Commonwealth v. Chance

• Court: Pennsylvania Superior Court
• Writing for the Court: Author: Mcewen
• Citation: Commonwealth v. Chance, 458 A.2d 1371, 312 Pa.Super. 435 (Pa. Super. Ct. 1983)
• Decision Date: 08 April 1983
• Parties: COMMONWEALTH of Pennsylvania v. Norman D. CHANCE, Appellant.

458 A.2d 1371

312 Pa.Super. 435

COMMONWEALTH of Pennsylvania v. Norman D. CHANCE, Appellant.

Superior Court of Pennsylvania.

April 8, 1983

Submitted June 3, 1981

Timothy J. Gorbey, Media, for appellant.

Frank T. Hazel, Dist. Atty., Media, for Commonwealth appellee.

Before ROWLEY, McEWEN and MONTEMURO, JJ.

McEWEN Judge:

Appellant was found guilty by a jury of criminal attempt to commit rape possession of an instrument of crime, generally, possession of firearms without a license, crimes committed with firearms, and two counts each of aggravated assault, simple assault, terroristic threats and recklessly endangering another person. Judgment was arrested on the jury verdicts of guilty as to the charges of recklessly endangering another person and possession of firearms without a license. Appellant was sentenced to a term of imprisonment of from five to ten years for the criminal attempt to commit rape to be served concurrently with consecutive sentences of from two and one-half to five years imprisonment imposed on the two counts of aggravated assault and from two and one-half to five years imprisonment on two counts of terroristic threats. Since sentence was suspended on all remaining charges the total term of imprisonment was five to ten years. This appeal followed. We affirm the judgment of sentence with modification.

On a December evening at approximately 10:45 p.m. a young man and his girl friend were parked in an automobile in a field adjacent to Township Line Road in Upper Chichester Township, Delaware County. The two were embracing when the passenger door of the vehicle was forced open by appellant who wore a camouflage mask and wielded a .22 calibre pistol. Appellant pointed the gun at the young woman who was partially disrobed, and ordered both of them to remain still. Appellant then tied the man's hands behind his back and ordered him to move to the rear seat of the vehicle. At this time, the woman, still partially undressed, opened the driver's door and ran from the vehicle. Appellant pursued her, grabbed her by the back of the neck and dragged her back toward the car. In an attempt to prevent the appellant from returning her to the car, she sat on the ground; when appellant put the gun to her head, he was finally successful in dragging her back to the car where he ordered her to lay on her "belly" in her partially nude condition. When appellant placed the gun at her head because she refused to comply, she informed appellant that she would rather be shot than raped, and began to struggle with him. During her struggle with appellant, the woman sustained an injury to her hand as a result of an effort to shield her head from a blow with the gun, and succeeded in removing the mask of appellant. The young man had been able in the meantime to untie his hands and joined the woman in the struggle. As he struggled with appellant for the weapon, he heard the weapon click several times before eventually wresting it from appellant. Appellant fled the scene after his repeated pleas to return the weapon were ignored. The young man testified he had been able to clearly observe appellant for a period of approximately ten minutes during the incident.

Appellant was found later that same evening, several miles away, by employees of a store in a Delaware mall, sprawled partly in and partly out of his vehicle in the mall parking lot. When appellant was taken to a hospital for treatment of injuries he claimed that he had been attacked in the parking lot by a robber who placed a gun at his back and struck him about the head and face. The police officer assigned to investigate the robbery observed a number of scratches and marks on the face of appellant. Several days after he was released from the hospital, appellant informed the Delaware State Police that his alleged assailant matched a newspaper description of the individual who had assaulted a couple in Upper Chichester Township the same evening. Appellant, at the request of the investigator, voluntarily went to the Delaware State Police Barracks where he was photographed to document his injuries. When the detective subsequently displayed the photograph of appellant and eight others to the young man, he identified appellant as the assailant. As a result, appellant was arrested and charged with aggravated assault, simple assault, recklessly endangering another person, terroristic threats, criminal attempt to commit rape, possessing instruments of crime, firearms not to be carried without a license and crimes committed with a firearm. This appeal follows the return by a jury of guilty verdicts on all charges, the disposition of post-trial motions and the imposition of sentence.

