No. 1727 PHILADELPHIA, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas of Delaware County Criminal, at No. 13 A-C of 1979.
Michael R. Sweeney, Media, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 310 Pa. Super. Page 201]
This is an appeal from judgment of sentence imposed following appellant's conviction of assault, indecent assault, and involuntary deviate sexual intercourse. Appellant argues, first, that his conviction should be reversed, and either he should be discharged because the evidence was insufficient, or he should be granted a new trial because the lower court erred in admitting hearsay testimony, and second, that his sentence should be vacated because before sentencing him, the lower court required him to submit to a polygraph examination. We affirm the conviction but vacate the sentence and remand for resentencing.
The lower court's opinion adequately disposes of appellant's arguments for reversal of his conviction. We shall therefore confine our discussion to appellant's argument that his sentence should be vacated.
On December 5, 1980, appellant was brought before the lower court for sentencing. A pre-sentence investigation report had been ordered and had been received. The lower court opened the proceedings by stating as follows:
Initially I want to indicate in this matter that this case was tried sometime ago and that during the course of the trial it became apparent that there was a substantial issue to be determined, the issue of credibility and the jury resolved that issue in favor of the victim and against Mr. Puchalski.
The situation as I remember the trial was interesting in that the offense was not charged until an extended period of time after the actual offense took place. The charge was brought some months later evidently.
The jury found against Mr. Puchalski and the Court ordered a psychiatric evaluation for the purpose of setting bail. The psychiatric evaluation in essence seemed to indicate that there was a problem with Mr. Puchalski and one that was probably related to the fact that he maintained that he did not commit this crime and that
[ 310 Pa. Super. Page 202]
psychiatric therapy might be necessary to have him adjust to the fact that he had been convicted for a crime which he maintained he did not commit.
The Court has reviewed this matter in its entirety and feels that the jury verdict was supported by the evidence. The question was one of credibility for the jury to determine. The Court felt under the circumstances it could not reverse the verdict of the jury.
The circumstances have given the Court difficulty as far as sentencing is concerned and because they are in my experience most unusual, I am going to inquire of the defendant whether he would undergo testing for the purposes of assisting the Court in ultimately disposing of this matter.
Specifically, I'm speaking in terms of a polygraphic test and/or a sodium pentothal test. The defendant is 19 years of age and obviously this sentence of this Court is going to have a substantial impact.
The crime was a nasty crime and this Court feels it would be of assistance to the Court in sentencing and I am going to ask you, Mr. Sweeney to discuss with your client whether he is willing to undergo such tests so that the Court can have additional information from which to make its ultimate decision.
Counsel for appellant stated that he "believe[d] the court's request is in substance saying I have such terrible doubts about this case that I cannot resolve it on the record before --." R.R. 331a. The court, however, interjected, saying:
No. You are misreading what I'm saying. The jury resolved the issues. They were not for me to resolve, but it is my job to sentence and the crime was a nasty crime and the crime by its very nature requires a penalty which fits the crime. I am seeking ...