Appeal from a May 3, 1985 Order of the Superior Court, No. 520 Pgh 1984, Vacating the Judgment of Sentence of the Court of Common Pleas of Erie County, entered on April 2, 1984 at Criminal Division, No. 1323 of 1983 Pa. Super. 496 A.2d 854 (1985)
Michael J. Veshecco, Dist. Atty., Ernest J. DiSantis, Jr., Asst. Dist. Atty., Erie, for appellant.
Robert E. McBride, (Court-appointed), Erie, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurred in the result. Papadakos, J., filed a dissenting opinion.
On November 21, 1983, Charles Alden Rounds, Sr. (hereafter, appellee) was convicted, by a jury, of involuntary deviant sexual intercourse. The victim was appellee's retarded son, who was 15 years old at the time of the incidents, but had a mental age of 9-10 years. On at least
three separate occasions, ostensibly while checking for lice, appellee subjected his son to acts of anal and oral intercourse.
After his conviction, appellee's motion for arrest of judgment or for new trial was denied. On April 2, 1984, appellee was sentenced to 28-56 months of imprisonment and fined $100. Appellee appealed to Superior Court and on May 3, 1985, by a memorandum opinion, 345 Pa. Super. 621, 496 A.2d 854 appellee's judgment of sentence was vacated and appellee was awarded a new trial on the grounds of the trial court's failure to give the jury cautionary instructions about the testimony of two of the appellant's, Commonwealth of Pennsylvania's, (hereafter, Commonwealth) witnesses. The testimony in question was that of Jeffrey Adams (a friend of the victim) and Pamela Millspaw (a teacher of the victim). The witnesses testified that the victim confided in them concerning his father's sexual advances toward him. The Superior Court found that the testimony was admissible to corroborate the victim's testimony. We agree. See, Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). However, the Superior Court also found that it was "mandatory" that the trial court give a cautionary instruction to the jury that the testimony was admissible only to corroborate the victim's testimony and not for its substantive value.
At trial, the victim was the first to testify to the events. On cross-examination, appellee's attorney attempted to establish that the victim had been "influenced" or "given advice" about the substance of his testimony. Appellee's attorney also attempted to establish that the victim harbored ill will toward appellee by questioning whether the victim was "happy" living with him. The purpose of this line of questioning was to establish that the victim was lying.
The Commonwealth, in response, called the aforementioned two witnesses to testify to corroborate the victim's present testimony by testifying to his prior consistent statements to them. Appellee's hearsay objections to both ...