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COMMONWEALTH PENNSYLVANIA v. PHILLIP APPENZELLER (10/16/89)

filed: October 16, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
PHILLIP APPENZELLER, APPELLANT



Appeal from Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 2754-2766, NOVEMBER TERM, 1984.

COUNSEL

Regina B. Guerin, Philadelphia, for appellant.

Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com.

Cirillo, President Judge, and Brosky, Rowley, McEwen, Olszewski, Tamilia, Popovich, Johnson and Melinson, JJ. Melinson, J., concurs in the result of Tamilia, J. Popovich, J., filed a concurring and dissenting statement in which Johnson, J., joined.

Author: Tamilia

[ 388 Pa. Super. Page 173]

Appellant, Phillip Appenzeller, appeals judgment of sentence of five to ten years imprisonment imposed following jury convictions on October 10, 1985 of rape, criminal conspiracy, statutory rape and indecent assault. A direct appeal filed by trial counsel was dismissed by this Court for

[ 388 Pa. Super. Page 174]

    failure to file a brief, however, pursuant to the Post Conviction Hearing Act defendant's right to appeal was reinstated nunc pro tunc by the trial court. The relevant facts as derived from the trial transcripts follow.

The victim, Katherine L., was three years old when appellant and his girlfriend, Rosemary Nolan,*fn1 sexually assaulted her. Katherine lived around the corner from the home appellant shared with Nolan and her four children and played with Nolan's children, frequently visiting appellant's home.

One day in April, 1984, during daylight hours, appellant and Nolan saw Katherine playing outside and asked her to come inside their home. Once inside, appellant dragged her into his upstairs bedroom, where he and Nolan sexually assaulted her. Although Katherine did not immediately tell her mother about the attack because she was afraid her mother would be angry, her mother noticed that the victim's vagina was red and swollen while giving her a bath. She asked Katherine what was the matter, but Katherine backed away and said nothing. Also in April, the victim began wetting herself and crying at night, which her mother testified was unusual for her.

In May, 1984, the victim's mother asked her whether anyone in the neighborhood had touched her. Again, the victim backed away, but then told her mother that appellant had put his penis in her vagina. The assault was reported and appellant was arrested in July, 1984.

Appellant was tried on May 1-3, 1985 before a jury and found guilty of rape, statutory rape, indecent assault and conspiracy even though appellant denied ever having had contact with the victim. Appellant now argues he should have been allowed to cross examine the victim and her mother regarding a sexual assault upon the victim by another male which ...


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