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filed: January 29, 1982.


No. 2358 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 154-158 December Term, 1978


Bruce A. Franzel, Philadelphia, for appellant.

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

Brosky, Johnson and Popovich, JJ. Johnson, and Popovich, JJ., file concurring and dissenting opinions.

Author: Brosky

[ 295 Pa. Super. Page 108]

John L. Moody, appellant, was convicted at a non-jury trial on April 25, 1979 of attempted rape, indecent assault, simple assault, recklessly endangering another person and unlawful restraint. New counsel brought a motion for a new trial and/or arrest of judgment, which was denied, after argument, on August 7, 1979. Present counsel then requested and was permitted to file new post-verdict motions, which were denied after argument on October 31,

[ 295 Pa. Super. Page 1091979]

. Moody was subsequently sentenced to a term of three to ten years imprisonment for attempted rape and a two-year probationary term on each other conviction, all to be served concurrently with each other and with the sentence for attempted rape. Reconsideration of sentence was argued and denied on November 14, 1979. This appeal followed. We hold that the judgment of sentence be reversed and vacated in part together with a remand for sentencing.

Moody contends that there was insufficient evidence to support a conviction of him for attempted rape, recklessly endangering another or unlawful restraint. He asserts also that his trial counsel was ineffective in failing to move to suppress an identification and in failing to object to the admission into evidence of a photograph used in the identification process. We reverse the recklessly endangering another person conviction and affirm all others.

It is well settled that in passing upon a claim of insufficiency we must view the evidence in the light most favorable to the verdict winner. The evidence is sufficient if, accepting as true all the evidence and all reasonable inferences therefrom upon which, if believed, the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes for which he was convicted. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978).

Moreover, it is the province of the trier of fact, who is free to believe all, part or none of the evidence, to pass upon the credibility of witnesses and the weight to be accorded the evidence. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). Finally, evidence may be sufficient to convict even though wholly circumstantial. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1112-13 (1981).

The evidence when viewed in a light most favorable to the Commonwealth indicates that at about 12 noon on October 11, 1978, Ruthy Johnson, a twelve-year old, was accosted by Moody, while walking down the street in front

[ 295 Pa. Super. Page 110]

    of her home. Johnson testified that Moody forced her into the basement of a building where he sexually molested her. Moody forced Johnson to stand on a chair while he fondled her genitalia. She stated he eventually began to unzip his pants, whereupon she kicked him in the groin.

Moody then fled the building, only to be followed by Johnson. Moody struck Johnson, in an attempt to keep her in the cellar and then attempted to lock the door to the cellar, thereby trapping Johnson within. However, Johnson told him not to lock the door, which Moody did not. Moody then left the building. Johnson exited the cellar shortly after Moody, alerted others of her situation, and witnessed Moody drive away in a car which had been parked in the street. Johnson then observed the license number, and began to call it out to a friend. However, Moody, realizing what was happening, alighted the car and bent the license plate so as to obscure the number from Johnson's vision. Moody returned to the car and drove off, only to strike another automobile, forcing him to stop and depart on foot. Johnson subsequently identified Moody through a photographic array.

Rape is defined in 18 Pa.C.S.A. ยง 3121 as:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of ...

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