Merle K. Evey, Richard A. Behrens, Patterson, Evey, Routch & Black, Hollidaysburg, for appellant.
Amos Davis, Dist. Atty., Hollisdaysburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Pomeroy, J., did not participate in the consideration or decision of this case.
The appellant was found guilty of sodomy by a jury. The victim was a twenty-two year old retarded man who had the mental ability of a first or second grade child and the emotional stability of an even younger child. The sole issue in this case is whether the Commonwealth proved the date of the crime with sufficient particularity to uphold the conviction. The only proof at trial was that the crime occurred some time within a fourteen-month period from February 1971 to April 1972. On this issue of first impression in this Court, we granted allocatur and now reverse.
The victim had been in a State school for the mentally retarded since 1964. At this school, he had been given vocational training which led to his ability to perform certain basic and repetitious types of work. Subsequently, he became employed in the City of Altoona by a clothing manufacturer although he remained under the general supervision of the State school. He received his earnings directly and he lived in the community with other retarded persons.
Shortly after his employment began, the victim began to exhibit difficulty in managing his own financial affairs. Therefore, a social worker at the State school contacted the appellant, age fifty-two and an employee of another social agency, and made arrangements with the appellant to receive the earnings of the victim from his employer and to supervise these funds so that the victim would receive a proper diet and have his obligations paid. The appellant assumed these duties in February of 1971 and thereafter the victim went twice daily to the home of the appellant to procure money for lunch and dinner.
On April 14, 1972, the victim approached two Altoona City policemen at 5:00 or 6:00 p. m. as they were seated in their patrol car. He told the two officers that acts of sodomy had been perpetrated upon him by the appellant and he gave the officers Devlin's name, address and license number. The officers took the victim home and reported the incident to their commanding officer.
On April 17 the two detectives filed an information charging William Devlin with sodomy "on or about early evening of 4-16-72." The defendant was arraigned on April 17, 1972, and the grand jury returned an indictment on June 6, 1972, alleging that William Devlin had committed sodomy "on or about the 16th day of April," 1972.
At the trial the victim described rather bluntly the acts which the defendant committed upon him. He testified that the acts took place in the bedroom of the home of the appellant on an occasion when the victim had gone there to procure meal money and that "it was real dark outside." However, the victim could not give any indication as to the time of year, the month, day, or date when the crime occurred. Other witnesses for the Commonwealth gave testimony which would prove the continuing financial arrangement between the victim and the appellant from February 1971 to the date the crime was reported on April 14, 1972.
The defense attempted, during its cross-examination of the victim, to discredit the testimony of the victim by showing that two of the victim's friends had encouraged him to falsely accuse the defendant of this licentious behavior so that the victim would receive more of his own money from the appellant. The testimony of the victim was highly uncertain and self-contradictory ...