Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County at No. 106 of 1981.
Harold J. Funt, Allentown, for appellant.
John J. Walden, Assistant District Attorney, Norristown, for Com., appellee.
Cirillo, Montemuro and Popovich, JJ. Montemuro, J., files a dissenting opinion.
[ 353 Pa. Super. Page 616]
This is an appeal from the judgment of sentence which was imposed upon appellant, Clinton Dudley, after he was convicted by a jury of rape, simple assault, and indecent assault. We must reverse and remand for a new trial for the reasons herein given.
Appellant raises the following issues: (1) whether the trial court erred in refusing to allow testimony regarding the victim's psychiatric history; (2) whether the trial court abused its discretion in denying defense counsel's motion to excuse a juror and/or to grant a new trial; (3) whether the trial court erred in permitting the prosecution to present testimony regarding appellant's extradition from the state of Ohio; (4) whether reversible error was committed when the prosecutor elicited information regarding the use of the National Crime Information Center; (5) whether the trial court erred in allowing the prosecution to present a police detective on rebuttal; (6) whether the trial court erred in
[ 353 Pa. Super. Page 617]
denying appellant's request for the missing witness instruction; and, (7) whether the sentence was excessive because the trial court failed to give due consideration to the evidence which was presented on appellant's behalf. Appellant contends that trial counsel was ineffective for: (1) failing to cross-examine the victim regarding the fact that she had been under the care of a psychiatrist within seven (7) months of the date of trial when he knew that the nature of her mental derangement was connected directly with the subject of the litigation and when he further knew that impeachment of her credibility was vital to the appellant's defense; (2) for failing to suppress evidence introduced by the prosecution regarding a statement attributed to appellant that he "hated whites"; (3) for failing to object to the prosecution's rebuttal witness and for waiving appellant's right to raise the issue in post-verdict motions; (4) for failing to object to a prejudicial remark which was made by the prosecutor and for waiving appellant's right to raise the issue in post-verdict motions; (5) for failing to question a detective and/or the appellant properly about an unidentified detective who was present in the squad room when the appellant was interrogated which permitted the trial court to rule against appellant on the missing witness instruction; (6) for failing to object prior to trial to the validity of the information because the information contained only a rubber-stamped facsimile of the signature of the district attorney; (7) for failing to object to the prosecution's motion to amend the information by adding a charge of indecent assault; and (8) for failing to advise the appellant that he was under no legal requirement to take the witness stand and to testify at trial.
Because we find that the trial court abused its discretion in refusing to allow testimony regarding the victim's psychiatric history, we must grant appellant a new trial.
The record sets forth the following scenario:
On the afternoon of August 9, 1980, appellant, a licensed "door to door" magazine salesman, knocked at the residence of the victim, ...