decided: April 3, 1974.
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1959, Nos. 1648 to 1651, inclusive, in case of Commonwealth of Pennsylvania v. Samuel Brown.
Paul B. Pollack, for appellant.
Maxine J. Stotland and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, and Cercone, JJ. (Spaulding and Spaeth, JJ., absent.) Opinion by Watkins, P.j. Spaulding and Spaeth, JJ., took no part in the consideration or decision of this case.
[ 227 Pa. Super. Page 412]
This is an appeal from the judgment of re-sentence by the Court of Common Pleas, Criminal Division, of Philadelphia County.
The appellant, Samuel Brown, was tried and convicted of rape and indecent assault on two victims, Saola Mandy and Carol Ann Bechtel. On April 28, 1960, after a denial of post-trial motions, he was sentenced under the Barr-Walker Act of one day to life. Sentence was suspended on other indictments.
He was given post-conviction relief and after a hearing, the sentence was vacated because of the unconstitutionality of the Barr-Walker Act. Commonwealth v. Dooley, 209 Pa. Superior Ct. 519, 232 A.2d 45 (1967). On May 16, 1969, he was resentenced to a term of imprisonment of not less than 7 1/2 years nor more than 15 years. This appeal followed.
There was overwhelming evidence to support the charges, and we do not intend to review the facts except as to the similarity in both cases. The appellant's strategy at trial seemed to be to seek acquittal on his alibi defense. The jury did not believe him. Both victims positively identified him in court.
The appellant complains that the court below in its charge only defined the crime of forcible rape to the jury and failed to define indecent assault and lesser offenses included in the rape indictments. However, he failed to object to this aspect of the charge and has waived any merit in this issue on appeal. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973); Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608 (1973); Rule 1119(b), Pennsylvania Rules of Criminal Procedure.
[ 227 Pa. Super. Page 413]
The court below properly refused the motion of the appellant to sever the indictments based on the attack on the two women. The grant or denial of severance is a matter of the discretion of the trial court whose conclusion will be reversed only for manifest abuse of discretion or prejudice or clear injustice to the defendant. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973).
In the instant case, the evidence disclosed common schemes so related to each other that had they been tried separately, the evidence of either one may well have been admissible in the other because of the logical connection between the two crimes to establish a common scheme, plan or design. Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334 (1955).
The two rapes are amazingly similar in execution. Mandy was grabbed at 18th and Ontario Streets at 12:10 a.m. on November 8, 1959, and dragged into a nearby alley, overpowered, her clothing put aside and raped; Bechtel, on November 9, 1959, at 10:45 p.m. at Westmoreland Street between Sydenham and Fifteenth Streets, was dragged into a nearby alley, overpowered, her clothing put aside and raped. Given the common characteristics of the two crimes and their proximity in time and place, the proof of one may well have qualified it for admission at the trial of the other. Commonwealth v. Wable, supra.
Even if we conclude that the evidence of one did not so qualify for admission, the court below did not manifestly abuse its discretion in refusing to sever the cases. In a case where the defendant was tried for four separate drug sales during a six day period, the Federal Court stated: ". . . a severance of counts is not required where the evidence even when not mutually admissible in separate trials, is so simple that the jury should encounter no substantial difficulty in properly confining its treatment within zones of relevance."
[ 227 Pa. Super. Page 414]
Judgment of sentence affirmed.
Judgment of sentence affirmed.
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