Commonwealth v. Nabried

399 A.2d 1121, 264 Pa. Super. 419, 1979 Pa. Super. LEXIS 1997

• Court: Superior Court of Pennsylvania
• Decided: March 23, 1979
• Docket: 2233
• Status: Published

Opinions

PRICE, Judge:

Appellant was found guilty after a non-jury trial of statutory rape¹ (count No. 961) and corruption of a minor² (count No. 962).³ After denial of post-trial motions, appellant was sentenced to 9 to 23 months on the statutory rape charge and 2 years probation on the corruption conviction, to run consecutive to the sentence on statutory rape. This appeal followed, and finding no merit to appellant’s arguments, we affirm the judgments of sentence.

Appellant, a teacher in a junior high school in the Philadelphia School District, arranged a meeting with the victim of this occurrence. The victim, a 13 year old female student assigned to several of appellant’s classes, agreed to the meeting and voluntarily entered appellant’s automobile on an afternoon following the close of the school day. Appellant drove this minor female to his apartment, where, after the female’s clothing was removed, intercourse took place.

This court is in unanimous agreement on all questions raised on this appeal, except for the question challenging the information on the corruption of a minor. Therefore, that portion of the dissenting opinion affirming the conviction and judgment of sentence on the statutory rape count is adopted as the majority opinion.

Appellant challenges the information at No. 962 in that the Commonwealth failed to prove that appellant “did remove the clothing of the minor.”⁴

Pa.R.Crim.P. 213 on indictments, and Pa.R.Crim.P. 225 dealing with informations, require that there be set forth a clear statement of the essential elements of the offense. This requirement is in keeping with the long accepted law of this Commonwealth that a defendant must have notice of the charge he will be expected to meet. The indictment or information is the star and compass of a criminal charge. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317 (1940); Commonwealth v. Pope, 225 Pa.Super. 252, 311 A.2d 147 (1973).

Appellant urges that since the record quite clearly establishes that the minor removed her own clothing, the Commonwealth’s proof does not conform to the charge, and therefore must fail. He relies, as does the dissent, upon Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973). Lambert is not to be read in such a hypertechnical manner. There the charge was furnishing the minor with dangerous drugs, and the Commonwealth proved only that six pills were given the minor. No evidence was offered to prove the nature of the drug contained in the pills. We there held that the proof of a vital link was missing in that the Commonwealth failed to prove that the pills contained dangerous drugs, and that the charge had to be dismissed. Lambert is a far cry from the situation presented on this appeal.

The victim’s testimony on the removal of her clothing is as follows:

“Q. After he turned the car off, what happened?

A. He came back in. And he asked me to — did I want to take my clothes off or did I want him to take them off.

Q. What did you say to him?

A. I didn’t say nothing. So I just took my own clothes off.”

(N.T. 25-26).

Appellant placed a 13 year old in the situation earlier described. There was no doubt of the purpose for being in appellant’s apartment. Appellant then gave the minor a choice, very simply, “You take your clothes off, or I will do it.” In either event, the result was the same; the clothing of the minor was removed. The removal was accomplished through the instigation and acts of appellant. That the actual physical movement of removal was done by the young female is not the determinative factor. The information is clear that appellant is charged with being the moving force that brought about the removal of the clothing. We say again, this is a far cry from failure to prove the contents of six pills as dangerous drugs.

As the court below says in its opinion:

“It is not required that the information set out all facts concerning the defendant’s conduct and the circumstances existing at the time of the incident. Commonwealth v. Schell, 62 Montg. 113 (1946). The court must consider the act in the context in which it is alleged to have occurred. The act presently alleged, the removal of the clothing of the minor, was part of the act of having sexual intercourse with the minor. Both acts were the subject of informations charging offenses relating to the same criminal incident. Where, as here, the Commonwealth did not prove that the minor’s clothing was removed by the defendant, but did in fact prove that the defendant had sexual intercourse with the minor at the time and place alleged, such proof was sufficient to convict the defendant of the charge of Corruption of Minors as stated in the information. Moreover, the information was sufficient to give the defendant notice of the nature of the charges against him.”

We agree.

Judgments of sentence affirmed.

VAN der VOORT, J., files a dissenting opinion in which HESTER, J., joins. JACOBS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.

1 . 18 Pa.C.S. § 3122.

2 . 18 Pa.C.S. § 6301.

3 . The Notice of Appeal contains only count No. 961. The court below and appellant’s brief treat both counts. There is no excuse for an error of this type. We will, however, treat the appeal as covering both counts.

4 . The information reads: “ACT — did remove the clothing of the minor.”