Appeals, Nos. 138 and 142, Oct. T., 1962, from judgment of Court of Quarter Sessions of the Peace of Philadelphia County, Jan. T., 1960, Nos. 877 and 878, in case of Commonwealth of Pennsylvania v. Clarence Ford. Judgment affirmed.
Lawrence Goldberg, for appellant.
Burton Satzberg, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 199 Pa. Super. Page 104]
The appellant, Clarence Ford, was indicted for assault and battery, aggravated assault and battery, assault and battery with intent to ravish, rape and conspiracy. He asserted the defense of alibi. He was
[ 199 Pa. Super. Page 105]
found guilty by a jury on all counts. After disposing of a motion for new trial, sentence was imposed.
The victim of the rape, Janet Johnson Bey, 20 years of age, testified that on New Year's Eve, December 31, 1959, she spent the early hours of the evening at her home. She then left for the Twins Inn, arriving there between 11:30 p.m. and 12 midnight. She said that Tod Bristow and his wife, Florence, were friends of hers and that she went to the Twins Inn that night to hear him play. He was a musician and she testified that she sat at the table with Florence Bristow. At about two o'clock in the morning Florence Bristow left the table to get their coats and Johnny, whom she later identified as Clarence Ford, the appellant, accompanied by Earl Terry, came over to her table. She then asked Clarence Ford, the defendant, if he knew a couple of friends of hers and he replied that he did. At about 2:20 a.m. Tod Bristow, the husband of Florence, came back with the coats but in the interval of time the defendant had asked to take Janet home. She accepted the invitation and she testified that when she got to the car Earl Terry was behind the wheel and there were two other fellows in the car. She said that she was seated in the back between two of the men and that Earl Terry asked if it would be all right if they first took one of the men home. The car was stopped near the International Airport and when she learned of the men's intentions she screamed and one man said "Get the gun." She further testified that Clarence Ford had sexual intercourse with her and that each of the other men in turn also had sexual relations with her, after which she was driven back to a point near her home and let out of the car. She made immediate complaint to her sister, mother and the police. During the trial she positively identified the appellant as one of her assailants.
[ 199 Pa. Super. Page 106]
The first contention of the appellant is that the court erred in permitting evidence concerning his silence after accusations were made against him by the victim and by Earl Terry, an alleged accomplice. The appellant did not testify in his own behalf nor did his counsel do so. Officer Somers testified that he did not advise appellant that he could exercise his constitutional right to remain silent. Mr. Thompson, on behalf of appellant, testified that Somers had warned the defendant of his right to remain silent. There being a dispute as to whether or not the warning had been given, the court charged on this subject as follows: "Therefore, you are to consider the testimony offered by the defense as to the defendant's conduct at that time, for, if you determine that he stood mute upon advice of the police officer or on the advice of his friend, Mr. Thompson, or of his attorney, that he did not have to give evidence against him, his silence cannot be construed by you as an admission of guilt. Not only must you find that he was given this advice, but that he acted upon this advice." This was in accordance with instructions suggested by this Court in Com. v. Towber, 190 Pa. Superior Ct. 93, 96, 152 A.2d 917. The reasons advanced by the appellant explaining his silence were carefully submitted to the jury in accordance with Com. v. Vallone, 347 Pa. 419, 32 A.2d 889, and no error was committed by the court concerning this matter.
Furthermore, the court affirmed point 12 presented by appellant's counsel, as follows: "Where the defendant is advised by police officers of his Constitutional right to remain silent, and he is accompanied by an attorney prior to and during the time when accusations were made concerning the crime, the defendant may stand silent, and no ...