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.
[ 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 ...