Com. v. Mosteller

• Decision Date: 20 December 1971
• Citation: 446 Pa. 83,284 A.2d 786
• Parties: , 51 A.L.R.3d 898 COMMONWEALTH of Pennsylvania v. Frederick MOSTELLER, Sr., Appellant.
• Court: Pennsylvania Supreme Court

Page 786

284 A.2d 786

446 Pa. 83, 51 A.L.R.3d 898

COMMONWEALTH of Pennsylvania v. Frederick MOSTELLER, Sr., Appellant.

Supreme Court of Pennsylvania.

Dec. 20, 1971.

[446 Pa. 85] Mark S. Refowich, Easton, for appellant.

Charles H. Spaziani, Dist. Atty., Nicholas M. Zanakos, Asst. Dist. Atty., Easton, for appellee.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This appeal requires that we consider the value of a prosecutrix's recantation subsequent to trial, when her testimony at trial was the sole evidence upon which the Commonwealth depended to support the indictments against appellant for various sex crimes. We believe that on the record before us a new trial is necessary so that a new jury may pass on the prosecutrix's credibility in light of subsequent events.

Appellant was convicted of incest, statutory rape, and corrupting the morals of a minor in a trial before a jury on June 12 and 13, 1968. The Commonwealth's case rested entirely upon the testimony of Frieda Mosteller, appellant's fifteen year old daughter. Under oath at trial, she recounted how on the afternoon of January 23, 1968, her father entered the bathroom where she was bathing and 'started playing with my busts.' According to Frieda, her father then told her to come visit him nude in his bedroom, which she did. She lay on the bed on her back, and her father allegedly had intercourse with her. She testified she was penetrated for approximately five minutes; she experienced no pain, and no emission occurred.

Frieda stated she then dressed and went downstairs while her father went to sleep. When her sister returned from school some fifteen minutes later Frieda told her of the alleged incident. The story was repeated to her mother shortly thereafter.

The following day, Frieda was called for at school by her stepbrother and his wife who had heard of Frieda's accusation. They took the girl to the Easton police, who in turn had her examined at the hospital.

Dr. Linwood Pearson, a specialist in obstetrics and gynecology, appeared as a witness on behalf of the Commonwealth. He testified that his examination of Frieda on January 24, 1968 in the emergency ward at the Easton Hospital disclosed no evidence of perineal or labial laceration; her hymen was intact and uninjured. A vaginal cotton swab test and a rectal examination were also negative.

Mrs. Mosteller, Frieda's mother, testified for the defense. She stated that after she had been informed of what had allegedly occurred she took Frieda into the bathroom and examined her, at which time 'I seen everything normal.' She also stated that when she returned home, Frieda was sitting downstairs and in no way appeared disturbed or upset.

Appellant himself took the stand and strenuously denied having done any of the acts attributed to him by his daughter. He admitted being home alone with Frieda but asserted he had been asleep the entire time.

Following his conviction, appellant submitted motions for a new trial and in arrest of judgment, which were argued on March 4, 1969. In his argument, appellant abandoned the original grounds for his written motion of June 17, 1968, contending instead that he was entitled to a new trial because of after discovered evidence taken on June 28, 1968, in the form of a sworn statement made by Frieda and later testimony of Mrs. Mabel Vulcano, Frieda's great aunt at a court hearing.

Frieda had returned to live with her parents shortly after the alleged incident occurred in January, 1968. She remained at home until May 1, 1968, when she was adjudged a dependent child by the Juvenile Court of Northampton County. Protective service was ordered for her through the Northampton County Children's Bureau, and she was instructed to live with her maternal grandmother, with whom she stayed until June 25, 1968, (thirteen days after the verdict). Frieda then voluntarily returned home. Two days later her sister telephoned their father's attorney and informed him that Frieda wished to retract her trial testimony.

Frieda was examined by the district attorney in the presence of defense counsel and a representative of the Children's Bureau on June 28, 1968. She stated under oath that her testimony at trial had been untrue, and stressed, '. . . (h)e did not do it, and I don't want to see him go to jail for something he didn't do, and I want to be home with my parents.' Her explanation for her earlier falsehoods was, '. . . (b)ecause people was telling me to do one thing and other people were telling me to do another thing, and I was so mixed up I didn't know what to say.' According to Frieda, her grandmother and her uncle had pushed her into testifying at trial. She had merely told her sister that 'my father got after me,' and her sister then relayed this information to their mother. She was scared to tell the truth at trial because her '. . . grandmother and them was in court, and if I turned around and told the other story, that he didn't touch me, then I didn't know what they would think.'

