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COMMONWEALTH PENNSYLVANIA v. HARRY M. GREEN (08/14/81)

filed: August 14, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
HARRY M. GREEN, JR., APPELLANT



No. 161 PITTSBURGH, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, No. 758 of 1979.

COUNSEL

Gary V. Skiba, Erie, for appellant.

Paul J. Susko, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellee.

Hester, Brosky and Van der Voort, JJ.

Author: Per Curiam

[ 290 Pa. Super. Page 78]

Following a jury trial, appellant Harry Green was found guilty of corrupting morals of a minor and indecent assault*fn1

[ 290 Pa. Super. Page 79]

    in the Court of Common Pleas, Erie County. Post trial motions were argued and denied and an aggregate sentence of 3 1/2 to 7 years imprisonment was imposed. On this appeal, appellant contends, inter alia, that the Commonwealth improperly admitted evidence of his past criminal conduct. We are constrained to agree and will therefore reverse.

The factual scenario leading to conviction may be briefly summarized. The complainant, 10 year-old Lisa ___, lived with her mother Lillian and two younger brothers in Albion, Pennsylvania, next door to appellant and his wife Cindy. On the afternoon of May 15, 1979 Lillian escorted her daughter and two sons over to appellant's home to spend the night, as Lillian was required to work in the evenings. At about 4:00 p. m. Cindy Green, as was her frequent practice, drove Lillian to work, leaving Lisa and her two brothers at home with appellant. On this day, appellant was still recovering from a high fever and swollen finger. After the two women drove away, the complainant was sitting in the living room with her two brothers watching TV when appellant appeared in his pajamas and told the two boys to go outside. He then requested the victim to accompany him into the bedroom, whereupon he proceeded to undress both himself and the little girl. After lying on top of her on the bed for a few minutes, and fondling her, appellant stood up and instructed the victim to tell no one about the incident. The next day, Lisa told her mother and appellant was thereafter arrested. Trial consumed one day. Appellant flatly denied having any sexual contact with the girl at any time.

At trial, appellant called his wife Cindy, age 21, to testify on his behalf. She stated that Lisa had once told her that her (Lisa's) grandfather had once fondled her. Cindy thereafter informed Lisa's mother about this. On cross-examination, the prosecutor questioned Cindy as to why she told Lisa's mother about the grandfather:

Q. [Assistant District Attorney]: Isn't it a fact that you told her mother that because you knew it would only be a matter of time before Harry tried something?

[ 290 Pa. Super. Page ...


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