Opinion by
Gеorge Capps, defendant-appellant, a married man aged twenty-two years, was convicted by a jury of mur
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der in tbe first degree, with penalty fixed at death, for the rape and killing of Marta Gibbons, a fifteen year old school girl, on the night of January 22, 1954, at an isolated location near Curtis Lake, Palls Township, Bucks County. The Commonwealth contends that the killing was either wilful, deliberate and premeditated, or in the perpetration of a common law forcible rape, or both. As in
Commonwealth v. Prenni,
Counsel for defendant frankly conceded at the argument that the crime of murder in the first degree had been proved by the Commonwealth. Counsel, however, relies upon alleged trial errors in the hope to securе a new trial, wherein defendant might be able to induce another jury to fix the penalty at life instead of death which this jury imposed.
Before reviewing alleged trial errors, the question of murder in the perpetration or attempted pеrpetration of rape, statutory or at common law, must be considered. The charge of the learned trial Judge was more favorable to defendant than he was entitled to receive. In
Commonwealth v. Neill,
Section 721 of the Code defines rape: “Whoever has unlawful carnal knowledge of a woman, forcibly and against her will, or whoever, being of thе age of sixteen (16) years and upwards, unlawfully and carnally knows and abuses any woman child under the age of sixteen (16) years with or without her consent, is guilty of rape, a felony, . . .”
In
Commonwealth v. Maloney,
In section 701 of the Code “rape” is included in the same sentence as burglary. It necessarily follows that the definition of rape in Section 721 is to be used in all sections of the Act, and this definition includes statutory rape.
There was abundant evidence of a circumstantial nature to permit a jury to find that forcible rape was in fact committed by this defendant. But such evidence fades in significanсe because defendant admits he had intercourse with deceased, a fifteen year old child, and under the Penal Code this constitutes rape, whether the act was with or without her consent. The fact that intercourse had oсcurred was clearly established by medical testimony. By overwhelming evidence the Commonwealth proved not only that the *77 killing was wilful, deliberate and premeditated, but was done in the perpetration of statutory rape, and probably through force and against the victim’s consent.
The first alleged trial error is the refusal of the court below to grant defendant’s requests for continuance and change of venue. At the request of defendant’s counsel the trial fixed during the week of March 22, 1954, was continued until April 26, a period of three months after date of the killing. The learned trial Judge ruled that the newspaper stories were not so inflammatory and biased in factual presentation as to causе, or be evidence of, public prejudice or hysteria. The granting, or refusing, of a change of venue or continuance, is within the sound discretion of the trial court:
Commonwealth v.
Simmons,
It is also contended that upon defendant’s arrest, and prior to his written statement, or admission, his request for counsel was denied. The statement or admission consisted of five single-spaced typewritten pages, which defendant dictated, and which he read, signed and swore to. Significantly enough, such statement was admitted into evidence without objection. Defendant did not claim in his testimony at the trial that the stаtements were coerced by threats, force or violence. He testified that he stated to the police he desired to consult with a lawyer and a priest. Officers present testified that he did
not
so request the services of a lawyer, but did ask for a priest, whom they endeavored to secure. The learned trial Judge submitted this factual issue to the jury with instructions that if they found the statement had been obtained by oppressive, coercive, illegal or unconstitu
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tional methods, it should be disregarded:
Commonwealth v. Johnson,
Defendant contends that the admission into evidence of photographs and clothing was detrimental to him. Certain of the photographs and articles of clothing of the deceased were admitted into evidence without objeсtion, and others, over objection. By repeated decisions of this Court, it has long been held that photographs and clothing may be offered in evidence where offered for a specific purpose. As Chief Justice Horаce Steen (then Justice) said, in
Commonwealth v. Simmons,
It is clear that the exhibits were properly admitted. We need not go into the gruesome details of this killing. The pictures of the half nude body and the clothing, some bloody, were relevant as to the circumstances connected with the charge of a forcible rape. Much has been argued about the pictures taken in the morgue showing the gunshot wound which caused the death. There is nothing in the photograph to indicate that it was taken in the morgue. The ballistic expert did not see the body, but testified from the photograph *79 alone, that the gun was placed close to the head of the victim when fired. From this photograph it was shown that there were no powder marks visible on the head, due to the fact, as testified by the defendant, that defendant had fired the gun after he had muffled it with a sweater. We see no error in the admission of these еxhibits.
Defendant complains of the refusal of the court to order the District Attorney to deliver reports of experts. The court ordered the District Attorney to permit defense attorneys to inspect certain reports, such as those respecting autopsy, defendant’s statement, etc. The court refused, however, to direct the District Attorney to reveal the contents of a report of the investigation by the Pennsylvania State Police. This report hаd to do with the finding of a police ballistics expert. Since defendant admitted that he shot and killed the victim, it is wholly immaterial that there might have been other unexploded cartridges in the revolver. This contention is wholly without merit.
The court refused to withdraw a juror after certain alleged inflammatory and prejudicial remarks made by the District Attorney when addressing the jury. The District Attorney questioned the veracity of defendant, which under this testimony is quite understandable. He referred to the long, technical, hypothetical questions propounded to the psychiatric expert as “loaded”; he also posed the question to the jury: “what do you do with a mad dog?” At the direction of the court, the closing address of thе District Attorney was transcribed and made part of the record. We have carefully read and considered the address. As the trial court accurately said “when the nature of the defense is taken into consideration, we cаnnot say that these remarks were prejudicial error.” It is solely within the
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discretion of the trial Judge to order the withdrawal of a juror on the ground that the remarks of counsel were improper and materially detrimental to the fair trial оf the case:
Commonwealth v. Crittenton,
We have carefully reviewed the record in this case and find no reason for setting aside the verdict. Defendant received an eminently fair trial and enjoyed the benefit of representation by able counsel.
Judgment and sentence affirmed.