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decided: October 6, 1977.


No. 1692 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 956/958 September Sessions, 1975.


John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., notes dissent.

Author: Hoffman

[ 249 Pa. Super. Page 476]

Appellant contends that the evidence was insufficient to sustain guilty verdicts on indictments charging rape,*fn1 statutory rape,*fn2 and criminal conspiracy.*fn3 We find the evidence sufficient and, therefore, sustain the lower court's refusal to arrest judgment. Appellant also contends that the lower court should have given a tendered instruction that mere presence at the scene of the crime and knowledge of its commission are insufficient standing alone to support a finding of appellant's complicity.*fn4 We agree and, therefore, grant a new trial.

[ 249 Pa. Super. Page 477]

At trial on February 18-25, 1976, the jury heard the following testimony. The prosecutrix testified that she was born on October 1, 1959, and that on the date of the alleged rape, August 26, 1975, she was 15 years old. On August 25, 1975, at approximately 9:00 p.m., she accompanied a friend named Eric to the front porch of a house about a block from her home. The house belonged to the parents of a friend, Robin. Eric, Robin, the prosecutrix, and several others smoked marijuana until approximately 12:00 midnight; then, Eric and the prosecutrix left together to go home. When they were approximately 30 yards from the prosecutrix's house, appellant and his co-defendant, Alvin Taylor, drove around the corner in appellant's car. Appellant offered her a ride, she accepted and told Eric to leave.

The prosecutrix had known Taylor casually for about 7 months, considered him a friend, and was not afraid of him. She had known appellant for two years, had dated him frequently, and admitted that she had accepted rides from him on 30 to 50 prior occasions with no particular destination in mind. She and appellant had frequently used drugs together.

The prosecutrix entered the car, and the men told her that they planned to drive to "North Philly". The prosecutrix admitted feeling "high" from smoking marijuana and stated that she could not remember any details about the ride until they approached the intersection of Chestnut and Broad Streets in downtown Philadelphia. At this point, Taylor began making threats on the life of one of the prosecutrix's friends. She became fearful and considered getting out of the car. Appellant reassured her: ". . . I really couldn't say why I had gotten afraid, but I had asked them and Robert [appellant] said if they was going to do anything, it would have been done it." Thereafter, the prosecutrix relaxed because she trusted appellant.

At approximately 1:30 a.m., Taylor, appellant, and the prosecutrix arrived at 2601 North Broad Street and entered the parking lot of the Inn Towner Motel. They walked into the lobby, proceeded past a desk clerk and a uniformed

[ 249 Pa. Super. Page 478]

    guard, and went up a short flight of stairs to a room rented to friends of Taylor and appellant. The prosecutrix admitted smoking more marijuana but insisted that she could "take care of herself." The prosecutrix's recollection of the next hour and a half was somewhat vague, but she remembers talking, watching television, and joking. She remembered that Taylor pushed the television toward the door but admitted that the door could be opened without difficulty.

The prosecutrix testified that at approximately 2:00 or 2:30 a.m., appellant said: "You can get anything you want." Then, Taylor said: "You're going to give it up." He then threatened to hurt the prosecutrix and punched her on the side of her head, knocking her to the floor. She started to fight back, but Taylor pushed her onto one of the double beds, removed her dungarees and panties, and forced her to engage in sexual intercourse for the next 25 minutes. The prosecutrix did not ask for appellant's assistance in resisting the attack, but merely watched him as he sat on the next bed "playing with his drugs.".

At the conclusion of the assault, the prosecutrix jumped from the bed, ran to the bathroom, locked the door and dressed. During the next 10 minutes, neither man attempted to pursue her. When she finished dressing, she ran from the bathroom, jumped over the television and left the room. As she left, appellant stated that he was next and that he "wanted some face".*fn5

The prosecutrix walked down the hall to the lobby, and asked the guard to summon a cab; she did not report the assault to the guard. At approximately 3:30 a.m., she arrived home, woke her mother, obtained money to pay the fare, and reported that she had been raped. Her mother called the police, who drove the prosecutrix to Philadelphia General Hospital.

[ 249 Pa. Super. Page 479]

The prosecutrix's mother corroborated her daughter's testimony in most respects. However, she became confused as to the year of her daughter's birth, stating alternatively that her daughter was born in 1958 or 1959. The prosecutrix's mother also acknowledged that she did not require her ...

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