Com. v. Ford

• Decision Date: 16 November 1960
• Citation: 193 Pa.Super. 588,165 A.2d 113
• Parties: COMMONWEALTH of Pennsylvania v. Clarence FORD, Appellant.
• Court: Pennsylvania Superior Court

Page 113

165 A.2d 113

193 Pa.Super. 588

COMMONWEALTH of Pennsylvania v. Clarence FORD, Appellant.

Superior Court of Pennsylvania.

Nov. 16, 1960.

Application for Allocatur Denied Dec. 28, 1960.

Lawrence Goldberg, Philadelphia, for appellant.

Domenick Vitullo, Asst. Dist. Atty., Paul M. Chalfin, First Asst. Dist. Atty., Victor H. Blanc, Dist. Atty., Philadelphia, for appellee.

Before GUNTHER, Acting P. J., and WRIGHT, WOODSIDE, ERVIN, WATKINS and MONTGOMERY, JJ.

WOODSIDE, Judge.

Clarence Ford took this appeal from a sentence for rape imposed after a jury had found him guilty, and the court below had dismissed his motions for a new trial and in arrest of judgment. Three other defendants (Terry, Carter and Morris) were tried and convicted at the same time, but only Ford appealed. The appellant is pressing only his motion for a new trial.

The evidence shows that Diane, a twenty year old college junior, left her home in West Philadelphia at 9:30 o'clock New Year's Eve intending to join a girl friend in Germantown. At the intersection of Vine and Edgewood Streets, she was grabbed from behind by a man who placed his hand over her mouth and forced her into the front seat of an automobile driven by a man later identified as Terry. A man, later identified as Ford, sat on the other side of her. Two men, later identified as Morris and Carter, were in the back seat. The car was driven to a lonely dirt road in the vicinity of the Philadelphia Airport. There the car was parked, and the girl's arms and leg were held in turns by two of the defendants while each of the four had intercourse with her against her will. She screamed and blew the car's horn several times on the way to the scene and while there, until she became fearful of the defendants' threats of violence. While returning to West Philadelphia, Ford urged her not to tell any person as it would only make her friends 'look down' on her. Prior to being taken into the car she did not know any of the defendants.

Upon being released by the defendants, she went immediately to her friend's home in Germantown, and told what had happened. She was taken to the hospital, and her parents and the police were called. An examination made at the Philadelphia General Hospital showed sperm cells present in her person. A few days later Terry and Ford were taken into custody and positively identified by Diane at a police lineup of five men. Later the other two were arrested and identified.

At the trial Diane identified the defendants as her assailants. Terry testified that Ford, Carter, Morris and he picked up Diane and had intercourse with her but contended that it was consensual. Carter, Ford's cousin, testified that he was too drunk and sick that night to know what happened. Morris testified that he, Carter, Terry and another man had intercourse with the girl, but said she agreed to it. He testified that he did not know the fourth person who accompanied them, but that it was not Ford. ¹ The appellant did not testify, but attempted to establish an alibi by witnesses whom the jury evidently did not believe.

The appellant and the other three defendants were indicted for rape on another girl later the same night. At the request of the defendants, the trials on the two indictments were separated.

The appellant advances seven reasons why he should be granted a new trial. None has merit.

First, he objects to the presence at his trial of the other girl whom the defendants allegedly raped the same night that they raped Diane. He says references were made to the other charge against the defendants. All such 'references' were insignificant, as, for example, the following question by the district attorney of which appellant complains: 'Limiting yourself to the occurrence which we have before us here--that is the affair involving Diane * * *.' The other girl, for whose rape the four defendants were indicted, was called as a witness and asked only whether she saw the appellant the night of the alleged rape of Diane and whether he called himself 'Johnnie'. (Diane had said Ford called himself 'Johnnie', and his witnesses had testified that they never knew him to use that name.) The appellant thinks it was error to permit the other alleged victim to testify. He was fortunate that the Commonwealth limited its interrogation of her to this. See Commonwealth v. Ransom, 1951, 169 Pa.Super. 306, 82 A.2d 547; Commonwealth v. Williams, 1932, 307 Pa. 134, 148, 160 A. 602; Commonwealth v. Brooks, 1947, 355 Pa. 551, 50 A.2d 325.

The appellant's second and third points involve his failure to deny his guilt when accused at the police station by Diane of being one of those who raped her, and when read Terry's statement which said that the appellant had intercourse with Diane that night.

In Commonwealth v. Vallone, 1943, 347 Pa. 419, on page 421, 32 A.2d 889, on page 890, the court said: 'The rule of evidence is well established that, when a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made.' This has been recognized as the law in the recent cases of Commonwealth ex rel. Stevens v. Myers, 1959, 398 Pa. 23, 25, 156 A.2d 527; Commonwealth v. Bolish, 1955, 381 Pa. 500, 523, 113 A.2d 464; Commonwealth v. Markwich, 1955, 178 Pa.Super. 169, 173, 113 A.2d 323.

If the accused person claims his privilege against self-incrimination when he is faced with incriminating statements, his failure to deny such statements cannot be taken as an implied admission of their truth. Whether the failure to deny the incriminating statements was the result of a claim against self-incrimination can become a question of fact for the jury. Commonwealth v. Towber, 1959, 190 Pa.Super. 93, 96, 97, 152 A.2d 917.

The appellant contends that the Vallone rule was applied to his failure to deny his guilt at the police station after he had claimed his constitutional privilege against self-incrimination. It appears that Ford was advised of his constitutional rights by a police officer and by his boxing manager who was secretary to a lawyer, and later by his counsel. The Commonwealth argues that he made no claim against self-incrimination until after the identification and the reading of Terry's statement to him. For reasons hereafter stated, we do not consider it necessary to determine the time when the claim against self-incrimination was made.

The record shows that Diane identified the appellant and Terry at the police station. A police officer testified that when she did so, 'The defendant Ford made no statement,' but 'The defendant Terry I believe at that time denied it but then he later admitted being part of this particular occurrence--being there on the scene.' Terry later gave a statement, reduced to writing, admitting intercourse with the girl and involving Ford. The jury was warned numerous times that this statement could be used only against Terry. The officer testified that 'Terry's statement was read to Ford--' but was stopped by objection from Ford's counsel. Later when asked, 'What did...