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COMMONWEALTH v. MOSTELLER (03/19/70)

decided: March 19, 1970.

COMMONWEALTH
v.
MOSTELLER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Northampton County, April T., 1968, No. 180, in case of Commonwealth of Pennsylvania v. Frederick Mosteller, Sr.

COUNSEL

Mark S. Refowich, for appellant.

Nicholas M. Zanakos, Assistant District Attorney, with him Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 216 Pa. Super. Page 236]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

This case is a review of Judge Palmer's denial of a motion for new trial, a motion based on the recantation of the prosecutrix. Judge Palmer is a careful and thorough judge. He is attentive to the evidence presented and diligent with respect to the relevant law.

[ 216 Pa. Super. Page 237]

The case in which I differ with him is one to which he gave his closest attention. I think, however, that a different result is warranted.

Appellant was convicted of incest, statutory rape, and corrupting the morals of his fifteen-year-old daughter. The only incriminating evidence offered by the Commonwealth was that of the daughter. She testified that her father had committed certain acts, which, if true, warranted appellant's conviction. A doctor also testified in behalf of the Commonwealth, but his testimony was essentially negative. His examination of the girl a day after the alleged attack produced no evidence that such an attack had ...


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