No. 590 January Term 1977, Appeal from the Order of the Superior Court at No. 1866 October Term 1975, reversing the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia, at Nos. 251-253, April Term, 1974.
Donald C. Marino, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Maxine J. Stotland, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., filed a concurring opinion. Roberts and Nix, JJ., filed a dissenting opinion.
On March 11, 1974, Roy Patterson, appellant, was convicted by a jury of rape, robbery and aggravated assault. Post-verdict motions were filed. The court denied an arrest of judgment but granted a new trial. The Commonwealth appealed the order to the Superior Court, and that court,*fn1 by a vote of four to three,*fn2 reversed and remanded for consideration of the remaining issues raised in the motions. Patterson filed a petition for allowance of appeal which was granted.
Patterson's convictions were based on events which occurred on February 7, 1974, at approximately 2:30 a. m. At that time, the victim, a young woman of slight build, left her apartment on South 47th Street in Philadelphia and began walking to a grocery store at 49th Street and Chester Avenue about two blocks away. When she reached 48th Street and Chester Avenue, she asked a man, standing on the corner,*fn3 if the store was open, and he responded. She continued toward the store. When she determined the store was closed, she began to return to her home. She noticed the man who had been standing at the corner had crossed the street and begun to walk toward her. They met in the middle of the block between 48th and 49th Streets on Chester Avenue, and the man began a conversation. The victim continued walking, and the man began to walk parallel to her and in her direction. Although some twelve to fifteen feet from her, he continued to converse*fn4 with her. Finally, the man grabbed her by the mouth with his left
hand and held an ice pick to her throat. He said: ". . . don't scream," and asked how much money she had. She responded: "five dollars," and he then walked her through an alley and into a garage. There, the man raped her, choked her until she blacked out, stole the five dollars from her, and tied her hands before leaving the garage.
At trial, the victim testified the man who raped her was wearing "rose colored, light tinted" sunglasses ("the type you can see through"), an "orange or red cap," and "a tan or brown coat, light colored." She further testified that she had described the man to police as a black with medium skin, five foot nine inches tall, weighing one hundred and seventy five pounds, and "in his twenties." She identified Patterson as the assailant.
During the trial, the Commonwealth called as a witness another woman who was also a victim of a rape. She testified, over objection, to the circumstances of that crime and identified Patterson as the rapist. This testimony was introduced for the purpose of identifying Patterson as the rapist in the case on trial.
The post-verdict motion court concluded the trial court erred in allowing testimony of the second rape and granted a new trial. The majority of the Superior Court concluded the post-verdict motion court erred in granting a new trial and ruled the challenged testimony was admissible for the ...