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COMMONWEALTH PENNSYLVANIA v. ANTHONY WHITING (06/20/80)

filed: June 20, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY WHITING, APPELLANT



No. 702 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Nos. 415, 417, 418 July Session, 1973.

COUNSEL

John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

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

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Jacobs, J., did not participate in the consideration or decision of this case.

Author: Watkins

[ 278 Pa. Super. Page 522]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal-Trial Division, of Philadelphia County, by the defendant-appellant, Anthony Whiting, after conviction by a jury of rape, burglary, robbery and other offenses on November 17, 1973. The defendant failed to appear for his hearing on post-trial motions which was set for May 30, 1974 and skipped bail. He was apprehended three (3) years later and his post-trial motions were heard on December 12, 1976, after which he was sentenced to a prison term of five (5) to ten (10) years. Defendant now appeals the denial of his post-trial motions.

The sentencing of the defendant was proper. The delay of three (3) years between defendant's conviction and sentencing was due to defendant's own act of skipping bail. Although arrested and tried and convicted of other charges during this three (3) year period he had used an assumed name. Defendant's own act of skipping bail and using an assumed name was responsible for the delay, his sentence was within statutory limits, and the trial court, in imposing sentence, considered only the defendant's character the severity of his crimes for which he had been convicted on November 17, 1973, in imposing sentence. His sentence was, therefore, proper in all respects.

The evidence produced at trial revealed that defendant raped one Ida Williams and robbed her apartment on June 14, 1973 at about 2:30 P.M. She clearly identified defendant as the culprit, had a good view of him during the

[ 278 Pa. Super. Page 523]

    rape, and was certain that he was a person she had seen in her apartment building at least four (4) to five (5) times previously. A review of her testimony reveals that it was clearly sufficient to support the verdict.

The defendant claims that the court erred when it permitted the victim's daughter, one Vandora Mitchell, to testify as to certain details about the crime told to her by her mother immediately after the crimes had occurred. The victim described the defendant as "the boy who lives across the hall". The lower court held that such testimony is admissible to show the "prompt complaint" of the rape a short time after the crime had occurred. Whether or not the court was correct in its reasons for holding the testimony admissible for that reason it is clear that such testimony on the part of the daughter was admissible as a "spontaneous declaration by a person whose mind has been suddenly subject to an overpowering emotion caused by some unexpected and shocking occurrence" in which the person was involved and which had occurred so near in time and place to the incident so "to exclude the likelihood of its having emanated in whole or in part from his reflective faculties." Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974). In any event the victim was present in court, testified in court herself and was vigorously cross-examined. Therefore, there was no error in permitting the testimony of the victim's daughter as to victim's statements made to her immediately after the incident at the daughter's home which was located about one and one-half (1 1/2) blocks from the victim's apartment.

Defendant also claims that a mistrial should have been declared when the arresting officer testified as follows:

"Q. DID HE SAY ANYTHING TO YOU?

"A. I WARNED HIM OF HIS RIGHTS. I TOOK NO STATEMENTS FROM HIM OR NO ...


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