Appeal from order of Superior Court, Oct. T., 1970, No. 372, affirming the judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1957, No. 432, in case of Commonwealth of Pennsylvania v. James Charles Wilson.
Edward J. Ross, and Zarwin, Baum, Arangio and Somerson, for appellant.
Maxine J. Stotland and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Manderino concurs in the result.
On April 30, 1957, James Charles Wilson (appellant), and co-defendant Edward Dennis were brought to trial in the Court of Common Pleas of Philadelphia,
having been charged with a series of rapes and related offenses, including robbery and assault. Appellant was also charged with burglary and loitering arising out of a separate incident. Both defendants pled guilty to bills of indictment Nos. 428-31 and 434, and went to trial on a waiver of jury trial on Bills Nos. 432, 433 and 435. Appellant also pled not guilty to the separate bills on which he alone was charged. After hearing the evidence on bill No. 432, forcible rape and the subject of this appeal, the lower court sustained defense counsel's demurrer as to Dennis and found appellant guilty. Two consecutive sentences of five to ten years were imposed on bills Nos. 428 and 431. Appellant received an additional two to four year sentence on bill No. 432 and was thus sentenced to imprisonment for a total of twelve to twenty-four years. Sentence was suspended on the other bills. No post-trial motions were filed.
Pursuant to the Post Conviction Hearing Act*fn1 appellant, on February 23, 1967, filed a petition for post-conviction relief alleging a number of errors concerning both the cases in which he pled guilty and the rape case (bill No. 432) in which he was found guilty by the trial court. After an evidentiary hearing the petition was granted only to permit filing of post-trial motions nunc pro tunc on bill No. 432.*fn2 On February 5, 1970, the motions for new trial and in arrest of judgment were denied. The Superior Court affirmed per curiam without opinion. Com. v. Wilson, 217 Pa. Superior Ct. 853, 270 A.2d 408 (1970). We granted allocatur.
The facts that gave rise to appellant's prosecution on bill No. 432 are as follows: On February 24, 1957,
at 11:45 p.m., Margaret Reiser, prosecutrix, was raped while returning home from work. She had just gotten off a trolley and begun to walk toward her home when a car passed and then stopped a few feet in front of her. The next thing she knew a "tall man," standing in front of her, asked her for directions to somewhere and then told her not to scream or he would knife her. Not drawing a knife but having poked her in the side with something, he grabbed her bag, twisted her neck and pushed her into the front of the car. She then passed out. When she regained consciousness she was on her knees on the floor in the back of the car; the "tall man," having wrapped his leg around her back, was squeezing her neck with one of his hands. The man in the front seat, described only as a "short man," was driving the car. They stopped the car and sexually assaulted her in the automobile and then drove around the block and shoved her out of the car. She reported the rape to a friend and was taken to the police station. When questioned by the police, she could only describe the man who raped her as a "tall man."
Appellant was arrested on March 28, 1957. Miss Reiser identified appellant only, in a two-man lineup consisting of appellant and his co-defendant. Although she viewed a number of people at the police station, she was told by the police immediately before viewing appellant and his co-defendant, that these two men had committed similar acts upon other women. At trial, the prosecutrix, when asked on direct examination if the man who raped her was in the ...