NO. 1761 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 1091-1094 November Sessions 1978.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ.
[ 299 Pa. Super. Page 430]
This case was heard non-jury after which appellant was adjudged guilty of rape and other related offenses. Appellant does not argue that the evidence was insufficient to support a finding that he sexually assaulted the victim. Instead he claims that the prosecution failed to prove beyond a reasonable doubt that the victim was not his spouse.*fn1
The victim did not testify. The principal prosecution witness was Allen Solomon, a psychiatric aide at the Philadelphia State Hospital at Byberry. His testimony was that he came upon appellant engaging in sexual intercourse with Margaret Turfangian in the boiler room of the hospital; that Turfangian was bleeding a great deal and hollering, "No, don't". (N.T. 3/13/80, p. 10). The witness told appellant to stop and appellant eventually disengaged himself. While the witness was attempting to find a security guard, appellant attempted to flee. Solomon pursued and was able
[ 299 Pa. Super. Page 431]
to prevent appellant from leaving. Solomon questioned him as to why he had done what he had, and appellant said "because it felt good." (N.T. 3/13/80, p. 13). Solomon described the victim as a white woman in her sixties, whom he recognized as a patient of the hospital. He described appellant as a black man in his thirties, and not a patient of the hospital.
After the prosecution rested, defense counsel indicated that the defense would not offer any witnesses or arguments. Judge Hill then adjudged appellant guilty on all counts. (N.T. 3/14/80, p. 35).
The issue as to a failure of proof that the victim was not appellant's spouse was first raised in the Post Verdict Motions. The lower court found that there was sufficient circumstantial evidence to justify the conclusion beyond a reasonable doubt that appellant was not married to the victim.
The following circumstances when considered together, allow such a conclusion: the different surnames of defendant, Belton Cole (N.T., p. 7), and the victim, Margaret Turfangian (N.T., p. 10); the difference in the ages of defendant (in his thirties) and the victim (in her sixties) (N.T., p. 48); the difference in race of defendant (black) and the victim (white) (N.T., p. 48); the location of the incident -- under a boiler in a boiler room at Philadelphia State Hospital (N.T., pp. 9, 10); and, the character of the ...