NO. 2682 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of November 6, 1980 in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 602-604 February, 1979
John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Beck, JJ. Spaeth, J., concurs in the result.
[ 316 Pa. Super. Page 48]
Appellant has filed a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, alleging that the trial judge improperly refused to declare a mistrial or issue a cautionary instruction to the jury regarding a Commonwealth witness's explanation of his prior inconsistent statements and that the trial judge incorrectly charged the jury concerning the definition of reasonable doubt. We affirm the decision of the trial court.
On the evening of September 30, 1978, the victim/complainant attended a party at which Appellant was also present. After being at the party for approximately ninety minutes, the complainant departed and observed that Appellant left the party immediately after she did.
While walking to her car the complainant noticed that Appellant was walking behind her. Upon entering the driver's side of her car the complainant saw that appellant was sitting in the passenger's seat of her car. The complainant ordered Appellant to leave whereupon Appellant began beating the complainant about her head and face. The complainant managed to escape from her car but was pursued and caught by Appellant. The scuffle between the complainant and Appellant outside the complainant's car drew the attention of two men who approached the struggling pair. However, Appellant warned the two men not to interfere, and following a brief discussion with Appellant the men departed.
Appellant then dragged the complainant to her car, beat her, raped her, and stole $35.00 from her pocketbook. As a result of the severe beating the complainant suffered a dislocated jaw, a fractured arm, two black eyes, and a cut lip which necessitated ten sutures.
[ 316 Pa. Super. Page 49]
Subsequently, Appellant was charged with rape, aggravated assault, simple assault, and robbery. After the Commonwealth deleted the charge of simple assault, the matter proceeded to trial before a jury which found Appellant guilty of all three remaining charges. In accordance with Pa.R.Crim.P. 1123 Appellant filed post-verdict motions.
[B]efore post-verdict motions were argued, defense counsel contended that the trial judge had indicated that he was going to impose a maximum sentence before having reviewed the pre-sentence and psychiatric reports and therefore asked the trial judge to recuse himself . . . . [I]n order to eliminate any possible complaints about the sentence imposed . . ., the trial judge caused a court en banc to be empanelled and thereafter recused himself from considering the motions and did not participate in the sentencing . . . . The . . . judges of the court en banc denied the post-verdict motions, and then reviewed the pre-sentence and psychiatric reports. They imposed a sentence of ten to twenty years on the rape bill . . . and a consecutive ten to twenty years on the robbery bill. They ruled that the conviction for aggravated assault merged with the robbery conviction and therefore no further sentence was imposed.
(Trial court opinion at pp. 1-2 (footnote deleted).)
On appeal Appellant's first argument is that the trial judge should have declared a mistrial or cautioned the jury not to infer Appellant's guilt from the Commonwealth witness's explanation of the inconsistencies between ...