Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, Nos. 695 and 696, in case of Commonwealth of Pennsylvania v. Ronald Aikens.
Michael D. Fioretti, for appellant.
David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Spaeth, J., concurs in the result.
[ 229 Pa. Super. Page 289]
Appellant, Ronald Aikens, was arrested on February 16, 1972, and charged with Forcible Rape, Statutory Rape, and Corrupting the Morals of a Minor Child. On December 7, 1972, a jury found Appellant guilty of Statutory Rape and of Corrupting the Morals of a Minor Child. Appellant filed post-trial motions in arrest of judgment or alternatively for a new trial, which motions, after argument on May 25, 1973, were denied and Appellant was sentenced to serve from two to ten years imprisonment. The case is before us on direct appeal.
Viewing the case in a light most favorable to the Commonwealth, Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965), the facts of the case are as follows:
The prosecutrix (age 15 at the time) met the Appellant (age 25 at the time), in their neighborhood while she was selling candy to raise money for church activities. The two were acquainted, Appellant having previously dated the girl's older sister. Appellant agreed to purchase some candy if the girl would accompany him to his apartment so that he could get the money to pay for it. The prosecutrix testified that she did so accompany Appellant to his apartment, and that, once inside, Appellant forced her to engage in sexual intercourse with him.
[ 229 Pa. Super. Page 290]
Medical testimony indicated that the prosecutrix had in fact engaged in intercourse with someone on the evening in question. The Defense called to the stand several of Appellant's friends to testify that Appellant was with them at band practice at the time of the alleged rape. The Commonwealth called in rebuttal of the alibi defense a police officer who had questioned Appellant shortly after the time of the crime. The officer testified that Appellant had told him that he, Appellant, had been in a certain bar, and then alone at home, at the time of the commission of the crime. Counsel for Appellant was unaware that Appellant had made this statement. Counsel objected to the admission of the officer's testimony, arguing that Appellant's statement to the officer was exculpatory evidence which had been suppressed by the Commonwealth -- evidence which should have been produced by the prosecution in its case in chief. The trial judge permitted the officer to testify. The jury, evidently finding that Appellant engaged in sexual relations with the girl but that the act was with her consent, acquitted Appellant of Forcible Rape and found him guilty of Statutory Rape and Corrupting the Morals of a Minor Child. In his appeal, Appellant would have us find that his constitutional right to due process of law was violated when the Commonwealth "suppressed" his "exculpatory" statement until the defense had rested. This court cannot so find.
Appellant first refers us to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), where Defendant's counsel had requested that the prosecution turn over for examination any extra-judicial statements in the prosecution's possession which had been made by Defendant's companion in crime. Several such statements were shown to Defendant's counsel, but one in which Appellant's companion admitted the actual homicide was withheld. The Supreme Court stated: "We now hold that the suppression by the prosecution of
[ 229 Pa. Super. Page 291]
evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady at 87 (emphasis added). ...