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decided: September 27, 1976.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Nos. 1555-1556, June Sessions, 1974. No. 258 October Term, 1976.


John W. Packel, Asst. Public Defender, Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., dissents.

Author: Hoffman

[ 243 Pa. Super. Page 14]

The sole meritorious claim in the instant case is whether the lower court failed to clarify the jury's confusion concerning an important issue in appellant's trial, as reflected in the jury's questions to the court.*fn1

On June 6, 1974, a cashier at the Penn Fruit store at Broad and Wingohocking Streets, Philadelphia, noticed a young girl crying, near the cashier's register. The cashier asked the girl, nine-year-old Antoinette Key, whether

[ 243 Pa. Super. Page 15]

    anything was wrong. The child stated that a man had hurt her. The cashier called over the store manager, Robert Fiorelli, to take care of the child.

The girl told Fiorelli that a man had raped her in the men's room located at the rear of the store, facilities used by employees and customers. He took the girl around the store in an effort to locate the perpetrator. She picked out the appellant from a group of about six people walking by at that time. Appellant was employed as a security guard by Penn Fruit, but was not on duty on that day.

Officer John Ferry, a member of the Philadelphia Police Department, arrived at the store shortly after the incident was reported. He arrested the appellant and transported him to the Northwest Detective Division. Appellant was held on charges of rape,*fn2 statutory rape,*fn3 indecent assault,*fn4 and corruption of the morals of a minor.*fn5 He received a preliminary hearing on June 13, 1974, and was held over for the grand jury at that time. Subsequently, the grand jury indicted appellant on charges of rape, statutory rape, and corruption; the jury rejected the bill charging appellant with indecent assault, and instead, indicted him on a charge of indecent exposure.*fn6 Following the denial of pretrial motions, trial began on April 8, 1975.

At trial, the complaining witness gave the following account: on the evening of the incident, she went to the store to purchase groceries for a neighbor. Unable to find certain items, she asked appellant to assist her. After he helped her find some of the items, he forced her

[ 243 Pa. Super. Page 16]

    into the men's room. Once inside, he pulled down his pants, pulled her onto his lap and inserted his penis into her "back part."

In addition to the girl's testimony, a resident physician in obstetrics and gynecology at Philadelphia General Hospital stated that his examination of the child on June 6, revealed "dry wet discharge" on her vulva, but that no spermatozoa were present. He also found no signs of trauma in either the vaginal or rectal area. One of the investigating detectives reported that police laboratory analysis of appellant's undershorts showed no signs of semen.

After the Commonwealth rested, counsel for appellant demurred to the evidence and made a motion pursuant to Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), to prevent the Commonwealth's use of appellant's prior conviction for rape for purposes of impeachment. The court denied the demurrer, but granted the Bighum motion. The appellant, however, did not testify. His defense consisted of the testimony of the investigating detective who had taken a statement from the complaining witness on the night of the incident. The child had given an account of what had occurred, different from her trial testimony: she had told the detective that she had left her shopping cart to go to the bathroom; that upon exiting, she saw appellant seated near the lady's room; that he took her into the employee's locker room and then into the men's room; and that, while on his knees, he "put his dick in my cock."

The jury found appellant guilty of corruption and indecent exposure, but acquitted him of rape and statutory rape. After post trial motions were denied, the court sentenced appellant to a term of imprisonment of 2 to 5 years on the charge of corruption, and to a concurrent term of 1 to 2 years on the charge of indecent exposure. This appeal followed.

[ 243 Pa. Super. Page 17]

Appellant contends that he was prejudiced by the court's failure to clarify certain questions raised by the jury that ...

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