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COMMONWEALTH PENNSYLVANIA v. VERTCELL SABB (08/24/79)

filed: August 24, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
VERTCELL SABB, APPELLANT



No. 463 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 2017, 2019, 202, 2021 August Term, 1976.

COUNSEL

Robert B. Mozenter, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.

Price, Hester and Hoffman, JJ.

Author: Hester

[ 269 Pa. Super. Page 210]

On February 16, 1977, appellant Vertcell Sabb was found guilty by a jury of the crimes of simple assault, possession of an instrument of crime, involuntary deviate sexual intercourse, and rape.*fn1 Post trial motions were argued and denied and a sentence of four to twelve years imprisonment was imposed. On this direct appeal, appellant assigns as error various rulings of the court below as well as the ineffectiveness of his trial counsel. We find his contentions without merit and will therefore affirm.

Facts adduced at trial established the following: At approximately 3:15 A.M. on July 18, 1976, the complainant, a young artist, was entering her apartment at 437 South Street in Philadelphia. As she unlocked the door to the building and turned to relatch it, a man forced his way in with a knife and told her to shut up. The victim stepped back a pace, put up her hands, and inquired, "What do you want? Money?", to which her assailant replied, "Don't say a word or you'll be cut." At this point, the intruder pulled the victim's hat, sporting a wide brim, over her eyes, and forced her onto the hallway floor where he raped her. Following this, he pulled up her tee-shirt and held the knife against her stomach for several seconds, and then fled. Throughout the ordeal, the intruder repeated the words, "Shut up" in a low, whispered tone with a definite rhythm or cadence described by the complainant as "marked -- you could almost count, one, two, three, four, five in between his words."

The complainant ran to her room, immediately called the police, and provided them with a description of the assailant. Responding to the call was Officer Michael Lutz of the

[ 269 Pa. Super. Page 211]

Philadelphia Police Department. At 3:50 A.M. that same morning, based upon the victim's description, he arrested appellant and another individual in front of Pat's Steaks, an establishment located at 6th and Catherine Streets, three and one-half blocks distant from the scene of the rape. Lutz transported the two suspects to Philadelphia General Hospital, where the victim was by that time being treated. When confronted with these two individuals, she immediately discounted the other male arrested and, after looking at appellant and hearing his voice, stated she was "ninety percent sure" he was the rapist. About an hour and a half later "when [she] had time to calm down a bit and clear [her] head and think of the face and the build" she became one hundred percent certain it was appellant.

Tests at the hospital showed the presence of sperm in the victim's vagina. Similarly, chemical tests of the underwear appellant was wearing at the time of his arrest revealed the presence of seminal stains and sperm.

The defense was alibi. Appellant presented testimony suggesting that sometime before 2:00 A.M. on July 18, 1976, he visited his girlfriend, Gloria Merritt, at her home at 511 South Fifth Street. Miss Merritt was, at that time, experiencing a numbness of her legs, whereupon appellant suggested she go to the hospital. Appellant's father, Emanuel Jackson, agreed to drive them to Pennsylvania Hospital, (8th and Spruce Streets) where the trio arrived sometime between 1:30 A.M. and 2:00 A.M. Appellant sat near the emergency room receptionist's desk, conversing with several individuals, while Miss Merritt was treated by a doctor. Shortly after 3:00 A.M., the examination completed, Miss Merritt and appellant left the hospital and proceeded ...


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