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COMMONWEALTH v. COX (03/23/67)

decided: March 23, 1967.

COMMONWEALTH
v.
COX, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, May T., 1964, Nos. 68, 69, and 70, in case of Commonwealth of Pennsylvania v. Clinton Cox.

COUNSEL

Richard B. Klein, with him Korn and Cohan, for appellant.

Victor J. DiNubile, Jr., Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Spaulding, JJ. (Hoffman, J., absent). Opinion by Montgomery, J. Hoffman, J., took no part in the consideration or decision of this case.

Author: Montgomery

[ 209 Pa. Super. Page 459]

Following jury verdicts of guilty on all charges included in three bills of indictment, No. 68 corrupting the morals of a minor; No. 69 assault and battery, indecent assault, aggravated assault and battery, assault and battery with intent to ravish, rape; No. 70 statutory rape; motions for a new trial and in arrest of judgment were denied and judgments of sentence imposed. On the verdict at No. 70 (statutory rape), the sentence was "not less than 5 years nor more than 10

[ 209 Pa. Super. Page 460]

    years in the State Correctional Institution of Philadelphia", and on the verdict at No. 68 (corrupting the morals of a minor), it was not less than 1 1/2 years nor more than 3 years in the Philadelphia County Prison, to begin at the expiration of sentence on Bill No. 70. Sentence was suspended on Bill No. 69.

No appeal was taken by the defendant from any of the foregoing sentences within the period generally allowed by statute. However, as a result of a proceeding filed pursuant to the Post Conviction Hearing Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180-1 et seq., this appeal was permitted to be filed nunc pro tunc.

These prosecutions of defendant were the result of an alleged attack made on Sandra Toney (age 13) on April 11, 1964. The evidence is sufficient to establish that this girl was accosted by the defendant and pulled into an alley between two automobiles about 2:30 a.m. as she was returning home from a party alone; that at knife point she was compelled to kiss defendant, to submit to his feeling her breasts, to submit to the removal of her underclothing, to turn around and bend over, when she was raped from the back, an entry being made into her vagina. Defendant was apprehended near the scene with his pants open. A knife, which he was seen dropping, was also found nearby.

Sandra was taken to St. Luke's Hospital where she was examined. The report of that examination is the basis for one of defendant's six assignments of error in his trial. It is his contention that the Commonwealth withheld from him knowledge of favorable contents of the report thereby greatly prejudicing his case. Our examination of the original record*fn1 shows that no mention of the hospital report was made in the Commonwealth case although the fact was established that

[ 209 Pa. Super. Page 461]

Sandra had gone to St. Luke's Hospital. However, at the conclusion of the Commonwealth's case, counsel for defendant requested that the medical report be made available to him, and the district attorney, Mr. Charles Bogdanoff, was directed by the court to produce the report. This transpired at the morning session on June 30, 1964. Later in the morning the court again directed Mr. Bogdanoff to secure the report and extended the lunch hour to enable him to do so. Thereafter a colloquy between the court, district attorney and defense counsel showed that all parties believed the medical report from St. Luke's Hospital, limited to a laboratory vaginal smear test, negative for spermatozoa, was the only report available. This fact was stipulated by the parties and the limited report offered in evidence. As a result of this stipulation that the laboratory report was the only one in existence defendant argued to the jury: "As to the hospital report, it merely states there was no spermatozoa present, which ...


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