No. 92 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Section, Trial Division, as of August Sessions, 1975, No. 1282.
Joel Harvey Slomsky, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Stephen S. Seeling, Philadelphia, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Roberts and Manderino, JJ., filed dissenting opinions.
On July 3, 1975, Ida Smith was found strangled to death in the bedroom of her Philadelphia home. Eleven days later, the appellant, Robert L. Perrin, was apprehended and charged with the murder of the deceased. Appellant elected to be tried by a jury and, on January 21, 1976, he was found guilty of murder in the second degree (felony murder). Motions in arrest of judgment and for a new trial were filed and denied. On August 31, 1976, appellant was sentenced to life imprisonment, and this direct appeal followed.
Appellant's initial contention is that the evidence is not sufficient to sustain his conviction of murder in the second degree because it was not proven beyond a reasonable doubt that he was guilty of involuntary deviate sexual intercourse, the felony underlying this felony-murder conviction. The evidence adduced at appellant's trial and all proper inferences therefrom, when viewed in the light most favorable to the Commonwealth,*fn1 produce the following grim scenario:
Appellant resided at 1739 N. Bailey Street in the City of Philadelphia with his girlfriend Sheila Richardson, Ms. Richardson's five-year-old daughter Ava, and the deceased, Ida Smith. On July 2, 1975, at approximately 10 p. m., Ida Smith and the Richardson child returned home from a four-hour visit with the child's grandmother. They found appellant and his girlfriend engaged in a heated argument over the disappearance of some money the deceased had given to Sheila Richardson for the household expenses. Appellant's girlfriend concluded the argument by ordering appellant to pack his belongings and leave the house by the coming weekend, and all four retired for the evening. At approximately 11:30 p. m., after the deceased was alone in her bedroom, she telephoned her fiance and requested that he come and take her away from the house stating that appellant was behaving very strangely and expressing a fear
of him. The deceased's fiance declined because of the late hour and offered to discuss the matter with her on the following day. Their phone conversation lasted until approximately 2:15 a. m. on July 3, 1975.
Five hours later, appellant's girlfriend went into the deceased's bedroom to awaken her and found that she would not respond. Appellant told her that the deceased was dead. Appellant's girlfriend went back to her own bedroom and was telephoning the deceased's aunt when appellant entered the room and forcibly interrupted her dialing. Appellant then attempted to prevent her from reporting the death to anyone by brandishing an ice pick in her face and stretching the telephone cord between his hands in a threatening manner while stating that this is what had happened to the deceased. A violent struggle ensued which attracted the attention of neighbors who broke into the house and freed appellant's girlfriend from his grasp. Appellant then fled from the house and his girlfriend telephoned the police.
The responding officers examined the victim's body, which was lying naked under the covers with her legs spread apart, and could find no signs of life. The victim's bedroom was searched and pieces of torn cloth which were later identified as her nightgown were uncovered. An autopsy was performed on the victim's body and this disclosed that spermatozoa had been deposited in her vagina within twenty-four hours of death, that the wall of her rectum just distal to the anus had been torn within six hours of death in a manner consistent with forceful penetration, and that the cause of death was strangulation by ligature (i. e., ...