HomeMy WebLinkAboutCP-21-CR-1595-2002
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) AGGRAVATED INDECENT
: ASSAULT
v. : (2) INDECENT ASSAULT
: (3) CORRUPTION OF MINORS
: (4) INVOLUNTARY DEVIATE
: SEXUAL INTERCOURSE
LANE C. HURLEY :
OTN: H460149-4 : CP-21-1595-2002
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., August 9, 2007.
In this criminal case involving allegations of sexual abuse of a child by her
1
uncle, Defendant was found guilty following a jury trial of corruption of minors,
23
indecent assault, aggravated indecent assault, and involuntary deviate sexual
4
intercourse. Defendant had been convicted in an earlier trial of the same
5
offenses, but had been awarded a new trial based upon ineffective assistance of
6
counsel.
1
Act of July 1, 1978, P.L. 573, §1, as amended, 18 Pa. C.S. §6301(a)(1). This offense is a
misdemeanor of the first degree. Id.
2
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3126(a)(7). This offense is a
misdemeanor of the first degree. Id. §3126(b).
3
Act of February 2, 1990, P.L. 6, §5, as amended, 18 Pa. C.S. §3125(a)(7). This offense is a
felony of the second degree. Id.
4
Act of December 6, 1972, P.L. 573, §1, as amended, 18 Pa. C.S. §3123(a)(6). This offense is a
felony of the first degree. Id. See Order of Court, November 2, 2006. Section 3123 of the Crimes
Code has been amended since the events which form the basis for the charge herein. See 18 Pa.
C.S. §3123 (2007 Supp.)
5
See Order of Court, May 8, 2003.
6
See Opinion and Order of Court, February 20, 2004. This court’s award of a new trial was
affirmed by the Superior Court. See Order of Court, April 11, 2005 (Pa. Super. Ct.) (No. 377
MDA 2004). The Commonwealth’s petition for allowance of appeal from this affirmance was
denied by the Pennsylvania Supreme Court. See Order of Court, December 27, 2005 (Pa.
Supreme Ct.) (No. 388 MAL 2005).
Defendant was sentenced to a total period of imprisonment in a state
correctional institution of not less than five years nor more than ten years, the
mandatory minimum sentence applicable to the involuntary deviate sexual
7
intercourse charge. From the judgment of sentence, he has appealed to the
8
Pennsylvania Superior Court.
The grounds for Defendant’s appeal have been expressed in a statement of
matters complained of on appeal as follows:
1. The evidence was insufficient as a matter of law. The evidence
was contradictory and unsupported by the physical evidence (and the lack
thereof). Not only was the evidence contradictory and unreliable, it defied
logic and ran contrary to what the physical evidence, had it been
preserved, would have established. The accuser in this case gave accounts
of the events of that summer which were internally consistent but at
variance with each other. This meant that the testimony at the first trial
was internally consistent but at variance with her testimony at the second
and both were at variance with the testimony at the preliminary hearing.
All three testimonial renderings as well as the account recorded in Trooper
Kelly’s reports were inconsistent with what was contained in the medical
notes of Dr. Lane and all of the above versions of JB’s story were at
variance with the reports of the Child Protective Services worker. The
evidence in this case is so fundamentally inconsistent, contradictory and
weak that it is clearly insufficient to sustain the defendant’s conviction.
No jury could ever properly render a verdict of conviction based on the
above record of flawed, inconsistent and implausible testimony. The
radical flaws in the verdict become even clearer when the legal context
concerning the expert testimony required of—but omitted by—the
prosecution is examined.
2. The verdict was against the weight of the evidence. The unrebutted
testimony of the defense expert alone and in combination with the
unreliable and contradictory evidence presented by the Commonwealth
mandates that the verdict in this case was against the weight of the
evidence. There was uncontroverted and unrebutted testimony from the
defense, in the form of expert testimony by Dr. Labellarte that the
testimony of the accuser was, by definition, unreliable. The unrebutted
testimony at trial and at the hearing on the “taint motion” was that
“recovered memory” does not exist, that any prosecution based on such
alleged evidence is unreliable at best. The prosecution alleged a false
causal connection between sexual abuse and eating disorders. This issue is
7
Order of Court, December 19, 2006.
8
Defendant has characterized the appeal as being from an adverse order relating to a post-
sentence motion. See Defendant’s Notice of Appeal, filed April 5, 2007. However, it is more
properly treated as being from the judgment of sentence. Commonwealth v. Lewis, 2006 PA
Super. 314, ¶1 n.1, 911 A.2d 558, 561 n.1.
2
beyond the ken of the average juror and thus the Commonwealth’s failure
to call an[] expert to lay the necessary evidentiary foundation rendered the
jury’s verdict unreliable. The danger of such testimony is that i[t] has a
natural appeal but is utterly false. In Pennsylvania, expert opinion must be
admitted when a jury consisting of lay persons is incompetent to infer,
without the aid of greater skill than their own, the likelihood of existence
of facts to be ascertained, or the likelihood of events that could be inferred
from the facts actually established. Pa. R.E. 702. Moreover, Pennsylvania
law is clear that the party bearing the burden of proof in a case requiring
expert testimony has not met that burden unless it produces an expert to
explain to the jury those matters that are beyond the jury’s general
knowledge, experience, and ability to comprehend.
