No. 196 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at Nos. 289 and 289(a) C.D. 1978.
Richard L. Guida, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, Wieand and Hoffman, JJ. Wieand, J., concurs in result.
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Appellant was convicted of rape,*fn1 involuntary deviate sexual intercourse,*fn2 corruption of a minor,*fn3 incest,*fn4 and simple assault.*fn5 In this direct appeal, he alleges several errors by the trial court and by his trial counsel. We conclude that his trial counsel was ineffective for not objecting to the court's failure to define simple assault and incest in its charge to the jury and, accordingly, reverse and remand for a new trial on those charges.
On January 24, 1978, Lower Paxton Township police arrested appellant and filed criminal complaints alleging that appellant committed all the above offenses at divers times between 1972 and 1977 against his daughter Angela, aged 13 years at the time of arrest.
On May 31, 1978, jury trial commenced. Prior to appellant's appearance in the courtroom and without objection from appellant's trial counsel, the trial judge posed several voir dire questions to the jury panel: whether they personally knew appellant, members of his family, or either counsel; whether they were clients of either counsel's law firm. Appellant then appeared in the courtroom, the trial judge asked against whether any members of the panel personally knew appellant, and voir dire proceeded. No member of the jury was selected in appellant's absence.
Viewed in the light most favorable to the Commonwealth, the following evidence was adduced at trial:
Appellant's 13 year old daughter Angela testified that from the time she was eight years old appellant had forced her to engage in genital and oral sexual intercourse with him approximately once or twice a week, usually upstairs in
[ 267 Pa. Super. Page 94]
her bedroom. She testified that "If I didn't, he'd beat me up." Appellant would send his wife, Angela's mother, out to shop and would tell his two younger daughters to watch television or play outside. Angela last had sexual contact with appellant in May or June 1977. In August 1977, her parents were divorced, and the mother took custody of Angela and her two sisters. Angela never told anyone about her sexual encounters with her father until January 1978, after an altercation with her mother and younger sister, Stephanie. Angela also testified that appellant beat her approximately once a week, using his open hand, fist, or a belt, and that such beatings were painful and left visible bruises. Angela's mother testified that she was unaware of appellant's sexual molestation of Angela until January 1978 when Angela told her. Her description of appellant's sexual practices matched Angela's description. Both Angela's mother and family friends testified that appellant frequently wanted Angela's mother to go out shopping and that he would be upset when he could not find someone to accompany her. Angela's 11 year old sister Stephanie corroborated Angela's testimony that appellant would tell her to watch television while he and Angela were upstairs alone in the bedroom. Several family and school friends testified that they had seen appellant beat Angela and has seen large bruises on her face, neck, arms, and buttock.
Over appellant's objection, Angela's treating psychologist testified that child-victims of incest frequently felt depressed, guilty, and angry and ...