Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1973, No. 6575A, in case of Commonwealth of Pennsylvania v. Charles Edward Reidenbaugh.
John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellant.
Robert L. Eberhardt and Robert L. Campbell, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring and Dissenting Opinion by Hoffman, J.
[ 238 Pa. Super. Page 16]
Appellant, Charles Edward Reidenbaugh, was convicted by a jury of rape,*fn1 statutory rape,*fn2 sodomy,*fn3 corrupting the morals of a minor,*fn4 and assault and battery with intent to ravish.*fn5
The convictions arose from an incident which occurred in the early morning hours of May 27, 1973. At that time, two young girls, Janet Mills and Elizabeth Kephart, were near West View Park, in the County of Allegheny attempting to contact a cab to take them home. Several men, among them the appellant, approached the girls and offered them a ride home. However, once the girls were in the car, the men drove to a bar in McKees Rocks. There, the girls refused to drink alcoholic beverages, and protested
[ 238 Pa. Super. Page 17]
the delay. Despite their requests to be taken home, however, the appellant and three male companions took the girls to another bar and then to Hardies Lake.
At the lake, appellant told his passengers that they would have to get out of the car as it was "stuck in the mud." (NT 30)
Miss Kephart did not want to leave the car, but was forcibly pulled out the door by the appellant and his brother. After she was outside, appellant hit her in the jaw, ripped off her dress, threw her on the ground and raped her. Appellant then threatened to kill the victim and her friend if they did not do as they were told.
Miss Kephart tried to rise, but was thrown back to the ground by appellant, who watched as the other men also raped her. Appellant then forced Miss Mills to commit sodomy upon him "to show [Miss Kephart] how to do it." (NT 48) He then slapped Miss Kephart and forced her to commit sodomy upon him. Afterwards, the girls were taken home.
Appellant raises four allegations of error, which will be considered seriatim. First, he contends that the trial court erred in permitting the investigating police officer to testify that both victims had identified the appellant from photographs. Appellant alleges that this testimony led the jury to conclude that he had a prior criminal record.
The Supreme Court has stated the standard which governs a review of the testimony related to a photographic display in Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972): "The suggestion that any reference to a defendant's photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior ...