Commonwealth v. Nabried

VAN der VOORT, Judge,

dissenting:

This is an appeal by defendant from convictions and sentencing for statutory rape (# 0961 January, 1977) and *424corruption of minor (# 0962 January, 1977).1 The trial took place before Judge Prattis of the Philadelphia Common Pleas Court without a jury. Defendant asks that both convictions be reversed because:

1. The court permitted, on March 7, 1977, over defendant’s objection, an amendment changing the date of the alleged offenses from November 12, 1975 to February 13, 1976;

2. There was insufficient evidence to prove guilt beyond a reasonable doubt;

3. The trial judge was improperly persuaded to base his verdict on a lack of evidence of motive or reason for the testimony of the complainant.

The lower court adequately answered appellant’s first argument in its opinion:

“Generally, a bill of information must state the charges against the defendant with such certainty as to give him fair notice of the substance, time and place of the alleged offense and to inform him in an intelligent manner of the nature of the accusations which he has been called upon to answer. Commonwealth v. Wolfe, 220 Pa.Super. 415, 289 A.2d 153 (1972).
It is axiomatic and of long standing that the court under the authority of Title 19 P.C.S.A. [P.S.] §§ 432 and 433, may amend bills of information to correct mere formal defects such as time, place, and value if the amendment is not material to the merits of the case, and the defendant is not prejudiced thereby. Commonwealth v. Myers, 10 Lebanon 327 (1966). Additionally, the question of permitting an amendment is primarily for the sound discretion of the trial court, and the action of the trial court will be reversed only for a clearly manifest abuse of discretion. Commonwealth v. Ballow, 171 Pa.Super. 54, 90 A.2d 363 (1952).
*425The amendment presently in issue was requested by the Commonwealth at time of trial and related to the date stated on the information on which the incident was alleged to have occurred. An amendment as to time is material in this case. However, there was no prejudice to the defendant since the court granted the defendant a 30 day continuance to prepare his defense consistent with the amendment.
Based on aforementioned, the trial court finds no error in its permitting the Commonwealth to amend the bills of information.”

The majority of the members of our court are in agreement that appellant’s first argument is without merit.

Appellant’s third argument refers to a comment made by the trial judge to the defendant just before the judge announced his verdict. The remark is of no legal significance. A reading of the entire testimony leaves no reasonable doubt as to appellant’s guilt.

With respect to appellant’s second argument, we adopt the following portion of the trial court’s opinion:

“Finally, the defendant alleges that the trial court erred in finding the evidence sufficient to prove the defendant guilty beyond a reasonable doubt, because of the following:
‘a) The lack of a prompt complaint;
b) The admission(s) by the complaint that she lied on several occasions concerning this matter;
c) The numerous testimonial inconsistencies, especially those relating to the date of the alleged offense.’
In evaluating a claim of insufficiency of evidence, the test is whether, accepting as true all evidence, direct and circumstantial, and all reasonable inferences arising therefrom, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Waters, 463 Pa. 465, 345 A.2d 613 (1975); and Commonwealth v. Weyman, 235 Pa.Super. 116, 339 A.2d 78 (1975). *426Historically, lack of prompt complaint was a factor to be considered by the trial authority in cases involving sexual offenses.1 However, in the case of statutory rape, the i Cf. contra, Act #53, 1976, 18 P.C.S.A. § 3105.
delay of the victim in reporting the crime was not relevant in determining credibility. Commonwealth v. Bradford, 202 Pa.Super. 468, 198 A.2d 412 (1964); and Commonwealth v. Newcomer, 183 Pa.Super. 432, 132 A.2d 731 (1957).
In addition, the admission by the complainant that she lied on several occasions and the discovery of inconsistencies in her testimony are matters to be considered by the trier of fact in evaluating the veracity of that testimony, and absent some abuse of discretion, the trier of fact should be upheld.
When considering all the evidence and the inferences arising therefrom, the court concludes there was no error in finding the defendant guilty beyond a reasonable doubt.”

I differ from the majority in one respect on appellant’s sufficiency of evidence argument: I would reverse the Corruption of Minor conviction. The indictment for that charge recites only the following: “ACT — did remove the clothing of the minor.” The only evidence offered on this point was testimony of the minor that she, not the defendant, removed her clothes. Had the indictment specified that the defendant persuaded the minor to remove her clothes or to engage in intercourse or lewd behavior, I would have found no difficulty with this point. My dissent is grounded on the Commonwealth’s failure to prove a fact which it had led the appellant to believe it would prove in order to obtain a conviction. Because of this important flaw, I would reverse the Corruption of Minor conviction. See Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973).

HESTER, J., joins in this dissenting opinion.

. The notice of appeal refers only to the charge at 961, however the Trial Judge’s Opinion treats the appeal as covering both 961 and 962. We will therefore treat the appeal as covering both charges.