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COMMONWEALTH v. BOWERS (12/28/56)

December 28, 1956

COMMONWEALTH
v.
BOWERS, APPELLANT.



Appeal, No. 27, March T., 1957, from judgment of Court of Oyer and Terminer of Dauphin County, Sept. T., 1955, No. 7, in case of Commonwealth of Pennsylvania v. William Taylor Bowers. Judgment affirmed.

COUNSEL

Joseph J. Laws, with him Thomas H. Lane, and Lane & Laws, for appellant.

William H. Saye, Assistant District Attorney, with him Huette F. Dowling, District Attorney, for appellee.

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

Author: Hirt

[ 182 Pa. Super. Page 630]

OPINION BY HIRT, J.

The defendant has appealed from the refusal of a new trial following his conviction of statutory rape, the felony defined by § 721 of the Act of June 24, 1939, P.L. 872, 18 PS § 4721. The girl involved was Mary Eleanor Crews, 14 years of age who lived with her mother and her stepfather, the defendant. In the late morning of August 8, 1955, the child was taken to Harrisburg from their home in Hummelstown by the defendant in his car. The purpose of the trip was to have the child's eyes examined by an oculist. The doctor was unable to see the child then but made an appointment for a later date. Instead of returning to Hummelstown the defendant drove his Mercury Station Wagon to Harrisburg's Wildwood Park and parked the car off the main highway on a narrow dirt road. Charles R. Anderson, a park policeman, went to the car on foot to find out why the automobile was parked there. He testified that when he came up to the car he observed the defendant in the act of sexual intercourse with the child on the front seat of the automobile. When taken to the police station with her stepfather, during the noon hour on the above date, the child accused the defendant of the commission of the offense. What she said in her voluntary statement was reduced to writing by a typist in the presence of the defendant. In sordid detail the girl, in this statement, recited her struggle with the defendant on this occasion in an unsuccessful effort to prevent him from

[ 182 Pa. Super. Page 631]

    having carnal connection with her. In her statement she also charged him with having similarly abused her on three prior occasions, and recited the circumstances of each of them in much detail. She also referred to threats by the defendant with a knife, and slapping on other occasions, to induce her to submit. The statement was signed by the girl in the presence of the defendant and was witnessed by three police officers who were present. The signed statement has the air of spontaneity and of truth. Immediately after defendant's arrest his wife and stepdaughter separated from him but returned to his home shortly thereafter and continued to live there with hin up to the time of defendant's trial five months later.

At the trial, defendant's counsel on objecting to the testimony of a detective, as to admissions made by the defendant, in effect demanded that the district attorney call the Crews girl as a witness for the Commonwealth. What we said in Commonwealth v. Sarkis, 164 Pa. Superior Ct. 194, 199, 63 A.2d 360, therefore is particularly pertinent here: "Though it may be that the district attorney is not required by a rule of law to call the victim, who is, of course, an eye witness, yet normally all eye witnesses should be called. Therefore, if, without calling the victim the prosecution's case would be seriously damaged, or justice would not be done to the defendant, the Commonwealth is fairly bound and driven to call him, and if he prove hostile, his prior statements may be shown so that the Commonwealth may not be bound by his testimony."

When the Crews girl was called by the Commonwealth on the trial of the defendant, she repudiated her statement of August 8, 1955, and testified that "nothing happened between her and Mr. Bowers." Thereupon the district attorney pleaded surprise and

[ 182 Pa. Super. Page 632]

    the court allowed him to cross-examine the girl. This action of the court in allowing the Commonwealth thus to impeach the witness is the sole error alleged in ...


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