No. 1327 October Term, 1978, Appeal from the Judgment of Sentence imposed March 28, 1978, by the Court of Common Pleas, CRIMINAL, for the County of Philadelphia, at Nos. 7708-2033-7 and 7709-75-79.
Margaret M. Boyce, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Stranahan*fn1 and Sugerman,*fn2 JJ.
[ 290 Pa. Super. Page 565]
Appellant was charged with rape at No. 2037 August 1977, involuntary deviate sexual intercourse at No. 2035 August 1977, and indecent assault at No. 2033 August 1977. The above charges arose from the August 10, 1977 sexual assault of Ms. Marion Clayton.
At No. 75 September 1977, appellant was charged with attempted rape. At No. 77 September 1977 he was charged with indecent exposure. The latter two charges are the result of the July 23, 1977 sexual assault of Cheryl St. Cyr.
On November 21, 1977, the trial court heard evidence on appellant's motions to suppress physical evidence and sever all of the above listed charges. The motions were denied and all of the charges involving both victims were consolidated for trial.
Appellant was convicted of all counts involving both victims after a trial by jury. Post-trial motions were timely filed and denied by the trial court. On March 28, 1978, appellant was sentenced to eight to twenty years incarceration for the offense involving Ms. Clayton. He received a concurrent sentence of one to two years incarceration for the offenses involving Ms. St. Cyr.
Appellant contends that the trial court improperly consolidated the cases involving Ms. Clayton and Ms. St. Cyr for trial, that his convictions were not based upon sufficient evidence, and that trial counsel was ineffective in failing to object to an alleged misstatement of fact in the prosecutor's closing argument.
Appellant's contentions are without merit and the judgment of sentence is affirmed.
[ 290 Pa. Super. Page 566]
SUFFICIENCY OF THE EVIDENCE:
Appellant maintains that the evidence was insufficient to support his conviction for rape, involuntary deviate sexual intercourse, and indecent assault with Marion Clayton as victim.
He further contends that the evidence was insufficient to support his convictions for attempted rape and indecent exposure with Cheryl St. Cyr as victim.
Each case will be considered in turn.
The test for reviewing sufficiency of the evidence is delineated in Commonwealth v. Madison, 263 Pa. Super. 206, 209, 210, 397 A.2d 818, 820 (1979) as follows:
In testing the sufficiency of the evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable references arising from that evidence. And finally, we ask whether the evidence, and the references arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. (Citations omitted)
The evidence involving Marion Clayton as victim, viewed in light of the above standard, reveals that the victim, a nineteen year old woman, saw the following advertisement in the Reader, a local Philadelphia area newspaper, in June 1977.
Attention, get paid for your photographs from $15 to $300. No experience necessary, will train free. Children ages 1-16 must be accompanied by a parent. Adults 17 and over photographs will be taken by MBX professional photographer. Credit terms arranged. Call now. Staff operators on duty seven days 24 hours. MO4-3941, BA8-0377. MBX of Pennsylvania.
[ 290 Pa. Super. Page 567]
Ms. Clayton called the listed numbers twice and gave the answering service information concerning her age, height, weight, address, and telephone number.
On August 10, 1977 at 5:30 p. m. the victim was telephoned by a man identifying himself as Mack King. The man questioned Ms. Clayton about the information provided the answering service, asked if she was interested in photography, and suggested that they meet. Ms. Clayton suggested meeting the next day, but agreed to the caller's request that the meeting occur that evening. She agreed to meet the caller in front of a restaurant at 8:00 p. m. The caller described the clothing he would be wearing.
The victim went to the appointed place and waited fifteen minutes before being approached by the defendant, Mack King. The defendant was wearing the clothing described by the telephone caller. He showed Ms. Clayton an MBX business identification card bearing his photograph and suggested that the meeting continue in a nearby bar.
In the bar, they discussed appellant's business and Ms. Clayton's career prospects. Appellant displayed photographs of other young women and business papers carried in a briefcase marked with the initial MBX. Appellant told Ms. Clayton that she would, as a pre-requisite to her modeling career, have to enroll in his photography school at a cost of sixty dollars, with a five dollar deposit required. The prosecutrix completed an application and promised to pay the deposit the next day. In the bar, the victim consumed one glass of wine.
The appellant and the victim left the bar between 9:30 and 10:00 p. m. The appellant told the victim he wanted her to meet one of the women with whom she would be working. Ms. Clayton acquiesced and Mr. King led her to an apartment building located near the bar. He led the victim into the building through a side door leading to a staircase. They proceeded to a second floor landing.
Upon arriving at the landing, Mr. King ordered Ms. Clayton to stop and take off her jacket. She initially refused, but acceded when the demand was repeated and appellant
[ 290 Pa. Super. Page 568]
approached. Appellant then attempted to unzip Ms. Clayton's pants. She resisted, pushing him away. Appellant ordered her to unzip the pants. Ms. Clayton initially refused, but complied when appellant, stating that he was a karate expert, threatened to hurt her. After another threat from appellant, the victim pulled down her pants and lay on her back. Appellant raped Ms. Clayton, who unsuccessfully tried to push him away. He then ordered the victim to turn over and engaged in anal intercourse. Then, appellant ordered Ms. Clayton to engage in oral-genital intercourse. When she refused, appellant grabbed her head and forced her to do so. The victim then vomited during the oral intercourse. Appellant finally ordered Ms. Clayton to rub his stomach and genitalia until he ejaculated.
The prosecutrix was directed to dress and did so. Appellant grabbed and rummaged through her purse. The victim left the building and appellant approached her on the street, returned the purse, and told her to tear up her application to MBX and asked what she intended to do.
Ms. Clayton went to the home of her boyfriend, where she was joined by her mother. She was taken first to Temple University Hospital, then to Presbyterian Hospital, where she was examined and treated. The victim then went to the police administration building, where she reported the incident, describing her assailant. She returned to the site of the assaults with an officer.
The records custodian of Presbyterian Hospital testified that Ms. Clayton was in fact examined at that institution. A pelvic examination was "negative and normal." She was not bruised. Counsel later stipulated that the police laboratory report indicated that no evidence of sperm ...