The Commonwealth placed at issue the validity of repressed and
therapeutically recovered memories, and was, therefore, obligated to
present an expert to 1) educate the jury about repressed memories, which
are clearly beyond the ken of the average lay person, and 2) establish the
general acceptance and validity of the science underlying the theory and
technique of recovered memory therapy. In this case the jury was required
to draw inferences from the evidence it was not informed enough to draw
thus drawing their verdict into question.
3. The Court erred in denying the motion to preclude the accuser’s
testimony. The phenomenon of repressed/implanted memories is an
inherently unreliable basis for testimony. It is absurd to argue that a
reasonable person of J.B.’s age intelligence and experience would repress
the memory of repeated sexual assaults. At the trial Dr. Michael J.
Labellarte expressed the opinion that repressed memory is not a generally
accepted concept in the relevant scientific community. While Dr.
Labellarte was cross-examined extensively on other issues, the prosecution
did not cross examine him on the issue of the validity of repressed
memory, nor did the prosecution present any other evidence on this
subject. Other jurisdictions hold the rudimentary demands of justice
dictate that in order for a conviction to be sustained based on testimony
from “repressed” and “recovered” memories the prosecution must present
an expert to confirm that the facts of that particular case exhibit the
requisite indicia of reliability to be minimally competent[,] before the case
can go to the jury. In this case the evidence was to the contrary and it was
unrebutted[.] As the uncontradicted testimony at the “taint hearing[”]
made clear, recovered/implanted memory evidence is dubious at best. In
light of this, the law ought to recognize that the accuser’s testimony alone,
in a case such as the one at bar, without an expert laying an evidentiary
foundation for its legitimacy, may not be the basis of a guilty verdict
without corroboration. In a case such as this, where there is absolutely no
indicia of reliability of the accuser’s memory, allowing the
Commonwealth to not present an expert witness deprives the fact-finder of
an opportunity to make a credibility determination—based on complete
evidence about all the relevant issues in a case. It is not JB’s credibility
that is at issue—but her competence; that is, her testimony should never
have reached the jury in the first place. The Court erred in allowing JB to
testify in this case because her testimony was clearly tainted, and not the
product of her independent recollection. JB’s memory was not simply
3
repressed and then recovered, but it was refreshed using inappropriate and
scientifically unacceptable methods. In Pennsylvania, memory refreshed
using unreliable and scientifically unacceptable techniques are [sic]
inadmissible testimony.
4. The Court erred in denying trial counsel’s Motion to Withdraw as
Counsel and his Motion for a Continuance. The Court’s action in this
regard denied the defendant’s constitutional right to counsel. It is
reversible error to force a defendant paying for his own counsel to proceed
with an attorney not of his choice. Moreover, the United States Supreme
Court held that a violation of the Sixth Amendment in a case similar to the
case at bar is a structural error thus negating any finding that the error
[was] harmless. The Court’s denial of the continuance of expert
unavailability prejudiced defendant’s right to a fair trial. Denial of the
motion for a continuance forced the defense to secure a last minute expert
to testify at trial and this interfered with one of the most critical aspects of
the defense. Where a trial court denies a defense request for continuance it
abuses discretion if the defendant’s right outweighs the Commonwealth’s
need for efficient administration of justice.
5. The Defendant was denied a fair trial due to the misconduct of the
prosecutor. Standards for Criminal Justice § 3-1.2(c) clearly state that
“The duty of the prosecutor is to seek justice, not merely to convict.” In
his zeal to win a conviction, the prosecutor seems to have forgotten this
basic maxim. The prosecutor failed to conduct an impartial and thorough
investigation. Rather than seeking justice, he looked only for evidence
that would support his unfounded belief that Appellant was guilty. You
can’t find what you don’t look for and the prosecutor deliberately failed to
look for the truth. Similarly he failed to look for evidence that would
either corroborate or exonerate. He failed to move in a timely fashion to
preserve physical evidence in this case that would have either
corroborate[d] the allegations or exonerated Appellant. He relied entirely
on the word of the accuser despite the fact that her version of the facts
shifted over time. Despite knowing that sexual abuse does not cause
eating disorders the prosecution argued to the jury that J.B.’s eating
disorder corroborated the sexual abuse. Despite knowing that this was a
recovered/implanted memory case, he argued to the jury that it didn’t
matter whether it was such a case or not and pretended that it was a case of
independent memory. This deliberate blurring of the truth is
impermissible. As a result of the prosecution’s disingenuous tactics, the
jury was mislead [sic] on a crucial point and left without the full and
proper record it needed to evaluate the validity of one of [the] main
arguments made by the prosecution in this case, and was utterly unable,
9
then, to draw logical or rational inferences from the evidence.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
9
Appellant’s Concise Statement of Matters Complained of on Appeal Filed Pursuant to Pa.
R.App.Pro. 1925(b).
4
STATEMENT OF FACTS
As a result of a series of alleged incidents in 1997 involving his 10-year-old
10
niece, Defendant was charged in 2002 with various sexual offenses. Following
11
three defense-requested trial continuances, Defendant was found guilty on May
8, 2003, by a jury of corruption of minors, indecent assault, aggravated indecent
12
assault, and involuntary deviate sexual intercourse.
