Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at Nos. 1210 and 1211 July Term, 1974. No. 1811 October Term, 1975.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellant.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., files a dissenting opinion.
[ 245 Pa. Super. Page 35]
The instant case involves an appeal by the Commonwealth from a lower court order granting a defense motion in arrest of judgment. For reasons more fully set forth below, we reverse.
The record shows that the appellee, Nathaniel Nelson, was tried on June 3rd and 4th, 1975, on four indictments charging terroristic threats, robbery, rape and theft by extortion. His trial was held before the Honorable Francis A. Biunno, sitting without a jury. At the conclusion of the trial, the judge found Nelson guilty on robbery and rape charges, but issued acquittals on the remaining
[ 245 Pa. Super. Page 36]
charges. Following trial, appellee filed a motion in arrest of judgment. Judge Biunno, on July 14, 1975, granted the appellee's motion in arrest of judgment.
In reviewing an appeal from a trial court's granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crimes charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968). Our task is the same whether the finder of fact was a jury or a judge sitting without a jury. Commonwealth v. Meadows, 232 Pa. Super. 292, 331 A.2d 827 (1974).
In the instant case, the record, in the light most favorable to the Commonwealth, shows that in late February, 1974, a woman was attacked during the late night hours on an elevator in her apartment house. Her assailant grabbed and hit her and then raped her. Her assailant fled with her wallet containing some twenty-five dollars ($25.00). Tests and treatment in a hospital after the attack showed a presence of spermatozoa in the vagina of the victim. Nobody was apprehended for the crime until June 29, 1974, more than four months after the incident. On that date, the victim saw the appellee on an elevator in her apartment building and summoned her family members who detained the appellee.
[ 245 Pa. Super. Page 37]
At trial, the victim positively identified the appellee as the person who had attacked her. The lower court granted the motion in arrest of judgment primarily because of one aspect of the identification by the victim. Just after the attack the victim told police her assailant had blemishes or acne or pockmarks on his ...