John W. Packel, Chief, Appeals Div., Defender Ass'n, Jonathan Miller, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James A. Shellenberger, Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Eagen, C. J., and O'Brien, J., concurred in the result. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., did not participate in the consideration or decision of this case.
Appellant, Henry Pfaff, was tried before a judge and a jury on charges of corrupting the morals of a minor, statutory rape, and forcible rape. On March 22, 1972, the jury found appellant not guilty of forcible rape and guilty of statutory rape and corrupting the morals of a minor. Following the denial of post-verdict motions, appellant was sentenced to two and one-half to seven years imprisonment for statutory rape, and sentence was suspended on the other conviction. No appeal was taken from this judgment of sentence.
Appellant filed a PCHA petition six months later and, following a hearing, was granted the right to file an appeal as though timely filed. An appeal was taken to the Superior Court, which affirmed the judgment of sentence. Commonwealth v. Pfaff, 233 Pa. Super. 153, 335 A.2d 751 (1975). We granted appellant's petition for allowance of appeal and this appeal followed.
As summarized by the Superior Court, the allegations against appellant are as follows:
"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 when 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 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 observing the cot, the detective arrested the appellant."
Id. 233 Pa. Super. at 156-57, 335 A.2d at 752-753.
Appellant raises several issues in support of his contention that the judgment of sentence should be reversed and a new trial granted. Because we believe one of these issues is meritorious and requires that appellant be granted a ...