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HomeMy WebLinkAboutCP-21-CR-1043-2004 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ALBERT J. BUNN : CP-21-CR-1043-2004 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., June 14, 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 in the defendant’s home, 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 CP-21-CR-1043-2004 Anna. He had her masturbate him and perform oral sex on him. He put his penis into her vagina and rectum. August 2, 2005 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 January 3, 2006 hearing, an order was entered on , supported by a written opinion, -2- CP-21-CR-1043-2004 denying a new trial. Defendant then filed an appeal to the Superior Court of March 9, 2006 Pennsylvania. On , an opinion was filed pursuant to Pennsylvania Rule August of 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 seqMay 15, 2007 Act, 42 Pa.C.S. § 9541 . On , based on a finding that ineffective assistance of appellate counsel prevented defendant from pursing on the merits, his appeal from his judgments of sentence, an order was entered allowing defendant to file a direct appeal, nunc pro tunc. Defendant then filed a direct appeal to the Superior Court of Pennsylvania. He filed a concise statement of matters complained of on appeal in which he raises three issues: 1. The Court erred in the decision of January 3, 2006, in not granting a new trial to Defendant based upon Defendant’s discovery of new evidence after trial. 2. The Court erred in its decision of January 21, 2005, allowing out-of-court statements into evidence in light of the Rules of Evidence, particularly Pa. Rule of Evidence 403 and in light of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) and the rationale expressed therein concerning the right to confrontation of a witness and in the granting of the motion of the Commonwealth to allow such evidence. 3. The Court erred in its decision that trial counsel was not ineffective for failing to timely object to the introduction, through videotaped interviews, of a claim of prior sexual acts of Defendant with another minor related to Defendant. I. On August 24, 2005, a hearing was conducted on the post-sentence motion -3- CP-21-CR-1043-2004 seeking a new trial based on the claims ofafter-discovered evidence. We will repeat our disposition of that claim set forth in the opinion denying the post-sentence motion filed on January 3, 2006. The evidence was as follows. Erica Moffitt, now age 14 and in the ninth grade, lives in Harrisburg with her mother, Susan Phillips. Erica testified summer of 2002 that in the , Judy Bunn, the wife of defendant, and Dawn Askerooth were at her home. Dawn told Erica that she and her sister, Anna Askerooth, were going to start saying that Albert Bunn touched them improperly, and although it was not true, it was a way to get out of chores they did not like doing where they were living in April 8, 2005 the Bunn home. On , Erica gave a statement about the conversation in April 10, 2005 the summer of 2002 to a defense investigator. On , Erica sent Judy Bunn an email about the conversation. In neither the statement nor the email did Erica state that Dawn had said that Anna intended to say that Albert Bunn had improperly touched her. Susan Phillips testified about what she heard when Judy Bunn and Dawn Askerooth were at her home in the summer of 2002. She recalled that Erica told her that Dawn said that she did not like doing chores and would say that her grandfather was improperly touching her. Dawn did not mention Anna, but Phillips “assumed” she meant Anna too. Phillips testified that she immediately told Judy Bunn what Dawn said. Bunn responded that she did not think that Dawn and Anna would do anything like that. Phillips testified that she told Judy Bunn, before the trial of defendant, that she and Erica were willing to testify because they wanted to help her husband. Judy Bunn -4- CP-21-CR-1043-2004 called her on the day of the jury verdict, and Phillips asked her why she and Erica were not called as witnesses. Bunn said no one was called. Trial counsel testified that in all of his conversations with Judy Bunn before the trial, she never brought up any statement that Dawn made to Erica in the summer of 2002. Judy Bunn testified that she remembers being at the Phillips’ house, and Erica whispering something to her mother to the effect that the girls were going to say something bad about their grandpa. She did not recall speaking directly to Erica about it, and did not discuss it with anybody else. She thought nothing about it until March 2005, after the trial, when Susan Phillips came to her house and said that Erica had remembered something. STANDARD FOR AFTER-DISCOVERED EVIDENCE Commonwealth v. Albrecht, As set forth in 720 A.2d 693 (Pa. 1998), a new trial is not warranted on the basis of after-discovered evidence unless such evidence could not have been discovered until after the trial despite reasonable diligence, it is not used for merely cumulative or impeachment purposes, and it is of such a nature that it would compel a different outcome. DISCUSSION At the post-sentence hearing, trial counsel testified that he involved Judy Bunn in his preparations for trial, but she did not mention the purported statement by Dawn Askerooth. Whatever was said by Dawn Askerooth in the summer of 2002, it apparently did not register to Judy Bunn as significant enough to mention to trial counsel. There was no information known by trial counsel that would have otherwise -5- CP-21-CR-1043-2004 led him to interview Erica Moffitt and Susan Phillips. Using reasonable diligence, trial counsel did not have access prior to trial of the purported statement by Dawn Askerooth. The purported statement by Dawn Askerooth would not be cumulative. However, it would be used to impeach her. Dawn’s testimony at trial was to facts showing that Albert Bunn committed indecent assault, involuntary deviate sexual intercourse, and rape upon her. Any statement earlier attributed to her, that she was going to assert untruthfully that defendant touched her improperly as a way of getting out of chores, would impeach her testimony, likewise with Anna Askerooth. Impeachment attacks the credibility of a witness, the truthfulness and veracity of the witness’s testimony, and the motive of the witness to give false testimony. See Commonwealth v. Robinson, 507 Pa. 522 (1985). Impeachment is directed at revealing how or implying that the witness’s preceding testimony is inaccurate or untrue. After-discovered evidence