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COMMONWEALTH v. NEWCOMER (06/11/57)

June 11, 1957

COMMONWEALTH
v.
NEWCOMER, APPELLANT.



Appeal, No. 83, April T., 1957, from judgment of Court of Oyer and Terminer of Cambria County, Dec. T., 1955, No. 11, in case of Commonwealth of Pennsylvania v. Charles E. Newcomer. Judgment affirmed.

COUNSEL

Edward F. Peduzzi, with him Myers, Taylor & Peduzzi, for appellant.

William P. Kelly, Assistant District Attorney, with him David C. Wolfe, District Attorney for appellee.

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

Author: Gunther

[ 183 Pa. Super. Page 433]

OPINION BY GUNTHER, J.

Charles E. Newcomer, appellant, was charged with and convicted of the crime of incestuous statutory rape upon his daughter, Diana Newcomer, then twelve years of age. Some of the offenses involved were alleged to have been committed at home, and on one occasion in an automobile while returning his daughter from piano lessons.

The Commonwealth's case was established by the girl who testified that her father had intercourse with her several times over a period from June to August, 1955. Mrs. Alice Newcomer, wife of the defendant, testified that in the latter part of September, 1955, she had difficulties at home, as a result of which she intended to leave defendant and so informed the children. She told the children that they were to stay with the father as he was better able to provide for them. On Sunday, October 2, 1955, as she was preparing to leave, Diana asked her not to leave and told her of the events which occurred between her and her father. The following day, Diana was examined by Dr. Bennett who testified that in his opinion she had been penetrated a number of times as there was no trace of the hymen. Dr. Ebandjieff examined the child on Sunday, October 2, 1955, and he testified that he

[ 183 Pa. Super. Page 434]

    found the vaginal membrane intact and some slight bruises on her thighs.

Mrs. Newcomer testified that she worked at Weaver's Restaurant from July until October, 1955; that she worked different shifts so as to coincide with the shifts worked by her husband, and that during the times she worked, the children were left in the care of her husband.

Defendant took the stand and denied the charges. He also, in the form of an alibi, offered the testimony of Mrs. Hilda Weaver to show that Mrs. Newcomer was home at the time of the alleged first offense in June, and that Mrs. Newcomer did not begin work in her restaurant until the last Saturday in July. Defendant also offered testimony to the effect that while his daughter was taking her piano lesson on August 17, 1955, he took his car to a garage for repairs; that he helped the mechanic as a result of which his clothing and hands were greasy and dirty; that when he returned with the little girl, his wife was at home, and that at that time she made no outcry. He testified, further, that his wife threatened to put him in jail on several occasions. On cross-examination Diana admitted that she, at times, was angry at her father for his refusal to allow the use of lipstick and nail polish. Several character witnesses were offered as to his reputation for good moral conduct in the community.

The evidence was conflicting but the jury returned its verdict of guilty. The jury was polled and each juror affirmed the verdict. Some time thereafter, affidavits were obtained from two members of the jury to the effect that they voted for a verdict of guilty because they believed and were informed that the verdict had to be unanimous and that they did not know that the court ...


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