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decided: June 17, 1966.


Appeals from judgment of Court of Oyer and Terminer and Quarter Sessions of the Peace of Philadelphia County, May T., 1965, Nos. 630 and 631, in case of Commonwealth of Pennsylvania v. Finley Wilmer.


A. Benjamin Johnson, Jr., for appellant.

Joseph M. Smith, Assistant District Attorney, with him Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J. Wright, J., concurs in the result. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Ervin

[ 208 Pa. Super. Page 103]

The appellant, Finley Wilmer, was found guilty and sentenced by the court below on charges of aggravated assault and battery and rape.

[ 208 Pa. Super. Page 104]

The facts, viewed in the light most favorable to the Commonwealth, were as follows: At approximately 10:45 p.m. on May 7, 1965 two Philadelphia police officers, while on routine patrol, heard a woman screaming in the vicinity of 4th and Poplar Streets, Philadelphia. The officers were in a patrol car. They drove to a vacant lot at 852 North 4th Street and swung the patrol car onto the lot itself. Officer Routzahn testified: "I then swung my car into the vacant lot with my bright lights on, at which time approximately about 50 feet into the lot I observed a white female lying on her back, completely nude, her legs spread apart, with a colored man on top of her with his pants down, in between her legs, in a motion up and down as though he was having sexual intercourse, at which time the defendant jumped up, when he seen our head lights."

The officer further testified that when appellant noticed that police had arrived, he jumped up and ran towards the back of the lot. However, it appears that there was a cyclone fence across the back of the lot which effectively prevented the defendant's escape. He turned and charged towards the police officers. They subdued him and took him into the divisional police headquarters. The officer testified that he and his partner found a woman's coat on the sidewalk in front of 852 North 4th Street, a torn skirt on the sidewalk of 850 North 4th Street, and a woman's shoe, a woman's handkerchief, a woman's blue slip, a woman's empty change purse, a half set of woman's pearls and a pair of woman's yellow pants in various places on the vacant lot. He testified that each of these articles was bloodstained.

Officer Routzahn's partner, Officer Holmes, testified that as the police car drove onto the lot, "Well, I observed the defendant, Finley Wilmer, about halfway back in the lot was straddled between the legs of the complainant, Mrs. Dougherty, who was completely

[ 208 Pa. Super. Page 105]

    nude. He was straddled between her legs and with his pants down he was going in an up and down motion.

"We pulled the car onto the lot and I proceeded to get out of the car with a flashlight to go towards him. And he turned around and he saw us. And he got up. And as he was getting up, he pulled his pants, and he started to run for the rear of the lot.

"And at the rear of the lot there is a cyclone fence. And he seen he couldn't scale the cyclone fence, and he came around, and he came at Officer Routzahn and myself with both arms swinging. And we subdued him and cuffed and called for two radio patrol wagons . . . ."

The victim, Catherine Dougherty, testified that all that she could remember was that while walking along Poplar Street, she was grabbed from behind and dragged and beaten over the head, as a result of which she was hospitalized for some ten days. Mrs. Dougherty also testified that she had not had sexual relations with anyone within the two weeks immediately preceding the incident.

Dr. Harnish Shah testified that he was on duty in the Accident Ward of St. Luke's Hospital the night of the incident and that he treated Mrs. Dougherty. He testified that Mrs. Dougherty had a "big contusion on the left side of the face" and a cut on the left side of the chin which required two stitches to close. He testified that Mrs. Dougherty was bleeding only from the cut on the chin and he further testified that he found male spermatozoa some three inches deep in the patient's vaginal cavity.

The appellant argues that the evidence was not sufficient to sustain a conviction and that the conviction was the result of coercion by the trial judge. A reading of the evidence in this case is sufficient to convince any fair minded person of its sufficiency.

The appellant took the stand in his own behalf and testified that while walking along the highway he noticed

[ 208 Pa. Super. Page 106]

    the prosecutrix lying on the ground, obviously in need of help and that he went to her assistance and while kneeling at her side, was discovered by the police.

The jury retired to deliberate at 4:38 p.m. and returned to the courtroom at 5:51 p.m. because they wished further instructions. Counsel for the appellant argues that the colloquy which then took place between the jury and the trial judge coerced the jury into bringing in a verdict of guilty. We have carefully reviewed the entire record and cannot agree with this argument.