Prior to sentencing, Defendant retained new counsel in the person of Norris
13
E. Gelman, Esq., of Philadelphia. Defendant was sentenced on September 30,
14
2003.
On February 20, 2004, this court granted a post-sentence motion filed by
Defendant and awarded him a new trial on the basis of ineffective assistance of
15
counsel. This order was affirmed by the Pennsylvania Superior Court on April
16
11, 2005. The Commonwealth’s petition for allowance of appeal from the
affirmance was denied by the Pennsylvania Supreme Court on December 27,
17
2005.
At a pretrial conference pertaining to the retrial, the court granted another
defense-requested continuance, scheduling a new pretrial conference for February
18
14, 2006, and rescheduling the retrial for March 6, 2006. At the pretrial
conference on February 14, 2006, Defendant’s counsel requested another
10
Criminal Complaint, filed April 9, 2002.
11
See Orders of Court, October 23, 2002, January 27, 2003, and February 28, 2003.
12
Order of Court, May 8, 2003.
13
Order of Court, August 26, 2003.
14
Order of Court, September 30, 2003.
15
Opinion and Order of Court, February 20, 2004.
16
Order of Court, April 11, 2005 (Pa. Super. Ct.) (No. 377 MDA 2004).
17
Order of Court, February 27, 2005 (Pa. Supreme Ct.) (No. 388 MAL 2005).
18
Order of Court, January 10, 2006.
5
19
continuance of the trial. A continuance for two trial terms was granted, and the
Defendant was directed to appear for a new pretrial conference on August 29,
20
2006, and to appear for a rescheduled trial on September 11, 2006.
At the pretrial conference on August 29, 2006, Defendant requested still
another continuance of the retrial, proposing that the case should be deferred until
2122
the following year. This continuance was opposed by the Commonwealth.
In this regard, Defendant’s counsel indicated an immediate personal
problem in the form of an illness of counsel’s mother which he felt necessitated
23
his attention and a continuance to the fall, 2006, term of court; in addition,
counsel stated that, “[u]nfortunately, our experts are not available until January[,
24
2007].”The expert testimony, according to Defendant’s counsel, would support
the proposition “that recovered memory is not a scientifically acceptable
25
concept.”
In response to Defendant’s request and the Commonwealth’s opposition,
the court advised that it would, if Defendant chose, continue the case to the fall,
26
2006, term of court, but that it was not willing “to continue the case over the
27
Commonwealth’s objection into next year,” noting the extraordinary delay which
28
had already occurred in terms of a resolution of the case. Defendant’s counsel
29
opted for the continuance to the fall term. Accordingly, the court again
19
N.T. 2, Hearing, February 14, 2006.
20
Order of Court, February 14, 2006.
21
N.T. 2-3, Hearing, August 29, 2006.
22
N.T. 2, Hearing, August 29, 2006.
23
N.T. 2-3, Hearing, August 29, 2006.
24
N.T. 3, Hearing, August 29, 2006.
25
N.T. 3, Hearing, August 29, 2006.
26
N.T. 4-5, Hearing, August 29, 2006.
27
N.T. 4-5, Hearing, August 29, 2006.
28
N.T. 4, Hearing, August 29, 2006.
29
N.T. 5, Hearing, August 29, 2006.
6
continued the case at Defendant’s request, directing Defendant to appear for a
pretrial conference on October 17, 2006, and directing him to appear for trial with
30
counsel on October 30, 2006.
With this background, including the court’s admonition that a continuance
beyond the fall, 2006, trial term would not be granted to accommodate
Defendant’s experts, Defendant’s counsel, at the pretrial conference on October
31
17, 2006, orally requested permission to withdraw from the case and orally
32
moved for another continuance of the retrial. In relation to the withdrawal
motion, the following remarks of Defendant’s counsel are illustrative of the
situation:
. . . My motion to withdraw is based on the fact that since the
August—early August hearings, my client and I and my client’s wife have
had our relationship just tumble into an abyss of irreconcilable differences
and even animus. Our fundamental differences arise from my philosophy
33
of trial and trial strategy . . . .
* * * *
. . . I was retained to handle post-sentencing motions in this case, and
I did so calling Doctor Pope as an expert witness. I handled all of the
appeals, and I was retained to file . . . pretrial motions after the Supreme
Court denied allocat[u]r in this matter. These motions were denied on
th34
August 7 of 2006. . . .
* * *
These differences [between client and counsel] surfaced after the
th
denial . . . of the motions on August 7 of 2006, and counsel was told
essentially that he was not wanted. They did not want me to try the case.
They were going to seek new counsel, and I was basically ignored
whenever I pled for preparation, money for an investigator to serve
35
subpoenas or authorization to talk to and retain an expert.
* * * *
30
Order of Court, August 29, 2006.
31
N.T. 2, Hearing, October 17, 2006.
32
N.T. 4-5, 11-12, Hearing, October 17, 2006.
33
N.T. 2, Hearing, October 17, 2006.
34
N.T. 3, Hearing, October 17, 2006.
