No. 885 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Fayette County, at No. 156 of 1977.
George A. Bashour, Assistant Public Defender, Uniontown, for appellant.
Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
Van der Voort, Spaeth and Montgomery, JJ. Spaeth, J., files a concurring opinion.
[ 271 Pa. Super. Page 318]
Appellant Clarence Leppard was arrested on February 7, 1977, charged with rape and incest. The charge of rape was dismissed; however, appellant was tried before a jury on June 7, 1977 and was convicted of incest. Post-trial motions were filed and denied, and appeal was taken to our Court from the judgment of sentence. The sole issue for our consideration is whether the lower court erred in admitting into evidence, over defense objection, testimony by the victim concerning prior incestuous incidents.
The victim in the case before us was a young girl at the time the incestuous activity began, was of low intelligence, having reached only the tenth grade in "special education", and had no mother to look to for advice and protection, the mother having died when the girl was thirteen years old. The victim testified at trial that appellant forced her to engage in sexual relations with him on January 26, 1977, and, prior to that, several times a week since the girl was approximately fourteen years old (a period of several years). When asked on direct examination if appellant had ever threatened her, the girl replied that appellant had threatened to put her away in a children's home, where she had been once before. When asked why she didn't leave home, the girl responded that appellant had a bad temper and that she was afraid that he would come after her and "kill" her.
[ 271 Pa. Super. Page 319]
The girl did in fact run away one time prior to January 26, 1977, but was brought back by the police.
In Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895), the issue was raised "whether in a prosecution for incestuous fornication it is competent for the Commonwealth to introduce evidence of illicit relations between the parties prior to the commission of the specific offense laid in the indictment." The court held: "If an act is so remote in point of time from the act laid in the indictment that the statute of limitations would protect the participants in it in case of their prosecution for it, it is still admissible if it is one of a series of acts indicating continuousness of sexual intercourse. . . . We conclude therefore that it was proper for the Commonwealth to introduce evidence of prior illicit relations between the parties although such evidence disclosed other indictable offenses of like nature which were barred by the statute of limitations." 166 Pa. at 412, 31 A. at 123, 124. We find Bell to be controlling in the case before us.
Judgment of sentence affirmed.
SPAETH, Judge, concurring:
I join in the majority's opinion because I understand it to be in accord with ...