No. 2857 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County at Nos. 593, 594 of 1981.
Mark A. Hutchinson, Norristown, for appellant.
J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cavanaugh, Rowley and Hoffman, JJ.
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Appellant was charged in two criminal cases and in each he was accused of involuntary deviate sexual intercourse,*fn1 recklessly endangering another person,*fn2 indecent exposure,*fn3 endangering welfare of children,*fn4 indecent assault,*fn5 corruption of minors,*fn6 simple assault,*fn7 criminal solicitation,*fn8 and criminal attempt.*fn9 In one case, he was accused of these offenses with respect to the six-year-old niece of his girlfriend.*fn10 In the other case he was accused of the same offenses with respect to his own four-year-old niece and five-year-old nephew, the children of his two step-sisters. The two cases were consolidated for trial, and appellant's motion to sever was denied.
At the conclusion of the Commonwealth's case, appellant's demurrer to the charges of criminal attempt, recklessly endangering another person and endangering welfare of children was sustained with respect to both consolidated
[ 322 Pa. Super. Page 66]
cases. At the conclusion of the trial, the jury returned a verdict of not guilty with respect to both counts of involuntary deviate sexual intercourse, one count of indecent exposure, one count of indecent assault, both counts of simple assault and one count of criminal solicitation. However, the jury returned a verdict of guilty of the misdemeanor offenses of criminal solicitation, indecent assault and corruption of minors in one case, and indecent exposure and corruption of minors in the other. On these offenses the maximum terms of imprisonment were imposed and made consecutive to each other, resulting in a sentence of seven to fourteen years imprisonment. This appeal followed.
Appellant contends that the lower court erred in consolidating these two cases in one trial, and in admitting certain hearsay evidence. We agree with appellant, and reverse and remand for a new trial.
The criminal activities encompassed by the first of the two consolidated cases were alleged to have occurred "on or about February or March of 1980." In this case, appellant was charged with sexually molesting his girlfriend's six-year-old niece while the girlfriend baby-sat the child at an apartment shared by the girlfriend and her sister, the child's mother. The specific acts alleged involved the touching of appellant's exposed genitals to the child's anal area, and anal intercourse. These acts were alleged to have occurred in the presence of appellant's girlfriend.
The second of the two consolidated cases alleged similar misconduct with the four-year-old daughter of appellant's step-sister, as well as the corruption of this child and the five-year-old son of appellant's other step-sister by teaching or encouraging the two to have indecent contact with each other. These offenses allegedly occurred sometime between December 15, 1980 and January 26, 1981, while the children were visiting their grandmother at her apartment, which was shared by ...