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filed: October 14, 1983.


No. 1229 Philadelphia, 1981, No. 1332 Philadelphia, 1981, No. 1465 Philadelphia, 1981, Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, April Term, 1980, Nos. 54, 57, 61 and 68.


James J. Phelan, Jr., Narberth, for Smith, appellant (No. 1229).

George Henry Newman, Philadelphia, for Garvin, appellant (No. 1332).

Bruce M. Rotfeld, Blue Bell, for Bradley, appellant (No. 1465).

Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Com., appellee.

Spaeth, Rowley and Van der Voort, JJ. Spaeth, J., files a concurring and dissenting opinion.

Author: Rowley

[ 321 Pa. Super. Page 178]

Commencing September 4, 1980, appellants were tried jointly before a jury on charges of rape, simple assault, involuntary deviate sexual intercourse and criminal conspiracy. On September 19, 1980, the jury returned a verdict finding Appellant Garvin guilty of the crimes of rape and simple assault and verdicts finding Appellants Smith and Bradley each guilty of rape. Appellants were found not

[ 321 Pa. Super. Page 179]

    guilty of the remaining charges. On May 6, 1981, after an evidentiary hearing, appellants' post-verdict motions were argued and denied. Garvin and Bradley were each sentenced to serve a term of five to ten years imprisonment for rape; Garvin was sentenced to an additional term of two years probation on the simple assault conviction to be served consecutively to his sentence for rape. Smith was sentenced to seven and one-half to fifteen years imprisonment on his conviction for rape. The trial court denied oral motions to modify the sentences made on behalf of all three appellants and later denied written motions submitted on behalf of Appellants Garvin and Smith. All three appellants subsequently filed separate appeals to this court. Because they grow out of the same factual situation and present many common issues, the appeals were consolidated for review.

Only a brief statement of the facts need now be set forth; the factual background will be examined in greater detail as need be in connection with each of the assignments of error. Appellants were convicted of gang raping the prosecutrix in an alleyway. The victim had earlier taken a quantity of drugs and imbibed some beer. The combined effect of the drugs and alcohol was to make her perception unclear and her gait unsteady. However, she specifically remembered meeting the three appellants on a street in Philadelphia during the evening of May 5-6, 1980, and she also remembered that each of them had had sexual intercourse with her while she was "[t]rying to fight away." (N.T. 9/8/80, pp. 3.18 and 3.20.)


Combined, appellants raise more than fifty assignments of error. A great many of these issues were ably discussed by the trial judge, the Honorable Levan Gordon, and need not be considered further.*fn1 Also, several issues have been waived, are frivolous, or are without merit.

[ 321 Pa. Super. Page 180]

Appellant Garvin has waived any claim of error with respect to the court's charge to the jury. In this court, appellant argues that the trial court erred in failing to

[ 321 Pa. Super. Page 181]

    adequately instruct the jury on the subject of "reasonable resolution."*fn2 The court had been asked by the jurors to assist them by repeating the instructions after they had initially retired to deliberate. However, no objection to this part of the charge was made by appellant's trial counsel. The issue, therefore, has not been preserved for appellate review. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Anticipating this result, appellate counsel asserts in this court, for the first time, that trial counsel was ineffective for failing to object to this portion of the trial court's instructions. However, present appellate counsel also represented Garvin at the post-trial stage of these proceedings. He filed supplemental post-trial motions*fn3 and was present at a post-trial hearing at which he called Garvin's trial counsel to testify regarding her alleged ineffectiveness in other respects. The issue of trial counsel's ineffectiveness on this point was not raised at any time before the trial court. Because this issue was not "raised as an issue at the earliest stage in the proceedings at which [trial counsel] no longer represent[ed]" the appellant, this issue is not properly before us. Commonwealth v. Hubbard, 472 Pa. 259, 276-277 nn. 6 and 7, 372 A.2d 687, 695 nn. 6 and 7 (1977). For the same reason, Appellant Garvin cannot now attack trial counsel's effectiveness with regard to the jury being permitted to obtain the clothing worn by the victim on the night of the attack for inspection during

[ 321 Pa. Super. Page 182]

    their deliberations.*fn4 Nor can appellant, for the first time, attack in this court the trial court's instruction or trial counsel's failure to object to the trial court's instruction that prior inconsistent statements could be used only to impeach credibility and not as substantive evidence.*fn5 Finally, Appellant Garvin has also waived consideration of the adequacy of the trial court's reasons for his sentence under Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).*fn6 The motion to modify sentence filed on appellant's behalf did not raise a Riggins issue. Such issue has, therefore, not been preserved for appellate review.

