Loading...
HomeMy WebLinkAboutCP-21-CR-1043-2004 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ALBERT J. BUNN : CP-21-CR-1043-2004 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., May 15, 2007:-- January 26, 2005 On , a jury convicted defendant, Albert J. Bunn, of the following crimes that occurred between January 1, 2000, and June 1, 2003: 1. Indecent assault against Kevin Askerooth, born June 17, 1995-- a misdemeanor in the first degree. 2. Indecent assault against Anna Askerooth, born November 27, 1991-- a misdemeanor in the first degree. 3. Indecent assault against Dawn Askerooth, born August 29, 1990-- a misdemeanor in the first degree. 4. Involuntary deviate sexual intercourse against Kevin, a felony in the first degree. 5. Involuntary deviate sexual intercourse against Anna, a felony in the first degree. 6. Involuntary deviate sexual intercourse against Dawn, a felony in the first degree. 7. Rape against Anna, a felony in the first degree. 8. Rape against Dawn, a felony in the first degree. The evidence at trial was that the offenses were committed against three step- grandchildren of defendant, one boy, Kevin Askerooth, and two girls, Anna Askerooth and Dawn Askerooth. During the period in which the offenses took place, Kevin was four to six, Anna was eight to ten, and Dawn was nine to eleven. Defendant touched and manipulated Kevin’s penis and performed anal sex on him. He touched and kissed the breasts of Dawn. He tried to put his penis into her vagina and had her perform oral sex on him. He touched the breasts and vagina of Anna. He had her masturbate him CP-21-CR-1043-2004 and perform oral sex on him. He put his penis into her vagina and rectum. July 12, 2005 On , an order was entered, supported by a written opinion, finding August 2, 2005 that defendant is a sexually violent predator. On , defendant was sentenced on one count of involuntary deviate sexual intercourse to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years. On the second count of involuntary deviate sexual intercourse, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, consecutive to the first sentence. On the third count of involuntary deviate sexual intercourse, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, consecutive to the other two sentences. On the first count of rape, defendant was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, concurrent to the other sentences. On the second count of rape, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, concurrent to the other sentences. On each of the three counts of indecent assault, he was sentenced to pay the costs of prosecution. August 12, 2005 On , defendant filed a post-sentence motion seeking a new trial based on after-discovered evidence pursuant to Pa.R.Crim.P. 720(c). Following a -2- CP-21-CR-1043-2004 January 3, 2006 hearing, an order was entered on , supported by a written opinion, denying a new trial. Defendant then filed an appeal to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, defendant raised two issues: (1) alleged error in denying his post-sentence motion based on his Crawford v. claim of after-discovered evidence, and (2) alleged error, under Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in admitting at trial videotaped interviews of the three child victims that were conducted before the trial. March 9, 2006 On , an opinion was filed pursuant to Pennsylvania Rule of August Appellate Procedure 1925, in support of the judgments of the sentence. On 29, 2006 , the Superior Court affirmed the judgments of sentence solely because appellant filed a concise statement of matters complained of on appeal one day beyond the fourteen day limit set in Pennsylvania Rule of Appellate Procedure 1925(b). On October 4, 2006 , defendant filed a petition for relief under the Post-Conviction Relief et seq Act, 42 Pa.C.S. § 9541 . Counsel was appointed and allowed time to file any May 3, 2007 amended petition as warranted. A hearing was conducted on . Petitioner had a private attorney at trial, and another private attorney to pursue his direct appeal from his judgments of sentence. The merits of that direct appeal were not addressed by the Superior Court because of appellate counsel’s ineffectiveness in not complying with Pennsylvania Rule of Appellate Procedure 1925(b). Therefore, Commonwealth v. Hoyman, pursuant to 385 Pa. Super. 439 (1989), and Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super. 2003), petitioner is entitled to -3- CP-21-CR-1043-2004 the post-conviction relief of allowing him to file an appeal from his judgments of sentence, nunc pro tunc, in the Superior Court. At his post-conviction hearing, petitioner pursued one other issue raised in his petition. He alleges that he is entitled to a new trial because his trial counsel was ineffective for not objecting to the admission of prejudicial evidence against him. The victims, Kevin Askerooth, Anna Askerooth and Dawn Askerooth, all testified at trial. Additionally, their out-of-court statements made during videotaped interviews with a social worker, Debbie Bauer, at a Children’s Resource Center were admitted into evidence and played to the jury pursuant to the Judicial Code at 42 Pa.C.S. Section 5985(a)(1). The videotape interview with Dawn Askerooth included this questioning by the social worker in which Dawn answers with reference to a younger cousin, Mariah Eten, who lived in Minnesota where Dawn was visiting. SOCIAL WORKER DEBBIE BAUER: Okay . . . now let me see if I remember, when you tried to tell Grandma in Minnesota when was that? DAWN ASKEROOTH: Well it was close to Mariah’s birthday and . . . I said well Mariah brought the whole thing up and you see Mariah goes, Dawn does Grandpa still touch you? SOCIAL WORKER DEBBIE BAUER: Mm, hmm. DAWN ASKEROOTH: