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COMMONWEALTH v. LENKER (03/17/64)

March 17, 1964

COMMONWEALTH
v.
LENKER, APPELLANT.



Appeal, No. 41, March T., 1964, from judgment of Court of Quarter Sessions of York County, Aug. T., 1962, No. 128, in case of Commonwealth v. Henry Lenker. Judgment affirmed.

COUNSEL

Victor Dell'Alba, for appellant.

John T. Miller, First Assistant District Attorney, and Daniel W. Shoemaker, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 202 Pa. Super. Page 539]

OPINION BY WATKINS, J.

In this appeal by Henry Lenker, the defendant-appellant, from a conviction of fornication and bastardy in the Court of Quarter Sessions of York County; and from the denial of motions for a new trial and in arrest of judgment; the narrow question for determination is whether a prior statement at a preliminary hearing which was inconsistent with her testimony at the trial, is sufficient to require the court to withdraw the case from the consideration of the jury.

This defendant was accused of being the father of a child born to the prosecutrix, Avalee Shaffer, on the fifteenth of September, 1962, as the result of alleged intercourse that occurred on November 24, 1961 and several times thereafter. The prosecutrix at the trial testified that she had no intercourse with any other

[ 202 Pa. Super. Page 540]

    man subsequent to October 1, 1961. The prosecutrix at the time of the trial was seventeen years of age and had a tenth grade education.

It was brought out at the trial and admitted by the prosecutrix that she had made a statement at the preliminary hearing on this case that she had intercourse with another man two weeks prior to November 24, 1961. This was the same man concerning whom she testified at the trial as having had intercourse with her on October 1, 1961. Under the mother's version at the preliminary hearing her intercourse with the other man would be 308 days from the date of the birth of the child and was within the period of gestation, which has been held to vary from 220 days to 334 days. Com. v. Young, 163 Pa. Superior Ct. 279, 60 A.2d 831 (1948). Under her testimony at the trial it could not have been within the period of gestation since 348 days had elapsed from the time of the intercourse on October 1, 1961.

She explained her statement at the preliminary hearing in that she misunderstood the question and had been confused at the time but at the trial swore definitely that the last time she had intercourse with the other man was October 1, 1961.

The defendant contends that the verdict was against the evidence, the weight of the evidence and the law; that the court below erred in permitting the mother of the child to testify as to intercourse on October 1, in view of her contradictory statement at the preliminary hearing; and that the court erred ...


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