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decided: April 13, 1978.


No. 839 April Term 1975, Appeal from the sentence of the Court of Common Pleas, Criminal Division, of Erie County, Pa., at No. 1664 of 1973.


George M. Schroeck, Jr., Erie, for appellant.

Bernard L. Siegel, First Assistant District Attorney, Erie, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Price, J., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 255 Pa. Super. Page 270]

Shortly after midnight on September 16, 1973, a young woman was walking from her home to an all-night restaurant in Erie, Pennsylvania. As she approached an overhead railroad bridge she noticed a black male pass her from the opposite direction, dressed in blue jeans and a dark T-shirt. Within a minute after passing under the bridge she heard behind her the sound of running. A man seized her by the mouth and throat from behind, pushed her under a truck, and from there up a small hill near the street, where he made her cover her head with her coat. Thus she never saw her assailant except for his arm when he first seized her, from which glimpse she knew only that he was black and wore a shirt with rolled-up sleeves. The man forced her to undress and lie on a large piece of cardboard, and then he raped her.

After her assailant left the scene the victim immediately sought help. Policemen took her to the hospital for treatment; then they went to the scene, where they retrieved two large pieces of cardboard and a pair of men's boxer shorts. Later at the police station the victim viewed an array of seven snapshots from which she identified appellant as one of two men who might have been the man who passed her on the street just before she was attacked. Around 3:00 a. m., responding to a radio call that resulted from this tentative identification, patrolmen arrested appellant in the office of a service station seven blocks from the scene of the rape. In his car they found two pairs of blue jeans and a dark blue T-shirt.

At the police station appellant was booked and strip searched. The search revealed that appellant was wearing no undershorts. He then was placed in an interrogation room. While he was there, two probative events occurred. First: As the police began to advise appellant of his Miranda rights, he told them that was unnecessary because it had already been done in the car on the way to the police station. At this moment the victim, who had been waiting in a room down the hall from the interrogation room, happened to be

[ 255 Pa. Super. Page 271]

    in the hall getting a drink from a water fountain. She heard appellant's voice and instantly stated to a policeman near her that she recognized it as her assailant's. (According to the victim's testimony at trial, the rapist had talked to her throughout the assault.) Second: Before the interrogation began, appellant asked the police, "What is this about, the rape of a girl named Linda [which was the victim's first name]?" According to all the police officers involved, no one had yet mentioned to appellant the crime under investigation or the name of the victim.*fn1

At trial, appellant defended himself in three ways. First, he offered an alibi defense. Second, he attempted to undercut the effect of his alleged question about the rape of a girl named Linda by denying that he had asked the question. (In this regard it may be noted that the investigating officer made no reference to the question in his report of the events at the police station.) Third, he presented extensive expert testimony on certain scientific tests, which will be discussed in more detail below; in brief, the results of the tests raised considerable doubt whether appellant could have been the rapist, for the tests indicated that only by remote possibility could he have been responsible for semen stains found on the victim's panties and on the piece of cardboard on which the rape took place. Notwithstanding this testimony, the jury found appellant guilty. However, because the testimony on the tests had not been entirely clear, and because certain of the expert witness's answers suggested that the tests positively excluded appellant as the rapist, the court en banc awarded a new trial.

Before the new trial began defense counsel requested production of certain physical evidence so that he could have further scientific tests made. This request led to the discovery

[ 255 Pa. Super. Page 272]

    that the police custodian had destroyed all the physical evidence; having read of appellant's conviction, he apparently assumed that the proceedings were at an end. Appellant thereupon moved for abandonment of prosecution, relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The lower court denied the motion; a jury once again found appellant guilty; and post-verdict motions were denied. This appeal followed.

I. Scientific Evidence

Appellant argues that the lower court should have granted his motion for directed verdict because certain scientific evidence conclusively proved that he could not have been the rapist.*fn2 Taken in its entirety, the record is against this argument.

A. Semen Typing Test

An FBI laboratory report showed that stains on the victim's panties and on the cardboard found at the scene were semen stains. A second test -- an "absorption inhibition test" -- of the stains showed that they contained a substance of the blood type "A"; since appellant's blood type is "B", he argues that the latter test excludes him.

The absorption inhibition test may be described as follows:

Under ideal conditions seminal fluid may be typed or grouped in much the same manner as blood is typed -- as type A, AB, B, and O. However, unlike blood, it is not always possible to type or identify human semen as representative of one of the four basic blood groups. The person from whom the sample is taken must be a so-called

[ 255 Pa. Super. Page 273]

"secretor". It is estimated that from 75 to 80 per cent of all human beings are considered to be "secretors"; that is, they possess, in fluids other than their blood, certain material properties that tend to be classified as would blood.

12 Am.Jur. Proof of Facts, Identification of Seminal Fluids ยง 12 (1962).

By testing appellant's saliva it was determined that he is a secretor. Therefore he argues that if he had done the rape the semen stains would have showed a "B" blood type. However, appellant's own expert witness (a pathologist) demonstrated that the test results are not so conclusive as appellant argues.*fn3

First, the presence of an "A" type in the stains does not necessarily mean that the rapist was an "A" type. As appellant concedes, since a saliva test of the victim showed her to be a secretor, the "A" in the stain could have come not from the rapist's seminal fluid but from the victim's vaginal fluid or blood, intermingled with the seminal fluid.*fn4

Second, on cross-examination appellant's witness testified that it was possible (although only remotely so) for a person to secrete his type in his saliva but not in other body fluids:

"Q Are you saying here that it is absolutely impossible for a person who is a secretor of the B blood type to have perpetrated a rape, had an ejaculation, and that that B blood type would not be found in that ejaculation? Is that absolutely impossible? Is that the indication?

A I would say it's an extremely strong possibility as to impossible, yes.

[ 255 Pa. Super. Page 274]

Q Totally impossible; one hundred percent?

A Well, that would be an extremely farfetched possibility, the possibility that a gene defect exists in that particular person that doesn't allow the normal response of the organism in producing blood substances which do appear on the red cells. However, a possibility of this kind would be an extreme; the odds would be extremely high. I couldn't tell you exactly what, but certainly in the neighborhood of one versus thousands and thousands.

Q So one in several thousands?

A Uh-hum.

Q But in which there is a possibility; an extreme one, but a possibility; an extreme possibility; one in several thousands?

A Yes.

Q So that would mean if we took a hypothetic group of very large numbers, say two or three hundred thousand, we might expect to find forty, fifty, sixty people within that group, a very ...

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