constituting impeachment does not warrant a new Commonwealth v. Albrecht, supra. trial. See Notwithstanding that we do not believe that any purported impeachment testimony would compel a different outcome, the impeachment purposes of such testimony alone mandates an order denying the post- sentence motion of defendant for a new trial based on after-discovered evidence. II. As to the allegation of error regarding the admission into evidence of the out- of-court statements of the child victims, Kevin Askerooth, Anna Askerooth and Dawn Askerooth, made during videotaped interviews with a social worker, Debbie Bauer, at -6- CP-21-CR-1043-2004 the Children Resource Center in Harrisburg, we repeat what we stated in the opinion of March 9, 2006. These out-of-court statements were admitted after an order was entered on January 21, 2005, following a hearing pursuant to the Judicial Code at 42 Pa.C.S. Section 5985.1(a)(1), that those out-of-court statements were admissible. Section 5985.1 provides: (a) General rule.--An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal not otherwise admissible intrusion) and 37 (relating to robbery), by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: the court finds, in an in camera hearing, that the evidence (1) is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and the child (2) either: testifies at the proceeding (i) ; or (ii) is unavailable as a witness. (Emphasis added.) Kevin Askerooth, Anna Askerooth and Dawn Askerooth testified at trial. The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Confrontation Clause applies to state as well as federal Pointer v. Texas, prosecutions. 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Crawford v. Washington, In 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),the defendant was convicted by a jury in the state of Washington of first-degree assault while armed with a deadly weapon. Admitted at trial were out-of-court statements of -7- CP-21-CR-1043-2004 defendant’s wife made to police officers that defendant stabbed the victim. The wife did not testify at trial because of Washington’s marital privilege. The trial court concluded that the out-of-court statements met an adequate indicia of reliability because they “bore particularized guarantees of trustworthiness,” and thus were admissible under a firmly rooted exception to the hearsay rule. The conviction was reversed by the Washington Court of Appeals, but reinstated by the Washington Supreme Court. The United States Supreme Court reversed, concluding that the out-of-court statements by the wife were testimonial, and although deemed reliable by the trial court, they were barred by the Confrontation Clause because the witness was unavailable and the defendant did not have a prior opportunity to cross-examine her. Crawford, In the present case, unlike the facts in Kevin Askerooth, Anna Askerooth and Dawn Askerooth testified at trial and were cross-examined by the Crawford defense. The Supreme Court of the United States noted in that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Accordingly, there was no violation of the Confrontation Clause resulting from the admission into evidence of the videotaped out-of-court statements of Kevin Askerooth, Anna Askerooth and Dawn Askerooth made to the social worker at the Children Resource Center. Since filing our opinion on March 9, 2006, the Superior Court of Pennsylvania In the Interest ofS.R., decided 920 A.2d 1262 (Pa. Super. 2007). In this case, S.R. was adjudicated delinquent on charges of aggravated indecent assault and related -8- CP-21-CR-1043-2004 offenses for molesting L.K. who was four years old. At trial, L.K. was put on the stand, she broke down and was unable to testify. A forensic interview specialist with the Philadelphia Children’s Alliance was contacted by the police. The specialist interviewed L.K. while a police officer watched through one-way glass. The interview was played during the adjudication. On appeal, the defense claimed that the admission of that evidence violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. The Superior Court of Pennsylvania reversed the Crawford v. Washington, supra Davis v. adjudication, holding that under and Washington, U.S. ,126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), L.K.’s statements to the forensic interview specialist that was carried out under the direction of the police and for purposes of investigation and potential implication, were testimonial and inadmissible as a violation of the Confrontation Clause. In the Interest of S.R., In the present case,unlike the facts in the out-of-court statements of Kevin, Anna and Dawn were admitted under the Judicial Code Section 5985.1(a)(1) upon a finding that the evidence was relevant and that the time, content and circumstances of the statements provided sufficient indicia of reliability and under subsection (2)(i) where each of the children testified at trial. Although the out-of-court statements were testimonial the fact that each of the children testified at trial satisfies the Confrontation Clause. The statute creates an exception to the hearsay rule in recognition of the nature of young victims of sexual abuse in that it allows out-of-court -9- CP-21-CR-1043-2004 statements to be entered into evidence under these circumstances. III. As to the allegation of error alleging ineffective assistance of trial counsel for failing to timely object to the introduction, through videotaped interviews, of a claim of prior sexual acts of defendant with another minor related to defendant, we repeat what was stated in the opinion of May 15, 2007. The videotape interview with Dawn Askerooth included the following 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 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.) -10- CP-21-CR-1043-2004 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. (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 was any wrongdoing with regard to the child. That was a hearsay __________ 1 William Fulton is trial counsel. Geoffrey McInroy is the District Attorney. -11- CP-21-CR-1043-2004 statement. It didn’t come from Mariah so do not consider it. (Emphasis added.) In order for defendant 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). Defendant 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 beyond us. -12- 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 defendant. 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. (Date) Edgar B. Bayley, J. Michelle H. Sibert, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant :sal -13-