*1 ence the in arrest of judgment motion added the simply Com- See ground. of evidence as an additional insufficiency Jackson, monwealth v. n. 3. supra judgment The defendant’s motion arrest of on the basis of the record error was proper. appropriate Dale, is discharge. Commonwealth v. remedy A.2d Affirmed. Pennsylvania
COMMONWEALTH of NABRIED, Jr., Appellant. Dennis Superior Court of Pennsylvania.
Submitted March 1978. Decided March *2 Merriweather, for Philadelphia, appellant. Ronald B. Philadelphia, Henson, Attorney, Assistant District Eric B. Commonwealth, appellee. CERCONE, HOFFMAN, JACOBS, J., and P. Before HESTER, VOORT, JJ. SPAETH PRICE, VAN der PRICE, Judge: was found after a guilty non-jury trial (count 961) No.
statutory rape1 of a minor2 (count No. 962).3 motions, After denial post-trial appel- lant was sentenced to 9 to 23 months on the statutory rape charge and 2 years probation conviction, on the corruption run consecutive to the sentence This statutory rape. followed, and no merit to appellant’s argu- ments, we affirm the judgments sentence.
Appellant, a teacher in a junior school in the high Phila- District, delphia School arranged a meeting the victim of this victim, occurrence. The a 13 year old female student assigned classes, several of appellant’s agreed meeting voluntarily entered appellant’s automobile on an afternoon the close of following the school day. Appel- *3 lant drove this minor where, female to his apartment, after the removed, female’s clothing intercourse place. took
This court is in unanimous agreement on questions raised on this appeal, except for the question challenging the information on the Therefore, of a minor. that portion of the dissenting opinion the affirming conviction and judgment of sentence on the rape count is statutory adopted as the majority opinion. the challenges information at No. 962 in that
the Commonwealth failed to that prove appellant “did re- move the clothing the minor.”4 indictments,
Pa.R.Crim.P. 213 on and Pa.R.Crim.P. 225 informations, with dealing there require that be set forth a clear statement of the essential elements of the offense. 1. 18 Pa.C.S. 3122. §
2. 18 Pa.C.S. § Appeal
3. The Notice of
contains
961. The
count No.
below and
brief
no
treat both counts. There is
excuse for
will,
type.
however,
covering
an error of this
We
treat the
as
both counts.
clothing
4. The information reads:
remove the
“ACT —did
minor.”
accepted
with
law of
long
This
the
requirement
keeping
must have notice of
this Commonwealth that a defendant
to
or
the
he will be
meet. The indictment
expected
charge
compass
charge.
information is the star and
criminal
Simione,
v.
(1972);
Pa.
Commonwealth
Petrillo,
v.
Commonwealth
(1940);
338 Pa.
Commonwealth v.
252,
Appellant urges clothing, minor her the Com- lishes that the removed own the not conform to proof charge, monwealth’s does relies, dissent, upon therefore must fail. He does Lambert, A.2d 300 (1973). Lambert hypertechnical is not to be read in such a furnishing manner. There the minor charge that dangerous drugs, proved only the Commonwealth minor. No evidence was offered to pills given six were in the We drug the nature contained pills. a vital link was in that proof missing there held that pills that contained Commonwealth failed to be had dismissed. dangerous drugs, Lambert on this cry presented is a far from the situation appeal. of her clothing victim’s removal
follows: off, happened? the car what
“Q. After he turned he me to—did I want A. He came back in. And asked take off. off I want him to them take clothes or did my *4 him? Q. What did you say just I I took own clothes my A. didn’t So say nothing. off.”
