No. 706 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lebanon County - Criminal - Action No. 577 of 1974, refusing the defendant's post-trial motions for a new trial or arrest of judgment.
Keith L. Kilgore, Lebanon, with him William R. Pouss, Lebanon, for appellant.
Thomas S. Long, Lebanon, with him George E. Christianson, District Attorney Lebanon, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion.
[ 249 Pa. Super. Page 343]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Lebanon County by the defendant-appellant, Curtis Wayne Hughlett, after conviction of involuntary deviate sexual intercourse with Faye Behney, aged 11, and involuntary deviate sexual intercourse with Shirley Behney, aged 15. Post-trial motions were denied and he was sentenced to pay a $200.00 fine and undergo imprisonment of not less than six (6) months nor more than twelve (12) months.
The court below has succinctly stated the evidence supporting the verdict as follows:
[ 249 Pa. Super. Page 344]
"Curtis Hughlett on August 11, 1973 moved into the home of Mrs. Myrle M. Behney in Union Township, Lebanon County, to live with her and her two daughters, Faye, 11 years old and Shirley, 15 years old. He slept downstairs; Faye and Shirley slept upstairs. In the intervening time until he moved out on December 22, 1973, Faye sucked his penis during afternoons in the upstairs of the house in the frequency of once a month. Hughlett would go upstairs, tell Faye to bring him a cup of coffee and, on her return with it, have her perform the act complained of, the coffee going undrunk. On one occasion he undressed her. After the Defendant moved away in December, 1973 he returned to the Behney home periodically until July, 1974 when the acts were repeated; only then, the Defendant used the ruse of looking for pennies in Faye's bedroom to get her there.
"Furthermore, 'a couple of months' after moving into the Behney home Hughlett at night after returning from work told Shirley to get him a cup of coffee. When she took it to him in the front room where he was going to sleep that evening, he told her to undress, removed his trousers and had intercourse with her on the couch. He had intercourse with her once more 'a couple of months later'. During his residency in the Behney home he also had Shirley perform fellatio on him five times, twice in the company of Faye when the young girls 'took turns'."
The appellant claims that the prosecution should have been barred under Section 3105 of the Pennsylvania Criminal Code, which stated:
"No prosecution may be instituted or maintained under this chapter unless the alleged offense was brought to the notice of a public authority within three months of its occurrence or, where the alleged victim was less than 16 years old or otherwise incompetent to make complaint, within three months after a parent, guardian ...