No. 1907 Philadelphia, 1980, Appeal from the judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 449 & 452 November Term, 1979.
Charles R. Bernsee, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Rowley and Montgomery, JJ.
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Appellant was convicted of attempted rape, burglary, simple assault, possessing an instrument of crime and criminal trespass. Post-trial motions were filed and denied and appellant was sentenced to concurrent terms of three to ten years imprisonment on the burglary and attempted rape convictions and two years probation on simple assault. Sentence on the convictions of possessing an instrument of crime and criminal trespass was suspended. This direct appeal followed.
Appellant raises three issues on appeal: 1) Did the court err in admitting into evidence (a) a pair of pants allegedly worn by appellant and (b) three photographs of the victim's neck? 2) Was the evidence sufficient to support the convictions of attempted rape, burglary, simple assault, possession of an instrument of crime and criminal trespass?; and 3) Did the trial court improperly sentence appellant to double or multiple punishments for offenses arising out of the same act?
The facts of the case, as developed at trial, are as follows. At approximately 6:00 A.M. on October 22, 1979, the seventeen year old victim was asleep in her third-floor bedroom. She suddenly awoke to find appellant, whom she recognized from the neighborhood, standing beside her bed. The victim felt a pressure and a sharp point at her throat. Appellant was loosening the strings at the front of his pants and had lowered them to about two inches below his waist when the victim began to scream and pushed his hand away from her throat. Appellant told her to "shut up". When the victim continued to scream for her mother, appellant pulled up his clothes and ran out of her bedroom and down the stairs. The victim's younger sister, who was sleeping in the living room, awoke when she heard the victim scream and also recognized appellant as he was fleeing. The police were called. The officer who responded testified that the victim had a small puncture wound on her throat which was bleeding slightly. Both the victim and her sister accompanied the police to appellant's home, where they identified
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appellant as the assailant. Appellant was arrested and a pair of blue jogging pants with a drawstring at the waist was seized.
Appellant first challenges the admissibility of the jogging pants and certain photographs. However, the issue of the admissibility of the photographs was not raised in appellant's post-trial motions. Therefore, that issue has been waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).
Appellant also argues that the court abused its discretion in admitting his jogging pants into evidence because they were irrelevant. Appellant bases this argument on the fact that the victim could not positively identify them as the exact pants worn by her assailant, but rather testified that they were "similar" to what he was wearing. Evidence is relevant if it tends to prove or disprove the matters in controversy. Commonwealth v. Jones, 355 Pa. 594, 50 A.2d 342 (1947). The jogging pants were clearly relevant in this case. The fact that they could not be positively identified affects the weight of such evidence, not its admissibility. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). The trial court did not abuse its discretion in admitting the pants into evidence.
Appellant next challenges the sufficiency of the evidence to support his convictions. In reviewing the sufficiency of the evidence to support a conviction, we must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).
The law has long been that "the test of the sufficiency of the evidence . . . is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove ...