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COMMONWEALTH v. PFAFF (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
PFAFF, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, Nos. 108 and 109, in case of Commonwealth of Pennsylvania v. Henry Pfaff.

COUNSEL

Jonathan Miller, Colie Chappelle, and John W. Packel, Assistant Defenders, Dennis Kelly, Deputy Defender, and Vincent J. Ziccardi, Defender, for appellant.

Howell Rosenberg, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First 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 Hoffman, J.

Author: Hoffman

[ 233 Pa. Super. Page 155]

Appellant Henry Pfaff, convicted of statutory rape and corruption of the morals of a minor, contends that although the judge granted the appellant the right to appeal nunc pro tunc, the court erred in denying the remaining claims presented in his PCHA*fn1 petition.

[ 233 Pa. Super. Page 156]

According to the testimony of the complainant, Brenda Lee Calder, in July, 1971, she was on her way home when she passed appellant, his brother, and his business partner, who were loading a truck with heavy appliances. Appellant's partner, Marlin Walters, started a conversation with the complainant, who was then 13 years old, and eventually offered her part-time employment in their used appliance store located in the Kensington section of Philadelphia. The complainant thereafter worked for three or four days from 10 a.m. to 6 p.m. Appellant took the girl to and from work during that period. After regular working hours on July 30, 1971, appellant arranged for Miss Calder to work that evening.

When they returned to work on that evening, the appellant ordered Miss Calder to go to the back of the store. From there appellant pushed the complainant down into the cellar. Appellant followed her into the basement where he threatened her with physical violence if she did not perform sexual intercourse with him. After the act of intercourse, the complainant dressed herself and asked appellant to take her home. He complied, but only after threatening her with physical harm if she told anyone what he had done.

The complainant did not return to work after the sexual assault. She and her mother did, however, return to the store on a subsequent date at which time her mother demanded whatever wages were due her daughter. Finally, two weeks after the sexual assault, the complainant told her mother what appellant had done to her.

Thereafter, on August 13, 1971, Miss Calder and her mother reported the incident to the police. On that same day, Detective McKiernan accompanied Miss Calder to the appellant's appliance store where she pointed out the appellant as the man who had raped her. At that point the detective explained to the appellant the serious nature of the charge made against him and asked if appellant would mind if the detective looked around the basement. Appellant

[ 233 Pa. Super. Page 157]

    proclaimed his innocence and granted permission to the detective to search the basement. Complainant had previously stated that she had been raped on a cot in the basement. Upon ...


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