Furthermore, inasmuch as the trial court correctly determined that it did not abuse its discretion in allowing a "nodding" spectator to remain in the courtroom,*fn7 we find no merit in Appellant Garvin's suggestion that trial counsel was ineffective for failing to move for a mistrial on this same ground.*fn8 Counsel cannot be found ineffective for failing to raise a meritless claim. Commonwealth v. Hubbard, 472 Pa. at 278, 372 A.2d at 696.

[ 321 Pa. Super. Page 183]

Additionally, Appellant Smith claims that the trial court erred in denying his request for a continuance. However, the record reveals no request for a continuance by appellant's counsel; the court could not err in denying a motion never made.*fn9

We also do not agree with Appellant Garvin's contention that the sentences for rape and simple assault should merge.*fn10 It is clear from the testimony (N.T. 9/8/80 at 3.17-3.18) that appellant struck the victim on the face after he had raped her. The victim testified that he punched her in the right side of her face only after she had avoided appellant's attempt to force her to engage in an act of oral sex. The two incidents were thus separate and distinct and the jury could properly conclude that Appellant Garvin had committed two criminal acts. The force used in punching the complainant could not have been used to overcome her volition with respect to the rape because that crime had already been completed. See Commonwealth v. Wojciechowski, 285 Pa. Super. 1, 426 A.2d 674 (1981).

We likewise do not agree with Appellant Garvin or Appellant Smith that their respective sentences are excessive.*fn11 Appellant Garvin was sentenced to five to ten years imprisonment for rape followed by two years probation for simple assault. Appellant Smith was sentenced to seven and one-half to fifteen years imprisonment for rape. Rape is a felony of the first degree, 18 Pa.C.S.A. § 3121, subjecting each appellant to the possibility of a maximum prison term of twenty years. 18 Pa.C.S.A. § 1103(1). Simple assault is in this case a misdemeanor in the second degree, 18 Pa.C.S.A. § 2701(b), and Appellant Garvin's conviction for this crime permitted the trial court to impose a sentence

[ 321 Pa. Super. Page 184]

    for up to an additional two years. 18 Pa.C.S.A. § 1104(2). Thus, the sentences actually imposed were well within the statutory guidelines. Furthermore, in his motion to modify sentence, Appellant Smith admitted to having been arrested five times for and having pleaded guilty to "Disorderly Conduct, Simple Assault and Burglary."*fn12 The trial judge specifically relied upon appellant Smith's record in imposing a greater sentence upon him then upon his co-defendants; neither Appellant Garvin nor Appellant Bradley had any prior record. (N.T. 5/6/81 at 128-129.) See Commonwealth v. Thurmond, 257 Pa. Super. 464, 390 A.2d 1330 (1978). An examination of the record also reveals that the trial court complied with the guidelines of the Sentencing Code. 42 Pa.C.S.A. §§ 9701 et seq. See Commonwealth v. Garrison, 292 Pa. Super. 326, 437 A.2d 407 (1981). Under these circumstances, the sentences imposed were not in any way excessive, let alone manifestly so.*fn13 We turn next to the two issues argued most strenuously by all three appellants.


In the first of these, appellants claim for a number of reasons that the closing argument to the jury by the Assistant District Attorney, Ms. Wendy Fleishman, Esquire, was improper.*fn14 After a thorough review of the record, we disagree.

[ 321 Pa. Super. Page 185]

It is by now beyond cavil that the prosecuting attorney must conduct herself in such a manner as to aid rather than inhibit the truth finding function of the jury. In Commonwealth v. Barren, 273 Pa. Super. 492, 499-500, 417 A.2d 1156, 1159-1160 (1979), this court summarized the specific guidelines underlying this principle.

