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COMMONWEALTH v. MCKINLEY (06/18/56)

June 18, 1956

COMMONWEALTH
v.
MCKINLEY, APPELLANT.



Appeal, No. 42, April T., 1956, from judgment of sentence of Court of Quarter Sessions of Cambria County, Dec. T., 1954, No. 60, in case of Commonwealth of Pennsylvania v. Richard S. McKinley. Judgment affirmed.

COUNSEL

Hymen Schlesinger, for appellant.

Fremont J. McKenrick, Assistant District Attorney, with him David C. Wolfe,, district Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Ervin

[ 181 Pa. Super. Page 612]

OPINION BY ERVIN, J.

This is an appeal from the judgment of sentence of the Court of Quarter Sessions of Cambria County.

The defendant was arrested and charged with indecent assault upon a seven-year-old girl. He was indicted, tried by a jury and found guilty though the jury recommended leniency. Defendant's demurrer to the evidence was overruled. Motions for new trial and in arrest of judgment were refused and defendant was sentenced to undergo imprisonment in the Cambria County jail for a period of not less than six months nor more than one year. This appeal followed.

[ 181 Pa. Super. Page 613]

The testimony discloses that shortly after 12:30 o'clock in the afternoon of October 12, 1954, Columbus Day, the child involved in this case, whom we shall refer to as Karen, accompanied her brother to the Chandler School where he attended afternoon classes. After her brother had gone into the school building Karen began playing around the fire escape. Karen testified that the defendant told her to get down from the fire escape because she might fall. She also testified that, at the time, the defendant and three other men were washing windows. After the defendant finished washing windows Karen testified that he went into the school building and she "followed him in." She stated they went through several doorways and rooms until they were in a little basement room containing a toilet. She testified the defendant asked her if she was ticklish, to which she replied "Yes." The defendant then picked her up and put her back down. They then went through a kitchen into another room where she testified the defendant, after stating he would give her fifty cents, committed the criminal act. She also testified that the defendant gave her fifteen cents and they both then left the school building. Karen, on her way home, stopped at a candy store and bought some candy, then stopped at a girl friend's house and later went on home and told her mother of her experience.

The defendant denied the charge and took the stand in his own defense. He testified he was receiving public assistance and was assigned to the Chandler School washing windows and doing other odd jobs. He stated that about 1:00 o'clock p.m., while washing windows, he noticed Karen underneath the fire escape and warned her to stay away before she got hurt. He stated that he took a ladder into the school building and that when he went into the school, he noticed Karen standing

[ 181 Pa. Super. Page 614]

    in the hallway and told her to leave. He testified it only took him a few minutes to put the ladder away and that the child did not follow him into the room. He also denied he ever had a conversation with the girl or that he ever offered her any money. He further stated that when he was ready to leave ...


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