And I go yeah, why? And she goes remember the time, I can’t believe he actually still does that to us, to you guys and you’re stuck with him. SOCIAL WORKER DEBBIE BAUER: Mm, hmm. DAWN ASKEROOTH: And we go yeah, us too we can’t believe Grandma won’t believe us I bet if we told her. And then she goes yeah why don’t we tell her? So we wrote down what happen to us in a diary that Grandma Bunn has and she’s gonna keep it cause she says it her evidence that proves that we did that to hurt her on purpose and to get her and Grandpa to break up. SOCIAL WORKER DEBBIE BAUER: Mm, hmm. DAWN ASKEROOTH: And so what happen was after that we told -4- CP-21-CR-1043-2004 her she got all mad at us so we left Minnesota. . . . Okay and Mariah started SOCIAL WORKER DEBBIE BAUER: talking about, how did Mariah know that, that, that your Grandpa was touching you? Cause she also got touched by him. DAWN ASKEROOTH: How do you know that? SOCIAL WORKER DEBBIE BAUER: She told us. DAWN ASKEROOTH: (Emphasis added.) 1 Whereupon, the following occurred. MR. FULTON: Sidebar, please. THE COURT: Turn if off. [Referring to the videotape which was turned off.] (Whereupon, the following discussion was held at sidebar:) MR. FULTON: We’ve been relatively scrupulous to this point to keep this hearsay out of evidence. I’m afraid this just came into evidence in this video. THE COURT: Yep. MR. FULTON: And I think I have to move for a mistrial since the Commonwealth’s been instructed not to introduce this testimony. I previously objected to the tapes. THE COURT: I am not going to grant a mistrial. You had access and reviewed the videos before, right? MR. MCINROY: You have a copy of the video. THE COURT: Answer my question. Did you have access to them and review the videos before? MR. FULTON: I have had access to the videos. I had reviewed them in pertinent part. I never watched them to conclusion of this interview. THE COURT: I forget because I have watched them. Is there anything more on her statements regarding Mariah here? MR. MCINROY: I think at this point we can conclude this tape. If there is anything in addition that Mariah says about any additional or any prior bad acts of Albert Bunn we can avoid it by just stopping. THE COURT: So you are prepared to stop the tape? MR. MCINROY: And just go on to the next child interview. THE COURT: I am going to give the jury a cautionary instruction. There’s no charges that have been brought. That is pure hearsay. There’s been no claim Mariah made any complaint like that to anybody else. __________ 1 William Fulton is trial counsel. Geoffrey McInroy is the District Attorney. -5- CP-21-CR-1043-2004 (Whereupon, the discussion at sidebar was concluded.) THE COURT: I am going to take a break anyway so just turn it off. Folks, at the end there was a statement that Dawn made concerning something that Mariah said. That is pure hearsay. There has been no charges brought. Nothing has been alleged that went wrong with Mariah. That you just have to put out of your mind and not consider in the case. There’s no allegations here or had there been that there -6- CP-21-CR-1043-2004 was any wrongdoing with regard to the child. That was a hearsay statement. It didn’t come from Mariah so do not consider it. (Emphasis added.) In order for petitioner to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. See Commonwealth v. Kimball , 724 A.2d 326 (Pa. 1999). Petitioner must demonstrate that: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would Id. have been different. sub judice In the case , we find that trial counsel had no reasonable strategic 2 basis for not objecting to the admission of the out-of-court statements of Mariah. He did however, make a motion for a mistrial. The motion was properly denied. Dawn Askerooth’s statement to the social worker was that Mariah said that her Grandpa Bunn had touched her. The reference was fleeting and did not specifically refer to any type of a crime. The court immediately told the jury that, “There has been no charges brought nothing has been alleged that went wrong with Mariah. . . . There’s no allegations here or had there been that there was any wrongdoing with regard to the child.” The jury was told not to consider the statement and they should put it out of __________ 2 Why the District Attorney did not have this part of the tape recording redacted is -7- CP-21-CR-1043-2004 their mind. Even if Dawn’s statement as to what Mariah told her could be considered as a prior bad act, not all such references are prejudicial so as to warrant the grant of a Commonwealth v. Williams, new trial. See 896 A.2d 523 (Pa. 2006). The cautionary instruction was adequate and there was no prejudice to petitioner. Therefore, trial counsel’s failure to object to what Mariah told Dawn did not constitute an error such that there is a reasonable probability that the outcome of the proceedings would have been different. ORDER OF COURT IT IS ORDERED: AND NOW, this day of May, 2007, (1) Albert J. Bunn may file a direct appeal, nunc pro tunc, from his judgments of sentence within thirty days of this date. IS DENIED. (2) Petitioner’s other request for post-conviction relief, By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire For the Commonwealth H. Anthony Adams, Esquire For Petitioner :sal beyond us. -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ALBERT J. BUNN : CP-21-CR-1043-2004 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT IT IS ORDERED: AND NOW, this day of May, 2007, (1) Albert J. Bunn may file a direct appeal, nunc pro tunc, from his judgments of sentence within thirty days of this date. IS DENIED. (2) Petitioner’s other request for post-conviction relief, By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire For the Commonwealth H. Anthony Adams, Esquire For Petitioner :sal