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COMMONWEALTH PENNSYLVANIA v. EDWARD LANE (03/13/89)

decided*fn*: March 13, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
EDWARD LANE, APPELLEE



Appeal from the Order of the Superior Court entered February 3, 1987 at No. 1151 Philadelphia, 1986, Vacating and Remanding the Judgment of Sentence of the Court of Common Pleas of Lehigh County entered September 15, 1982 at No. 239 of 1982. 365 Pa. Super. 644, 526 A.2d 813 (1987).

COUNSEL

William H. Platt, Dist. Atty., Wallace B. Eldridge, III, for appellant.

Dennis Charles, Allentown, for appellee.

Nix, C.j.,*fn* and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., files a dissenting opinion, in which Larsen and Papadakos, JJ., join.

Author: Nix

[ 521 Pa. Page 393]

OPINION

Edward Lane was tried and convicted of rape, statutory rape, indecent assault, terroristic threats and corruption of a minor, arising from an incident with an eight-year-old girl. He was sentenced to four to ten years incarceration. On appeal, the Superior Court reversed the judgment of sentence and granted him a new trial, 365 Pa. Super. 644, 526 A.2d 813. The Commonwealth petitioned for allowance of appeal and we granted allocatur.

The alleged sexual assault in this case occurred on October 1, 1980. It is charged that the eight-year-old victim, Jennifer Simonson, was lured to the basement of her apartment building by appellee, a neighbor in the same building where Jennifer and her mother lived, on the pretext of helping appellee look for a lost cat. In that basement area, appellee is charged with having violently raped the minor victim. As a result of this encounter, Jennifer became aware that she was bleeding in the vaginal area and when it continued she reported that fact to her mother. At that time she did not mention the sexual assault as the cause of the bleeding. On the next day when Jennifer was examined by her doctor she told him that she did not know what had happened. Jennifer's mother suggested that the injury, described by the attending doctor as a one-quarter inch laceration of the perineum, may have occurred while the victim was bicycling. The doctor's progress note sheet, however, indicated that the injury's cause was "unknown." Other evidence adduced at trial revealed that Jennifer and her mother were very close, and that they both were acquainted with appellee who had lived with a friend of Jennifer's mother.

The primary issue is whether the Superior Court erred in reversing the trial court's granting of a Commonwealth challenge for cause with respect to a prospective juror. The pertinent facts regarding this issue are as follows.

[ 521 Pa. Page 394]

During voir dire a prospective juror was questioned by counsel for appellee. His response revealed that he would have difficulty not considering the length of time between when the incident occurred and when it was reported to the police. (N.T. 7/12/82 at 7A)

Counsel and the prospective juror were then called to the bench, and the following discussion took place:

[Defense Counsel]

Q: It is my recollection of what you said, that you indicated that you may very well be affected by the length of time between the alleged offense and the date when it was reported, is that correct?

A: That's correct, that part, yes.

[Defense Counsel]

Q: I thought you also indicated that you felt that you would be able to listen to the evidence and decide the case based on evidence.

A: Just based on the evidence, right; but still, like I say, the evidence I can go 100% with the evidence, if [sic] just the point that there was such an elapsed time that we should really -- that would really be the point that I felt would just not make a --

[Defense Counsel]

Q: Let me ask you this --

A: That may still have some of the doubt in my mind.

[Defense Counsel]

Q: About what, sir?

A: . . . the facts were all reported to me, and to the jurors, then you know, that would be it. Then, I would go strictly on them facts; it's just the point that to me it seems impossible that they should wait so long when they have a child at that age.

[Defense Counsel]

Q: Are you saying that you would listen to ...


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