35
N.T. 4, Hearing, October 17, 2007.
7
. . . [Matthew] Gover[,Esq.] is willing to enter his appearance. . . .
Mr. Gover is willing to enter his appearance today if a continuance is
th
granted. He cannot be ready for October 30, but he . . . would be more
than willing to enter his appearance if a continuance is granted.
There is a tremendous strain that I don’t want to get into the details
with the Court, but I think I’m an officer of the Court, and I can tell the
Court that this strain has existed for a while. . . .
The palpable animus — has engendered such a conflict that it will —
you know, I haven’t told the Court this, but this is really putting a strain —
36
a terrible strain on me. I’m 64 years old, and I’m 64 today.
* * * *
. . . I have no authority to act from my client or his wife. I’m an
interloper. I truly have never tried a case without the consent, cooperation,
and agreement of my client. I have never tried a case in the midst of
dissension, and this is far more than dissension.
I believe for the sake of the case itself I should withdraw because I
will only be saying these things during the course of the trial. I believe
that for the sake of my own health, the strain is not good for me. I don’t
like to put myself in the positions where I’m tempting fate, nor would my
cardiologist want me to do that.
And I have not been paid. It’s like I am an officious stranger who is
interfering with my client’s concept and his wife’s concept of what should
be presented when and how, and I’m interfering with that based on my
own experience in trials. I have tried a lot of cases.
And I was willing, and I shouldn’t have been, but I was willing to
have a script for the August hearings. I was willing to be scripted and told
what to question these experts and what – and not to deviate, and to try to
get an overhead projector, and to do all of that. I was willing to do that. I
should have perhaps stood up then, but I’m at sea.
I’m totally at sea here. I’m not grounded. I’m not wanted. I’m
rejected. They’re making efforts to get counsel, and they were good faith
efforts. They have always had counsel of exceptional ability. They had
Mr. Lock. They had me. They had Mr. Costopoulos as a consultant.
37
They have sought out Mr. Gover.
* * * *
. . . I have tried major cases in the Philadelphia D.A.’s Office and
elsewhere. I was under orders [from Defendant and his spouse] to follow a
particular script with our expert witnesses [at certain pretrial motion
hearings], and I would read the question that they prepared to me and they
would answer and then I would read a question and then they would
answer, and I can’t tell you how deeply I resented that, and if I deviated
from it, I got an earful that I further resented, but I followed that formula.
36
N.T. 7-8, Hearing, October 17, 2007.
37
N.T. 16-17, Hearing, October 17, 2007.
8
It’s going on the same way for the trial strategy. It’s an immense
hurdle, and it’s a lack of confidence that my client and his wife have in me
that I have to be scripted, that I have to be prepared in advance with
38
advance questions, that I have to be edited by my client and his wife.
Defendant himself was also permitted to speak on the issue of withdrawal.
His colloquy with the court included the following:
THE DEFENDANT: When we sought counsel, and I initially sought
counsel for the appeal process, Mr. Gelman was found, came
recommended highly, and he has handled for over 3 years the appeal
process. I believe it’s 3 years. During that time, as you know, we have
gone through various stages, and we appreciate and value the work he has
done during that appellate process, but it was never the intention – first of
all, we believed through the appeals process that our motions involving
taint and motions involving Frye – we hoped and believed they would be
responded favorably.
During the last couple of months we have had to wait for a couple of
pieces, which are very important to me and my defense. One of those has
been the fact that we did need and waited for the record of the taint
hearing, and it took us over two months to receive it. As we talked with
new counsel for trial, they wanted copies, and we couldn’t get the copies
until just recently.
The second piece of that is on Frye, which is an outstanding motion
until it was ruled upon today, we prepared – and you were present – we
prepared thoroughly for the taint hearing. We brought the best people we
felt we could bring. We tried to present to the Court the best evidence we
could with the best minds who have studied the subject.
THE COURT: How does this relate to whether Mr. Gelman should
be excused from the case?
THE DEFENDANT: All right. We have reached a point with Mr.
Gelman that if we’re going forward to trial that we want local trial counsel.
We want trial counsel because that’s what it’s going to be. It’s not an
appeals process. He was – we hired him for an appeals process, and now
it’s looking like it’s definitely going to trial. We want a trial attorney. We
39
want local counsel involved in the trial, and that is the reason.
* * * *
THE DEFENDANT: . . . [We] have a 180 degree difference in
philosophy for the trial. We have agreed in the appellate process, but the
trial’s a different issue. The trial’s a different animal. Some years ago I
was on a final approach. Maybe you understand a little bit about an
[instrument] landing, and I was on final and lost my glide slope, and when
I did, the tower said, don’t try to land, you go around and see, your glide
slope will reengage, and it did, and I feel like we’re at that point right now.
38
N.T. 12, October 17, 2007.
39
N.T. 7-8, Hearing, October 17, 2006.
9
It’s been 5 years. We’re not trying to prolong the process, but this is now
going to trial, and I need and want a trial attorney that will work with us,
40
work with me, that I can work with him.
In this context, the court advised Defendant that “[y]ou can have any
41
attorney you want,” but reminded the parties of its admonition on August 29,
42
2006, regarding a further continuance. Following an off-the-record discussion
between Defendant and Mr. Gover, the court was advised on the record by Mr.
