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decided: June 24, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1973, Nos. 889 to 892, inclusive, in case of Commonwealth of Pennsylvania v. James Whyatt.


Leonard Sosnov, Andrea Commaker Levin, Thomas Branca, and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Harry M. Spaeth, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Price, J. Hoffman, J., concurs in the result.

Author: Price

[ 235 Pa. Super. Page 214]

Appellant was convicted by a jury of solicitation to commit sodomy,*fn1 forcible rape,*fn2 burglary*fn3 and aggravated robbery.*fn4 The facts of this case show that on the evening of March 14, 1973, Alicia Ottinger, the victim, returned from work to her residence at 306 Bainbridge Street in Philadelphia. Once at home, Mrs. Ottinger went to bed dressed in her nightgown and underwear. Shortly thereafter, she heard a knock on the door and asked who was there. When she refused to open the door, the lock was broken, the door was broken down and splintered, and three males entered her apartment. One of these three men was the appellant, who was carrying a gun. The men announced a holdup, and Mrs. Ottinger was ordered to lie on a bed and told to keep her eyes closed. Upon complying with these demands, her garments were removed, and she was raped by someone whom she recognized as "Artie" from her neighborhood. After raping her, Artie forced her to commit sodomy upon his person. At the time of these incidents, the 24-year-old victim was three months pregnant.

The victim was then raped by the appellant, who also inserted a screwdriver and another foreign object into her vagina. Although told to keep her eyes closed, Mrs. Ottinger did make an effort to observe these men.

[ 235 Pa. Super. Page 215]

After threatening to harm the victim's husband when he came home, the men bound Mrs. Ottinger and fled, taking with them certain objects which they obtained during the ransacking of the apartment. These items included two leather coats, a clock radio, a clock, a lamp and some money.

Police initially arrested the assailant known to the victim as "Artie". Artie confessed to the crime and implicated the appellant, James Whyatt.*fn5 At trial, Artie testified against the appellant and corroborated the experiences of the victim, who also positively identified the appellant during the trial. Artie's statement, taken March 21, 1973, was admitted into evidence and went out with the jury.

Appellant's defense was that of alibi. He called Hortense McAlister who testified that appellant was with her family and herself before, during and after the time of the rape. However, no other family members were called to substantiate her testimony. The jury did not credit appellant's evidence, and found him guilty on all charges.

Appellant filed motions for a new trial and in arrest of judgment and a petition supplementing the motions. The court en banc denied the motions on April 30, 1974. On May 30, 1974, appellant was sentenced to consecutive terms of imprisonment of from 2 1/2 to 5 years for solicitation to commit sodomy, 5 to 10 years for burglary, and 10 to 20 years each for aggravated robbery and forcible rape. Appeal was taken to this court. We affirm.

Appellant argues that the trial court committed reversible error when it failed to charge the jury that, as a matter of law, Artie Simpson was an accomplice and, as such, his testimony was from a corrupt source and should only be accepted with caution. The judge charged

[ 235 Pa. Super. Page 216]

    the jury members that they must first determine if Artie Simpson was an accomplice and if they did so find, then they should view his testimony ". . . with disfavor because it comes from a corrupt and polluted source; . . . [and] you should examine [his] testimony closely and accept it only with caution and care." (NT 36)

The appellant correctly states the law of the Commonwealth to be that where a witness is clearly an accomplice in the crime charged, the court should charge the jury as to this fact. Commonwealth v. Staudenmayer, 230 Pa. Superior Ct. 521, 326 A.2d 421 (1974). Although in the instant case the trial judge left the question of whether Simpson was an accomplice to the jury, we see no error which deprived the appellant of the fundamentals of a fair trial. Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972). When we examine the judge's entire charge on this point, as we must, Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970); Commonwealth v. Reston, 224 Pa. Superior Ct. 80, 302 A.2d 428 (1973), we note that all aspects of testimony by an accomplice were very adequately covered.

In any event, although appellant did submit a correct point for charge, he neither specifically objected to that portion of the charge as given by the trial judge, nor did he ask the court to clarify its charge on testimony by an accomplice. In the absence of a specific objection, appellant is deemed to have waived this point. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973).

Appellant next contends that a written prior consistent statement made by Artie Simpson and admitted into evidence should not have been given to the jury to take with it during its deliberations. Appellant admits on the record (NT II 66) and in his brief (appellant's brief at 16) that there was no objection to the actual admission of the written statement into evidence.

Appellant raised the question of Artie Simpson's credibility by suggesting, in effect, that Simpson might

[ 235 Pa. Super. Page 217]

    have testified against appellant as part of a deal with the authorities.*fn6 The Commonwealth sought to rehabilitate the witness by presenting a statement Simpson made to the authorities prior to a time when he could have expected a plea bargain or more lenient treatment. In Commonwealth v. Cooper, 230 Pa. Superior Ct. 204, 327 A.2d 177 (1974), this court commented on the admissibility of prior consistent statements used to rehabilitate a witness whose credibility had been attacked by impeachment. We stated:

"In Commonwealth v. Wilson, 394 Pa. 588, 602-03, 148 A.2d 234, 242 (1959), the court said: 'As a general rule a statement made by a witness at one time, while admissible to contradict him, is not competent to corroborate or substantiate his present testimony. Were it not otherwise, the door might be opened to the fabrication of evidence. However, there are certain well-recognized exceptions to this general rule: prior declarations of a witness, which are consistent with his present testimony, may be admissible to corroborate his present testimony if it be alleged that the witness' present testimony is recently fabricated, or if it be claimed that the witness is testifying from corrupt motives.' The prior declaration must have been made before its 'ultimate effect on the question trying could have been foreseen,' Risbon v. Cottom, 387 Pa. 155, 163, 127 A.2d 101, 105 (1956), or before the asserted corrupt motive existed, McCormick, Handbook on the Law of Evid., ยง 49, at 105 (2d ed. 1972)." Id. at 207, 327 A.2d at 179.

The prior consistent statement in the present case fits within the established guidelines, and could properly be used to rehabilitate the impeached testimony. As a correctly admitted exhibit, it was within the trial judge's

[ 235 Pa. Super. Page 218]

    discretion to determine if the jury could take the written statement with it. Pa.R. Crim. P. 1114. We will reverse the trial court's determination only when an abuse of discretion is shown. Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973). However, we see no abuse of discretion which warrants a reversal on this point in the case at bar.

Appellant next contends that the adverse inference charge of the court was improper. The Commonwealth requested this charge because of appellant's failure to call additional alibi witnesses. Appellant based his defense on the alibi that he was with the McAlister family during the time period when the crimes occurred. However, only Hortense McAlister was called as an alibi witness, although appellant was allegedly in the company of her daughter, son, husband, uncle and other family members. Moreover, before Mrs. McAlister took the stand, the Commonwealth was unaware of whom appellant would call to establish his defense.

The rule in Pennsylvania delineating when a court may give the jury an adverse inference instruction was well stated by the court in Commonwealth v. Jones, 455 Pa. 488, 495, 317 A.2d 233, 237 (1974):

"'[W]hen a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person's testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. (citations omitted).'"

In the present case, the Commonwealth did not learn of the alibi witnesses before trial began. Therefore, they were not equally available to both sides, nor under the Commonwealth's control.

Appellant contends that additional alibi witnesses would have produced ...

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