NO. 1569 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Entered on June 4, 1980, as to Bill of Information No. 952, of July Term, 1975.
Buford Tatum, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, McEwen and Wieand, JJ. Wieand, J., files a concurring opinion.
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Appellant, Kenneth Williams, was convicted of rape, solicitation to commit sodomy, assault with intent to commit sodomy and criminal conspiracy on December 16, 1975, following a jury trial before the Honorable Matthew J. Bullock, Jr. of the Court of Common Pleas of Philadelphia County. Bail, which had originally been set at one thousand dollars, was increased after the verdict to two thousand five hundred dollars pending disposition of post-trial motions. The appellant failed to appear in Court on May 7, 1976, the date scheduled for the argument upon those motions. The Court issued a bench warrant but appellant remained a fugitive for the next four years.
Police finally apprehended appellant in early 1980. Upon his return to custody, appellant renewed his post-verdict motions in his Brief in Support of Motion for a New Trial or Arrest of Judgment.
On June 4, 1980, Judge Bullock denied the post-verdict motions, revoked bail,*fn1 and sentenced appellant to not less than three and one half nor more than seven years imprisonment on the rape conviction. Sentences on the accompanying convictions were suspended. This appeal followed.
Appellant contends that he should be granted a new trial alleging (1) that the Commonwealth denied him due process
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of law by concealing or destroying possibly exculpatory evidence and (2) that he was denied the right to a fair trial by virtue of improper remarks made by the prosecuting attorney during closing argument. We affirm the judgment of sentence of the trial court.
On the evening of March 18, 1972, appellant hosted a party in his West Philadelphia apartment which was attended by the complainant, Ms. Smith, in the company of her boyfriend Mr. Gary White. The complainant and her escort arrived at the party at about 10:00 or 10:30 p.m. Ms. Smith had never before seen appellant or any of the other people present at the party. Gary White left Ms. Smith at the party at one point in the evening to make a telephone call and did not return. During his absence, appellant requested Ms. Smith to accompany him, his brother, Richard Williams, a cousin, and another couple on some errands. The other couple soon left the group and, after several stops, Ms. Smith was driven to another West Philadelphia apartment which she entered at the urging of appellant and the two other men. A fourth man, Travis Hopson, was present in the apartment when they arrived. While there, the brother of the appellant knocked Ms. Smith's head turban to the floor and as she went into the bathroom to replace it, the fourth male, Travis Hopson, put a meat cleaver to her throat and ordered her to remove her clothes. Appellant, along with his brother and his cousin, then entered the bathroom clad only in their shorts and the four men together watched as she undressed. At first she cried but then ceased when one of the men said, "You had better shut up and calm down because if you don't I will show you what happened to the other women who don't cooperate with us." (N.T. 79-80). There then followed the acts of rape, attempted rape and oral sodomy by the four men, including an act of rape by the appellant. After the four men had finished, the appellant threatened to "put a contract out" on her if she informed police of the incident. (N.T. 80-87). The men finally released Ms. Smith at 5:00 a.m. the next morning and drove
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her to her apartment.*fn2 Ms. Smith immediately proceeded to the apartment of a girlfriend in the same building, woke her, and told her, while crying ...