Com. v. Henderson

• Decision Date: 06 October 1977
• Citation: 378 A.2d 393,249 Pa.Super. 472
• Parties: COMMONWEALTH of Pennsylvania v. Robert HENDERSON, Appellant.
• Court: Pennsylvania Superior Court

Page 393

378 A.2d 393

249 Pa.Super. 472

COMMONWEALTH of Pennsylvania v. Robert HENDERSON, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 22, 1976.

Decided Oct. 6, 1977.

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Asst. Dist. Attys., Philadelphia, for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to sustain guilty verdicts on indictments charging rape, ¹ statutory rape, ² and criminal conspiracy. ³ We find the evidence sufficient and, therefore, sustain the lower court's refusal to arrest judgment. Appellant also contends that the lower court should have given a tendered instruction that mere presence at the scene of the crime and knowledge of its commission are insufficient standing alone to support a finding of appellant's complicity. ⁴ We agree and, therefore, grant a new trial.

At trial on February 18-25, 1976, the jury heard the following testimony. The prosecutrix testified that she was born on October 1, 1959, and that on the date of the alleged rape, August 26, 1975, she was 15 years old. On August 25, 1975, at approximately 9:00 p.m., she accompanied a friend named Eric to the front porch of a house about a block from her home. The house belonged to the parents of a friend, Robin. Eric, Robin, the prosecutrix, and several others smoked marijuana until approximately 12:00 midnight; then, Eric and the prosecutrix left together to go home. When they were approximately 30 yards from the prosecutrix's house, appellant and his co-defendant, Alvin Taylor, drove around the corner in appellant's car. Appellant offered her a ride, she accepted and told Eric to leave.

The prosecutrix had known Taylor casually for about 7 months, considered him a friend, and was not afraid of him. She had known appellant for two years, had dated him frequently, and admitted that she had accepted rides from him on 30 to 50 prior occasions with no particular destination in mind. She and appellant had frequently used drugs together.

The prosecutrix entered the car, and the men told her that they planned to drive to "North Philly". The prosecutrix admitted feeling "high" from smoking marijuana and stated that she could not remember any details about the ride until they approached the intersection of Chestnut and Broad Streets in downtown Philadelphia. At this point, Taylor began making threats on the life of one of the prosecutrix's friends. She became fearful and considered getting out of the car. Appellant reassured her: " . . . I really couldn't say why I had gotten afraid, but I had asked them and Robert (appellant) said if they was going to do anything, it would have been done it." Thereafter, the prosecutrix relaxed because she trusted appellant.

At approximately 1:30 a.m., Taylor, appellant, and the prosecutrix arrived at 2601 North Broad Street and entered the parking lot of the Inn Towner Motel. They walked into the lobby, proceeded past a desk clerk and a uniformed guard, and went up a short flight of stairs to a room rented to friends of Taylor and appellant. The prosecutrix admitted smoking more marijuana but insisted that she could "take care of herself." The prosecutrix's recollection of the next hour and a half was somewhat vague, but she remembers talking, watching television, and joking. She remembered that Taylor pushed the television toward the door but admitted that the door could be opened without difficulty.

The prosecutrix testified that at approximately 2:00 or 2:30 a.m., appellant said: "You can get anything you want." Then, Taylor said: "You're going to give it up." He then threatened to hurt the prosecutrix and punched her on the side of her head, knocking her to the floor. She started to fight back, but Taylor pushed her onto one of the double beds, removed her dungarees and panties, and forced her to engage in sexual intercourse for the next 25 minutes. The prosecutrix did not ask for appellant's assistance in resisting the attack, but merely watched him as he sat on the next bed "playing with his drugs.".

At the conclusion of the assault, the prosecutrix jumped from the bed, ran to the bathroom, locked the door and dressed. During the next 10 minutes, neither man attempted to pursue her. When she finished dressing, she ran from the bathroom, jumped over the television and left the room. As she left, appellant stated that he was next and that he "wanted some face". ⁵

The prosecutrix walked down the hall to the lobby, and asked the guard to summon a cab; she did not report the assault to the guard. At approximately 3:30 a.m., she arrived home, woke her mother, obtained money to pay the fare, and reported that she had been raped. Her mother called the police, who drove the prosecutrix to Philadelphia General Hospital.

