APPEAL FROM THE JUDGMENT OF SENTENCE FEBRUARY 17, 1983 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 0778-81 JULY TERM, 82.
William P. James, Philadelphia, for appellant.
Ann A. Nevel, Assistant District Attorney, Philadelphia, for Com., appellee.
Cavanaugh, Cirillo and Hester, JJ.
[ 347 Pa. Super. Page 267]
This is an appeal from a judgment of sentence imposed on a conviction for rape. We affirm in part and remand in part.
The facts as accepted by the trial court indicate the following: on June 17, 1982, the victim, Lynise Parker, left her apartment to take her first walk outside after undergoing a biopsy and hysterectomy a week and one-half earlier. She still had sutures, both external and inside her vagina. The victim was walking with her thirteen year old daughter in the vicinity of her apartment, when she encountered appellant, Alonzo Polk, whom she had known for thirteen years "like a brother". The victim was angry with Polk because she believed that he had entered her apartment without her permission while she was in the hospital. Polk and the victim began to argue. Polk pushed the victim's
[ 347 Pa. Super. Page 268]
daughter and, after a scuffle between them, the victim threw a bottle at him. Polk ducked out of the way of the bottle and pushed the victim with both hands, whereupon the victim fainted. Polk and a neighbor then carried the victim to her second floor apartment. When she revived, she was lying on her back on her bed. The neighbor was gone and Polk was sitting on her bed holding her face in his hands. The victim was having difficulty breathing. Polk got on top of the victim, pulled up her slip, pulled down her underpants, pulled down his zipper, exposed his penis, and inserted it slightly into her vagina. Polk caused the victim such pain that she screamed and threw herself and him onto the floor. Shortly thereafter, while the victim was still on the floor, hysterical and crying, and trying to crawl away from Polk, her son, Thurmon Parker, entered the apartment through the second floor window because the front door had been locked. Thurmon Parker then admitted the paramedics and police who were awaiting entry outside the front door. Officer William Borbridge entered the room and noted that the victim was lying on the floor, hysterical, with her slip pulled up around her waist and her underpants pulled down. He also noted that it was appellant's presence in the room that was causing her hysteria. She was attempting to crawl away from Polk even though the police and rescue personnel were present. After the victim told Officer Borbridge what happened, the officer arrested Polk.
Following a bench trial, appellant was found guilty on charges of rape, simple assault, recklessly endangering another person, indecent assault and indecent exposure. Post-verdict motions were argued and denied. Polk was subsequently sentenced to a term of incarceration of not less than two and one half nor more than ten years on the rape conviction. Sentence was suspended as to the remaining charges. No motion to modify or reconsider sentence was filed. This timely appeal followed, filed by appellant pro se. Present counsel was appointed to represent Polk on appeal. We note that Polk was represented by different counsel at trial and post-trial stages.
[ 347 Pa. Super. Page 269]
Appellant contends initially that the testimony presented by the Commonwealth is against the weight of the evidence and that a new trial should be granted. While the appellant concedes that the evidence is facially sufficient to sustain the conviction, he contends nevertheless that the testimony presented by the Commonwealth was inherently unreliable.
The standard of appellate review where it is alleged that a verdict is contrary to the weight of the evidence is clearly set out in Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1230 (1984):
Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. (Citations omitted). The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.
Although appellant acknowledges that it is the province of the trier of fact to pass upon the credibility of the witnesses and the weight to be accorded the evidence produced, Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981); Commonwealth v. Robinson, 494 Pa. 372, 431 A.2d 901 (1981); Commonwealth v. Hayes, 314 Pa. Super. 1121, 460 A.2d 791 (1983), he nevertheless argues that the findings of the trial judge should be rejected as based solely on conjecture. We find appellant's contention meritless.
The appellant attacks the Commonwealth's case on several grounds: 1) internal inconsistencies in the victim's testimony, 2) inconsistencies between the victim's testimony and other evidence, and 3) certain miscellaneous gaps in the evidence which would require that the verdict be rejected.
To begin with, the appellant points to the fact that the victim told the police at first that he had tried to rape her, but the next day she told the police that he had actually ...