Gover that he would not be willing to try the case during the forthcoming fall term
43
of court.
The request for a continuance of the retrial to the following year made by
Defendant’s counsel was supported by affidavits of three individuals: R.
Christopher Barden, Ph.D, J.D., LP; Harrison G. Pope, Jr., M.D.; and Maggie
44
Bruck, Ph.D. These advised that the schedules of the witnesses would not
45
accommodate attendance at trial during the forthcoming term of court.
40
N.T. 9, Hearing, October 17, 2006.
41
N.T. 9, Hearing, October 17, 2006.
42
N.T. 5-6, Hearing, October 17, 2006.
43
N.T. 15, Hearing, October 17, 2006.
44
Defendant’s Ex. 1, October 17, 2006.
45
The affidavit of Dr. Barden read as follows:
1. I, R. Christopher Barden, Ph.D., J.D., LP, (licensed Psychologist
in Texas and Minnesota) have written the following expert witness
affidavit. I have agreed to serve as an expert witness in this matter. As
an expert witness I have reviewed extensive case materials, transcripts,
reports, and documents, etc. I have previously testified as an expert
witness in this case. If permitted and if possible, I will testify at a future
trial or hearing in this matter.
2. In response to a request from counsel, I am sending this affidavit
regarding my schedule and availability to the best of my knowledge as of
OCTOBER 13, 2006.
3. As of this date, to the best of my knowledge, although I have a
few days free here and there (especially in December, 2006), I am
currently unavailable for a case of this complexity from the present
through the remainder of 2006. Like all professionals in similar
circumstances, my schedule is constantly changing but I cannot
anticipate my schedule changing substantially before the end of
December 2006. For example, during this time period I have scheduled:
10
Defendant’s counsel also expressed his unwillingness to present their testimony at
46
trial by way of a videotaped deposition.
By the conclusion of the pretrial conference on October 17, 2006, the court
was convinced (1) that Defendant had decided in early August, 2006, to replace
Mr. Gelman prior to the retrial, (2) that on August 29, 2006, Defendant had
permitted his counsel to secure a continuance of the retrial until the fall, 2006,
term, based on personal obligations of counsel, when Defendant knew that he did
A) a mediation in California, B) testifying in a Federal criminal trial in
Minnesota, C) testifying in a civil trial in Texas, D) testifying in a family
law matter in Wisconsin, testifying in a family law hearing in Arizona,
and E) other scheduled matters including a number of speeches as I am a
candidate for the Utah State School Board in the upcoming election.
4. ONGOING INVESTIGATION: My investigation and analyses
of this complex matter are continuing. If permitted, I plan to offer
detailed opinions at any hearing or trial of this matter.
Defendant’s Ex. 1, October 17, 2006.
The affidavit of Dr. Pope read as follows:
1. My name is Harrison G. Pope,Jr., M.D. As you know, I have
served as an expert witness in the above case; I most recently testified in
this case in Carlisle, Pennsylvania in early August 2006.
2. I will not be available to testify in this case during the weeks of
October 30, November 6, or November 13, 2006. I will be available at
most points after November 20, but I will need as much advance notice
as possible in order to keep my schedule clear.
Defendant’s Ex. 1, October 17, 2006.
The affidavit of Dr. Bruck read as follows:
1. This letter is to confirm a previous phone call about my
unavailability for trial for the case of Commonwealth of Pennsylvania vs.
Lane Hurley. Specifically, as I told you before, my calendar for October
and most of November is already filled up. In December, I am on
vacation for most of the time. I am available in the New Year and will try
to be as flexible as possible to arrange my schedule to accommodate the
trial dates.
Defendant’s Ex. 1, October 17, 2006.
46
N.T. 14, Hearing, October 17, 2007.
11
not intend to utilize that counsel at trial, (3) that the continuance on August 29,
2006, was obtained with the understanding that the court would not grant another
continuance to accommodate Defendant’s experts, (4) that the deterioration in the
relationship between Defendant and his counsel was entirely precipitated by, and
entirely the fault of, Defendant, and (5) that Defendant was engaging in a process
to delay the retrial as long as possible, in a manner unfair to Mr. Gelman, the
prosecution, the Commonwealth’s witnesses, and the court. Accordingly, the
defense motions for a withdrawal of counsel and for a continuance of the retrial to
47
the following year were denied. In this regard, the court expressed its sympathy
to Mr. Gelman, but noted that “I can’t allow a Defendant to take over a case like
48
this and simply schedule it at his convenience.”
At the commencement of the retrial on October 30, 2006, Defendant’s
49
counsel again orally moved to withdraw from the case. In this regard, he
introduced a letter dated October 30, 2006, from Defendant to the court stating
that “Mr. Gelman is being forced to represent me against his desire and request,”
that “I am being forced to be represented by Mr. Gelman against my desire and
request,” and that the court should “not let the supposed need for a quick trial take
50
precedence over the need for a proper trial.” A copy of a complaint dated
October 27, 2006, that Defendant had filed with the disciplinary board against his
51
counsel was also introduced.
