Appeal from the Order of October 25, 1983 of the Court of Common Pleas of Mercer County, Criminal at No. 441 Criminal 1982.
Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellant.
Lorinda L. Hinch, Assistant Public Defender, Mercer, for appellee.
Beck, Popovich and Handler, JJ.*fn*
[ 342 Pa. Super. Page 439]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Mercer County granting Richard Allen Campbell, appellee, a new trial. We affirm.
The Commonwealth, as the verdict-winner in a trial where the jury found the appellee guilty of statutory rape and incest, is entitled to have the evidence viewed in a light most favorable to it. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). Viewed in accordance with the preceding standard, the following evidence appears of record: On July 8, 1982, the Campbell children (Terry, age 10; David, age 7; and Rosella, age 11) were watching television at their Madison Street home in Sharon, Pennsylvania until 8:30 p.m. before being directed to go to bed by the appellee, their natural father. Mrs. Campbell, as was her custom on Thursdays, had gone to play bingo at the Eagles and was not expected back until 10:00 or 11:00 p.m. that evening.
After Rosella had changed into her sleeping apparel (which consisted of a robe, nightgown, shirt and underwear), the appellee came into her bedroom. Before doing so, however, the appellee had looked in on his sons, who slept on the same floor as Rosella but in a separate room.
[ 342 Pa. Super. Page 440]
Upon entering Rosella's room, the appellee was visible to her because of a nightlight. As he stood along the side of the bed, he ordered his daughter to get undressed. When she refused, he slapped her across the face. The daughter screamed. The appellee told her to "shut up" and removed her clothing. The appellee then got on top of the victim, placed his penis between her legs and, as described by the victim, "went up and down" for about one-half (1/2) of an hour. During this incident the victim told the appellee he was hurting her, but he did not cease until she complained a second time of the pain. Also, the victim went on to explain that the appellee penetrated her.
After the appellee got off the victim, he told her to hold his penis. She refused. The appellee reacted by striking the victim's head against the wall next to the bed. He then lifted her from the bed by her arms and caused her head to strike the wooden floor. This was followed by the victim being placed back on the bed and being told by the appellee to put his penis in her mouth. When she said, "No" he smacked her and at some point struck her with a belt in the face. This caused the victim to cry. However, the ordeal did not come to an end until a knock was heard at the front door. It was Mrs. Campbell. The appellee got dressed, told the victim to do the same and warned, "If you tell, I'll blow your head off."
At this stage of the trial, a side bar was conducted which centered upon the admissibility of an "event of a year and a half before" the one being tried involving, again, the appellee and his daughter at their residence on Walnut Street in Sharon. The trial court permitted, over the appellee's objection, the victim to testify that approximately a year and a half (1 1/2) before the July, 1982 incident she was assaulted by the appellee. The trial court also cautioned the jury that ...