No. 1447 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at No. 6405 of 1978.
Timothy J. Gorbey, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Rowley, McEwen and Montemuro, JJ.
[ 312 Pa. Super. Page 438]
Appellant was found guilty by a jury of criminal attempt to commit rape, possession of an instrument of crime, generally, possession of firearms without a license, crimes committed with firearms, and two counts each of aggravated assault, simple assault, terroristic threats and recklessly endangering another person. Judgment was arrested on the jury verdicts of guilty as to the charges of recklessly endangering another person and possession of firearms without a license. Appellant was sentenced to a term of imprisonment of from five to ten years for the criminal attempt to commit rape to be served concurrently with consecutive sentences of from two and one-half to five years imprisonment imposed on the two counts of aggravated assault and from two and one-half to five years imprisonment on two counts of terroristic threats. Since sentence was suspended on all remaining charges the total term of imprisonment was five to ten years. This appeal followed. We affirm the judgment of sentence with modification.
On a December evening at approximately 10:45 p.m. a young man and his girl friend were parked in an automobile in a field adjacent to Township Line Road in Upper Chichester Township, Delaware County. The two were embracing when the passenger door of the vehicle was forced open by appellant who wore a camouflage mask and wielded a .22 calibre pistol. Appellant pointed the gun at the young woman who was partially disrobed, and ordered both of them to remain still. Appellant then tied the man's hands behind his back and ordered him to move to the rear seat of the vehicle. At this time, the woman, still partially undressed, opened the driver's door and ran from the vehicle. Appellant pursued her, grabbed her by the back of the neck
[ 312 Pa. Super. Page 439]
and dragged her back toward the car. In an attempt to prevent the appellant from returning her to the car, she sat on the ground; when appellant put the gun to her head, he was finally successful in dragging her back to the car where he ordered her to lay on her "belly" in her partially nude condition. When appellant placed the gun at her head because she refused to comply, she informed appellant that she would rather be shot than raped, and began to struggle with him. During her struggle with appellant, the woman sustained an injury to her hand as a result of an effort to shield her head from a blow with the gun, and succeeded in removing the mask of appellant. The young man had been able in the meantime to untie his hands and joined the woman in the struggle. As he struggled with appellant for the weapon, he heard the weapon click several times before eventually wresting it from appellant. Appellant fled the scene after his repeated pleas to return the weapon were ignored. The young man testified he had been able to clearly observe appellant for a period of approximately ten minutes during the incident.
Appellant was found later that same evening, several miles away, by employees of a store in a Delaware mall, sprawled partly in and partly out of his vehicle in the mall parking lot. When appellant was taken to a hospital for treatment of injuries, he claimed that he had been attacked in the parking lot by a robber who placed a gun at his back and struck him about the head and face. The police officer assigned to investigate the robbery observed a number of scratches and marks on the face of appellant. Several days after he was released from the hospital, appellant informed the Delaware State Police that his alleged assailant matched a newspaper description of the individual who had assaulted a couple in Upper Chichester Township the same evening. Appellant, at the request of the investigator, voluntarily went to the Delaware State Police Barracks where he was photographed to document his injuries. When the detective subsequently displayed the photograph of appellant and eight others to the young man, he identified
[ 312 Pa. Super. Page 440]
appellant as the assailant. As a result, appellant was arrested and charged with aggravated assault, simple assault, recklessly endangering another person, terroristic threats, criminal attempt to commit rape, possessing instruments of crime, firearms not to be carried without a license and crimes committed with a firearm. This appeal follows the return by a jury of guilty verdicts on all charges, the disposition of post-trial motions and the imposition of sentence.
Appellant initially raises the issue of the validity of the informations which contain the rubber stamp facsimile of the signature of the District Attorney. He argues that the informations are void because they were not signed by the District Attorney in accordance with Pa.R.Crim.P. 225(b) and, therefore, that all charges against him should be dismissed. While appellant raised this argument in his post-trial motions, he failed to raise the issue in his omnibus pre-trial motion. We recently held in a consolidated appeal addressing the rubber stamp issue that the failure of a defendant to file a pre-trial motion to quash the informations pursuant to Pa.R.Crim.P. 306 resulted in a waiver of the issue on appeal. Commonwealth v. Veneri and Commonwealth v. Thomas, 306 Pa. Super. 396, 404, 452 A.2d 784, 788 (1982). We held there that "the signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and ...