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COMMONWEALTH PENNSYLVANIA v. DAVID WARREN (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID WARREN, APPELLANT



NO. 211 OCTOBER TERM 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Imposed on No. 263, 264, 265 and 266, September Sessions, 1974.

COUNSEL

Stewart A. Bernstein, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., concur in the result.

Author: Spaeth

[ 250 Pa. Super. Page 525]

Appellant was convicted of rape, involuntary deviate sexual intercourse, and robbery. On this appeal he raises five points of error.

(1)

Appellant contends that the trial court's review of the evidence was biased and prejudicial in two respects: The court did not adequately review inconsistencies in the prosecutrix's three versions of the incident in question (versions given in a statement to a detective, at preliminary hearing, and at trial); and the court's brief reference to the inconsistencies amounted to rehabilitation of the prosecutrix.

We note first that counsel for appellant did not take exception to the adequacy of the court's review, but only to the alleged rehabilitation. Therefore we shall discuss only the latter.

The court's reference to the inconsistencies was as follows:

[The prosecutrix] did say at her preliminary hearing she might have made a few mistakes, but she said mentally she is better able to reconstruct the whole thing today than she was 18 days after the incident.

Counsel's exception was that "there was a phrase that there were contradictions and . . . that phrase may imply to the jury that the contradictions were meaningless."

The court's statement cuts both ways. On the one hand, it characterized the prosecutrix's mistakes as "a few." On the other, it at least implied that she thought her memory of the event was better at the time of trial, almost eight months after the event, than at preliminary hearing, eighteen days after. The jury could have taken this as denigration of the prosecutrix's truthfulness or ability to recall, rather than as rehabilitation. Furthermore, the court ...


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