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COMMONWEALTH PENNSYLVANIA v. FRED THEK (07/14/88)

filed: July 14, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
FRED THEK, JR., APPELLANT



Appeal from the Judgment of Sentence entered May 28, 1987 in the Court of Common Pleas of Pike County, Criminal Division, No. 254-1985.

COUNSEL

Marshall E. Anders, Stroudsburg, for appellant.

Michael E. Weinstein, District Attorney, Milford, for Com., appellee.

Wieand, Kelly and Hester, JJ. Wieand, J., concurs in the result.

Author: Kelly

[ 376 Pa. Super. Page 392]

Appellant, Fred Thek, Jr., appeals from judgment of sentence imposed following his conviction of statutory rape, rape, involuntary deviate sexual intercourse, indecent assault, incest, corruption of minors, and terroristic threats. We reverse and remand for a new trial.

Appellant contends on appeal that: (1) trial counsel rendered ineffective assistance; (2) the trial court erred as a matter of law in its instruction to the jury based upon the jury's question concerning the forcible compulsion element of the charge of rape;*fn1 (3) the charges against the appellant

[ 376 Pa. Super. Page 393]

    should have been dismissed since he was not brought to trial within the period mandated by Rule 1100;*fn2 (4) counts I, XI, XV, XVI and XVII of the information filed against the appellant should have been dismissed; (5) the trial court erred as a matter of law in improperly restricting the cross-examination of the alleged victim thereby denying the appellant his right to confront witnesses against him;*fn3 and (6) the judgment of guilty of the charge of terroristic threats should have been arrested and the appellant should be discharged thereon as the jury's verdict in this regard was against the weight of the evidence. After a thorough review of the record and the applicable authority, we find appellant's first, fourth and sixth issues have merit. Accordingly, we vacate the judgment of sentence and remand for a new trial in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

On November 13, 1985, the appellant was arrested and charged with the crimes of statutory rape, rape, involuntary deviate sexual intercourse, indecent assault, incest, corruption of minors, and terroristic threats. The charges arose from appellant's sexual abuse of his minor daughter.

[ 376 Pa. Super. Page 394]

The criminal information alleged that: the statutory rape occurred during the summer of 1980 through 1981 (count I); the incest occurred during the summer of 1980 through 1981 (count XI) and during the period from the summer of 1980 through November 5, 1985 (count XVII); and the corruption of minors charge was based upon actions which occurred from the summer of 1980 through November 5, 1985 (count XV). The information contained no date or time period when the terroristic threats occurred (count XVI). The remaining counts relate to acts which occurred on October 16, October 22, and November 5, 1985 (counts II-X, XII, XIII and XIV).

Defense counsel filed numerous pre-trial motions to dismiss, which were denied. The trial was originally scheduled for the May Term, but was continued to the July Term upon the motion of the Commonwealth due to the victim's advanced pregnancy.

Trial commenced on July 8, 1986. On July 10, 1986, the jury found the appellant guilty on all counts. Thereafter, trial counsel filed timely post-verdict motions. On October 8, 1986, current counsel filed an entry of appearance and requested leave to file supplemental post-verdict motions nunc pro tunc which was granted.

On February 23, 1987, an evidentiary hearing was held regarding alleged ineffective assistance of trial counsel. Five witnesses were called, including an attorney qualified as an expert in criminal law. By opinion and order dated May 8, 1987, the trial court denied appellant's post-verdict motions. On May 28, 1987, appellant was sentenced to an aggregate term of imprisonment of ten to twenty-three years. This timely appeal followed.

I.

Appellant's first contention is that he was rendered ineffective assistance of counsel and therefore he is entitled to a new trial. He claims counsel was ineffective for the following reasons: (1) introducing the report of the ...


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