The trial judge, Hon. Edward J. Griffiths, time after time made it clear to the jury that the question of credibility or believability was the real issue in the case for their determination. He made it crystal clear that if they believed that the Commonwealth's officers were telling the truth beyond a reasonable doubt, they should bring in a verdict of guilty or if they believed, on the other hand, that the officers were not telling the truth and that the defendant was, they should bring in a verdict of not guilty. The lengthy colloquy between the trial judge and the jury is printed in footnote 1.*fn1

[ 208 Pa. Super. Page 107]

The jury wanted the pants which the defendant wore

[ 208 Pa. Super. Page 108]

    at the time of the rape. The Judge told them that the

[ 208 Pa. Super. Page 109]

    pants had not been put into evidence and therefore

[ 208 Pa. Super. Page 110]

    could not be produced. He then went into the anatomy

[ 208 Pa. Super. Page 111]

    of a rape and tried to explain to the jury why the pants had not been seized by the police officers. He also told the jury that even if the pants had been produced by the defendant, they probably would not show anything at this time. The Judge did everything possible to fully answer the questions of the jurors. Appellant argues that the trial judge expressed an opinion of the guilt of the defendant and that this was reversible error. It is not at all clear that the Judge did express such an opinion but even if he did, such was not improper under all of the circumstances of this case. We

[ 208 Pa. Super. Page 112]

    quote with approval what Mr. Justice Eagen said in Com. v. Ott, 417 Pa. 269, 272, 207 A.2d 874: "For the first time, as far as our research discloses, in Commonwealth v. Nafus, 303 Pa. 418, 154 A. 485 (1931), this Court held that a trial judge may also express an opinion as to the guilt or innocence of the defendant. And in many cases since, this right has been reaffirmed, provided (1) that it is exercised fairly and temperately; (2) that there is reasonable ground for any statement the judge may make; and, (3) that he clearly leaves to the jury the right to decide all the facts and every question in the case, regardless of his opinion: Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963); Commonwealth v. Chester, 410 Pa. 45, 188 A.2d 323 (1963); Commonwealth v. Patskin, 372 Pa. 402, 93 A.2d 704 (1953); and Commonwealth v. Watts, 358 Pa. 92, 56 A.2d 81 (1948)." All of these conditions were complied with in the present case. The vice condemned in the Ott case was that the judge stated he had a duty to express an opinion, and in Com. v. Young, 418 Pa. 359, 211 A.2d 440, the vice condemned was that the judge used a phrase which might indicate that he had knowledge, independent of the evidence, which showed guilt.

The writer of this opinion has had twenty-five years' experience as a judge and to the best of his recollection, this is the first rape case in which there was testimony by eyewitnesses of the act. We are of the opinion that the appellant received a fair trial and that the evidence was entirely sufficient to justify a conviction.

Judgment of sentence affirmed.


Judgment affirmed.

Dissenting Opinion by Hoffman, J.:

The act of rape constitutes one of the most heinous crimes known to man. It is condemned and reviled in every civilized society. Conviction of this crime subjects

[ 208 Pa. Super. Page 113]

    the accused to a lifetime of opprobrium and disgrace. The very seriousness of this crime requires, therefore, that the utmost caution be exercised in assuring that the convicted man is in fact guilty.

In the instant case police testified that the victim was bleeding profusely from her eyes, nose and mouth. Her clothes were "soaked" with blood. One police officer testified, however, that to the best of his recollection, he found no bloodstains on defendant's clothing.

It is with this evidence that the jury left the courtroom for deliberation at 4:38 p.m. and returned at 5:51 p.m. In their lengthy colloquy with the trial judge, which is contained in footnote one of the majority opinion, four jurors asked for further evidence with respect to defendant's clothing. The jury was clearly concerned with whether the clothing would disclose a seminal discharge or other stains which would prove that defendant actually had sexual intercourse with the victim. Notwithstanding the jury's hesitancy, the trial judge stated to the jury that they should not consider this point. He told the jury that the pants could be of no evidentiary value and would not aid them in reaching a conclusion on guilt or innocence. Repeatedly, he stated that the jury had sufficient evidence without the trousers to find defendant guilty beyond a reasonable doubt. He actively sought to dispel any doubt which arose from the fact that defendant's clothing apparently did not bear signs of blood or seminal discharge on it. By so doing he improperly withdrew from the jury's consideration a factor which was clearly disturbing them greatly.

This colloquy sufficiently demonstrates to me that the judge usurped the fact-finding function of the jury. For this reason, I would grant a new trial.

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