No. 1249 Pittsburgh, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Mercer County No. 282 Criminal 1980.
Harry A. Penich, Assistant District Attorney, Mercer, for Commonwealth, appellant.
Frances S. Palmer, Hermitage, for appellee.
Cavanaugh, Rowley and Cirillo, JJ.
[ 321 Pa. Super. Page 293]
The trial court, following a jury verdict which found appellee Joseph Lee guilty of rape, burglary and criminal trespass, granted Lee a new trial. The court found that trial counsel failed to adequately advise appellee of his constitutional and statutory rights to remain silent. We disagree with the conclusion reached by the trial court and reverse the grant of a new trial.
[ 321 Pa. Super. Page 294]
In order to place the issue in focus it is necessary that we review the evidence as presented by the Commonwealth. The alleged victim of the rape, Victoria Capitol, was present in the Colony Bar in Sharon, Pennsylvania on Saturday night, July 19, 1980. She came to the bar alone, her usual companion, Blaine Coleman, having gone out of town for the weekend. During the course of the evening Joseph Lee was also in the Colony Bar and had a conversation with Capitol. He asked if he could walk her home and she refused. After she left the bar he followed shortly thereafter and encountered her on the street. He stated that he wanted to use her bathroom and would pay her. She refused. Nevertheless, when Capitol saw a female friend on the street near her house and went to that person's house Lee came along. Lee finally left and Capitol went home. She secured the doors of the house and fell asleep on the sofa after watching television. Sometime later she awakened to find Lee standing near her. She had placed a knife near her and picked it up. In an ensuing struggle Lee took the knife from her and eventually struck her, dragged her to the floor and held the knife to her throat. He raped her. Capitol later found a screen removed from a second story window above a porch roof. The next day she was reported by several witnesses to be upset, hysterical and crying, and disclosed the previous night's episode to a co-worker. She was examined at the hospital where she was employed. A vaginal test gave evidence that intercourse had taken place and scratches were found on the front of her neck, upper left arm, right arm and back. Lee was charged with the rape.
We have reviewed the Commonwealth's evidence, not because the sufficiency of the evidence is attacked, but to summarize the evidence that Lee was met with at trial. In his defense Lee testified that after seeing Capitol at the bar he walked her home, left later on, and in the early morning hours returned to her house. He stated that they had consensual intercourse; that they had done so "numerous" times previously, and that he had paid her.
[ 321 Pa. Super. Page 295]
Lee had had several disputes concerning his appointed counsel's representation prior to trial and in a post-trial hearing alleged that he was never advised that he had the right not to testify at trial and was entitled to an instruction to the jury that no adverse inference could be drawn from his failure to testify. His court appointed attorney, Herman M. Rodgers, who was for over ten years a Common Pleas Judge in this Commonwealth agreed that he never made it known to Lee that if he did not testify his failure to testify could not be used against him or advise him of his rights not to testify.
It is beyond the need of citation to state that a defendant in a criminal case is under no compulsion to testify and that he is entitled to an instruction that no inference may be drawn against him by ...