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decided: October 20, 1978.


No. 2209 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at No. 4 July Term, 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 Com., appellee.

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

Author: Van Der Voort

[ 258 Pa. Super. Page 455]

Appeal is taken from judgment of sentence rendered following jury trial and verdict of guilty to charges of simple assault, involuntary deviate sexual intercourse, and rape.*fn1 Post-trial motions were filed and appellant's motions for arrest of judgment on the assault and rape charges were granted. Motions regarding Bill No. 4, the involuntary deviate sexual intercourse charge, were denied and the questions contained therein have been preserved for our consideration.

Viewed more favorably to the verdict winner, the facts are these. Complainant Linda DiFlavis, 26 years old, on June 4, 1975, at about 10:00 P.M., was awakened from sleep on the couch of her living room, the door of the residence having been left unlocked. She noticed that three men were standing over her, all of whom she knew to some degree. They told her that they wanted "to party", and refused her entreaties that they leave. Thereupon, complainant went to the kitchen and procured a steak knife, in hopes that brandishing the knife might scare off the three men. However, one of the intruders, viz., appellant's co-defendant below, removed the knife from complainant's possession, punched her in the nose with his fist, threatened her with death if she told the police of the incident, and pulled her upstairs to a bedroom. Appellant aided in the latter maneuver, while the third intruder remained downstairs with complainant's seven- and three-year old children.

[ 258 Pa. Super. Page 456]

Once upstairs, the two men ordered complainant to remove her clothes. While his co-defendant accomplished forced oral intercourse, appellant attempted sexual intercourse but did not achieve penetration. Thereupon the two men changed positions, appellant then engaging in oral intercourse. Shortly, upon hearing one of the children's crying, complaint called out for the third man, who had remained downstairs. When he arrived in the bedroom, the two there returned to the downstairs area, followed soon by the third man and complainant. The two had left the residence, but not without breaking glass and eggs about the kitchen, cutting the telephone connection, and leaving the kitchen otherwise is disarray. The steak knife which she had displayed earlier was bent in the shape of a ball. The incident was over by 1:00 A.M. of the following day.

That day, June 5, complainant sought medical treatment, which resulted in two physicians' consultations and examination at a clinic. An operation was recommended, which was performed some days thence. But the next day, June 6, after consultation with a friend, complainant reported the occurrence to the police. Initially hesitant in doing so, she testified at trial, because of the death threat, her fears were overcome by the friend's counsel. The information provided led to the prompt arrest, indictment, and trial of appellant, together with his co-defendant.

On June 6, the same day on which complainant reported to the police, an officer had gone to her home to take photographs of the premises and the injuries. One of these photos showed complainant's two black eyes and bruises about the nose, conditions commensurate with having been hit in that area. This picture the Commonwealth stated its intention to introduce at trial. An in camera proceeding was held to determine if this photo was so inflammatory as to prejudice the jury against the defendants below. Limiting itself solely to the issue of inflammatoriness of the photo, the lower court held that it was not of a prejudicial bent, depicting "a bruise under each eye, and from the angle, it would appear a little swelling of the nose." Introduction of the picture as evidence was allowed.

[ 258 Pa. Super. Page 457]

Appellant now argues that this picture had no evidentiary value and that it was error at trial to have allowed its introduction, or at the least to have failed to give a cautioning instruction when it was introduced. The law is well-settled that admission of this type of evidence is discretionary with the trial court. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). In this case, the evidentiary value of the photo was to support the contention that complainant had been assaulted and injured. A proper in camera review of the picture was held, and the subject photograph was held to be non-inflammatory, or one from which the normal person would not involuntarily recoil. We find that the lower court conducted the proper inquiry for determining that the evidentiary value of the photo outweighed any challenge to its inflammatory nature, which was found also to be nil, and that proper discretion was exercised. Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976) and Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975). There was no error in the admission of the photograph.

At trial complainant's eight-year old son was called as a witness on behalf of the prosecution. Following is the bulk of the colloquy by court and counsel to determine the child's competency to testify:

Q. [By the court]: But let me ask you a question or two: Do you go to Sunday School?

A. Yes

Q. Good. What school do ...

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