Appeal from judgment of Court of Quarter Sessions of Erie County, Nov. T., 1960, No. 98, in case of Commonwealth of Pennsylvania v. Pearly Wilson.
Roger M. Fischer, with him Kahn, D'Ambrosio and Fischer, for appellant, submitted a brief.
W. A. Peiffer, Assistant District Attorney, with him Michael M. Palmisano, Assistant District Attorney, and Edward H. Carney, District Attorney, for Commonwealth, appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, J.
[ 205 Pa. Super. Page 37]
Pearly Wilson appeals from his conviction and sentence for the crime of assault with intent to ravish.
The evidence was that Mrs. Ann Wisinski parked her automobile in a downtown public parking lot in the City of Erie, Pennsylvania, on September 16, 1960, at about 8:30 p.m. The car was parked under a light. After some shopping she returned to her car at about 9:20 p.m. and got behind the wheel of the car preparatory to starting her homeward journey, when she was confronted by the defendant standing at the door of the car. Thinking that she was about to be robbed, she first offered the defendant her purse, to which he said, "Don't be afraid, I won't hurt you." The defendant then entered the car and forced her to slide over and then took out a switch-blade knife and menaced her with it. When the victim inquired, "What is it you want?", he replied, "Keep your mouth shut or I'll kill you."
The victim offered the defendant her watch and the $30.00 which was in her purse and later even offered him the car. The defendant spurned her offers and, after ordering her again to shut up or face being killed, he then forced her to get down on the floor of the car "and he took hold of my front legs and put them underneath where he sat and pushed them up in the front and I had to lay there, with my head propped against the door on my side." He also wired her wrists together with wire identified as being identical with
[ 205 Pa. Super. Page 38]
wire utilized in the store where the defendant was employed. When Mrs. Wisinski was lying on the floor of the car, her head came into contact with the door of the car and it flew open and Mrs. Wisinski screamed for help. The defendant fled.
Counsel for the appellant argues that it was error for the court below to refuse to continue the case because the defendant had been tried for a similar charge four days before and convicted by jurors from the same general panel as those who served in the present case. The continuance was a matter solely within the discretion of the trial judge. Unless there was an abuse of that discretion, the action of the trial court will be affirmed.
We have examined the record of Com. v. Pearly Wilson, No. 99 November Sessions, 1960, which was the earlier case above referred to, and have learned therefrom that the assault in that case took place on September 22, 1960, which was six days after the assault in the present case, and occurred in the same general locality. While the Commonwealth did not attempt to offer evidence of the prior conviction in the present case, we are of the opinion that it would not have been error had such evidence been admitted. It is widely recognized, as an exception to the general rule excluding evidence of crimes other than that charged in the indictment, that evidence of the commission of other similar crimes may be given to show design or plan on the part of a defendant to commit the crime of which he is charged. Evidence of offenses other than the one for which a defendant is on trial is admissible if the prior misconduct tends to show the state of mind of the prisoner upon the ...