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COMMONWEALTH v. COLLIN (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
COLLIN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Warren County, May T., 1973, No. 79, and Aug. T., 1973, No. 64, in case of Commonwealth of Pennsylvania v. Bradley Stan Collin.

COUNSEL

Bernard J. Hessley, and Joseph A. Massa, Jr., Public Defender, for appellant.

James C. Blackman, Assistant District Attorney, and Samuel F. Bonavita, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Price

[ 233 Pa. Super. Page 302]

Bradley Stan Collin, appellant, was convicted of fornication and corrupting the morals of a minor, following a jury trial on October 18, 1973. He was acquitted of statutory rape. On December 14, 1973, appellant was sentenced to pay a fine of $100.00 on the fornication conviction, and to 1 1/2-3 years in the State Correctional Institution at Rockview for corrupting the morals of a minor. This appeal follows the denial of appellant's motions for new trial and in arrest of judgment.

The facts reveal that a fourteen-year-old girl was reported missing on May 22, 23 and 24, 1973. On May 25, 1973, the girl was located and placed in the juvenile detention facilities of the Warren County jail. Four days later, she made a voluntary statement to a deputy sheriff, indicating that she had stayed with appellant during the period of May 22-24, 1973, and that she had engaged in sexual intercourse with him during that time. On the basis of this information, appellant was indicted on charges of statutory rape*fn1 and corrupting the morals of a minor.*fn2

At trial, appellant admitted the act of intercourse, but testified that he had been unaware of the girl's exact age. He also attempted to show that the girl had had intercourse with others before May 22, 1973. However, the trial judge refused to allow cross-examination of the victim to substantiate the prior acts of intercourse suggested by appellant.

[ 233 Pa. Super. Page 303]

Appellant alleges that the refusal constitutes reversible error in that it denied him a fair trial by taking away a statutory defense*fn3 which he would have been able to pursue had he been charged with corrupting a minor under the new Crimes Code.*fn4 Appellant cites no authority to support his belief that he was subjected to unjust treatment because the lower court refused to apply the 1972 Crimes Code provisions to a violation of the 1939 Penal Code.

To determine whether the lower court was correct in its refusal, we look first to the Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 56 (46 P.S. § 556), which provides: "No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature." The instant statute contains no indication that the defense should be applied retroactively.

Section 56 of the Statutory Construction Act has been recognized in several appellate cases. The case most similar to the instant appeal is Commonwealth v. Griffin, 189 Pa. Superior Ct. 59, 149 A.2d 656, cert. denied, 365 U.S. 838 (1959). Griffin involved the admission into evidence of tape recorded telephone conversations. Some time after the trial, but before sentence, the interception of telephone communications without the consent of the parties was made illegal. Griffin contended that the court had no power to sentence him because the law had changed.

The Griffin court did not agree with the appellant's contentions. Instead, the court noted: "The invariable rule is that a statute ...


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