Com. v. Blauvelt

• Decision Date: 16 April 1958
• Citation: 140 A.2d 463,186 Pa.Super. 66
• Parties: COMMONWEALTH v. Paul C. BLAUVELT, Appellant.
• Court: Pennsylvania Superior Court

Page 463

140 A.2d 463

186 Pa.Super. 66

COMMONWEALTH v. Paul C. BLAUVELT, Appellant.

Superior Court of Pennsylvania.

April 16, 1958.

Application for Allocatur Denied May 26, 1958.

Linton & Walrath, Thomas A. Walrath, Wellsboro, Harold B. Fink, Jr., Coudersport, for appellant.

John A. Duvall, Dist. Atty., William E. Young, Asst. Dist. Atty., Coudersport, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

HIRT, Judge.

Defendant, more than 35 years of age, was convicted on both counts of an indictment charging the common-law offense of indecent assault, and of conduct tending to corrupt the morals of Lois Ann Quimby, the young girl involved, then 13 years old. Section 532, added to the Act of June 24, 1939, P.L. 872, by the amendment of June 3, 1953, P.L. 277, 18 P.S. § 4532. Motions in arrest of judgment and for a new trial were refused and the defendant was sentenced on each of the counts. ¹

The defendant operated a garage and automobile body shop on East Second Street in Coudersport. Lois Quimby lived with her father nearby, on the corner of Second and West Streets. In the evening of Sunday, April 7, 1957, between 7:30 and 8:00 Lois left her home to buy some ice cream in the neighborhood. On the way back with her purchase she saw the defendant standing by the door of his shop. Only the office was lighted. She testified that as she was passing his shop he turned off the lights and said: 'Come here' and that when she tried to get away 'he came out after' her; he seized the back of her coat and pulled her into the garage, closing the door behind him and 'dragged' her into the back seat of an automobile inside the shop. She testified that she kept on screaming for help although the defendant said: 'Stop it or I'll knock you out.' In the car defendant removed the girl's coat and her underclothing and took liberties with her person against her will, short however of attempting rape. He released her some time around nine o'clock and on her way home, still carrying the ice cream her disheveled condition was observed by a State police officer. The girl's uncle who went out to look for the girl when she did not return home within a reasonable time testified that he saw her crossing the street, that she then was crying and that 'her hair was all mussed up'. On arriving home she reported the assault to her father. He testified that she was 'pretty badly mussed up' and that her lip was bruised and swollen. She however had no recollection of the defendant striking her. The father immediately went to the defendant's garage with a flashlight and on the floor of the black Hudson, in which the girl said she had been assaulted, he found a missing button which had been pulled from her dress. The defendant denied seeing the girl that evening, but at the same time begged her father not to say anything about the matter.

Contrary to appellant's contention the verdict was not against the weight of the evidence. The weight to be given the testimony in this case was for the jury and not for either the trial court or for us. Cf. Commonwealth v. Attarian, 129 Pa.Super. 31, 194 A. 776. And the record belies the contention of a denial of due process. Moreover the trial court did not err in its charge on the second count of the indictment. We need not discuss that contention under the circumstances, since the defendant did not request additional instructions (Commonwealth v. Heatter, 177 Pa.Super. 374, 111 A.2d 371) and this, especially, since at the end of the charge the trial judge inquired 'Whether there are any matters of evidence or principles of law that you wish reviewed' and defendant's counsel replied: 'A very complete and accurate summary.' The constitutionality of the 1953 amendment of The Penal Code, supra, on which the second count was based, was not raised in the court below. We however in Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276, found the Act to be constitutional and the ruling in that case would dispose of that question adversely to the defendant even if it had been properly raised.

However, there was fundamental error in the trial of defendant on the charge of indecent assault. The error consisted in inconsistent rulings of the court with respect to prior solicitations of defendant alleged to have been made to him by Lois Quimby. Initially the court ruled that defense counsel would be permitted to prove solicitation by the girl who frequently visited a gril in the defendant's office where she worked. At least three of defendant's witnesses, who saw her on the premises, when asked if they had ever heard the girl solicit the defendant, answered: 'No.' Record 65a, 69a and 79a. One witness, however, (at 97a) the girl who was employed in the office said that on one occasion Lois Quimby did solicit the defendant and in response to the question: 'How did she do that?' she testified that Lois said: "Give me a little." without elaborating as to what, if anything, was said prior thereto by Lois or the defendant. This alleged statement would amount to a solicitation by innuendo only, in any event, dependent upon its context. The court when the Commonwealth objected and moved that the testimony be stricken ruled (at 97a) as follows: 'Yes, but I said I would permit you to ask whether there was solicitation. I agree that the conversation is not proper and the jury is instructed to disregard it, it is to be stricken.' Later in the trial (record at 121a) following testimony of another witness who stated that Lois came to defendant's place of business frequently, the defendant took the stand in his own defense and to the question: 'During these times in which she would come around to your place of business, did she ever solicit you?' the defendant replied: 'Yes, she did.' The court sustained the Commonwealth's objection to this testimony in stating: 'The answer should be stricken and the jury is instructed to disregard it.' This was the defendant's own self-serving statement but nevertheless he was entitled to the benefit of it, for what it was worth, and there was error in excluding it.

The district attorney attempted in this appeal to justify the above inconsistent rulings by analogy to cases involving the charge of statutory rape. It is at once obvious that analogy fails, for these reasons: to convict on a charge of statutory rape, whether the young girl consented or not is immaterial. Section 721 of The Penal Code, supra, 18 P.S. § 4721, specifically provides that the offense consists in the carnal knowledge of a woman child under the age of sixteen years 'with or without her consent.' The crime of statutory rape differs from the common-law offense of indecent assault, here involved, in other respects:...