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COMMONWEALTH v. WILCOX (11/17/66)

decided: November 17, 1966.

COMMONWEALTH
v.
WILCOX, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Philadelphia County, March T., 1965, No. 174, in case of Commonwealth of Pennsylvania v. Norman Wilcox.

COUNSEL

Sanford Kahn, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Alan J. Davis, Assistant District Attorney, with him John J. DiPaul, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 208 Pa. Super. Page 519]

On the night of December 27, 1964, three men broke through a window into the home of Pauline Swindell with whom prosecutrix Alberta Williams was staying. After pulling out the floor lamps and breaking the ceiling lights to darken the room in which prosecutrix was sleeping, they forcibly removed her clothing and she

[ 208 Pa. Super. Page 520]

    was raped three times. Although prosecutrix was unable to say that each of the three men raped her, she being unable to see in the darkened room, she had ample opportunity before the lights went off to identify the defendant as one of the three who were present. Defendant was also identified by Pauline Swindell.

Following a trial before the Honorable Victor J. DiNubile sitting without a jury, defendant was found guilty of rape. Motions for a new trial and arrest of judgment were refused and judgment of sentence was imposed. This appeal followed.

Three errors are assigned as reasons for reversal of the judgment.

First, defendant contends that it was error for the trial judge to disregard a statement made by Freeman Anderson, a Commonwealth witness, to the effect that he saw four men enter the Swindell home that night by way of the door but was unable to recognize any of them. However, contrary to this statement he also testified that he saw LaVerne and three others enter. LaVerne was later referred to as this defendant, Norman Wilcox. It was Anderson who later called the police after returning to the Swindell house and finding prosecutrix crying.

It is argued that Anderson's statement that four men entered the house through the door exculpated the defendant since prosecutrix testified she had been raped by three men who entered by way of the window. This argument is untenable. Anderson left the house at 11:00 p.m. and returned at 12:30. He may have seen four men enter at the time of his departure who were not the three who broke in and committed the rape; or the defendant may have been with each group; or the witness may have erred in the number, or perjured himself as he ...


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