Defendant’s counsel also reiterated Defendant’s position that the aforesaid
three experts were unavailable to appear at trial, noting that Dr. Barden was
47
Order of Court, October 17, 2006; N.T. 15, Hearing, October 17, 2006; N.T. 18-19, Hearing,
October 17, 2006.
48
N.T. 18, Hearing, October 17, 2006.
49
N.T. 4, Trial, October 30, 2006.
50
Defendant’s Ex. 1, Trial, October 30, 2006.
51
Defendant’s Ex. 3, Trial, October 30, 2006.
12
52
occupied with a campaign for a school board position, that Dr. Pope was
53
“recruiting students for a project,” and that Dr. Bruck was “engaged in
54
lectures.” He advised that “I have been given no support toward getting experts
in terms of either videotaping them in August, September or October or securing a
55
new expert.” However, Mr. Gelman further advised that, at his own expense, he
had retained an expert for trial in the person of Dr. Michael J. Labellarte, an
assistant professor at Johns Hopkins University School of Medicine and at the
University of Maryland School of Medicine, and a practicing child and adolescent
56
psychiatrist. The testimony of Dr. Labellarte would approximate that of the
57
unavailable experts, according to Defendant’s counsel.
In response to a renewed personal plea from Defendant, the court addressed
him as follows:
I had indicated before that I was not going to allow you to switch
attorneys if that was going to cause a delay in the trial. If you want to
represent yourself in this case I will allow Mr. Gelman to withdraw from
the case, and I will go through a colloquy with you to determine whether I
feel that you’re competent to represent yourself. . . .
So if you tell me that you want to represent yourself and you do not
want Mr. Gelman to represent you, I will allow him to withdraw, assuming
58
a colloquy indicates that you are competent to represent yourself.
59
Defendant declined to represent himself, the court declined to excuse
60
Defendant’s counsel from the case, and the case proceeded to trial.
52
N.T. 5, Trial, October 30, 2006.
53
N.T. 7, Trial, October 30, 2006.
54
N.T. 8, Trial, October 30, 2006.
55
N.T. 5, Trial, October 30, 2006.
56
N.T. 5, Trial, October 30, 2006.
The court would be remiss if it did not, at this point, remark upon the extraordinary good
grace and professionalism with which the gifted Mr. Gelman conducted himself throughout this
ordeal.
57
N.T. 7, Trial, October 30, 2006.
58
N.T. 9-10, Trial, October 30, 2006.
59
N.T. 11, October 30, 2006.
60
N.T. 13, October 30, 2006.
13
Numerous pretrial motions were filed prior to the retrial. The
Commonwealth’s motions included the following: (1) a motion to permit the
introduction of evidence that Defendant had, at one point, admitted to being a “sex
61
addict”; (2) a motion to permit the introduction of evidence tending to show that
62
Defendant habitually used pornography; (3) a motion to permit the introduction
of evidence that a childhood report by Defendant that he had been abused was
63
ignored by his parents; and (4) a motion to permit the introduction of evidence
64
that Defendant had sexually abused his daughter when she was a child. All of
65
these motions by the Commonwealth were ultimately denied by the court.
Defendant’s pretrial motions included the following: (1) an omnibus
pretrial motion in the form of (a) a “Motion To Preclude the Testimony [of the
Victim] Based on Its Being Predicated on Recovered or Repressed memory and
Having Arisen out of a Psychotic, Tactile, Sexual Hallucination” and (b) a
“Motion To Preclude [the Victim’s] Testimony because It Is a Product of Her
Alleged Recovered Memories Which Were Triggered by a Psychotic, Tactile,
Sexual Hallucination and Further Tainted So As to Render Her Incompetent As a
66
Witness”; and (2) a “Motion in Limine To Preclude [the Victim] from Testifying
61
Commonwealth’s Motion in Limine—Evidence That the Defendant Claimed To Be a Sex
Addict, filed July 14, 2006.
62
Commonwealth’s Motion in Limine—Evidence of the Defendant’s Habitual Use of
Pornography, filed July 14, 2006.
63
Commonwealth’s Motion in Limine—Evidence That the Defendant’s Childhood Report of
Sexual Abuse Was Ignored by His Parents, filed July 14, 2006.
64
Commonwealth’s Motion in Limine—Evidence of the Defendant’s Daughter[’]s Report That
the Defendant Sexually Abused Her As a Child, filed July 14, 2006.
65
Orders of Court, July 18, 2006.
66
Defendant’s Omnibus Motion sur Rule 578, filed February 17, 2006.
14
Unless the Commonwealth First Presents Expert Testimony Establishing That
67
Repressed memory Is Scientifically Acceptable under Frye.”
Defendant’s omnibus pretrial motion requested that the court prevent the
victim from testifying at trial on the grounds that (1) her testimony was
“predicated on recovered or repressed memory” and arose out of an hallucination
68
and (2) her testimony had been tainted by a therapist. A three-day hearing was
held on this motion.
At the hearing on Defendant’s motion, the transcript of Defendant’s prior
69
trial was made part of the record. In addition, the Commonwealth presented the
testimony of the victim’s mother surrounding the circumstances of her daughter’s
70
recollection of the incidents for which Defendant had been charged, and
71
Defendant presented the testimony of three experts.