Frieda continued by persistently denying every aspect and detail of her previous trial testimony despite numerous warnings from the district attorney that she was in effect admitting the crime of perjury, which, it was explained to her, carried a penalty 'of up to $3,000 fine and up to seven years in jail.' Frieda did not waiver in her recantation.

A hearing was held before the court on February 3, 1969, at which time Mrs. Mabel Vulcano, Frieda's great aunt, testified that on May 14, 1968, (approximately one month prior to appellant's trial) she had asked Frieda if her father had actually done anything at all to her, and Frieda replied in the negative. Mrs. Vulcano explained that she had not made this fact known previously because her brother had instructed her to remain quiet. Frieda did not testify at this hearing.

The court en banc concluded that a new trial was not warranted under the circumstances. The Superior Court, 216 Pa.Super. 236, 263 A.2d 768, affirmed per curiam without opinion on March 19, 1970, with Judge Hoffman filing a dissenting opinion. We granted allocatur.

This Court has often reiterated that:

'. . . 'A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted."

Commonwealth v. Coleman, 438 Pa. 373, 376--377, 264 A.2d 649, 651 (1970).

Our general view of recanting testimony is equally settled:

'The well-established rule is that an appellate court may not interfere with the denial or granting of a new trial where the sole ground is the alleged recantation of state witnesses unless there has been a clear abuse of discretion. Commonwealth v. Green, 387 Pa. 515, 128 A.2d 577 (1957); Commonwealth v. Sholder, 201 Pa.Super. 642, 644--645, 193 A.2d 632 (1963).

'Recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Commonwealth v. Scull, 200 Pa.Super. 122, 130, 186 A.2d 854 (1962). There is no less reliable form of proof, especially when it involves an admission of perjury. Commonwealth ex rel. Leeper v. Russell, 199 Pa.Super. 93, 96, 184 A.2d 149 (1962), Commonwealth v. Sholder, supra.'

Commonwealth v. Coleman, supra at 377, 264 A.2d at 651.

However, we have not previously been presented with precisely the factual situation that now confronts us. Frieda gave the Only testimony which could possibly have led to appellant's conviction. Not an iota of other corroborating evidence was offered. To the contrary, the testimony of Frieda's mother and the medical evidence supported appellant's version of the incident and the recantation testimony. Furthermore, Frieda's retraction was corroborated by her great aunt.

We are in accord with the court en banc and Judge Hoffman's dissent that Frieda's deposition of June 28 constituted after discovered evidence. It was not available until after the trial, it was not merely corroborative, it will not be used for mere purposes of impeachment, and it unquestionably is of such character as to probably result in a different verdict if a new trial is held.

Upon careful consideration, we believe it was a clear abuse of discretion not to award a new trial under these circumstances and thereby allow a new jury to pass on the child prosecutrix's credibility. Rape, as Lord Hale observed in the seventeenth century, '. . . is an accusation easily to be made and hard to be proved; and harder to be defended by the party accused, tho never so innocent.' I. M. Hale, Pleas of the Crown 635. In recognition of this truism, some jurisdictions have adopted the rule that uncorroborated testimony of a prosecutrix is insufficient evidence to support a conviction of rape. See, e.g., N.Y. Penal Law § 130.15 (McKinney's Consol. Laws, c. 40, 1967); see generally 7 J. Wigmore, Evidence § 2061 (3d ed. 1940).

False accusations in sex crimes are generally conceded to be far more frequent than untrue charges of other crimes. As one author has summarized:

'A woman may accuse an innocent man of raping her because she is mentally sick and given to delusions; or because, having consented to intercourse, she is ashamed of herself and bitter at her partner; or because she is pregnant, and prefers a false explanation to the true one; or simply because she hates the man whom she accuses.'

Note, Corroborating Charges of Rape, 67 Col.L.Rev. 1137, 1138 (1967) (footnote omitted). See also, Wedmore v. State, 237 Ind. 212, 143 N.E.2d 649, 657--662 (1957) (...