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COMMONWEALTH PENNSYLVANIA v. MELVIN DEAN SMITH (03/25/85)

submitted: March 25, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MELVIN DEAN SMITH, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Northampton County, Criminal No. 264-1983

COUNSEL

W. Hamlin Neely, Allentown, for appellant.

Mark S. Refowich, Assistant District Attorney, Easton, for Commonwealth, appellee.

Spaeth, President Judge, and Cirillo and Shoyer,*fn* JJ.

Author: Spaeth

[ 343 Pa. Super. Page 439]

This is an appeal from judgment of sentence for rape, involuntary deviate sexual intercourse, and robbery. Appellant argues that the trial court erred in instructing the jury regarding the victim's identification testimony, and in failing to instruct the jury that if they found a Commonwealth witness to have been an accomplice, they had to view his testimony with caution. We affirm.

The Commonwealth witness who, according to appellant, could have been found to have been an accomplice, was named Eugene Taylor. Up to a point, appellant's testimony and Taylor's testimony were in agreement. According to this testimony: On February 3, 1983, appellant and Taylor drove a relative, Charlene Chain, from Delaware to Chain's home in Allentown, Pennsylvania. Although they used Taylor's car, appellant drove. They arrived in Allentown between 9 and 10 p.m. and went to a local bar, N.T. at 223-26, 359-62, where they met appellant's brother, John. After accompanying John to a friend's house, where they injected drugs, N.T. at 228-30, 363-65, Taylor and appellant went to a second bar. There appellant spoke with some friends, including Stanley Bell, drank beer, and shot pool. Appellant testified that they went to the second bar around midnight. N.T. at 366.*fn1 From this point on, appellant's testimony and Taylor's diverged.

According to appellant: He, Taylor, and Bell left the bar around 12:30 a.m., and drove in Taylor's car to a nearby housing project to get some more drugs. They then went to Bell's apartment, where appellant and Bell injected the drugs and drank beer. At about one o'clock, Taylor said he wanted to go to Chain's apartment. Appellant accompanied

[ 343 Pa. Super. Page 440]

Taylor, to show him where to park, and then left Taylor and returned to Bell's house, where he remained, except for a short period, until the early morning. He did not see Taylor again that night. N.T. at 367-75. Appellant's testimony was corroborated by that of Stanley Bell. N.T. at 287-307.

According to Taylor: He and appellant left the second bar alone. Appellant said that he had arranged to meet a girl and was to follow her home. Appellant drove Taylor's car for an unspecified period of time, at one point following a blue Chevette. N.T. at 233-34. They soon saw a blue Chevette pull into a parking lot, although Taylor didn't know if it was the same car they had been following. Taylor did not know where they were or if they were still in Allentown. A white woman got out of the car, quickly crossed the street, and entered an apartment house. Appellant pulled the car up onto the sidewalk, arousing Taylor's fears that his car was being harmed. Appellant immediately got out of the car, telling Taylor, "I'll be right back." Taylor then saw him "trot" across the street and enter the apartment building. N.T. at 238-43.*fn2 Taylor waited in the car for approximately twenty minutes and then stopped a police officer to ask directions back to Allentown.*fn3 After waiting several more minutes for appellant to return, Taylor crossed the street and entered the apartment house. He called up the stairs to appellant. Hearing no response, he returned to the car to wait. About five minutes later, appellant "came trotting across the street," entered the

[ 343 Pa. Super. Page 441]

    driver's seat, and drove away. He told Taylor that he had just had intercourse. N.T. at 243-48.

The victim, then a senior at Lehigh University, described what had happened as follows. She returned to her apartment in Bethlehem, at about 1:30 a.m.; she had been out with some friends, and during the evening, in a three-hour period, had drunk three glasses of beer. N.T. at 16-17. On returning to her apartment, she parked her car, a blue Chevette, in the parking lot across the street. She ran across the street, entered the building, and ran up the two flights of steps to her apartment, on the third floor. N.T. at 19-22. The entrance hall and the second and third floor landings were lit by 60 watt bulbs. N.T. at 21, 103-07. She is nearsighted, but was wearing her glasses. N.T. at 12, 21. As she put her key in her apartment door, she "heard someone run up the steps and [she] saw a black man running up the second-floor landing towards [her]." N.T. at 22. The hall light was on, above her head. She was asked:

Q. Did you have any difficulty seeing his face?

A. No.

Q. Did you look at him?

A. Yes.

N.T. at 23.

The man ran up the steps and, holding her from behind, held a knife to her neck and said, "Shut up, you white bitch. Don't say anything or I'll kill you." N.T. at 24. While holding her, he reached up and unscrewed the hall light bulb. N.T. at 24. He then ordered her to undress, again threatening her life if she refused. When she did not comply, he undressed her and proceeded to have vaginal and oral intercourse. N.T. at 25-26. Although the assailant pulled the victim's sweater over her head and ordered that she not look at his face, she testified that during oral intercourse she did see his face, lit by the light from the second floor hallway. N.T. at 32-33. When he finished, the assailant demanded money, again threatening to kill the victim if she concealed any money. He then took $21 from

[ 343 Pa. Super. Page 442]

    the pocket of the victim's jeans and also took her keys. He tied her up with her socks and left her on the landing. He told her that "if [she] told anyone, he would come back and kill [her] and told [her] not to tell ...


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