Donald M. Moser, 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. Spaeth, J., concurs in the result. Hoffman, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 252 Pa. Super. Page 604]
Appellant David Bridell was found guilty by a judge sitting without a jury of rape*fn1 and simple assault.*fn2 Post-trial motions were filed and denied on December 23, 1976, and appellant was sentenced to six to twelve years imprisonment on the rape conviction; a sentence of one to two years on the assault conviction was made to run consecutive to the rape sentence. In this direct appeal, appellant contends that he was deprived of his constitutional right of confrontation and that the Commonwealth failed to prove his guilt beyond a reasonable doubt. We find appellant's contentions to be without merit and, therefore, affirm.
The facts giving rise to the charges against appellant were summarized by the trial court as follows:
"[O]n April 2, 1976 the defendant was alone with the complainant in her apartment when he started to make advances and, as a result, complainant asked him to leave (N.T.24). The defendant then became violent, forced the complainant into the bedroom, pinned her to the bed and ripped off her clothes (N.T.24, 25, 26). He struck her and forced her to have sexual intercourse with him (N.T.28)." Lower Court opinion at 3.
Prior to the testimony of Karen Bold, the complainant, certain evidence was introduced by stipulation between defense counsel and the district attorney. Appellant now contends that the admission of these stipulations at trial, without an on-record colloquy reflecting his understanding of the consequences of the stipulations and his consent thereto, violated his right to confront the Commonwealth's witnesses against him. We, however, disagree.*fn3
[ 252 Pa. Super. Page 605]
In Commonwealth v. Davis, 457 Pa. 194, 322 A.2d 103 (1974), our Supreme Court recognized that testimony entered by counsel's stipulation may be so damaging that admission of the stipulation at trial must be surrounded by safeguards similar to those attending the entry of a guilty plea. There, it was stipulated that the complaining witness, if present at trial, would have testified that the defendant was one of two men who had robbed him at gunpoint. The Court concluded that counsel's stipulation to this testimony placing his client at the scene of the crime and naming him as a participant therein was the equivalent to an admission of guilt by the defendant, despite his plea of not guilty. By stipulating to the testimony that would have been offered by the complaining witness, appellant gave up the opportunity to cross-examine that witness and to attempt to discredit his incriminating testimony. Under the circumstances of that case the stipulation made a not guilty verdict highly unlikely. Therefore, an on-record colloquy, demonstrating defendant's understanding of the consequences of the stipulations, and his consent thereto, was deemed necessary.
Davis, however, does not require a trial court to conduct an on-record colloquy whenever defense counsel stipulates to evidence which is potentially damaging to his client. As we stated in Commonwealth v. Overton, 237 Pa. Super. 222, 352 A.2d 105 (1975),
"The Davis decision relates only to a particular situation in which the stipulation involved is so damaging that it constitutes an admission of guilt. The Davis reasoning is that where the stipulation amounts to an admission of guilt, it is analogous to a guilty plea and should therefore be surrounded by guilty plea safeguards." ...