During closing argument the prosecutor may refer to all facts properly in evidence and may argue all reasonable inferences from such evidence. Commonwealth v. Graham, 467 Pa. 417, 358 A.2d 56 (1976). However, it is improper to argue facts not proved or to misstate the evidence. Commonwealth v. Toney, 474 Pa. 243, 378 A.2d 310 (1977); Commonwealth v. Patterson, 247 Pa. Super. 527, 372 A.2d 1214 (1977): Sections 5.8(a) and 5.9 of the ABA Project on Standards for Criminal Justice Relating to the Prosecution Function. This is peculiarly so where facts not of record are used to inflame the passions or prejudices of the jury. Commonwealth v. Patterson, supra. Moreover, there is no longer any room for doubt that it is improper for a prosecutor to express his personal belief as to the credibility of either prosecution or defense witnesses. Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979); Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978); Commonwealth v. Bullock, 266 Pa. Super. 526, 405 A.2d 943

[ 321 Pa. Super. Page 186]

(1979); Commonwealth v. Gilmore, 245 Pa. Super. 27, 369 A.2d 276 (1976); ABA Standards Relating to the Prosecution Function, § 5.8(b). "In determining whether the established bounds of propriety have been exceeded in closing argument, we must ever be mindful of the 'possibility that the jury will give special weight to the prosecutor's arguments, not only because of the prestige associated with his office, but also because of the fact-finding facilities presumably available to him.'" Commonwealth v. Van Cliff, 483 Pa. 576, 583, 397 A.2d 1173, 1177 (1979).

But not all flexibility is circumscribed, however. As this court stated in Commonwealth v. Youngkin, 285 Pa. Super. 417, 430, 427 A.2d 1356, 1362 (1981):

[N]ot every intemperate or uncalled for remark by the prosecutor requires a new trial. Rather, the language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility towards the defendant, so that they could not weigh the evidence and render a true verdict. Moreover, the effect of such remarks is largely dependent upon the atmosphere at trial, and the proper action to be taken, upon objection, is within the discretion of the trial court. [But] when the cumulative effect of any improper remarks so prejudices the jury as to prevent a fair trial, reversible error exists. (Citations omitted.)

We apply these standards to the allegedly improper remarks of the Assistant District Attorney.

Appellant Smith's first assigned error is the Assistant District Attorney's statement during her closing remarks that:

They didn't bring in a snow machine for that snow. So, ladies and gentlemen, the defense is telling you there is guesswork here, magic hallucinations.

This coat is covered with blood.

(N.T. 9/17/80 at 463.)

The first sentence quoted by counsel for Appellant Smith is completely out of context. Ms. Fleishman had been describing

[ 321 Pa. Super. Page 187]

    for the jury the meaning and use of circumstantial evidence. In full she stated:

[Defense c]counsel is asking you to guess. He said to you this is all guesswork. I submit to you it's not guesswork. We are not asking you to guess about one thing in this case. If you were in the Northeast, or in South Philadelphia, or in West Oak Lane and you woke up in the morning -- the night before you went to sleep it's cold out, December, it's clear, beautiful night when you go to sleep. You wake up at 9:00 a.m. the next morning and it's sunny, but you go out and you open your door and you find snow on the ground. Now, that's circumstantial evidence that it snowed. You didn't see it snow. Nobody saw it snowing. You didn't see it coming down, but you know it snowed. Now, it's not Hollywood. They didn't bring in a snow machine for the snow. So, ladies and gentlemen, the defense is telling you there is guesswork here, magic, hallucinations.

This coat is covered with blood.


The prosecutor's statement, taken in context, is a part of an appropriate response and rebuttal to the argument made on behalf of appellants. Thus, the claim that it exceeded the bounds of proper argument is without merit.

Counsel also attacks the accuracy of the statement concerning the coat being "covered" with blood. It is undisputed that the coat did have some blood on it, but the quantity of blood was only a "spot" of blood. It is also undisputed that the coat was displayed to the jury at the time the remark was made and the jury was later permitted to have the coat in the jury room for examination during their deliberations. Thus, while the Assistant District Attorney's statement was an exaggeration, it was not prejudicial because the jury was contemporaneously afforded an opportunity and the means to make its own evaluation and draw its own conclusion. (See Tr.Ct.Op. at 20.) Furthermore, the only rationale offered by counsel to support an objection to this statement was that the prosecuting attorney

[ 321 Pa. Super. Page 188]

    had been using the coat as "a prop" during her summation.*fn15 Because the coat was properly admitted into evidence, there could be no error in allowing the jury to see it.