Appellant initially raises the issue of the validity of the informations which contain the rubber stamp facsimile of the signature of the District Attorney. He argues that the informations are void because they were not signed by the District Attorney in accordance with Pa.R.Crim.P. 225(b) and, therefore, that all charges against him should be dismissed. While appellant raised this argument in his post-trial motions, he failed to raise the issue in his omnibus pre-trial motion. We recently held in a consolidated appeal addressing the rubber stamp issue that the failure of a defendant to file a pre-trial motion to quash the informations pursuant to Pa.R.Crim.P. 306 resulted in a waiver of the issue on appeal. Commonwealth v. Veneri and Commonwealth v. Thomas, 306 Pa.Super. 396, ---, 452 A.2d 784, 788 (1982). We held there that "the signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash. Pa.R.Crim.P. 306". Id. Therefore, we conclude that appellant, by failing to raise the validity of the rubber stamp information in a pre-trial motion, has waived this issue.

Appellant next contends that the evidence was insufficient to sustain his convictions of attempted rape, aggravated assault, terroristic threats and crimes committed with firearms. We shall address these contentions seriatim.

The Supreme Court recently stated in Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981):

The well-established test for reviewing the sufficiency of the evidence is:

'[w]hether, accepting as true all the evidence and all [the] reasonable inferences therefrom upon which if believed the [finder of fact] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted.' Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the [witness'] testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170 at 174, 242 A.2d 237 at 240.

Commonwealth v. Taylor, 461 Pa. 557, 560, 337 A.2d 545, 546 (1975), quoting Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974).

Appellant contends that the testimony of the victims fails to reveal any evidence which would indicate that the appellant had an intention to commit the crime of rape. While we are aware that appellant did not, himself, remove any of the female victim's clothing or succeed in touching her private parts, or complete any act which would suggest that he intended to remove his own clothing, we, nevertheless, believe that there was sufficient evidence presented to sustain his conviction of criminal attempt to commit rape. The Crimes Code defines criminal attempt as follows:

Section 901. Criminal Attempt

(a) Definition of Attempt. A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

18 Pa.C.S.A. § 901(a).

The elements of the crime of attempt are, thus, (1) an intent to commit a specific crime; and (2) any act constituting a substantial step toward the commission of that crime. Commonwealth v. Fierst, 257 Pa.Super. 440, 390 A.2d 1318 (1978). We stated, in Commonwealth v. Gilliam, 273 Pa.Super. 586, 589-590, 417 A.2d 1203, 1205 (1980) that:

[t]he substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before the actual commission of the crime.

The assertion of the appellant that the facts do not indicate an intent on his part to commit rape overlooks the established law of this Commonwealth that such an intent may be inferred from the actions of the defendant in light of all attendant circumstances. Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1971); Commonwealth v. White, 229 Pa.Super. 280, 323 A.2d 757 (1974). We believe that the facts outlined establish a more than sufficient basis to have allowed the jury to infer that the appellant intended to rape the woman and that these acts were clearly sufficient to constitute the substantial step toward the commission of the crime. The goal oriented nature and sequence of the actions of appellant confirm this conclusion. The primary interest of appellant, as evidenced by his overt behavior throughout the incident, was directed toward the partially nude young woman. The only interest of appellant in the male victim was to restrain him so as to prevent him from aiding the woman. Only the resistance of the young woman, together with that of her companion, forestalled the criminal aim of appellant. We conclude that the evidence was sufficient to allow the jury to infer that appellant intended to commit rape. See 18 Pa.C.S.A. § 3101.

Appella...