Appeal, No. 109, Oct. T., 1958, from judgment of Court of Quarter Sessions of Potter County, May T., 1957, No. 9, in case of Commonwealth v. Paul C. Blauvelt. New trial granted as to one count; judgment of sentence affirmed as to other.
Thomas A. Walrath, with him Harold B. Fink, Jr., and Linton & Walrath, for appellant.
John A. Duvall, District Attorney, with him William E. Young, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
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Defendant, more than 35 years of age, was convicted on both counts of an indictment charging the common law offense of indecent assault, and of conduct tending to corrupt the morals of Lois Ann Quimby, the young girl involved, then 13 years old. Section 532, added to the Act of June 24, 1939, P.L. 872, by the amendment of June 3, 1953, P.L. 277, 18 PS § 4532. Motions in arrest of judgment and for a new trial were refused and the defendant was sentenced on each of the counts.*fn1
The defendant operated a garage and automobile body shop on East Second Street in Coudersport. Lois Quimby lived with her father nearby, on the corner of Second and West Streets. In the evening of Sunday, April 7, 1957, between 7:30 and 8:00 Lois left her home to buy some ice cream in the neighborhood. On the way back with her purchase she saw the defendant standing by the door of his shop. Only the office was lighted. She testified that as she was passing his shop he turned off the lights and said: "Come here" and that when she tried to get away "he came out after" her; he seized the back of her coat and pulled her into the garage, closing the door behind him and "dragged" her into the back seat of an automobile inside the shop. She testified that she kept on screaming for help although the defendant said: "Stop it or I'll knock you
[ 186 Pa. Super. Page 69]
out." In the car defendant removed the girl's coat and her underclothing and took liberties with her person against her will, short however of attempting rape. He released her some time around nine o'clock and on her way home, still carrying the ice cream her disheveled condition was observed by a State police officer. The girl's uncle who went out to look for the girl when she did not return home within a reasonable time testified that he saw her crossing the street, that she then was crying and that "her hair was all mussed up". On arriving home she reported the assault to her father. He testified that she was "pretty badly mussed up" and that her lip was bruised and swollen. She however had no recollection of the defendant striking her. The father immediately went to the defendant's garage with a flashlight and on the floor of the black Hudson, in which the girl said she had been assaulted, he found a missing button which had been pulled from her dress. The defendant denied seeing the girl that evening, but at the same time begged her father not to say anything about the matter.
Contrary to appellant's contention the verdict was not against the weight of the evidence. The weight to be given the testimony in this case was for the jury and not for either the trial court or for us. Cf. Commonwealth v. Attarian, 129 Pa. Superior Ct. 31, 194 A. 776. And the record belies the contention of a denial of due process. Moreover the trial court did not err in its charge on the second count of the indictment. We need not discuss that contention under the circumstances, since the defendant did not request additional instructions (Commonwealth v. Heatter, 177 Pa. Superior Ct. 374, 111 A.2d 371) and this, especially, since at the end of the charge the trial judge inquired "Whether there are any further matters of evidence or
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principles of law that you wish reviewed" and defendant's counsel replied: "A very complete and accurate summary." The constitutionality of the 1953 amendment of The Penal Code, supra, on which the second count was based, was not raised in the court below. We however in Com. v. Randall et al., 183 Pa. Superior Ct. 603, 133 A.2d 276, found the Act to be constitutional and the ruling in ...