No. 658 October Term, 1978, Appeal from of Court of Northampton County, in the Court of Common Pleas, Criminal Division, at No. 908 - 1976.
Robert C. Brown, Jr., Easton, for appellant.
Salvador J. Salazar, Assistant District Attorney, Easton, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 268 Pa. Super. Page 145]
Appellant appeals to this court from his conviction for rape. The complainant, Gail Dietrick, identified appellant as the person who attacked her on December 17, 1975 at approximately 4:45 P.M. while she was walking across the campus of Lafayette College near Easton, Pennsylvania. Miss Dietrick, who was twenty years old at the time, testified that a man approached her from behind, placed his hand over her mouth, and put a knife to her throat. She later described the knife as being of a hunting-type with approximately a five-inch blade. Though Miss Dietrick attempted to dissuade her attacker, first by saying that her friends were expecting her and then by pretending to be asthmatic, her attacker nevertheless forced her to a nearby wooded area where he raped her. It was during the rape that Miss Dietrick first saw her attacker's face.
[ 268 Pa. Super. Page 146]
Appellant presents three arguments on appeal: 1) that the trial court erred by refusing to admit certain of appellant's evidence; 2) that the prosecutor's remarks during his closing to the jury unduly prejudiced appellant; and 3) that the trial court, in imposing the maximum sentence authorized by statute (ten to twenty years' imprisonment), did not give due consideration to appellant's background, history and character consistent with the philosophy of individualized sentencing. We find appellant's arguments to be without merit and for the reasons set forth below we affirm.
Appellant first argues that the trial court erred by refusing his offer to admit into evidence a certified climatological report. Appellant claims that in cold weather his left hand "freezes," owing to a prior injury, therefore, appellant asserts he could not have been the person who attacked and raped the complainant because the alleged rapist approached his victim from behind while holding a knife in his left hand. Appellant asserts that if his left hand were frozen, he would not be capable of wielding a knife with it, and that the climatological report would have bolstered this assertion. The climatological report indicated that the temperature in the Allentown-Bethlehem-Easton area on December 17, 1975 ranged from a low of 21 degrees Fahrenheit to a high of 43 degrees Fahrenheit, with the temperature at 4:00 P.M. being approximately 42 degrees Fahrenheit. We find that the climatological report appellant sought to introduce lacked an evidentiary foundation sufficient to give it probative value. As the trial court noted, the report could not be used to prove that the temperature on December 17, 1975 was cold enough to cause appellant's hand to freeze because there was no evidence indicating how cold it had to be to substantially affect appellant's grip. Neither was there any indication of the length of exposure required to cause this reaction, nor the extent of appellant's immobility. Therefore, the lower court did not err by refusing to admit this report.
Appellant next argues that the prosecution's remarks during his closing to the jury unduly prejudiced appellant's right to a fair trial. Appellant contends that the lower
[ 268 Pa. Super. Page 147]
court erred by overruling appellant's objections and that the lower court's charge did not offset the prejudice allegedly caused by these particular remarks. We reject appellant's contention because we do not find these remarks to be so impermissibly prejudicial to appellant that they were not susceptible to being cured by the court's cautionary instructions to the jury.
Appellant cites in his argument four passages from the prosecutor's closing address, however only one of these quoted sections warrants extensive discussion.*fn1 Accordingly, we ...