 13, 1960

COMMONWEALTH
v.
CHISENA, APPELLANT.



Appeals, Nos. 3, 4, and 5, Oct. T., 1960, from judgment of Court of Quarter Sessions of Delaware County, March T., 1959, Nos. 277, 278, and 279, in case of Commonwealth of Pennsylvania v. John Francis Chisena. Judgment affirmed.

COUNSEL

Morris Passon, for appellant.

Jacques H. Fox, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Ervin

[ 192 Pa. Super. Page 227]

OPINION BY ERVIN, J.

The defendant was found guilty of assault with intent to ravish and burglary. He was found not guilty on the rape charge. After disposition of his motions for a new trial and in arrest of judgment he was sentenced. Defendant appealed.

We must accept as correct the testimony submitted by the Commonwealth as well as the reasonable inferences which may properly be drawn therefrom: Com.

[ 192 Pa. Super. Page 228]

The appellant argues that this evidence was insufficient to sustain a conviction. His principal argument in this connection is that there was not sufficient time for defendant to have done the acts which prosecutrix says he did. Her testimony was that she was awakened at 5:15 a.m. by the defendant and that it was 5:25 a.m. when she pounded on the wall to awaken the neighbors. At this time the defendant had left the house. Appellant argues that this would allow only five or six minutes to do what prosecutrix says he did. Eight or nine minutes would be more nearly the time between the time when prosecutrix was first awakened and the time when defendant left her on the first floor. In our judgment the acts could have been done in that period of time.

Appellant also argues that the identification evidence was weak. Prosecutrix testified that the light from her clock radio was sufficient to enable her to view the intruder's face, his coloring and his build. She saw his face again in the living room when he placed the lighted flashlight near her hip. The intruder talked to her. On the afternoon of the incident she identified him in the home of a neighbor. Later she had an opportunity to identify him at the Court House. She gave the details to the officer when she answered: "Well, his shape face in general, his nose and his chin;... and even to the coloring, I could see the coloring of his face where the light hit it." She also identified the defendant by his voice. Under this evidence the question of identification was clearly for the jury.

The court's charge on alibi was in accord with Com. v. Bonomo, 396 Pa. 222, 151 A.2d 441, and was without error. The credibility of the ...


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