No. 1903 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County at No. 79138601.
Charles B. Coleman, Assistant Public Defender, Reading, for appellant.
George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
Cavanaugh, McEwen and Hoffman, JJ.
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Appellant, Thomas J. Flynn, was convicted by the Honorable Arthur Saylor of rape,*fn1 indecent assault,*fn2 robbery,*fn3 burglary,*fn4 theft,*fn5 and two violations of the Pennsylvania Uniform Firearms Act.*fn6 Following the denial of post-verdict motions, appellant was sentenced to ten to twenty years imprisonment for rape, to run consecutively to the sentence appellant was already serving, and concurrent terms of imprisonment totaling ten to twenty years for the remaining charges. In this appeal, appellant argues that (1) the evidence supporting his convictions was insufficient, contrary to the law and evidence and against the weight of the evidence, (2) the lower court erred in denying his motions to suppress identification evidence, (3) the lower court improperly permitted a psychiatrist to testify over his claim of psychiatrist-patient privilege, and (4) his sentence was excessive. For the following reasons, we reverse the judgment of sentence for violating the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6103, vacate the judgments of sentence for indecent assault and theft and affirm the judgments of sentence for the remaining charges.
In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was
[ 314 Pa. Super. Page 167]
sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Gray, 297 Pa. Super. 123, 125, 443 A.2d 330, 331 (1982); Commonwealth v. Jones, 291 Pa. Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa. Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant's trial may be summarized as follows.
On the morning of September 29, 1979, Beverly Gehris was working at the Skyland Factory Outlet in Reading, Pennsylvania when appellant appeared with a transparent stocking over his head. When Gehris screamed, appellant told her not to scream again or "I'll kill ya." Gehris noticed that appellant had his hand on a gun at his waistline. Appellant next asked Gehris for the keys to the cash register, disappeared momentarily, and then returned. Before he left the store, appellant forced Gehris to disrobe and have sexual intercourse with him. After the incident, Gehris discovered that $133 was missing from the cash box and also a canvas bag containing $50 in change.
At trial, Gehris unequivocally identified appellant as her assailant.
Appellant, testifying in his own defense, stated that he was asleep on the morning of September 29 and did not awake until that afternoon. Alternatively, he averred that he "wasn't too well" that day, having been released from a hospital a few weeks earlier, after which time he felt the Holy Spirit, thought he saw the devil and heard voices. (N.T. 104). Appellant did not recall, however, if he heard voices on September 29; he did not see the devil on that date.
Also testifying for the defense was psychiatrist Joel Podolsky. Dr. Podolsky, who examined appellant at his counsel's request on ...