No. 16 E.D. Appeal Docket, 1984, Appeal from the Order of Superior Court, At No. 599 Philadelphia 1981, Affirming the Order of the Court of Common Pleas of Philadelphia County, June Term, 1979 at Nos. 1388-1391 and 1393, Pa. Superior Ct. , 463 A.2d 41 (1983).
Eric B. Henson, Deputy Dist. Atty., Marianne Cox, Asst. Dist. Atty., Philadelphia, for appellant.
Burton A. Rose, Philadelphia, for appellee.
Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case. Zappala, J., filed a dissenting opinion.
On January 29, 1980, Thad McNeil, appellee, was convicted by a jury in the Court of Common Pleas of Philadelphia County of rape, assault, involuntary deviate sexual intercourse, unlawful restraint and indecent assault. The evidence introduced at trial discloses the following facts and circumstances underlying those convictions.
At approximately 12:30 A.M. on May 21, 1979, Mrs. Angeline Bennett, a nurse, was returning home from work and was waiting for a bus at 29th Street and Lehigh Avenue in Philadelphia. Appellee pulled up to the bus stop in his car, spoke to Mrs. Bennett and offered to drive her to
her home. She accepted the offer but instead of taking her home, appellee pulled into a secluded parking lot nearby where he assaulted and raped Mrs. Bennett.
When she was finally released, the distraught victim stopped a Philadelphia police officer who had observed her enter appellee's car approximately one hour earlier. Her face and eye were swollen, her nurse's uniform was bloodied and she was in tears. Mrs. Bennett gave a description of her assailant and his vehicle to the police and gave them a piece of the car's ripped upholstery which she had taken and concealed.
Appellee was arrested on June 4, 1979 for the rape of another woman, Mrs. Sabrina Baker. The events alleged by Mrs. Baker bore a striking similarity to those of the instant case. Because of that similarity, Mrs. Bennett was contacted by detectives and identified appellee as her attacker at a police lineup. A search of appellee's vehicle, pursuant to a warrant, disclosed torn upholstery and an octagon shaped earring that Mrs. Bennett told police may have been lost during the attack.
The defense was denial. Testifying in his own defense, appellee was asked by defense counsel "Prior to May 22, 1979 [the rape occurred on May 21, 1979], have you ever seen Angeline Bennett . . . ." Appellee responded "No, sir". Defense counsel attacked the victim's credibility and her identification of appellee, focusing on a discrepancy between the victim's description of the color of appellee's car and its actual color. Counsel also suggested to the jury that Mrs. Bennett had taken a ride from a male acquaintance who was to have taken her home the evening of the rape and had consensual intercourse with him that had gotten out of hand, at which point she reported a rape. Counsel further argued to the jury that, having reported a rape, Mrs. Bennett felt pressure at the police lineup to identify someone as her attacker and that someone happened to be appellee. The jury rejected counsel's suggestion and convicted appellee of the charges as noted.
On July 8, 1980, a hearing was held before the trial court at which appellee's post trial motions were argued and denied. A sentencing hearing was then conducted. At this hearing, appellee informed the court that "I feel as though I was taken advantage of and that I didn't have a fair trial . . . . because . . . my attorney, he stopped me from telling the truth, he stopped me from saying things that could have helped me." Notes of Testimony (N.T.), July 8, 1980 at 35-36, R. 546a. Appellee explained to the court that he had lied at his trial in denying that he knew Mrs. Bennett, that in fact he and Mrs. Bennett had been lovers but their relationship had soured because he "lied to her" and "played games" with her. Appellee further claimed at this hearing that Mrs. Bennett and Mrs. Sabrina Baker had conspired against him to separately accuse him of rape. Id. at 38-39, R. 548a-549a.
Mrs. Baker had filed charges against appellee, accusing him of raping her on April 29, 1979.*fn1 Mrs. Baker testified, at a trial conducted subsequent to the instant trial proceedings, that appellee had forced her at knife-point into his car, driven to the parking lot near 29th Street and Lehigh Avenue and brutally and repeatedly raped her. Mrs. Baker's common law husband had kept the parking lot under surveillance since the incident and on June 4, 1979, spotted appellee there in his vehicle with another woman. Appellee's license number was reported to detectives which led to his arrest for the alleged rape of Mrs. Baker, and ...