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COMMONWEALTH PENNSYLVANIA v. DENNIS NABRIED (03/23/79)

decided: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS NABRIED, JR., APPELLANT



No. 2233 October Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at No. 77-01-961, 77-01-962.

COUNSEL

Ronald B. Merriweather, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, P. J., and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., files a dissenting opinion in which Hester, J., joins. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 264 Pa. Super. Page 421]

Appellant was found guilty after a non-jury trial of statutory rape*fn1 (count No. 961) and corruption of a minor*fn2 (count No. 962).*fn3 After denial of post-trial motions, appellant was sentenced to 9 to 23 months on the statutory rape charge and 2 years probation on the corruption conviction, to run consecutive to the sentence on statutory rape. This appeal followed, and finding no merit to appellant's arguments, we affirm the judgments of sentence.

Appellant, a teacher in a junior high school in the Philadelphia School District, arranged a meeting with the victim of this occurrence. The victim, a 13 year old female student assigned to several of appellant's classes, agreed to the meeting and voluntarily entered appellant's automobile on an afternoon following the close of the school day. Appellant drove this minor female to his apartment, where, after the female's clothing was removed, intercourse took place.

This court is in unanimous agreement on all questions raised on this appeal, except for the question challenging the information on the corruption of a minor. Therefore, that portion of the dissenting opinion affirming the conviction and judgment of sentence on the statutory rape count is adopted as the majority opinion.

Appellant challenges the information at No. 962 in that the Commonwealth failed to prove that appellant "did remove the clothing of the minor."*fn4

Pa.R.Crim.P. 213 on indictments, and Pa.R.Crim.P. 225 dealing with informations, require that there be set forth a clear statement of the essential elements of the offense.

[ 264 Pa. Super. Page 422]

This requirement is in keeping with the long accepted law of this Commonwealth that a defendant must have notice of the charge he will be expected to meet. The indictment or information is the star and compass of a criminal charge. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317 (1940); Commonwealth v. Pope, 225 Pa. Super. 252, 311 A.2d 147 (1973).

Appellant urges that since the record quite clearly establishes that the minor removed her own clothing, the Commonwealth's proof does not conform to the charge, and therefore must fail. He relies, as does the dissent, upon Commonwealth v. Lambert, 226 Pa. Super. 41, 313 A.2d 300 (1973). Lambert is not to be read in such a hypertechnical manner. There the charge was furnishing the minor with dangerous drugs, and the Commonwealth proved only that six pills were given the minor. No evidence was offered to prove the nature of the drug contained in the pills. We there held that the proof of a vital link was missing in that the Commonwealth failed to prove that the pills contained dangerous drugs, and that the charge had to be dismissed. Lambert is a far cry from the situation presented on this appeal.

The victim's testimony on the removal of her clothing ...


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