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decided: April 13, 1978.


No. 203 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at Nos. 2011, 2012 Criminal Division 1975.


Dusan Bratic, Assistant Public Defender, Harrisburg, for appellant.

Reid H. Weingarten, Deputy District Attorney, Harrisburg, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.

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

Author: Price

[ 253 Pa. Super. Page 414]

Appellant Clarence Harry Seigrist was convicted of rape*fn1 and involuntary deviate sexual intercourse*fn2 after a non-jury trial on January 19, 1976.*fn3 Written boiler-plate post-verdict motions were denied, and appellant was sentenced to serve five to twenty years imprisonment for rape and to pay the costs of prosecution for involuntary deviate sexual intercourse.

Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the following was established at trial. On August 10, 1975, at approximately 9:30 p. m., appellant, armed with a knife, entered the prosecutrix' house. After threatening to kill the prosecutrix if she made any noise, appellant forced the young lady to accompany him to various secluded areas of the neighborhood and to submit to the complained of acts. Several hours later, the two returned to the house. Appellant fell asleep on the living room floor near the door. At approximately 6 a. m. appellant awoke, and after embracing the prosecutrix, he left the house.

The prosecutrix telephoned her sister who suggested that the police be summoned. The prosecutrix was reluctant to heed this advice because she feared the social consequences of admitting that she was a rape victim. Finally, after discussing the matter with her brother, the prosecutrix, at approximately 12 p. m., reported the incident to the police.

Sergeant Charles Schell, the investigating officer, testified that when he met the prosecutrix at 12:50 p. m., she was scared and in a state of shock. She had brushburns and fingernail scratch marks on her face, neck and arm. The assailant was described as a "[c]aucasian male, age thirty-seven, . . . about medium build, five nine, five ten in height, long dark hair coming down not quite to the ear or in

[ 253 Pa. Super. Page 415]

    around the ear lobe and narrow, boney face, a crooked nose in an upslant and she called them squeeky eyes, partially closed, constant staring as if in a daze . . . and the main thing she stated was that his little finger on his right hand was deformed and either fully or partially the finger next to it was missing." (NT 51). After checking with other sources, Sergeant Schell learned that appellant, who fit this description, was staying with friends at the residence immediately to the south of the prosecutrix'. Appellant was arrested at the house the day after the incident. At trial, appellant was positively identified by the prosecutrix as the attacker.

On this appeal several instances of alleged trial error are asserted. None of these errors were preserved by objection at trial or inclusion in post-trial motions.*fn4 The merits are therefore technically waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Smith, 452 Pa. 1, 304 A.2d 456 (1973); Commonwealth v. Webb, 237 Pa. Super. 131, 346 A.2d 574 (1975). Appellant, who is currently represented by a member of the public defender's association different from the one who represented him during the trial and post-trial portions of the case, now contends that trial counsel was ineffective for failing to object to each of the alleged errors. It is in this context that we will review these claims.

Several of the issues presented on this appeal relate to the introduction of evidence tending to demonstrate that appellant had a prior criminal record. In order to expedite discussion of the issues it is necessary to set forth the circumstances surrounding the trial incidents.

[ 253 Pa. Super. Page 416]

During the assault, appellant informed the prosecutrix that he had been in jail on many occasions. This statement was not elicited from the prosecutrix. When she was testifying, however, the judge asked several questions and the following ensued:

"THE COURT: What was he talking to you about?

A. Himself.

THE COURT: What about?

A. His girl friend, that she had left him and she was on drugs and ...

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