219 Pa. Super. 334 | Pa. Super. Ct. | 1971
Opinion by
In February 1968, appellant Herbert Taylor was indicted on a charge of rape and assault with intent to ravish. A preliminary hearing, at which appellant was not represented by counsel, was held on January 23,
At jury trial on November 15, 3968, the prosecutrix testified that there was penetration, and she was cross-examined as to her lack of such testimony at the preliminary hearing. She insisted that she did tell the magistrate she had obeyed appellant’s order to submit, and that the stenographer “got it wrong.” No corroboration of this claim was offered. There was no medical evidence. Appellant was convicted of rape and received the maximum sentence of 20 years.
Many factors challenge the credibility of the prosecutrix’s testimony. Despite her age, she claims that at 4 a.m. on December 4 she' climbed out of her front window clad only in her nightgown and barefooted, and that at the appellant’s direction, she walked 3,y2 blocks to a weeded lot where she lay down on the ground. The defense offered evidence that there had been an inch of snow on the ground the day before, and that the temperature on the 4th ranged from 33 to 48 degrees, with an average of 41.
In Commonwealth v. Brown, 217 Pa. Superior Ct. 190, 269 A. 2d 383 (1970), despite the fact that the preliminary hearing involved antedated the constitutional requirement of counsel imposed by Coleman v. Alabama, 399 U.S. 1 (1970), this Court held that lack of counsel at the hearing created such serious potential prejudice as to warrant a new trial. In Brown, the prosecutrix had failed to identify the appellant at the preliminary hearing. Here, the prosecutrix’s hearing testimony failed to make out the corpus delicti of rape. Had counsel been present, there is a definite possibility that at least the charge of rape would have been dropped. Since appellant received the maximum sentence, the fact that he remained under indictment for the full crime clearly prejudiced him. In addition, cross-examination at the hearing might have exposed the prosecutrix’s mental confusion.
The judgment of the court below is vacated and a new trial is granted.