NO. 871 APRIL TERM, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Fayette County, at No. 531 of 1976.
Simon B. John, Assistant Public Defender, Uniontown, for appellant.
Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
Van der Voort, Spaeth and Montgomery, JJ.
[ 269 Pa. Super. Page 108]
A jury found defendant guilty of indecent assault under § 3126(2) of the Crimes Code, 18 Pa.C.S. § 3126(2). The lower court denied motions for a new trial and in arrest of judgment, and defendant has appealed.
We reverse and direct that the motion in arrest of judgment be granted.
The statute defining the crime with which defendant, age 18, was charged, reads in part as follows:
"A person who has indecent contact with another not his spouse, or causes such others to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
(2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct."
There was sufficient evidence to establish the "indecent contact". Defendant denied that any of this occurred but the jury decided this issue against him.
[ 269 Pa. Super. Page 109]
There was no sufficient evidence introduced to carry the Commonwealth's burden of proving under section (2) that defendant knew that the "person suffers from a mental disease or defect which renders . . . her ...