No. 2306 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Nos. 1029, 1030, 1031, 1033, September Session, 1978.
Leonard N. Sosnov, John W. Packel, Assistant Public Defenders, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Hoffman and Catania,*fn* JJ.
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Appellant contends that the trial court abused its discretion in refusing to grant a new trial after the complaining
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witness recanted her testimony that appellant had raped her. We disagree and, accordingly, affirm.
On January 31, 1978, a court sitting without jury convicted appellant of rape, corruption of a minor, statutory rape and terroristic threats. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 11 1/2 to 23 months for corruption of a minor, a concurrent term of probation of 8 years for rape and statutory rape and a concurrent term of probation of 5 years for terroristic threats. This appeal followed.
Joan Barbi, the victim, was appellant's 11 year old stepdaughter. She testified that appellant took her to the home of a third person, forced her to enter a bedroom, pushed her onto a bed, pulled down her pants and raped her. Later, Joan went to the kitchen. There, appellant and a co-defendant forced her to lie on the floor and each touched her vagina. Appellant threatened to kill Joan if she told anyone about the incident. Twelve days later, Joan reported the incident to her mother, who alerted the police.
On February 13, 1978, Joan wrote a card to her mother, asserting that she had lied at the trial held two weeks earlier. Based on this evidence, appellant filed a motion for a new trial. On April 11, 1978, the trial court held a hearing in camera and questioned Joan. She confirmed her trial testimony in all respects except that she then claimed that appellant had not raped her but had only exposed himself after forcing her down on the bed and removing her pants. Joan stated that she would not lie to help her father get out of jail, but admitted that she loved appellant, wanted him released from prison, knew that her mother, sister and brothers were angry with her because of her trial testimony and wished to recant in order to mollify her family. The trial court concluded that Joan had testified truthfully at trial and denied appellant's request for a new trial.
The trial court considered that recantation testimony is unreliable and that Joan was ...