dissenting:
Appellant was convicted by a jury on March 12, 1975, of involuntary deviate sexual intercourse with two minor girls. He bases his appeal on five issues: (1) the verdict is against the weight of the evidence; the evidence is insufficient, (2) the victims failed to report the incidents promptly, (3) the victims failed to specify the dates on which the incidents occurred, (4) one of the victims was incompetent to testify, (5) certain testimony excluded by the lower court is not hearsay. The Majority affirms the lower courts’ denial of an arrest of judgment and a new trial. I dissent.
It is clear that to “sustain a conviction, the facts and circumstances which the Commonwealth prove must be such that every essential element of the crime is established beyond a reasonable doubt. . . . The conviction must be based on more than mere suspicion or conjecture.” Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973). It is true that “[i]n considering motions of defendants for a new trial and in arrest of judgment following conviction, the court must accept as correct the testimony submitted by the Commonwealth as well as the reasonable *348inferences which can properly be drawn therefrom.” Commonwealth v. James, 197 Pa.Super. 110, 113, 177 A.2d 11, 13 (1962). But [i]f “the conviction is based wholly on inferences, suspicion and conjecture, it cannot stand.” Commonwealth v. Simpson, 436 Pa. 459, 464, 260 A.2d 751, 754 (1970).
In the instant case I would hold that the verdict is against the weight of the evidence. The eleven and fifteen year old victims herein made no immediate outcry against the appellant. There was a delay of over one year between the occurrence of the first incident and the time that it was reported to any adult. In fact, the girls first charged their father with the crime. They later recanted and said that appellant was the perpetrator.
Further, the testimony at trial by the two victims with respect to vital evidence is extremely contradictory and confused, especially as to the dates when the acts of oral intercourse occurred and as to the number of incidents. The girls were uncertain of the year, month, day, and time of the incidents. Their trial testimony also contradicted their testimony at a preliminary hearing and at a motion to quash the indictment. There was absolutely no testimony by either girl of an actual date upon which a sexual act occurred and thus, appellant had no adequate opportunity to prepare his defense. Additionally, there is a serious question as to the competency of the younger girl to testify.
The tests for competency of a minor witness were summarized in Rosche v. McCoy, 397 Pa. 615, 620-621, 156 A.2d 307, 310 (1959): “There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth.” In the instant case the young victim exhibited confusion when asked simple questions on direct and cross-examination. In some instances she failed to make any audible response to questions, and on cross-examination, she could not frame an answer to several questions concerning *349what the appellant did with her. At times, she seemed to lose her memory altogether.
Based upon all of these factors and in the interests of justice, I would reverse the judgment of sentence and remand for a new trial.