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COMMONWEALTH v. BARBRY (11/01/68)

decided: November 1, 1968.

COMMONWEALTH
v.
BARBRY, APPELLANT



Appeal from judgment of sentence of Court of Oyer and Terminer of Philadelphia County, Dec. T., 1965, No. 824, in case of Commonwealth of Pennsylvania v. Ernest Barbry.

COUNSEL

John W. Packel, Assistant Defender, with him Louis M. Natali and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Michael Baylson, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 213 Pa. Super. Page 253]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J., November 14, 1968:

Defendant was tried on an indictment of rape. A mistrial was declared after the jury was unable to reach a verdict, and a new trial was ordered. At both trials, the prosecutrix testified that defendant forced her, at knifepoint, to accompany him to a vacant house, where he assaulted her twice. Defendant, testifying in his own defense, acknowledged that he had intercourse with the prosecutrix. He stated, however, that it resulted from her solicitation, and was consummated with her consent.

At the second trial after defendant had testified, the Commonwealth called the deputy clerk of the Court of Quarter Sessions. The clerk testified that he had with him a 1961 bill of indictment which reflected that

[ 213 Pa. Super. Page 254]

    defendant had been convicted of larceny. The clerk also testified that defendant "is committed to State Correctional ...


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