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COMMONWEALTH PENNSYLVANIA v. NORMAN WHALEY (03/30/81)

submitted: March 30, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
NORMAN WHALEY, APPELLANT



No. 776 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. 118, 120 and 121 May Term, 1979.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Hester and Johnson, JJ.

Author: Cercone

[ 290 Pa. Super. Page 98]

Appellant, Norman Whaley, takes this appeal from his conviction in a non-jury trial on charges of rape, unlawful restraint, recklessly endangering another person, and terroristic threats. Appellant raises two arguments: (1) whether appellant was denied due process of law when the Commonwealth, in a rape prosecution, lost bedsheets, seized from appellant's residence, before the sheets could be submitted to scientific analysis, and, (2) whether the court erred in denying appellant's pre-trial motion asking that the Commonwealth be forbidden from introducing photographic and testimonial evidence regarding the lost bedsheets. We find that neither of appellant's contentions has any merit and we affirm.

These are the facts of the instant case. According to the testimony of the victim, Vanessa Moore, on April 27, 1979, in the early morning hours she was approached by appellant at the corner of 52nd and Market Streets in Philadelphia. Appellant wanted Miss Moore to accompany him and when she refused appellant grabbed Miss Moore's umbrella and hit her with it, knocking her out. When Miss Moore came to, she and appellant were in an auto on Saint Bernard Street. Appellant paid the driver of the car $2.00 and appellant and Miss Moore, who was still dazed, went into the house. Once inside, appellant told Miss Moore that she "wasn't going anywhere." Miss Moore then picked up a lamp and attempted to escape by throwing it through a window, however the screen on the window stopped the lamp and the window only cracked. Appellant and Miss Moore struggled and appellant punched Miss Moore and forced her upstairs. Appellant ordered Miss Moore to undress and to lie on his bed, where appellant attempted to have sexual intercourse with her.

[ 290 Pa. Super. Page 99]

Miss Moore continued to resist and appellant ejaculated onto the sheets.

Miss Moore was then permitted to dress and go downstairs with appellant to get something to eat. There, in a strange turn of events, Miss Moore saw a woman, a Mary Walker, who worked with Miss Moore. With Miss Walker was appellant's brother, Camuel Whaley. Though Miss Moore was crying and told Mary Walker that appellant had beat her, nothing was done to help Miss Moore and appellant again forced Miss Moore upstairs. A second struggle ensued during which appellant kicked Miss Moore in the leg and punched her in the nose, causing her to bleed on his bed. Miss Moore subsequently escaped and reported the attack to the police that same morning.

A few hours after the attack, several officers went to appellant's home and arrested appellant. The police took black and white pictures of appellant's bed and seized the stained sheets, the broken living room lamp and other items. Detective Ronald Oliver was responsible for removing the sheets and taking them to the crime laboratory, where they were tagged and a property receipt was issued. The next day, Detective Oliver showed the various items to the victim, Miss Moore, for identification and the detective returned the items to the locked storeroom. Later in the day, when Detective Oliver went to the storeroom to retrieve the items and take them to the Crime Laboratory he found that the bedsheets were missing. For three weeks, the detective searched for the sheets and inquired of all personnel and of each of the fourteen detectives in his unit if any of them had inadvertently picked up the sheets. A memo was placed in the mail box of every detective each day as a reminder that he should be on the look-out for the missing items. The search was fruitless. The remaining evidence concerning the sheets was the photograph with notations made by the police, the property receipt and the testimony of three policemen who saw the sheet with the red stains on it, all of which were introduced at trial. No chemical or scientific analysis was ever made.

[ 290 Pa. Super. Page 100]

In his first argument, appellant contends that he was denied due process of law when the Commonwealth lost the bedsheets. Appellant denied that he raped Miss Moore and says that she consented to sexual intercourse. Appellant claims he ejaculated in Miss Moore's vagina and that he never punched Miss Moore; therefore, appellant asserts that the loss of the sheets deprived appellant of potentially ...


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