The evidence at the prior trial was previously summarized in pertinent part
by this court as follows:
In the summer of 1997 Defendant was staying with his sister’s family
in Dickinson Township, Cumberland County, Pennsylvania, while certain
work was being done to the residence. The occupants of the house—
Defendant, his sister, his brother-in-law, [the] ten-year-old [victim], and
[the victim’s] eight-year-old brother—slept in rooms on the first floor. . . .
In the spring of 2000, [the victim] developed an eating disorder in the
form of an inadequate intake of food, known as anorexia nervosa, which
apparently coincided with or replicated the development of a similar
disorder in a close friend. As this ordeal developed, [the victim’s] mother
asked her whether Defendant had ever inappropriately touched her. [The
victim] said that he had not because, according to her testimony, she had
no recollection of any abuse.
67
Defendant’s Motion in Limine To Preclude [the Victim] from Testifying Unless the
Commonwealth First Presents Expert Testimony Establishing That Repressed Memory Is
Scientifically Acceptable under Frye, filed August 15, 2006.
68
Defendant’s Omnibus Motion sur Rule 578, filed February 17, 2006.
69
N.T. 9-10, Hearing, August 2-4, 2006.
70
N.T. 343-49, Hearing, August 2-4, 2006.
71
N.T. 10 (Maggie Bruck), 123 (Harrison Pope, Jr.), 191 (Robert Barden), Hearing, August 2-4,
2006.
15
The eating disorder of [the victim] ultimately produced life-
threatening consequences and, in August, 2000, resulted in her
hospitalization in a psychiatric inpatient unit for a period of six weeks,
where her ultimate recovery from the disorder began.
On May 15, 2001, according to [the victim’s] testimony, she had a
premonition that something bad was going to happen. On May 17, 2001,
[the victim] experienced an incident at school where she had an emotional
breakdown. She was taken by her mother to a psychologist with whom
she had been treating. On that date, [the victim] told the psychologist that
she now had a memory of being sexually abused by Defendant during the
72
summer of 1997.
The breakdown suffered by the victim at school was described at the prior
trial by her school counselor:
A One of [the victim’s] teachers brought her to my office. She
was extremely distraught. She brought her in. It was a [name of victim]
that I hadn’t seen before. She was—it’s very difficult to describe, because
she wasn’t like she usually was. And what she did in my office—she was
very fearful. She was terrified. And she became someone that I hadn’t
seen before. She became, I think the best way to describe it is, like a little
girl.
She used a little girl’s voice. She clutched herself. It was
obvious she was in great fear. And of what, I didn’t know. I listened to
her. I tried to figure out what she was doing, but it was this—as if she
wasn’t really there. She was sort of, in my opinion, disassociating from
being in my office at Lamberton Middle School, and thinking about or
feeling something that I didn’t even know what it was.
My role in that was to try to calm her, to try to reassure her of
where she was and who I was. She would go in and out of this for a while.
And at one point, when she knew where she was, I called her mom. And
her mother—I put her on speaker phone, and her mother could hear what
was going on and could hear her not talking like she normally did
73
obviously.
* * * *
A . . . She did keep talking about being in the dark. It’s so dark
in here. And my office is one of the few in our buildings that has
windows. One whole wall is windows. So it’s obviously always well lit.
So it wasn’t dark in there. She kept talking about how dark it was, and
someone was near her. And obviously, I was the only one in the room.
And those kinds of things kept being repeated, and again calling out for
her mother over and over again.
Q Was anyone touching her in your presence at all?
72
Opinion of Court, February 20, 2004, at 3-4 (citations to record omitted).
73
N.T. 264-65, Trial, May 6, 2003.
16
A No, no one was touching her. And I was careful not to, since
74
she was obviously fearful that someone was touching her.
The victim’s psychologist, to whom the victim was taken by her mother
75
within several hours of the breakdown at school, testified at the prior trial that on
the day of the breakdown at school the victim was taken to her office and revealed
76
that Defendant had sexually molested her. In this session, according to the
psychologist, the victim recalled that Defendant had shown her pornography and
77
touched her private parts. The psychologist testified that over a period of time
and sessions the victim “just remembered more things or maybe she got
78
comfortable and trusting enough to tell me.”
As ultimately remembered and recounted by the victim, according to the
victim’s testimony at the prior trial, the events of the summer in question included
the following: Defendant began showing her pornography on his computer during
7980
the day; he started to masturbate in her presence; he told her not to tell her
81
parents about these activities because it would hurt them; and, at the time, she
82
did not divulge their “special secret” to anyone. Eventually, according to her
testimony,
he started coming into my room at nighttime and—what would happen is,
he would take off his clothes—well, I think he would already be naked.
And he would take off my clothes. And he would—he would touch me on
my vagina and on my breasts. And sometimes, he would lick me on my
vagina and my breasts also. And he would have me do things to him like,
I would have to lick him.
74
N.T. 266, Trial, May 7, 2003.
75
See N.T. 348, Hearing, August 2-4, 2006.
76
N.T. 121, Trial, May 6, 2003.
77
N.T. 122, Trial, May 6, 2003.
