No. 1420 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, Imposed on Bill of Indictment Nos. 593, 594 and 596 April Sessions, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
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This appeal arises from appellant's conviction, in a jury trial, of rape, involuntary deviate sexual intercourse and criminal conspiracy, and from the denial of post-trial motions. Appellant raises four contentions: first, that the trial court erred in admitting portions of the hospital report made upon examination of the prosecuting witness, Patricia Ann Kimbrough Miller; second, that certain of the Assistant District Attorney's closing remarks constituted prejudicial expressions of personal belief; third, that the trial judge's charge on credibility improperly emphasized appellant's interest in the outcome of the case; and fourth, that the trial judge erroneously summarized the evidence relating to appellant's flight from the arresting officer in instructing the jury on the weight to be accorded that evidence. For the reasons that appear below, we affirm.
Shortly before midnight on March 11, 1975, Patricia Kimbrough Miller entered Bob's Bar at 27th and Popular Streets in Philadelphia. She sat down at the bar and entered into a
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conversation with appellant and a woman identified as his wife. During the ensuing discussion the Greens invited Mrs. Miller to attend a marijuana "smoking party," to which she agreed. The three left the bar at approximately 1:00 A.M. on March 12 and proceeded by car to the location where the party was to take place. About one block from the bar, they stopped to pick up appellant's co-defendant, James Stukes.
As they continued on their way, ostensibly to a marijuana party, Mrs. Miller was informed that they first had to check on Mrs. Green's children. Green, Stukes and the two women entered a second floor apartment in North Philadelphia and, while Mrs. Miller was left alone in the living room, the others went into another room. A short time later appellant and Stukes entered the room followed by two naked men. Stukes grabbed Mrs. Miller's neck and warned her to remain quiet while appellant removed her clothing. Appellant then had vaginal intercourse with her and she was orally sodomized by Stukes. Mrs. Miller was beaten about the head and lost consciousness, returning to her senses briefly when she was forced to submit to anal penetration by an unidentified assailant. Early the next morning Mrs. Miller again regained consciousness, and finding herself alone, dressed and fled from the building. Appellant and Stukes were arrested the following day.
Appellant first contends that a portion of the medical report of Mrs. Miller's examination should have been excluded because it constituted medical opinion.*fn1 The examining physician noted on the report that Mrs. Miller exhibited excoriations of the left elbow and right forehead. We agree that the Uniform Business Records as Evidence Act*fn2
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does not make competent matters contained in medical records which are otherwise violative of the rules of evidence. Broadbent v. A. Moe & Co., Inc., 208 Pa. Super. 28, 33, 220 A.2d 340, 342 (1966). "The law is clear that hospital records are admissible to show [only] the fact of hospitalization, treatment prescribed, and symptoms given." Commonwealth v. DiGiacomo, 463 Pa. 449, 455, 345 A.2d 605, 608 (1975). We are not ...