June 25, 1982
COMMONWEALTH OF PENNSYLVANIA
GEORGE A. WARING, APPELLANT
NO. 2884 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Nos. 721-724, December Term, 1979.
Before Wickersham, McEWEN and Popovich, JJ. Popovich, J. Concurs in Result.
The Judgment of Sentence of the learned Philadelphia County Common Pleas Court Judge Armand Della Porta is affirmed.
Popovich, J. Concurs in Result.
IN THE COURT OF COMMON PLEAS FORST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION
COMMONWEALTH vs. GEORGE A. WARING
DECEMBER TERM, 1979
No. 721: Indecent Assault;
No. 722: Attempted Rape;
No. 723: Criminal Conspiracy;
No. 724: Simple & Agg. Assault
DELLA PORTA, J.
JULY 29, 1981
Defendant was charged on Bills of Information #721-724 December Term, 1979, with Indecent Assault, Attempted Rape, Criminal Conspiracy and Aggravated and Simple Assault. Defendant pleaded not guilty to the charges and was tried before this Court sitting without a jury from July 24 to July 25, 1980, at which time a demurrer was sustained on Bill #721 charging Indecent Assault; verdicts of guilty as to Attempted Rape, Criminal Conspiracy and Simple Assault were returned by the Court. Sentence was deferred pending the filing of post-trial motions and for the preparation of pre-sentence and neuropsychiatric reports.
Motions for New Trial and In Arrest of Judgment were duly filed and November 25, 1980, argued before this Court and denied. On that date, the Defendant was sentenced on Bill #722 to the State Correctional Institution at Camp Hill for a term of 11 months to 5 years; on #723 to a concurrent term of 11 months to 5 years; and on #724 to another concurrent term of 11 months to 2 years.
Defendant has appealed and we file this opinion as required
Viewing the evidence in a light most favorable to the Commonwealth, Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976), Commonwealth v. d Mangini, 478 Pa. 147, 386 A.2d 483 (1978) Commonwealth v. Smith, Pa. 398 A.2d 948 (1979), the testimony indicated that on November 2, 1979, at approximately 7:00 P.M. inside an elevator at 4445 Holder Street in the City of Philadelphia, the defendant, George Waring, along with two other men, accosted Robin Jeffreys, a 15-year old girl, and her friend, Margo Hayward. After stopping the elevator between floors by pushing the emergency stop button, the defendant removed the shoes, pants and panties of Robin Jeffreys who had been pushed to the floor and was being held by the other two men. Miss Jeffreyo, by kicking and screaming, was able to resist attempts by the defendant to sexually molest her and, when the door of the elevator was forced open by her companion, Margo Hayward, she fled with the help of her friend. Prior to escaping the elevator Miss Hayward had been punched by the defendant in an effort to stop her screaming.
The defendant argues that the Court erred in denying a defense motion for mistrial and permitting Margo Hayward, a Commonwealth witness, to testify after violating a sequestration order. Miss Hayward was inadvertently present in the courtroom during at least part of the direct examination of Robin Jeffreys, also a Commonwealth witness, after the Court issued a sequestration order.
It is within the sound discretion of the trial judge to permit a witness who has violated a sequestration order to testify. Commonwealth v. Martin, 440 Pa. 150, 269 A.2d 722 (1970).
Although it appeared that the witness did hear some testimony which related to her expected testimony, the witness did not intentionally violate the order to hear such testimony and the Commonwealth did not procure in any way the violation. The Court determined that the infraction was not serious, having little impact on the outcome of the trial. As finder of fact in this waiver trial, we gave this witness' testimony only so much weight as it should have been accorded under the circumstances.
Finally, the defendant raised the question of sufficiency of the evidence in general.
"To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury properly could have based its verdict and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Coccioletti, Pa. , 425 A.2d (1981)." Commonwealth v. Parker, Pa. (decided 7/2/81).
It is clear from a fair reading of all the evidence that it is amply sufficient to support the verdict of the Court.
Therefore, we have heretofore denied defendant's Motions for New Trial and In Arrest of Judgment and imposed sentence.
Armand Della Porta.
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