No. 1007 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictment Nos. 923, 924, April Term, 1975.
Mitchell S. Lipschutz, Philadelphia, for appellant.
John M. DiDonato, Assistant District Attorney, Philadelphia, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge and Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Jacobs, J., absent. Hoffman and Spaeth, JJ., concur in the result.
[ 249 Pa. Super. Page 350]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, of Philadelphia County, after conviction of rape, simple assault and aggravated assault in a jury trial; and from the denial of post-trial motions. The appellant was sentenced to a term of ten to twenty (10-20) years in prison.
The facts as set forth in the lower court's opinion are as follows:
[ 249 Pa. Super. Page 351]
A house party on Bridle Road in Philadelphia in March of 1975 provided the setting for the actions leading to the instant prosecution. Testimony showed that Charmaine Reardon arrived at the scene in the company of her boyfriend, Arthur Taber. Their arrival was preceded by that of Susan McGee who was accompanied by defendant. Also present were approximately a dozen other persons. Following a period of socializing and imbibing, Taber indicated to Reardon that he wanted to leave, that defendant and Joseph Donahue, both of whom were then behind the bar, were planning something. Taber who was upset was summoned to the bar by defendant and Donahue and, when Reardon followed, defendant grabbed her by the waist and threw her onto the bar. Reardon agreed to leave after another drink and accompanied Susan McGee to the bathroom. When she returned alone, a fight had commenced and she was unable to find either Taber or McGee. She ran from the house onto the lawn where Donahue grabbed her, threw her to the ground, started punching her, and pulled down her clothing and then his own. McGee and defendant arrived on the scene and Donahue desisted in his efforts. Defendant accompanied Reardon to the bathroom purportedly to enable the latter to get cleaned up following the attack. Once therein, defendant grabbed Reardon and threw her to the floor and punched her, stating a longtime desire to have intercourse with her. The terror continued behind the closed door as defendant pulled down Reardon's clothing and then his own and twice had intercourse with her. At the conclusion of the attack he threatened her if she should mention the occurrence. Subsequently, she and several other persons, including the defendant, left the Bridle Road address. She went to Taber's apartment and, finding Taber not home, stayed at the apartment of friends, later phoning police.
The appellant complains that the trial court erred in permitting the Commonwealth to plead surprise and cross examine its own witness.
[ 249 Pa. Super. Page 352]
A statement had been given to the police by Susan McGee which related that following the attack on the victim by Donahue, the defendant had taken the victim into the bathroom and when the witness sought to accompany her, the defendant pushed her out and locked the door. When the victim came out she told McGee that she had been raped by the defendant. The victim was prevented from using the telephone. Prior to trial, McGee informed the District Attorney that she intended to recant her statement. At trial she recanted her statement whereupon the District Attorney pled surprise and was allowed to cross examine the witness.
The contention of the defendant is that the Commonwealth was not surprised as notice had been given by the witness of her change in testimony. However, in Commonwealth v. Bowers, 182 Pa. Super. 628, 127 A.2d 806 (1956), this Court was faced with an identical factual situation where an eye witness gave police a statement and prior to trial defense counsel informed the District Attorney that the witness would repudiate ...