Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1973, No. 890, in case of Commonwealth of Pennsylvania v. Robert Thomas Clements.
F. Ross Crumlish, for appellant.
James Wilson, Steven H. Goldblatt, and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.
[ 229 Pa. Super. Page 265]
The Defendant, whose correct name appears to be Robert Thomas Clements, was tried and adjudged guilty on July 30, 1973, before a Judge and jury of the offense of forcible rape. Along with the indictment for rape he was also charged in other indictments with solicitation to commit sodomy, assault with intent to commit sodomy, sodomy, assault and battery and indecent assault. He was acquitted of the charges other than rape.
Post-trial motions for a New Trial and In Arrest of Judgments were filed and denied on November 13, 1973. On December 3, 1973, the Defendant was sentenced to a period of not less than three (3) years nor more than ten (10) years. This appeal followed.
[ 229 Pa. Super. Page 266]
The victim testified that she was leaving the Caprice Lounge and had gotten into her automobile in the adjoining parking lot when the Defendant came up to her, struck her and forced his way into her car. The Defendant claimed that he met the victim in the Caprice Lounge. In arguing this point as to where the Defendant first approached the victim, the Assistant District Attorney, among other things, said the following: "I mean, you have nothing but the Defendant's testimony that he was ever in the bar at all that evening. That is all you have. His brother who was there with him, didn't come in to testify."
Counsel for the Defendant claims that this asks the jury to draw an inference that if the Defendant had called his brother as a witness, the brother's testimony would be adverse to the Defendant, and counsel cites our decision in Commonwealth v. Black, 186 Pa. Superior Ct. 160, 142 A.2d 495 (1958). We do not read this language as asking the jury to draw such an inference. Certainly it does not expressly do that and when read with the other language of the argument to the jury there is only the vaguest implication that the jury should draw such an inference. Moreover, in Black, the Court charged the jury that it might infer that, since the Defendant had not called his father as a witness, if he had called him, the father's testimony would have been unfavorable.
In contradistinction to Black in the instant case, the trial court made it abundantly clear:
First, that the Defendant was under no duty to call any witnesses, and
Second, that the Commonwealth always had the burden to prove the Defendant's guilt beyond a reasonable doubt. The trial court thus dispelled any implication that the jury should draw an adverse inference from the possible failure of the Defendant to ...