Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 885-890 October Session, 1974.
John W. Packel, Assistant Public Defender, 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., files a concurring and dissenting opinion in which Spaeth, J. joins.
[ 247 Pa. Super. Page 461]
On the evening of September 16, 1974, the prosecutrix, Miss Roslyn Pitts, was robbed and raped in an elevator. Appellant Jessie Bryant (along with two other male individuals, Thomas Felder and John Young) was tried before a judge and jury and, on April 11, 1975, was found guilty of rape, robbery, indecent assault, conspiracy, aggravated assault, and corrupting the morals of a minor. The charge of corrupting the morals of a minor was nolle prossed, but appellant was sentenced on September 16, 1975 to 7 1/2 to 15 years on the rape, robbery, and conspiracy convictions, to
[ 247 Pa. Super. Page 4621]
-2 years for indecent assault, and to 2 1/2-5 years for aggravated assault, all sentences to run concurrently. Appeal was taken to our Court from the judgment of sentence of September 16, 1975.*fn1
Appellant first argues that "[t]he testimony of the complainant, the sole witness who identified appellant as her assailant, was so confused and contradictory that it failed to establish appellant's guilt beyond a reasonable doubt." The notes of testimony of the trial reveal that the prosecutrix did not know appellant by name, but did recognize him as someone she had seen before on several occasions in the neighborhood. The girl positively identified appellant in court as the person in the elevator who pulled her pants and panties off and actually engaged in intercourse with her. As for certain minor discrepancies in the girl's testimony (relating to the number of persons who actually pulled her pants and panties off, whether one or more of the attackers picked up the money as it fell from her pocket, whether the girl described appellant as being three inches shorter than he actually was), it is the province of the jury to weigh testimony and resolve any inconsistencies. Commonwealth v. Bartell, 184 Pa. Super. 528, 136 A.2d 166 (1957). We must not second guess the finder of fact with respect to the credibility of a victim's testimony. See Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). The evidence presented was sufficient to establish appellant's guilt beyond a reasonable doubt.
Appellant's only other argument is that he should not have been sentenced for both rape and indecent assault, since the charges rose out of a single criminal episode. We agree. Commonwealth v. Richardson, 232 Pa. Super. 123, 334 A.2d 700 (1975). Since appellant's sentence for indecent
[ 247 Pa. Super. Page 463]
assault runs concurrently with his other sentences, we vacate the 1-2 year sentence for indecent assault. See Richardson, supra. Judgment of ...