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COMMONWEALTH PENNSYLVANIA v. THOMAS HODGE (04/09/79)

submitted: April 9, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS HODGE, APPELLANT



No. 1157 April Term, 1978 Appeal From Judgment of Sentence of the Court of Common Pleas, Criminal Division, Washington County, at No. 258 of 1977.

COUNSEL

John C. Pettit, Washington, for appellant.

Francis C. Sichko, Assistant District Attorney, Washington, for Commonwealth, appellee.

Van der Voort, Spaeth and Watkins, JJ.

Author: Spaeth

[ 270 Pa. Super. Page 235]

A jury convicted appellant of statutory rape*fn1 and involuntary deviate sexual intercourse.*fn2 Post-verdict motions were denied and appellant was sentenced to five to ten years for statutory rape and to seven to fourteen years for involuntary deviate sexual intercourse. The sentences were concurrent. On this appeal appellant argues: (1) that the verdicts were against the weight of the evidence; (2) that the trial judge erred in admitting in evidence testimony concerning offenses by appellant for which he was not on trial; (3) that the trial judge erred in admitting in evidence certain impeachment testimony; and (4) that he was improperly denied his right to a preliminary hearing.

[ 270 Pa. Super. Page 236]

On November 23, 1976, the victim, appellant's eleven year old stepdaughter, was hospitalized in Washington County, Pennsylvania, for an overdose of pills.*fn3 When asked why she had taken the overdose, she answered that she had done so because she was tired of the sexual abuses she was suffering from appellant. An examination by a gynecologist confirmed that sexual intercourse had occurred, and that the damage to the victim's hymen had not been recent. County child welfare officials and representatives of the district attorney's office interviewed the victim concerning her allegations against appellant. She described to them how appellant had continually abused her from October 1975 through November 1976.

When the victim returned home after her six day stay in the hospital, appellant was missing. The victim's mother took her and the other children with her to Ohio where they met appellant and traveled together to Arizona. Appellant, the victim, and the rest of the family were in Arizona when the criminal complaint was filed against appellant on January 31, 1977. The complaint charged appellant with committing statutory rape and involuntary deviate sexual intercourse with the victim. Arizona authorities were notified of the charges and they detained appellant. An extradition hearing was held on April 6, 1977, and appellant was returned to Washington County on April 18, 1977, to stand trial. Trial began on September 15, 1977.

After a county child welfare official and a detective had testified as to their investigation and the victim's description of appellant's abuse, the victim herself took the stand. She testified that appellant would often take her or one of the other children on the overnight trips he made as part of his job as a truck driver. She said that during one particular trip to Michigan in the fall of 1975, she and appellant were alone in the truck when he tried to have sexual intercourse with her but failed to achieve full penetration. She testified further that when they were back in Washington County, on

[ 270 Pa. Super. Page 237]

    a trip to Dutch Fork Lake Park, appellant tried again to have sexual intercourse with her but again failed to achieve full penetration. She said that appellant finally achieved full penetration in April 1976 when she and he were on a trip to Chicago, Illinois. Thereafter, according to the victim, appellant had intercourse with her at home and at other places in and around Washington County. She also testified to instances where appellant had anal and oral intercourse with her.

The victim was cross-examined at length by appellant's attorney. He confronted her with several letters she had written to various public officials while appellant had been incarcerated in Arizona and Washington County. These letters, signed by the victim and notarized, stated that she had lied about appellant and asked for his release. Appellant's attorney also introduced the victim's earlier testimony at the Arizona extradition hearing, where she had stated under oath that appellant had not committed the alleged crimes. On cross-examination the victim admitted to having written the letters and to having testified at the extradition hearing but asserted that she had lied in her letters and at the hearing and was now telling the truth.

Appellant's wife, the victim's mother, testified on appellant's behalf. She said that her daughter was a liar and that the things she had said about appellant were untrue. She also said that appellant had been a good father.*fn4 Appellant also testified, and disputed the story told by the victim.

-1-

In testing a claim concerning the weight or sufficiency of the evidence in a criminal case "we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth

[ 270 Pa. Super. Page 238]

    the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crimes of which he has been convicted." Commonwealth v. Steward, 263 Pa. Super. 191, 199, 397 A.2d 812, 815-16 (1979); see Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979).

Appellant's argument is not that the victim's testimony, if believed, was insufficient, for it is clear that the evidence sufficiently set forth the elements of both the crime of statutory rape and the crime of involuntary deviate sexual intercourse. Appellant's argument is rather directed to the weight of the evidence in that he asserts that the victim's story should not have been believed. In support of this argument he points to what he describes as substantive contradictions in the victim's testimony and to the fact that her testimony contradicted her earlier letters ...


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