Appeal from the Order of the Court of Common Pleas, Trial Div., Criminal Sect. of Phila. County, as of Indictment Nos 321 and 323 of September Sessions 1974. No. 710 October Term 1975.
Edward G. Rendell, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., would affirm.
[ 246 Pa. Super. Page 226]
Appellant was arrested on August 10, 1974, and charged with the crimes of rape, indecent assault, simple assault, felonious restraint, burglary, robbery, theft, and conspiracy. After trial by a judge sitting without a jury, appellant was found guilty of felonious restraint and theft and not guilty of burglary, robbery, and rape. On this direct appeal appellant contends that the evidence was insufficient to prove felonious restraint; he evidently does not challenge the conviction of theft.
The trial judge, in his opinion, recites the following facts: On August 10, 1974, Carol Peoples was walking in the area of 17th and Diamond Streets in Philadelphia. She was trying to locate the residence of a friend, but she did not have the exact address. She approached two men who were standing on the steps of a residence on Diamond Street, one of whom was appellant, and asked them if they knew her friend and where she lived. The men told Ms. Peoples that they knew her friend and that she lived on the second floor of the residence. Ms. Peoples proceeded to the apartment on the second floor, followed by appellant and the other man. When she got no response at the door of the apartment, the two men told her that her friend might be in the apartment on the
[ 246 Pa. Super. Page 227]
third floor. When the three reached the third floor, Ms. Peoples was pushed into an apartment by appellant and the other man. While in the apartment, she was forcibly undressed by the two men and appellant had sexual relations with her twice. She was also struck in the face and chest by both men. Appellant also took Ms. Peoples's purse, which contained fifty dollars. Ms. Peoples was only permitted to leave the apartment when she told the two men that she had to pick up her baby at the home of a babysitter. Even then she was accompanied by both men. She was later able to escape, find help, and have appellant and the other man, who was a co-defendant below, arrested.
Appellant's argument proceeds in three steps. First, he argues that inherent in the acquittal on the charge of rape is a finding by the trial judge that Ms. Peoples consented to the sexual relations. Second, he argues that this inferred finding of consent should be extended to include a finding that Ms. Peoples was voluntarily in the apartment. Third, therefore, he concludes, the element of restraint in the crime of felonious restraint was not proved.
We regret that we consider ourselves obliged to observe that the opinion of the trial judge has not assisted us in an appraisal of appellant's argument. In stating the facts, the judge says: "Warlow [appellant] . . . engaged in intercourse with Miss Peoples"; "[Ms. Peoples] was again forcibly undressed by the two men and subjected to intercourse with Warlow;" and "Miss Peoples was forcibly undressed by two men, struck about the face and chest, and forced to engage in sexual intercourse." Slip Opinion of lower court at 2, 3. Why then, we must ask, did the judge not find appellant guilty of rape? He never says.
One might suppose that the judge may have had some doubt about which of the two ...