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COMMONWEALTH v. STEVENS (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
STEVENS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1974, No. 1970, in case of Commonwealth of Pennsylvania v. Howard H. Stevens.

COUNSEL

William J. Brady, Jr., for appellant.

William A. Richardson, 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

[ 237 Pa. Super. Page 460]

The appellant, Howard Stevens, was indicted by the Philadelphia Grand Jury for possessing a criminal instrument generally,*fn1 possessing a criminal weapon,*fn2 possessing a prohibited offensive weapon,*fn3 simple assault,*fn4 aggravated assault,*fn5 and robbery.*fn6 On December 17, 1974, the appellant was adjudged guilty by the trial judge, sitting without a jury, of theft*fn7 and acquitted of all other charges. Timely motions in arrest of judgment and for a new trial were denied by the lower court,*fn8 and a sentence of one year probation was pronounced. Appellant now questions the propriety of his conviction.

[ 237 Pa. Super. Page 461]

Read in the light most favorable to the verdict winner, Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973), the record reveals the following: Early in the morning of September 13, 1974, the victim, Miss Dolores Nichols, was involved in an automobile accident at Broad and Venango Streets in Philadelphia. While she was giving details of the accident to police officers, the appellant, who apparently had been driving behind her, approached a police officer and proclaimed that he had seen the accident and Miss Nichols was not at fault. After giving his name and address to the police officer, the appellant began to transfer packages, containing women's pants suits and a dress, from her car to his car. Miss Nichols, understandably concerned, prompted a policeman to question the appellant, who explained that he was going to give Miss Nichols, whose car was severely damaged, a "lift." Miss Nichols consented, and the appellant drove her to the nearby El Dorado Club, where she worked as a barmaid, so that she could telephone her boyfriend. When she could not contact her boyfriend, the appellant volunteered to take her home. Miss Nichols accepted his offer, stating that she was grateful and would pay him.

As the appellant drove Miss Nichols home, he told her that she "looked good to him." When she responded negatively to his advances, he refused to stop at her house. Instead, he proceeded several blocks past her house, drew a knife, and forced Miss Nichols to have sexual intercourse with him. After the appellant finished, Miss Nichols asked that she be released and her packages returned. However, the appellant refused to give her the packages. He then took approximately $60 from her purse, and ordered her from his car. As he drove away, she memorized his license number and called the police. Later in the day, the appellant was arrested in his home, where two women's knit suits and one long-sleeve dress were found. Miss Nichols identified these clothes as the ones which were stolen from her.

[ 237 Pa. Super. Page 462]

Miss Nichols, fearful that her children, ages 12 and 14, would be adversely affected by the publicity, did not mention the rape to the police, telling them only of the theft. It was not until November 19, 1974, that she first revealed to an Assistant District Attorney that she had been raped. By that time, the preliminary hearing had already been held and the indictments for assault, robbery, and possessing instruments of crime had been entered. Although the Commonwealth did not return a bill of indictment for rape, it attempted to show circumstances which aggravated the robbery*fn9 by introducing evidence at trial which established that Miss Nichols was raped in addition to having been robbed by the appellant.

Appellant has advanced four assignments of error. We have determined that all of the allegations of error are without merit and will affirm the judgment of sentence.

Appellant's primary objection is to the admission at trial of evidence of rape. We agree that evidence tending to show that the accused has committed crimes other than the one for which he is being tried is generally inadmissible. Commonwealth v. Terry, 462 Pa. 595, 342 A.2d 92 (1975); Commonwealth v. Jenkins, 442 Pa. 588, 277 A.2d 356 (1971). As the Pennsylvania Supreme Court explained: "'[[T__he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime ...


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