Com. v. Polk

• Decision Date: 05 December 1985
• Citation: 347 Pa.Super. 265,500 A.2d 825
• Parties: COMMONWEALTH of Pennsylvania v. Alonzo POLK, Appellant. 00693 Phila. 1983
• Court: Pennsylvania Superior Court

Page 825

500 A.2d 825

347 Pa.Super. 265

COMMONWEALTH of Pennsylvania v. Alonzo POLK, Appellant.

00693 Phila. 1983

Superior Court of Pennsylvania.

Submitted May 23, 1985.

Filed Oct. 4, 1985.

Reargument Denied Dec. 5, 1985.

William P. James, Philadelphia, for appellant.

Ann A. Nevel, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, CIRILLO and HESTER, JJ.

CIRILLO, Judge:

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 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.

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 penetrated her. The victim also told her physician several days later that she had been raped. Polk claims that this inconsistency in the victim's testimony affects her credibility as a witness. However, the victim offered as a credible explanation for these inconsistencies her lack of understanding of the legal definition of "rape." She explained that it was not until she spoke with her boyfriend after the assault that she understood that even slight penetration may constitute rape and that the rapist need not have ejaculated. See 18 Pa.C.S. §§ 3101, 3121.

We find that this inconsistency in the victim's testimony is not such that would justify our setting aside the verdict as a matter of law. Cf. Smith, supra (although witness's various statements contained contradictions and some inconsistencies, testimony was not so unreliable as to justify finding that the verdict based upon it must as a matter of law be set aside, where witness offered as explanation for contradictions and inconsistencies her alleged fear of defendant). Accordingly, the trial court was justified in finding the victim's explanation credible.

Next, the appellant points to the fact that there are inconsistencies between the victim's testimony and that of Officer Borbridge. The victim testified: "He laid on me. And when he went to put it in, the pain, you know, I just threw myself on the floor and I threw him--he went along with me." Officer Borbridge, on the other hand, testified that the victim was on the floor suffering from a convulsion: "I observed a negro female lying on the floor curled up ... and she was very hysterical. She seemed to be in convulsions. She had thrown up and was babbling incoherently." Even assuming that Officer Borbridge's claim may have been medically correct, since he was not present in the room at the time the victim fell to the floor his testimony certainly does not render the victim's explanation for having been there incredible. Additionally, Officer Borbridge's theory contradicts Polk's own testimony at trial in which he claimed that the victim had "fainted" on the floor.

Another inconsistency that appellant points to is the discrepancy between the victim's account of the disagreement concerning Polk's stay in her house while she was in the hospital with the stipulation admitted into evidence. The parties agreed that, if called as a witness, the victim's boyfriend would testify that he asked the victim if she would permit Polk to stay in her house. As Polk did not offer to prove that she agreed to the request, her testimony that she fought with Polk on learning that he was in her home without her permission is uncontradicted.

Finally, appellant alleges certain gaps in the evidence which require that the verdict be rejected. First, he claims that there was no evidence to corroborate the victim's testimony. However, Officer Borbridge's testimony does corroborate the victim's testimony as to the portion of the incident that he observed. Moreover, Officer Borbridge testified that he found the victim with her panties pulled down around her knees and her dress and slip pulled up. This testimony provides circumstantial evidence that appellant raped her. Second, the appellant points to the absence of physical evidence of rape or of force or violence. However, because the victim initially referred to her attack as attempted rape, the hospital and police did not pursue the investigatory steps they would ordinarily have taken with a rape victim. Further, as the victim was recovering from a major operation and had fainted just prior to the incident, it is unlikely that the appellant would have had to use force to overcome her. See Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982) (force necessary to support a rape conviction need only be such as to establish a lack of consent; it is relative depending upon the particular circumstances). Third, the appellant claims that the victim's son, Thurmon, seemed unconcerned by what he witnessed when he entered the house. This claim is unfounded as there is nothing in the record to suggest that Thurmon was unconcerned. On the contrary, the fact that it was Thurmon who called the police and climbed through a second floor window to unlock the door justifies the conclusion that he was indeed concerned.

We are not persuaded by the appellant's argument that the verdict was against the weight of the evidence, nor are we persuaded to reject the findings of the trial judge. We find, to the contrary, that the trial judge exercised sound...