Commonwealth v. Chisena

Opinion by Ervin, J., The defendant was found guilty of assault with intent to ravish and burglary. He was found not guilty on the rape charge. After disposition of his motions for a new trial and in arrest of judgment he was sentenced. Defendant appealed. We must accept as correct the testimony submitted by the Commonwealth as well as the reasonable inferences which may properly be drawn therefrom: Com. [228] v. Nestor, 183 Pa. Superior Ct. 350, 353, 132 A. 2d 369. In the light of the verdict these are the material facts which we must accept: Prosecutrix’s husband left his home at 323 Westmont Drive, Collingdale, Delaware County, for work at 5:1Q a.m. on January 9, 1959; at 5:15 a.m. prosecutrix was awakened by a man, holding a knife some four inches from her, and shaking her awake; as the intruder leaned over her, she saw the shape of his face, his coloring, his build and later discovered he was wearing a leather jacket; the only light in the room was reflected from a clock radio located near the bed; her little boy, four years of age, had climbed into his parents’ bed during the night; the intruder told her not to scream and to keep the boy quiet or he would kill; he ordered her out of bed and downstairs, he asked for money and was told there was none ; in the living room she saw a flashlight for the first time, it was on and shining on the floor; the intruder told her to sit in a chair, then took her by the shoulder and pushed her down; he exposed himself indecently to her, talked to himself and rambled on saying filthy words; he asked her to do an indecent act and when she refused he threw her on the floor, just before that he pulled her nightgown off her; he placed the lighted flashlight near her left hip and positioned himself on top of her, between her legs; she tried to hold him off, pushing his chest, she was aware of his leather jacket; the flashlight was off at that time; suddenly he jumped up again, asked her if she had any money, told her not to dare call the cops, and ran down the cellar; the next thing she knew her little boy was in her arms, he had been coming down the steps; she ran upstairs, grabbed the baby’s rifle and used it to bang on the wall; she recalls yelling that someone was in the house with a knife trying to kill her baby; the next door family corroborated this testimony of her pounding on the party wall, [229] The appellant argues that this evidence was insufficient to sustain a conviction. His principal argument in this connection is that there was not sufficient time for defendant to have done the acts which prosecutrix says he did. Her testimony was that she was awakened at 5:15 a.m. by the defendant and that it was 5:25 a.m. when she pounded on the wall to awaken the neighbors. At this time the defendant had left the house. Appellant argues that this would allow only five or six minutes to do what prosecutrix says he did. Eight or nine minutes would be more nearly the time between the time Avhen prosecutrix was first aAvakened and the time Avhen defendant left her on the first floor. In our judgment the acts could have been done in that period of time. Appellant also argues that the identification evidence was weak. Prosecutrix testified that the light from her clock radio was sufficient to enable her to vieAV the intruder’s face, his coloring and his build. She srav his face again in the living room when he placed the lighted flashlight near her hip. The intruder talked to her. On the afternoon of the incident she identified him in the home of a neighbor. Later she had an opportunity to identify him at the Court House. She gave the details to the officer when she ansAvered: “Well, his shape face in general, his nose and his chin; . . . and even to the coloring, I could see the coloring of his face where the light hit it.” She also identified the defendant by his voice. Under this evidence the question of identification was clearly for the jury. The court’s charge on alibi was in accord with Com. v. Bonomo, 396 Pa. 222, 151 A. 2d 441, and was without error. The credibility of the alibi evidence Avas also for the jury. Appellant has also raised several additional questions which Ave deem it unnecessary to answer for the [230] reason that they were never raised in the court below. We have carefully reviewed the entire record and we are convinced that the appellant received a fair trial and one that was free from error. Judgment of sentence affirmed.