WILLIAMS V. COMMONWEALTH
PUBLISHED: REVERSING AND REMANDING; GRAVES
DATE RENDERED: 12/21/2006
An instruction on a lesser included offense may be authorized even if inconsistent with the defendant’s theory of the case (Cooper’s Instructions quotes in Court’s holding). Evidence showed that 14-year-old’s prior statements re defendant’s alleged sexual advances "evolved" from attempted penetration to actual penetration three times. Her trial testimony further evolved from attempts to actual penetration five times. Defense was a total denial with no alternative defense theory; counsel did not offer proof that victim fabricated the allegations. Regardless, instructions are to be given on the "whole case," which here included the victim’s prior statements that were part of the Commonwealth’s case in chief. J Wintersheimer filed a dissenting opinion.