(N.T. 25-26). in the situation earlier a 13 old placed year
Appellant in being of the for purpose described. There no doubt minor a gave then the appellant’s apartment. off, do choice, clothes or I will your “You take simply, very same; event, clothing was the the it.” In the result either was accomplished of the minor was removed. The removal and acts of That the instigation appellant. the through movement of removal was done by young actual physical factor. The information is female is not the determinative with force charged being moving clear that appellant We clothing. say that about the removal of the brought the contents of this is a far from failure to again, cry prove drugs. six pills dangerous
As the below its says “It is not that the information set out all facts required the defendant’s conduct and the circumstances concerning at the time incident. Commonwealth existing Schell, The court must consider the Montg. in the context in which it is to have occurred. alleged act of alleged, clothing The act removal of presently minor, sexual inter- part having the act of subject the minor. Both acts were the course with informations offenses to the same crimi- charging relating Where, here, did not nal incident. that the minor’s was removed the de- clothing by fendant, had but did in fact place sexual minor at the time and intercourse such was sufficient to convict the defendant alleged, proof of Minors as stated Corruption Moreover, information. the information was sufficient to charges notice of the nature of the give the defendant him.” against
We agree. of sentence affirmed. Judgments J., VOORT, files a which dissenting opinion VAN der HESTER, J., joins. HOFFMAN, J.,
JACOBS, President did Judge, former this not in the consideration or decision of case. participate VOORT, Judge, dissenting: VAN der This is an defendant from convictions appeal by 1977) statutory rape (# January, sentencing *5 424 The trial took 1977).1 (# January, of minor Philadelphia Prattis of the Common Judge before
place asks that both without Defendant jury. Pleas Court because: convictions be reversed 7, 1977, on March over defend- permitted, 1. The court date of the changing an amendment objection, ant’s 13, 12, 1975 to February offenses from November alleged 1976; guilt beyond insufficient evidence to prove
2. There was doubt; a reasonable to base his persuaded The trial judge improperly a lack of evidence of motive or reason
verdict on complainant. adequately The lower court answered in its argument first information must state the charges a bill of
“Generally, give with such as to him certainty against substance, place alleged fair notice of the time and manner of intelligent him in an offense and to inform upon which he has been called nature of the accusations Wolfe, v. 415, Commonwealth answer. 153 (1972). the court under long standing It is axiomatic and of of Title 19 P.C.S.A. authority §§ [P.S.] of information to correct mere formal amend bills may time, and value if the amendment place, defects such as case, to the merits of the and the defendant not material v. Myers, Commonwealth thereby. is not prejudiced (1966). Lebanon 327 Additionally, question permit- an for the sound discretion ting primarily amendment will court, the trial and the action of the trial court be abuse of discretion. reversed for a manifest only clearly Ballow, appeal refers at however the 1. The notice of appeal covering Judge’s Opinion both 961 Trial and 962. treats charges. covering We will treat both therefore issue requested amendment *6 presently by time of Commonwealth at trial and related to the date stated on information which the incident was have An to is alleged to occurred. amendment as time However, material in this case. prejudice there no the defendant since the granted the defendant a 30 day continuance to his prepare defense consistent with the amendment. aforementioned,
Based on the trial court finds no error in its permitting Commonwealth to amend bills of information.”
The majority the members our agreement court are in appellant’s argument first is without merit. third
Appellant’s argument refers to a comment by made the trial judge just defendant before the judge announced his verdict. The remark of no legal signifi- cance. A reading testimony entire leaves no reasona- ble doubt as to appellant’s guilt.
With second respect argument, we adopt the following portion the trial court’s
“Finally, alleges defendant that the trial court erred evidence sufficient to prove guilty doubt, a beyond reasonable because of the follow ing:
‘a) The lack of prompt complaint; a
b)
admission(s)
by
complaint that she lied on
matter;
several occasions concerning this
c) The numerous testimonial inconsistencies, especially
those relating to the date of the alleged offense.’
In
a
evaluating
evidence,
claim of
insufficiency
test
whether,
accepting
evidence,
true
direct and
circumstantial, and all reasonable inferences arising there-
from, such
evidence
inferences are
sufficient
law to
prove guilt
reasonable
beyond
doubt. Commonwealth v.
Waters,
463 Pa.
Historically, sexual involving in cases authority the trial by considered However, statutory rape, in the case of offenses.1 i #53, 1976, contra, 18 P.C.S.A. § Act Cf. was not rele the crime in reporting of the victim
delay
v. Brad
credibility. Commonwealth
determining
vant in
and Com
(1964);
468,
When was no error therefrom, court concludes there arising reasonable a guilty beyond doubt.” on respect from the one majority
I differ I would reverse the Cor- argument: of evidence sufficiency for that The indictment of Minor conviction. ruption the clothing remove following: “ACT—did recites only on this point evidence offered of the minor.” The defendant, she, removed not the of the minor that the defend- indictment specified her clothes. Had the or to engage minor to remove her clothes persuaded ant found no behavior, I would have or lewd in intercourse dissent is My grounded with this point. difficulty led a fact which it had failure to Commonwealth’s in order to obtain it would to believe appellant flaw, I would reverse of this important conviction. Because of Minor conviction. See Commonwealth the Corruption Lambert,
HESTER, J., dissenting opinion. in this joins