The prosecutrix's mother corroborated her daughter's testimony in most respects. However, she became confused as to the year of her daughter's birth, stating alternatively that her daughter was born in 1958 or 1959. The prosecutrix's mother also acknowledged that she did not require her daughter to be in the house at any particular time during the summer months.

The Commonwealth then called various hospital personnel. The medical records' librarian could not explain why the year of the prosecutrix's birth had been crossed out and changed from 1958 to 1959, but did verify that the records and reports were those of the prosecutrix. The laboratory technician testified that smears taken from the prosecutrix's cervix, vagina, and vulva tested positively for spermatazoa, but he could not say when intercourse occurred because no tests were performed to determine the age of the spermatazoa. The examining physician testified that he performed general physical and pelvic examinations. He found no evidence of trauma, bruises, cuts, or abrasions. He reported that during the pelvic examination he could only insert one finger into the vagina without acute laceration, which indicated that there had not been a vaginal delivery of a child and that there had been no regular or recent intercourse. He testified that there was evidence of sperm on the vulva, vagina and cervical areas, but acknowledged that sperm may be present several days after intercourse.

A Philadelphia police officer testified that he responded to the prosecutrix's mother's call at about 4:30 a.m. He accompanied the prosecutrix to the hospital and subsequently took her statement. At 8:00 a.m., he drove to the Inn Towner Motel where he saw appellant's car still parked in the lot. He proceeded to the room where the assault occurred and found both men sleeping. A search of the room failed to disclose any evidence of a struggle or of drugs.

Appellant and his co-defendant called several witnesses, including the prosecutrix's neighbor Robin. She denied knowing the prosecutrix's friend Eric or knowing several of the other people who allegedly attended the marijuana party described by the prosecutrix. She denied that there had been any gathering at all at her house and claimed to have been away from home on the evening in question.

Appellant's co-defendant testified that he accompanied appellant to a friend's house in West Philadelphia and was passing through the prosecutrix's neighborhood on the way to visit friends at the Inn Towner Motel when they encountered her on the street. She asked to go with the two men after discovering that she might obtain more marijuana. He acknowledged that all day prior to the alleged assault he had been interested in having sexual intercourse, but denied communicating that desire to appellant. He admitted that he offered to have sex with the prosecutrix at the motel, but stated that they both lost interest after appellant returned to the room from the bathroom. He claimed that the prosecutrix departed angrily because they would not take her to visit friends in another room. He denied that either man had intercourse with the prosecutrix, consensually or forcibly, on the evening of August 25, or the morning of the 26th.

At the conclusion of trial, appellant tendered numerous points for charge, including the one which is the subject of this appeal: "Mere presence of (appellant) at the scene of the crime and knowledge of its commission do not make (appellant) guilty unless he promoted or aided in its commission." The court refused all of appellant's points for charge and merely charged the jury on the law generally applicable to rape, statutory rape, conspiracy, and accomplice liability. Shortly after retiring, the jury requested additional instructions on the law related to conspiracy. After the court re-read the relevant portion of its previous charge, appellant's attorney reiterated his request that the court instruct the jury that it must find more than mere presence and knowledge of the crime. The court again refused this instruction.

The jury returned a verdict of guilty of all crimes charged. After the denial of timely post-verdict motions, the court sentenced appellant to serve three concurrent terms of 2 and 1/2 to 10 years' imprisonment. This appeal followed.

Appellant first contends that the evidence was insufficient to sustain the jury verdicts because the Commonwealth failed to prove more than appellant's mere presence during the commission of the offense. When determining the sufficiency of the evidence after a verdict of guilty, we must read the record in the light most favorable to the Commonwealth. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972). We must also determine whether the evidence at trial proved the accused's guilt beyond a reasonable doubt when all of the evidence presented by the Commonwealth is accepted as true and all reasonable inferences are drawn. Commonwealth v....