Commonwealth v. King

• Decision Date: 08 May 1981
• Citation: 287 Pa.Super. 105,429 A.2d 1121
• Parties: COMMONWEALTH of Pennsylvania, v. John H. KING, Appellant.
• Court: Pennsylvania Superior Court

429 A.2d 1121

287 Pa.Super. 105

COMMONWEALTH of Pennsylvania, v. John H. KING, Appellant.

Superior Court of Pennsylvania.

May 8, 1981

Argued March 6, 1980.

Daniel M. Pell, York, for appellant.

John A. Hall, Asst. Dist. Atty., Harrisburg, submitted a brief on behalf of Commonwealth, appellee.

Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.

PER CURIAM:

Appellant John H. King, was convicted of rape. Following the denial of his post trial motions, he was sentenced to a term of imprisonment of two and one-half to five years. The facts giving rise to this conviction are as follows:

Testimony established that appellant, brother-in-law to the victim Neile Murray, age eighteen, had taken Neile to her Army reserve meeting in Lancaster on the morning of July 15, 1978. Neile instructed appellant to give directions to her mother Mrs. Noreen Murray, who was to pick up Neile when the meeting ended at 4:00 p. m. At the close of the meeting, however Neile found appellant waiting for her. Instead of taking Neile directly home, appellant told Neile that her sister, appellant's wife, wanted to talk with Neile. When they arrived at appellant's home, appellant locked the door, pushed and dragged Neile around the house, threatened her with a knife, told her he loved her, choked her, hit her, and finally, forced her to engage in sexual intercourse with him. Afterwards, appellant took Neile home and told her not to reveal the rape to anyone. Neile immediately told her mother. The police were contacted, and Neile was examined at a local hospital. At trial, Neile testified to penetration and her non-consent.

Appellant's first argument alleges that the trial court erred in permitting the district attorney to ask appellant on cross-examination whether he fathered a child to another woman. Such a question, according to appellant, merited a mistrial, although no motion for mistrial was made by defense counsel. ^[1] Before addressing this issue, it is necessary to place the allegedly prejudicial question in its proper context. Appellant presented evidence of his good reputation and character by calling witnesses. During cross-examination, one of the character witnesses testified that appellant sometimes made passes at other women. Thereafter, appellant took the stand and denied that he "made passes" at other women, but merely "looked at them." On cross-examination, the district attorney then asked appellant if he had a child to another woman in order to impeach the credibility of appellant, and to contradict the evidence of good character and reputation that appellant had presented. Because it is permissible to inquire about the defendant's character and reputation once they have been placed in issue by the defendant, the district attorney's question cannot be deemed an error. See, e. g. Commonwealth v. Albert, 198 Pa.Super. 489, 182 A.2d 77 (1962); Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976). Accordingly, the trial judge cannot be faulted for permitting the district attorney to inquire whether appellant had fathered a child to another woman.

Within the context of his first argument, appellant also claims that a cautionary instruction should have been given to the jury on this point. However, since appellant did not request such an instruction, the issue is waived. See generally Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Moreover, appellant's argument is baseless since the trial judge immediately cautioned the jury that the question could only be used for the limited purpose of impeaching the credibility of appellant and could not be used to prove appellant's guilt of the crime charged.

In his second allegation of error, appellant contends that the court below erred in its application of Pennsylvania Rule of Criminal Procedure 305C(1)(a) which rule in pertinent part states:

NOTICE OF ALIBI DEFENSE: A defendant who intends to offer the defense of alibi at trial shall ... file of record notice ... specifying intention to claim such defense. Such notice shall contain ... the names and addresses of witnesses whom the defendant intends to call in support of such claim.

According to the testimony of the victim, the rape occurred between 4:00 p. m. and 5:50 p. m. in appellant's Manchester Borough home. Witnesses for appellant, however, testified that appellant was at a baseball game in the park prior to and during the commission of the crime, from about 4:00 p. m. to 5:30 p. m. In this respect, appellant was offering an alibi defense, and under these circumstances, the court below properly required disclosure of the defense witnesses pursuant to Pa.R.Crim.P. 305C(1)(a).

Appellant's third argument asserts that the verdict was against the weight of the evidence, since the credibility of the prosecutrix was questionable. It is well established that creditability is within the exclusive province of the trier of fact. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Only where the evidence is so inconsistent and unreliable, that the verdict is based upon conjecture, will the reviewing court overturn the conviction. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). Moreover, when determining a sufficiency claim, we must review the evidence and every reasonable inference drawn therefrom in the light most favorable to the verdict winner below, the Commonwealth in the present case. See Commonwealth v. Whack, supra; Commonwealth v. Illick, 266 Pa.Super. 513, 405 A.2d 937 (1979). Recognizing these two rules of appellate review, we are unpersuaded that the verdict was against the weight of the evidence. A review of the evidence given by the prosecutrix establishes that the Commonwealth met its burden of proving beyond a reasonable doubt that appellant committed the crime of rape. That the testimony of the prosecutrix went uncorroborated is of no consequence. See Crimes Code, 18 Pa.C.S. § 3106 (1980 Supp.). According to the prosecutrix, after appellant picked her up in Lancaster, he drove her to his residence, locked her in the house, assaulted her, threatened her with a knife, removed her clothes, and had forcible intercourse with her. Thus, appellant's sufficiency claim must fail.

Appellant's fourth allegation of error faults the trial court for permitting the assistant district attorney to amend the information charging attempted rape to rape. Pennsylvania Rule of Criminal Procedure 229 applied in the instant matter. According to that rule, a court has discretion to amend the information where there is a defect in the form or description of the offense. The purpose of the rule is to assure that the defendant has been apprised of the charges against him in order to allow him to prepare an adequate defense for trial. Commonwealth v. Jones, 250 Pa.Super. 471, 378 A.2d 1245 (1977).

In the case at bar, appellant knew at the time of his preliminary hearing on July 31, 1978, that he was being bound over to court on the charge of rape. ^[2] Nonetheless, the district attorney's office erred in preparation of the information and charged appellant with attempted rape. In October of 1978, defense counsel for appellant was notified by the district attorney's office that the information would be amended under Pa.R.Crim.P. 229 to state correctly the offense of rape; the record reflects that trial counsel for appellant admitted receiving notification of the amendment. Trial was subsequently scheduled for November 27, 1978. Under this set of circumstances, the trial judge did not exceed his discretion in permitting amendment of the information as appellant was completely notified of the charge of rape levied against him and had ample opportunity to prepare for trial on this charge; he was neither...