NO. 155 MARCH TERM, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, at No. 346 January Term, 1975.
John D. Flinchbaugh, Assistant Public Defender, York, for appellant.
Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a concurring opinion, in which Hoffman, J., joins in Part I of this opinion. Cercone, J., concurs in the result. Hoffman, J., concurs in the result reached by the Majority because the appellant failed to object to the admission of the drawing as inadmissible hearsay.
[ 252 Pa. Super. Page 379]
Appeal is taken to this Court from judgment of sentence rendered following jury verdict of guilty to the indicted charge of rape, a demurrer to the additional indictment of aggravated assault having been granted during trial.*fn1
We consider the testimony favorably to the verdict winner. In the early morning hours of February 13, 1975, an 18-year old female student at a York college was walking the three or four blocks from a friend's home to her apartment. When she had walked one block, she was accosted by an unidentified man, who wrestled her to the ground. Screaming and breaking loose, the victim noticed appellant's car approaching nearby. The first assailant disappearing, the victim ran the short distance to appellant's vehicle, whereupon appellant offered help or a ride to the police station. The young woman got into the car, and appellant drove a few blocks, stopping at a parking area behind the York County Jail. After asking "How do you know I'm not going to do the same thing to you," appellant grabbed the woman, pushed her down on the car seat, hit her three times about the head, and forced her at knife point to disrobe. Forcible sexual intercourse with penetration by appellant ensued. Two hours later, appellant drove the victim to a spot near her residence, from which she ran home.
Immediately upon reaching her home, the young lady telephoned an artist friend, who promptly came to her apartment; and following her direction, he penned a pictorial representation of the assailant. It being the daylight hours of February 13, the victim reported the incident to the police and sought medical attention.
Over defense objection at trial, the pictorial representation was admitted into evidence. The victim testified that
[ 252 Pa. Super. Page 380]
both she and her friend participated in its preparation, but that only the friend, one Alan Beaverson, did the drawing. There was ample lighting in the parking area where she was forced to spend the two hours with appellant, which lighting afforded her a clear view of him, and enabled her at trial to be unequivocal in identifying the attacker. Furthermore she testified that the sketch was accurate and that it "entered into my judgment" insofar as identification was concerned. Artist Beaverson, who had before drawn pictures for the police, testified at trial and supported the accuracy of the victim's statements. Before us, appellant has reiterated objection to this picture, alleging that the use of the picture was not proper for probative value and unduly prejudiced the jury against appellant.
Curiously, while the use of artist's sketches of alleged perpetrators of crime has become a common police investigative tool, we find that the situation which this case presents as to trial use of the sketch has been before our appellate courts infrequently. In Commonwealth v. Rothlisberger et al., 197 Pa. Super. 451, 453, 178 A.2d 853, 854 (1962), a rape case in which the prosecutrix had caused a third party to sketch her descriptions of her assailants, which sketches were made available to the jury, we found this method of description by pictorial representation "to be similar to where a witness orally describes someone she wishes later to identify and records her description -- whether by tape recorder, written memorandum, by the memory of someone else hearing it, or as in this case, by an artist's sketch." Such descriptions, when testified to by the third party to whom they were given, are hearsay, but "have been accepted as part of the res gestae when made at, or shortly after, the time of the event." ...