Appeal from judgment of sentence of Court of Common Pleas of Blair County, Oct. T., 1971, No. 91, in case of Commonwealth of Pennsylvania v. John William Rankin.
Charles B. Swigart, for appellant.
John Woodcock, Jr., Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Wright, P. J., and Watkins, J., would affirm on the opinion of the court below.
[ 226 Pa. Super. Page 38]
Appellant was tried before the Honorable Robert Haberstroh and a jury on charges of fornication and bastardy. After the jury returned guilty verdicts, he was sentenced to pay the costs of prosecution, lying-in expenses, and support for a child in the amount of twelve dollars weekly. Appellant contends that the trial court erred in limiting the purposes for which the jury could consider certain evidence introduced by the appellant.
The prosecutrix testified that she and appellant engaged in sexual intercourse on November 26, 1969. Prior to that date, her last menstrual period was in October. She testified that pregnancy was diagnosed in December and that between her last menstrual period and the diagnosis of pregnancy, she had neither dated nor engaged in sexual intercourse with any other male.
Appellant presented an alibi for the night of November 26. He also attempted to disprove paternity through two witnesses whose testimony is the subject of this appeal.
[ 226 Pa. Super. Page 39]
The first witness testified that she was in an automobile with several friends on a secluded road on October 31, 1969. As they approached a parked car identified as belonging to the prosecutrix, she recognized the prosecutrix and saw her and a male rise from a prone position in the back seat of the car. She was unable to get a complete view of the two individuals, but stated that they were undressed at least from the waist up, and attempted to cover the side window of the car with their clothing.
A second witness testified that in November of 1969, she went to a remote cabin with her boyfriend. The prosecutrix was there with another male. When the witness arrived, the prosecutrix and the other man went into the unlit bedroom of the cabin where they remained for over an hour.
When the Commonwealth objected to this testimony, defense counsel stated that it was being introduced for two purposes: to impeach the prosecutrix's testimony that she did not date other men during the period of conception; and, to create an inference that she engaged in sexual intercourse with men other than appellant during that time. The trial judge allowed the testimony for the first purpose only, and specifically charged the jury that it could consider the evidence only for weighing the prosecutrix's credibility, and could not infer from the testimony that the prosecutrix and the men involved had engaged in sexual intercourse.
In a fornication and bastardy prosecution, "[a] defendant cannot be convicted of bastardy if the child's mother had intercourse with more than one man during the period within which the child could have been conceived." Commonwealth v. Harbaugh, 201 Pa. Superior Ct. 360, 363, 191 A.2d 844 (1963). Although the trial judge was of the opinion that proof of sexual relations ...