Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 0081 June Term, 1975. No. 174 October Term, 1976.
Edward M. Kopanski, Philadelphia, for appellant.
No appearance entered nor brief submitted for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, dissents.
[ 246 Pa. Super. Page 572]
On September 8, 1975, appellant William Blash was tried on charges of rape*fn1 and indecent assault.*fn2 A directed
[ 246 Pa. Super. Page 573]
verdict was entered to the rape charge, but appellant was convicted of indecent assault. We reverse.
At trial, the prosecution's main witnesses were Mrs. Rebecca Lewis and Mrs. Ruby Beaman, who were both employed at Byberry State Hospital in Philadelphia. Mrs. Lewis testified that while working in the hospital on May 10, 1975, she looked out a window which faced the hospital grounds and saw a man behind some bushes. The man was lying on his stomach and "moving up and down." Mrs. Lewis and Mrs. Beaman went outside to investigate. As they approached the scene, they saw appellant on top of a woman. Appellant stood up lifted the victim to her feet and straightened her dress by "pulling it down." He then began walking away. Mrs. Lewis called the victim who emerged from behind the bushes. She was wearing no underwear, her dress was wet, and a "milky white" liquid was running down the upper inside part of both of her legs. Mrs. Lewis sent her to retrieve her clothing and then took her indoors. Mrs. Beaman substantiated this testimony and added that she and another woman, Miss Wilkins, followed appellant after he left the scene. They abandoned pursuit after appellant turned around several times and shook his fists at them. The women returned to the hospital and reported the incident to their superiors. When appellant was arrested, he was dozing on a park bench not far from the scene.
Section 3126 of the Crimes Code provides that,
"[a] person who has indecent contact with another person not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
(1) he knows that the contact is offensive to the other person;
(2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the ...