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decided: December 20, 1971.


Appeal from order of Superior Court, Oct. T., 1969, No. 726, affirming 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.


Mark S. Refowich, for appellant.

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

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Barbieri dissents. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell joins in this dissent.

Author: Roberts

[ 446 Pa. Page 85]

This appeal requires that we consider the value of a prosecutrix's recantation subsequent to trial, when her testimony at trial was the sole evidence upon which the Commonwealth depended to support the indictments against appellant for various sex crimes. We believe that on the record before us a new trial is necessary so that a new jury may pass on the prosecutrix's credibility in light of subsequent events.

Appellant was convicted of incest, statutory rape, and corrupting the morals of a minor in a trial before a jury on June 12 and 13, 1968. The Commonwealth's case rested entirely upon the testimony of Frieda Mosteller, appellant's fifteen year old daughter. Under oath at trial, she recounted how on the afternoon of January 23, 1968, her father entered the bathroom where she was bathing and "started playing with my busts." According to Frieda, her father then told her to come visit him nude in his bedroom, which she did. She lay on the bed on her back, and her father allegedly

[ 446 Pa. Page 86]

    had intercourse with her. She testified she was penetrated for approximately five minutes; she experienced no pain, and no emission occurred.

Frieda stated she then dressed and went downstairs while her father went to sleep. When her sister returned from school some fifteen minutes later, Frieda told her of the alleged incident. The story was repeated to her mother shortly thereafter.

The following day, Frieda was called for at school by her step-brother and his wife, who had heard of Frieda's accusation. They took the girl to the Easton police, who in turn had her examined at the hospital.

Dr. Linwood Pearson, a specialist in obstetrics and gynecology, appeared as a witness on behalf of the Commonwealth. He testified that his examination of Frieda on January 24, 1968 in the emergency ward at the Easton Hospital disclosed no evidence of perineal or labial laceration; her hymen was intact and uninjured. A vaginal cotton swab test and a rectal examination were also negative.

Mrs. Mosteller, Frieda's mother, testified for the defense. She stated that after she had been informed of what had allegedly occurred, she took Frieda into the bathroom and examined her, at which time "I seen everything normal." She also stated that when she returned home, Frieda was sitting downstairs and in no way appeared disturbed or upset.

Appellant himself took the stand and strenuously denied having done any of the acts attributed to him by his daughter. He admitted being home alone with Frieda but asserted he had been asleep the entire time.

Following his conviction, appellant submitted motions for a new trial and in arrest of judgment, which were argued on March 4, 1969. In his argument, appellant abandoned the original grounds for his written motion of June 17, 1968, contending instead that he

[ 446 Pa. Page 87]

    was entitled to a new trial because of after-discovered evidence taken on June 28, 1968, in the form of a sworn statement made by Frieda and later testimony of Mrs. Mabel Vulcano, Frieda's great aunt at a court hearing.

Frieda had returned to live with her parents shortly after the alleged incident occurred in January, 1968. She remained at home until May 1, 1968, when she was adjudged a dependent child by the Juvenile Court of Northampton County. Protective service was ordered for her through the Northampton County Children's Bureau, and she was instructed to live with her maternal grandmother, with whom she stayed until June 25, 1968 (thirteen days after the verdict). Frieda then voluntarily returned home. Two days later her sister telephoned their father's attorney and informed him that Frieda wished to retract her trial testimony.

Frieda was examined by the district attorney in the presence of defense counsel and a representative of the Children's Bureau on June 28, 1968. She stated under oath that her testimony at trial had been untrue, and stressed, ". . . [h]e did not do it, and I don't want to see him go to jail for something he didn't do, and I want to be home with my parents." Her explanation for her earlier falsehoods was, ". . . [b]ecause people was telling me to do one thing and other people were telling me to do another thing, and I was so mixed up I didn't know what to say." According to Frieda, her grandmother and her uncle had pushed her into testifying at trial. She had merely told her sister that "my father got after me," and her sister then relayed this information to their mother. She was ...

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