No. 1507 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7706686.
Leonard P. Klavonic, Aliquippa, for appellant.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, submitted a brief on behalf of Commonwealth, appellee.
Cercone, President Judge, and Montgomery and Lipez, JJ.
[ 285 Pa. Super. Page 477]
Appellant was convicted, in a jury trial, of indecent exposure. 18 Pa.C.S. § 3127. Appellant's sole contention is that the court below erred in ruling that a defense witness would not be permitted to testify because her testimony was irrelevant. Because the record is inadequate to resolve this question, we vacate the judgment of sentence and remand for further proceedings.
Two high school girls testified for the Commonwealth that at approximately 9:00 a. m. on September 26, 1977 they were crossing a bridge on their way to school, when they were distracted by a remark by an individual on the railroad tracks below. Looking down at the tracks, the girls saw a man with his pants pulled down to mid-thigh, exposing his genitals. When they arrived at school a few minutes later, they reported the incident to the principal, who called the police. About forty minutes later, the girls were called out of class to meet two policemen who said they had the man they were looking for. A policeman opened the door to the police wagon, in which appellant was sitting alone toward the front. The girls looked inside for a few seconds and identified appellant as the man they had seen exposing himself. The girls also made an in-court identification of appellant.
Another girl from the same high school testified that at about 9:20 a. m. she saw a man in a phone booth near the bridge where the other girls said they had seen appellant. The man in the booth was exposing his genitals and handling them, while pretending to talk on the phone. She reported the incident to a nearby policeman, who took her name. She waited, and a short time later, another policeman
[ 285 Pa. Super. Page 478]
came to her and said, "Come and identify the guy in the back of the van." She also looked inside the van and identified appellant.
The remainder of the Commonwealth's case consisted of the testimony of two police officers who arrested appellant. They were patrolling in the area near the bridge and the telephone booth at 9:29 a. m. when they received a radio call description of the incident and the man that had been seen by the first two girls. They saw appellant, who seemed to fit the description they had heard over the radio. As the patrolman approached, appellant fled. When they caught appellant, he told them he was on his way to work.
Appellant began his case with a number of character witnesses. He then presented the testimony of a woman who said she had lent appellant her car on the morning of the crime, so that appellant could drive her son to school. Appellant and her son had left the house at about 7:50 or 7:55 a. m. Appellant had also indicated that after driving the son to school, he was going to stop at an antique store, which was in the neighborhood where the school girls had seen the man exposing himself that morning.
Appellant then took the stand, testifying that after he had dropped the son off at school, he parked the woman's car in a parking lot in the neighborhood. He walked to an antique store, which was closed. He drove to another spot, parked and walked to another antique store, which was also closed. He decided to wait for the antique shop to open at a bar next door, but the bar was also closed. He decided to walk to another bar and while en route, he was stopped by two policemen. According to appellant, because he was scared, he told the policemen he was on his way to work, even though he was not. The policemen put him into the patrol wagon and then conducted the one-on-one identification procedures with the three high school girls. Appellant claimed he had never seen these girls ...