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COMMONWEALTH v. MACKEY (03/20/72)

decided: March 20, 1972.

COMMONWEALTH
v.
MACKEY, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, Nos. 1326 and 1327, affirming order and judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1968, Nos. 512 and 515, in case of Commonwealth of Pennsylvania v. Edward Mackey.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

Judith Dean, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Eagen

[ 447 Pa. Page 34]

The appellant, Edward Mackey, was tried non-jury in Philadelphia on six separate indictments charging that he committed two separate groups of offenses against the same complainant. In three of the indictments, Mackey was charged with having committed the crimes of sodomy, aggravated robbery and burglary on July 16, 1968. In the three other indictments, he was charged with having committed aggravated robbery, burglary and rape on August 19, 1968.

After trial, Mackey was found guilty by the court of having committed burglary on July 16th, and on this indictment he was sentenced to serve a term of imprisonment of one to five years. Mackey was also found guilty of having committed burglary, robbery and rape on August 19th, and on the rape indictment he was also sentenced to serve a term of imprisonment of one to five years; the sentences to run consecutively.*fn1 On appeal, the Superior Court affirmed the judgments without opinion. We granted allocatur.

The factual background, as disclosed by the record, is as follows:

About 7 a.m. on July 16, 1968, the complainant, Miss Annette London, was asleep in her bedroom on the second floor of her two-story residence, when she awakened to find a strange male standing beside her bed. The intruder expressed an intent to commit an act of sodomy upon her and then went downstairs to lock the front door. While he was gone, Miss London escaped through a window to the house next door and

[ 447 Pa. Page 35]

    phoned the police. After the police arrived, she returned to her residence and found the intruder had fled after taking about five dollars from her pocketbook. About three hours later, Miss London stopped a police car and advised the officers that the offender was on her street. The police accompanied her to her residence where she identified a man, sitting on the steps, as the guilty party. At the preliminary hearing for this individual, one Lionel Gould, the woman recanted her prior identification and the charges were dismissed.

During the early morning hours of August 19, 1968, a male stranger once again entered Miss London's residence, and forcibly committed an act of sexual intercourse upon her. This incident was not immediately reported to the police.

During the evening about one month after the incident of August 19th, Miss London heard the chain to the front door of her residence jingle. She peered out the front window and saw a man trying to gain entrance. She sent her brother, who was there at the time, to capture the intruder. The brother struggled with the stranger, but did not detain him. About ten days later, acting upon information given to him by the complainant's brother, an officer approached the appellant Mackey and asked him to enter his police automobile. The automobile then proceeded to the front of the residence of the complainant and she was summoned ...


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