Next, Appellant Smith contends that the prosecutor misstated the evidence when she said:

She [the victim] said, "I was bleeding." She said, "I had a gash in my vagina." The doctor came in. Dr. Harper [Hopper] examined her at Jefferson Hospital and he said she had a rip to her labia two to three centimeters. (N.T. 9/17/80 at 464.)

Contrary to appellant's assertion, all of Ms. Fleishman's remarks correctly reflect the testimony of the witness. The complainant was asked on cross-examination to describe her injuries to the jury. She testified as follows:

I had scrapes and bruises on my face. I had bite marks on my chest and my stomach. I had a small gash on my vagina. I had scrapes and bruises and cuts on my legs. I had cuts on my knuckles, and I had a split chin. (N.T. 9/8/80 at 3.105.) (Emphasis supplied.)

Furthermore, Dr. Bruce D. Hopper of the Obstetrics and Gynecology Department of Thomas Jefferson University Hospital testified that he had examined the victim shortly after the incident and found that she had sustained several injuries. He described one such injury as "a two-by-three or two-to-three centimeter, linear abrasion, which was outside or away from the midline of the left labia . . . ." (N.T. 9/10/80 at 5.64.) He further defined an abrasion as "a tear. It's not straight -- like a surgical cut. It can be any type of jagged opening." Describing an abrasion as "a rip" during summation is not error in this case because such characterization is fully supported by the testimony.

Appellant Smith also contends that the Assistant District Attorney misstated the evidence when she argued to the jury that the complainant could not have removed the

[ 321 Pa. Super. Page 189]

    straps from her overalls because she was intoxicated, on the ground and her coat was still on. (N.T. 9/17/80 at 465-466.) In making this argument, the prosecuting attorney was attempting to point out for the jury what she believed to be internal contradictions in the "consent" defense put forth by Appellant Garvin. This argument was permissible because it is based on reasonable inferences from the testimony. Appellant Garvin had testified that he and the victim had been "sort of stumbling" down the street (N.T. 9/16/80 at 303) and that the victim had fallen three times. (Id. at 302.) Several other witnesses had also testified that the victim had been noticeably irregular in her speech and gait. Furthermore, Appellant Garvin testified that the victim "didn't take it [her coat] off at all." (Id. at 320.) The jury also had heard from the victim that she had been wearing overalls with shoulder straps that had snaps near her shoulders. (N.T. 9/8/80 at 3.17.) She also stated that Appellant Garvin had unzippered her jacket or coat and had started to undo those snaps. (Id.) The Assistant District Attorney's summation on this point was permissible because she merely observed to the jury that, in her condition, the victim would have needed help to get the overall straps off or she would have had to take her coat off and that Appellant Garvin did not say that he helped her but that he had testified that she kept her coat on at all times. Thus, the prosecuting attorney merely pointed out for the jury some potentially troublesome aspects of the testimony and asked them to reason to a logical conclusion from what they had heard. We find no error in this regard.

Appellant Smith further objects to the prosecutor's rhetorical question, "How did she [the victim] roll herself along the ground dragging herself so that she ripped her labia?" The only grounds offered by appellants, in chambers, to support this objection was that the characterizations of "rolling around on the ground" and "a rip" to the victim's labia were improper. (N.T. 9/17/80 at 484-485.) As discussed above, the designation of the wound as a rip fully comports with the evidence. Also, several witnesses

[ 321 Pa. Super. Page 190]

    did testify that the victim fell. Furthermore, in their closing arguments, the attorneys representing the appellants each repeatedly referred to the complainant's intoxicated and drugged condition. (Id. at 381, 382, 393, 419, 432, 449-450, e.g.) Each attorney also discussed the source of the victim's injuries. Counsel for Appellant Bradley stated:

I submit that there is no evidence presented to you how she got these injuries . . . . All you have is speculation[. S]he either got them crawling around on the ground, she got them as a result of somebody injuring her . . . . (Id. at 394.) (Emphasis supplied.)

Counsel for Appellant Smith stated:

The doctor [Dr. Hopper] did indicate that although there were abrasions and contusions of the [victim's] body, that these abrasions and contusions were consistent with someone falling down on several occasions and someone crawling around on the ground, also.

(Id. at 424-425.) (Emphasis ...

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