No. 1258 Pittsburgh, 1984, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8305872A.
Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.
Kemal A. Mericli, Assistant Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth, President Judge, files a concurring statement.
[ 345 Pa. Super. Page 459]
Thomas T. Nauman, the appellant, was tried by jury and was found guilty of rape and indecent assault.*fn1 Post-trial motions were dismissed, and Nauman was sentenced for rape to a term of imprisonment for not less than ten nor more than twenty years.*fn2 On direct appeal from the judgment of sentence, Nauman argues (1) that the trial court erred in allowing the jury to see photographs taken of the victim four days after the alleged rape; (2) that the trial court failed to state adequate reasons for imposing a sentence in excess of that recommended by the sentencing guidelines; and (3) that trial counsel rendered ineffective assistance (a) by failing to request an alibi instruction and (b) by failing to request a poll of the jury.*fn3
The admission of photographs is within the sound discretion of the trial court, and its ruling will not be reversed on appeal unless there has been an abuse of that
[ 345 Pa. Super. Page 460]
discretion. Commonwealth v. Woodward, 483 Pa. 1, 6, 394 A.2d 508, 511 (1978); Commonwealth v. Fields, 317 Pa. Super. 387, 402, 464 A.2d 375, 383 (1983). See also: Commonwealth v. Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984); Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 (1974); Commonwealth v. McClain, 325 Pa. Super. 29, 37, 472 A.2d 630, 634 (1984). "The mere fact . . . that photographs were taken at a time different from that in question does not render them inadmissible if witnesses are able to verify them as substantial representations of the conditions as they existed at the time in question." 29 Am.Jur.2d Evidence § 789 (1967). The rape in the instant case allegedly occurred on the evening of June 6, 1983. The photographs of the prosecuting witness were taken on June 10, 1983. There was evidence that her appearance on June 10, as depicted by the photographs, was the same as it was on the day following the alleged rape. This evidence was sufficient to establish the accuracy and relevancy of the photographs.
The relevancy of the photographs was not impaired because the defendant had given pre-trial notice that he intended to present an alibi defense. In the absence of an agreement regarding the facts -- there was no agreement here -- the Commonwealth was required to prove beyond a reasonable doubt each and every element of the offenses charged. It was not relieved of this burden merely because the defendant's principal defense was that he was elsewhere at the time of the alleged offenses. The assertion of an alibi defense did not constitute an admission that the prosecuting witness had been forcibly compelled to participate in sexual intercourse. The photographs in this case were relevant to establish that forcible compulsion had been exercised by appellant to achieve sexual intercourse with the prosecuting witness. "Evidence is relevant if it tends to establish some fact material to the case or tends to make the fact at issue more or less probable." Commonwealth v. Davenport, 462 Pa. 543, 555, 342 A.2d 67, 72 (1975). See
[ 345 Pa. Super. Page 461]
also: Commonwealth v. Dennis, 313 Pa. Super. 415, 422, 460 A.2d 255, 258-259 (1983).
To understand the nature and significance of appellant's alibi defense, reference to the facts is necessary. Thomas Nauman and Linda Frye were not strangers. They had been dating for more than a month and had frequently engaged in sexual intercourse. On some of these occasions, according to the evidence, they had engaged in games of bondage, during which Linda agreed to be bound and appellant, while Linda was tied up, engaged in sexual acts with her. During this period and on various occasions, appellant gave Linda money in varying amounts. On the evening of June 6, ...