No. 527 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Butler County, at C.A. No. 584 of 1979.
Norman J. Barilla, New Castle, for appellant.
David Hepting, Assistant District Attorney, Butler, for Commonwealth, appellee.
Cavanaugh, Montemuro and Van der Voort, JJ.
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This appeal comes before us from the judgment of sentence of the Court of Common Pleas of Butler County,
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wherein the appellant, Herman Stafford, was convicted of attempted statutory rape*fn1 and corrupting the morals of a minor.*fn2 Appellant contends on appeal that: (1) the trial court erred in not stating on the record whether the sentence was imposed on the attempted statutory rape conviction or the corrupting the morals of a minor conviction; (2) the trial court erred in denying defense counsel's request for a "missing witness" instruction to the jury; (3) appellant's trial counsel was ineffective in failing to object to the trial judge's charge to which the jury was at variance with the bill of information; specifically that the information charged the defendant only with attempted rape and the trial court instructed the jury that the defendant could be found guilty either of attempted rape or attempted statutory rape; and (4) appellant's trial counsel was ineffective in failing to comply with Pa.R.Crim.P. 305(C)(1)(a) requiring notice of an alibi defense and thereby appellant was not permitted to present alibi witnesses. We find merit only in the appellant's final contention and accordingly remand this case for a determination of whether the appellant's trial counsel was ineffective.
The events giving rise to this case occurred on the afternoon of September 22, 1979. The prosecutrix, an eleven-year-old girl, was "hanging out" in front of Moore's Store in Portersville, Pennsylvania. The appellant drove up to the store in his pick-up truck and asked the prosecutrix if she wanted a ride in his truck, to which the prosecutrix said yes. A witness, Mr. Merl Bintrim, who lived about a half block from Moore's store, testified that he saw the prosecutrix climb into the truck. The prosecutrix testified that appellant said he would take her to a park; instead he drove a few miles down the road to a cornfield and backed his truck into the field. He then grabbed her, pushed her down on the seat and pulled down her pants and underpants. He then took down his own pants and laid on top of her for a "long time." He fondled her breasts with his hands and also
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her genitalia. After an indeterminate period he got up and said "I give up." Both parties then dressed and the appellant drove the prosecutrix home.
When the prosecutrix arrived home her mother asked where she had been and she replied that she "was up at school." When her mother asked her again, she told her what had happened. The parents of the prosecutrix took her to Butler Hospital to be examined. The examination revealed seminal fluid in the crotch area of the girl's underpants as well as pubic hairs which could not have belonged to her. The pubic hairs were "consistent with" hairs taken from the appellant pursuant to a search warrant.
The appellant testified that, at the time of the incident, his truck was parked and blocked in his driveway by other vehicles and that he was assisting his mother-in-law with a garage sale and also doing automotive repair work for his brother. The court refused to allow appellant to present alibi witnesses because appellant's trial counsel did not give ...