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COMMONWEALTH PENNSYLVANIA v. ANTHONY WHITING (07/08/83)

decided: July 8, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ANTHONY WHITING, APPELLANT



No. 80-3-752, Appeal From The Judgment Of Superior Court Affirming The Judgment of Sentence At July Session, 1973, Nos. 415, 417, 418 of Philadelphia, Court of Common Pleas, Criminal Trial Division

COUNSEL

John W. Packel, Chief, Appeals Div., Leonard Sosnou, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Steven Cooperstein, Asst. Dist. Attys., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., filed a dissenting opinion.

Author: Larsen

[ 501 Pa. Page 466]

OPINION

On November 17, 1973, appellant Anthony Whiting was convicted by a jury of rape, burglary, robbery, assault, extortion and terroristic threats. Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of five to ten years. On appeal, the Superior Court affirmed. Commonwealth v. Whiting, 278 Pa. Super. 519, 420 A.2d 662 (1980). We granted appellant's petition for allowance of appeal and we now reverse.

Appellant contends that the trial judge committed reversible error during his charge to the jury when he expressed his

[ 501 Pa. Page 467]

    personal opinion as to the credibility of the complainant and appellant's alibi witnesses. At the close of the trial, the judge instructed the jury, in pertinent part, as follows:

In deciding which conflicting testimony to believe, you should not necessarily be swayed by the number of witnesses on each side. You may find that the testimony of a few witnesses -- just one witness -- is more believable than the opposing testimony of a greater number of witnesses.

On the other hand, you should also consider the extent to which conflicting testimony is supported by other evidence. You should evaluate the testimony of [the complainant] Ida Williams with special care, in view of Ida Williams' emotional involvement and the difficulty of determining the truth with respect to the crime charged, which is one that is usually carried out in private.

You can determine for yourselves what her appearance was. I cannot influence you. I can say that I thought she was a very direct witness who stood up extremely well under circumstances that must ...


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