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COMMONWEALTH v. LOMAX (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
LOMAX, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1973, No. 391, in case of Commonwealth of Pennsylvania v. Gerald Lomax.

COUNSEL

Elaine DeMasse and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Guy R. Sciolla, 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.

Author: Price

[ 236 Pa. Super. Page 244]

Appellant, Gerald Lomax, was convicted of rape,*fn1 following a jury trial on March 19-22, 1974. Post-verdict motions were heard and denied on August 22, 1974, and appellant was sentenced to two to six years imprisonment. This direct appeal followed.

The only issue raised on this appeal is whether the lower court committed reversible error in the charge to the jury. The contested portion of the charge is that which dealt with the identification of appellant by the victim.

Trial testimony revealed that on February 23, 1973, at approximately 12:50 p.m., the appellant approached the victim's house to ask about buying her car, which was parked in front of the house. After a few minutes of discussion, appellant took a gun from his pocket, pushed the victim into the house, ordered her to lie down in the living room and raped her.

The witness stated that her assailant then asked her name and said that his was "Jerry, Gerald, something like that." (NT 48) She also testified that the appellant was wearing a dark blue "ski" jacket, and a black cap with a bill in front. Moreover, she identified two Commonwealth exhibits as a ring similar to that worn by appellant on the day of the rape and a jacket like the blue

[ 236 Pa. Super. Page 245]

"ski" jacket she had previously described. The complainant stated that she had never seen her assailant prior to the date of the incident, and estimated that the rape occurred in approximately a ten-minute period.

Subsequent to the rape, the victim was examined at the Philadelphia General Hospital. Laboratory tests confirmed the presence of spermatozoa in her vagina, cervix and vulva.

On March 5, 1973, the complainant went to the door in response to the doorbell and saw the appellant waiting outside. She immediately called her sister and the police, who arrived about ten minutes later. By then, however, the appellant had gone. The sister contacted another relative, Joan Wilkerson, who agreed to stay with the victim. After the police officer left, Mrs. Wilkerson noticed a man slowly drive his ...


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