Appeal from the Order of the Superior Court Entered on January 5, 1987 at No. 1953, Philadelphia, 1983, Reversing the Orders of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Entered at Nos. 0082-0087, April Term, 1982, on October 27, 1982.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Leonard Deutchman, Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Jeffrey P. Shender, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Zappala, J., dissents and would affirm on the basis of the Memorandum Opinion of the Superior Court.
The Commonwealth of Pennsylvania, Appellant, appeals by allowance from an Order of the Superior Court, 363 Pa. Super. 641, 522 A.2d 662 (1987), which vacated, for the second time, several judgments of sentence imposed upon Appellee, Barry Patterson, and remanded the case to the Court of Common Pleas of Philadelphia County for a new
trial. This is also the second time this case comes before us for review without all of the issues presented to the Superior Court having been ruled upon. Because of our disposition of this appeal, it now becomes necessary to remand the case for a second time to the Superior Court for consideration of the remaining issues.*fn1 The issue presently before us is whether the trial court abused its discretion by denying a severance in a case where co-defendants were faced with identical rape, robbery, burglary, aggravated assault, and conspiracy charges based on the same incident and involving the same evidence, but where one co-defendant was also charged with witness intimidation.
On November 14, 1981, Appellee and his co-defendant attacked fourteen-year-old Lourdes Saldana in her North Philadelphia home after the child surprised them in a burglary. The intruders brutally beat the girl and forcibly removed her clothing. While Appellee looked on, his confederate raped the child until she passed out. The assailants then fled with a television and tape recorder.
When found, the child was comatose; her face had swelled to twice its size; her eye was blackened and swollen shut, her mouth was battered and her nose was broken. The child spent nine days in the hospital. At first she was unable to speak and suffered amnesia. Eventually she recovered enough to name Appellee, a neighbor whom she knew personally, as her assailant.
Additional evidence, in support of a separate witness intimidation charge against the co-defendant, James Reid, was offered by the victim and her mother. Both testified that the co-defendant came to the hospital on Monday, ...