Commonwealth v. Walker

340 A.2d 858, 234 Pa. Super. 433, 1975 Pa. Super. LEXIS 1545

Opinions

Opinion by

Jacobs, J.,

Appellant, Joseph Vurlie Walker, was found guilty after a jury trial of rape,¹ statutory rape,² corrupting the morals of a minor,³ and violation of the liquor laws.⁴ These charges were based on the following facts: On May 9, 1973, the 14-year-old prosecutrix and a 15-year-old girlfriend were hitchhiking on a road outside the city of Pittsburgh. Appellant picked them up and the trio drove around for awhile. After they drank some wine and smoked some marijuana, both of which had been obtained by appellant, the girlfriend decided to go home. The prosecutrix, who had become intoxicated and sick, stayed with appellant. Appellant then took the prosecu-trix to a motel room where he engaged in sexual intercourse with her. Afterwards the prosecutrix was sent home in a taxi.

Appellant was given two 5-10 year concurrent sentences on the rape and statutory rape convictions and other shorter concurrent sentences on the two remaining convictions. On this appeal, several issues are raised which we find to be without merit.

Appellant first claims that the Commonwealth failed to prove that he was over the age of 16 at the time of the rape which is an element of the statutory rape charge. However, the prosecutrix testified that appellant told her that he was 21 years old. Although such evidence was not conclusive, it along with other facts and circumstances tended to prove that appellant was over the age of 16. See Commonwealth v. San Juan, 129 Pa. Superior Ct. 179, 195 A. 433 (1937).

Appellant next claims that the lower court erred in stopping him from cross-examining the girlfriend as to the reputation of the prosecutrix. Although the reputation of the prosecutrix may have been a relevant issue, the cross-examination of the girlfriend was not the proper time for its development. The reputation of the pro-secutrix was not covered on the direct examination of the girlfriend, and thus, these questions were not within the scope of cross-examination. Moreover, as suggested by the prosecutor at trial, appellant was free to call the girlfriend as his own witness if he wanted to question her on this issue. We find no abuse of discretion by the lower court in limiting the scope of cross-examination. See Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973).

Appellant also contends that the prosecution failed to establish a competent chain of custody as a foundation for the admission into evidence of the results of vaginal smears taken of the prosecutrix shortly after the crime which disclosed the presence of spermatazoa. At trial, the Commonwealth presented the testimony of the doctor who took the vaginal smears from the prosecutrix at the hospital. He testified that he turned them over to the emergency room nurse who put them on slides, placed them in a folder and labeled it. A police officer then testified as to the procedure followed by the police in transferring such evidence from the hospital to the crime lab. Although he did not specifically remember the case, the officer stated that the envelope containing the smears was similar to those he had delivered to the crime lab and that it was his signature that appeared on the crime lab receipt for the same envelope. A criminologist at the crime lab testified that he personally received the envelope from the officer, marked it according to the procedure used in the regular course of the crime lab’s business, tested it for the presence of spermatazoa, and found spermatazoa present. According to the law, the Com monwealth need not identify such evidence beyond all doubt. Commonwealth v. Mazarella, 279 Pa. 465, 124 A. 163 (1924). Furthermore, it is within the discretion of the trial court to admit such evidence and its genuineness is a question for the jury. Commonwealth v. Cardelli, 18 Bucks 504 (1968). We are satisfied that the chain of custody for the vaginal smears was established and that the trial court properly admitted the same into evidence.

Appellant’s final argument without questioning the sufficiency of the evidence for the rape and statutory rape convictions is that his right against double jeopardy was violated when he was sentenced on both convictions because they arose out of a single act. However, both sentences were within the statutory limits and the record discloses that no objection was entered by appellant at the sentencing hearing when he received concurrent sentences on both convictions. In Commonwealth v. Tisdale, 233 Pa. Superior Ct. 77, 334 A.2d 722 (1975), we held that a “double punishment” issue unlike a sentence that is unlawful per se can be waived by not being raised in the court below. In Commonwealth v. Rispo, 222 Pa. Superior Ct. 309, 294 A.2d 792, allocatur refused, 222 Pa. Superior Ct. xxxii (1972), the main case relied on by Tisdale, our Court concluded that “the sentences are per se lawful, each • sentence being within the prescribed limits applicable to the offense charged.” Id. at 311, 294 A.2d at 794. We are firmly convinced that the sentences in the present case are lawful per se in that they too are within the statutory limits. The only possible way to determine whether the convictions and sentences were based on one or more acts of intercourse by the appellant would be to carefully review the trial record. Because this issue was not raised in the court below, we refuse to decide its merits.⁵ Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Judgment affirmed.

Spaeth, J., concurs in the result.

Footnotes

1

. Act of Dec. 6, 1972, P.L. 1482, No. 334, §1, 18 Pa.C.S. §3121 (1973).

2

. Act of Dec. 6, 1972, P.L. 1482, No. 334, §1, 18 Pa.C.S. §3122 (1973).

3

. Act of Dec. 6, 1972, P.L. 1482, No. 334, §1, 18 Pa.C.S. §3125 (1973).

4

. Act of April 12, 1951, P.L. 90, art. IV, §493, as amended, 47 P.S. §4-493 (1969).

5

. Be it sufficient to state that we are doubtful whether the “concurrent sentence doctrine” would he applicable under the facts of the present case. In Benton v. Maryland, 395 U.S. 784 (1969), the United States Supreme Court reviewed the doctrine and found that it had been used in the past by appellate courts to avoid considering the validity of a conviction for a second crime when the court already decided that the conviction on the first crime was valid and the sentences for both crimes were concurrent. The Supreme Court went on to hold that there is “no jurisdictional bar to consideration of challenges to multiple convictions, even though concurrent sentences were imposed.” Id. at 791 (emphasis added). In the present case there is no dispute as to the validity of appellant’s convictions for rape and statutory rape, see Commonwealth v. Cox, 209 Pa. Superior Ct. 457, 228 A.2d 30, allocatur refused, 209 Pa. Superior Ct. xxxix (1967), and for this reason the “concurrent sentence doctrine” would not technically be applicable.