Appeal From Judgment of Sentence, Court of Common Please, Criminal Division, Philadelphia County No. 1978-1979 July 1982.
John P. Cotter, Philadelphia, for appellant.
Janet McGarry, Assistant District Attorney, for Commonwealth, appellee.
Cavanaugh, Beck and Tamilia, JJ. Beck, Judge, concurring.
[ 343 Pa. Super. Page 488]
In this case, Hector Rodriguez appeals from the judgment of sentence entered against him after he was found guilty by jury of Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3101. Appellant alleges that the trial court erred in
[ 343 Pa. Super. Page 489]
several respects and requests that we order a new trial or dismiss the charge. We find appellant's contentions to be without merit.
The evidence viewed in the light most favorable to the Commonwealth as verdict winner reveals that the complaining witness, a fourteen year old boy named Pedro Falu, went to the apartment of his uncle, the appellant, Hector Rodriguez, on Friday, March 26, 1982, for purposes of "running away" with him to New York. That evening, appellant committed the sexual assault which is the basis of this appeal. Pedro stayed with appellant until the following Tuesday, when appellant and two others took him to an abandoned factory, robbed him, tied him up atop a boiler some six feet above the ground, and departed, leaving the boy there alone for an undetermined period of time. After loosening the gag that had been placed over his mouth, young Pedro's cries for help were eventually heard and he was taken to a hospital.
Appellant's first contention is that the court below erred in admitting the prior inconsistent statement of a defense witness, Max Cross. On the stand, Mr. Cross denied any participation in the robbery of Pedro Falu. The prosecutor, in an attempt to impeach Cross' testimony, introduced a statement Cross had made to the police wherein he admitted his participation in the robbery. Appellant now alleges it was error to admit this prior inconsistent statement because the prosecutor in fact knew that Cross had not participated in the robbery. Importantly, appellant does not argue that Cross never made the prior statement, nor does he argue that there is no inconsistency between the two statements. Rather, he argues that a prosecutor may not knowingly introduce false evidence. In support of this, appellant cites Commonwealth v. Moehring, 445 Pa. 400, 285 A.2d 487 (1971). Unlike the instant case, Moehring dealt with a prosecutor who knowingly introduced false evidence as part of his case-in-chief and the Commonwealth's case against the defendant rested on this evidence. Appellant has not proven that the prosecutor "knew" the prior statement was
[ 343 Pa. Super. Page 490]
false nor has he briefed any reasons substantiating this allegation. Moreover, appellant has not asserted that the Commonwealth's case rested on this "evidence."
Our review of the record reveals that, even before Cross took the stand at the behest of the defense, the defense anticipated the impeachment that subsequently ensued. Appellant assumed the risk of ...