78
N.T. 124, Trial, May 6, 2003.
79
N.T. 358, Trial, May 7, 2003.
80
N.T. 358, Trial, May 7, 2003.
81
N.T. 361, Trial, May 7, 2003.
82
N.T. 361, Trial, May 7, 2003.
17
And he would ask me, or he wouldn’t ask me, but he would put his
penis in my mouth. And I remember that—being really confused with
what was going on, and I remember this stuff would come out of his penis,
and I didn’t know what to do with it, so I just swallowed it. And I
remember that he would lick me.
And sometimes he would ejaculate on me, and I remember that it got
on my sheets, and I didn’t know what to do with it, because I didn’t want
my mom to know anything, and so I would kind of scrape it off. And it
was like this white milky stuff. Yeah. Oh, he also would feel around in
83
my vagina.
At the hearing on Defendant’s omnibus pretrial motion, the Commonwealth
supplemented the record from the earlier trial with testimony from the victim’s
mother. The victim’s mother testified that in the spring of 2000 Defendant’s
daughter, then in her 20s, called her and made a certain disclosure, which the
mother revealed to the victim’s father, to a doctor treating the victim for anorexia,
and to the victim’s psychologist at various times prior to the victim’s breakdown
84
on May 17, 2001. The disclosure, according to the Commonwealth, was that
85
Defendant had sexually abused his daughter when she was a child.
At the hearing, Defendant presented the testimony of the aforesaid Doctors
Barden, Pope, and Bruck. Robert Christopher Barden, Ph.D, J.D., LP, testified as
an expert in the areas of taint, suggestivity, repressed and recovered memory, and
86
recovered memory therapy. He had, according to his testimony, interviewed
over a thousand people who claimed to have recovered memories of sexual
87
abuse. In his view, which was not based upon any personal contact with the
88
victim,
[t]he record of this case provides powerful, multiple and consistent
examples of memory contamination processes including (but not limited
83
N.T. 363, Trial, May 7, 2003.
84
N.T. 343-47, Hearing, August 2-4, 2006.
85
Commonwealth’s Motion in Limine—Evidence of the Defendant’s Daughter[’s] Report That
the Defendant Sexually Abused Her As a Child, filed July 14, 2006.
86
N.T. 208-09, 222, Hearing, August 2-4, 2006.
87
N.T. 202, Hearing, August 2-4, 2006.
88
N.T. 223-24, Hearing, August 2-4, 2006.
18
to[)] improper suggestion, investigative-therapy procedures as well as
confirmatory bias, misinformation, improper therapy, and extreme parental
alienation processes over a period of years. In addition, the witness
apparently suffered from very severe mental illness including tactile
hallucinations and delusions that she could recover repressed memories of
abuse. Further, the notions providing the basis for all allegations in this
case, repressed and unreliable junk science concepts rejected by the
relevant scientific community. Further, the negligent failure of the
interviewers-therapists to videotape ANY of the essential therapy-
interviews now makes it quite impossible to reliably untangle the
overwhelming evidence of the therapist/interviewer relationship regarding
the leading and suggestive tactics and misinformation that according to the
testimony and therapeutic records one can strongly infer were employed
by [the victim’s psychologist] in her treatment of [the victim] from 5/15/01
89
onward.
Dr. Barden was particularly critical of the victim’s psychologist for not
directing her immediate efforts at a stabilization of the victim’s condition
90
following her breakdown at school, for treating the victim in accordance with
discredited recovered memory theory (noting that he had been “very successful in
91
suing therapists who use[d] so-called recovered memory therapy”), and for not
92
exploring alternative hypotheses. Dr. Barden opined that “[n]obody can
ascertain with reliability whether [the victim’s] allegations describe real events or
fantasies or hallucinations or suggestions of the therapist or other sources of
93
contamination, including severe mental illness.”
94
Harrison G. Pope, Jr., M.D., a professor of psychiatry at Harvard Medical
95
School, testified as an expert in the area of recovered memory, repressed
96
memory, and psychiatry. He provided the following definition of repressed
memory:
89
Defendant’s Exhibit 1, Hearing, August 3-4, 2006 (report of Dr. Barden).
90
N.T. 238, Hearing, August 2-4, 2006.
91
N.T. 214, 228-32, 254, Hearing, August 2-4, 2006.
92
N.T. 247, Hearing, August 2-4, 2006.
93
N.T. 226, Hearing, August 2-4, 2006.
94
N.T. 123, Hearing, August 2-4, 2006.
95
N.T. 125, Hearing, August 2-4, 2006.
96
N.T. 128, Hearing, August 2-4, 2006.
19
When I use the term repressed memory, I am referring to the
phenomenon that—the hypothesized phenomenon that one could
experience a terrible trauma, such as, for example, repeated acts of sexual
abuse, and then be literally unable to remember afterwards, not merely to
forget about it or put it out of one’s mind, but literally be unable to
remember it for a block of time.
This phenomenon—this postulated phenomenon has variously been
called dissociative amnesia, traumatic amnesia, psychogenic amnesia, but
all of these names aside, for the purpose of economy, I’m going to use the
term repressed memory specifically to refer to this postulated idea that you
97
could somehow drive a traumatic memory out of your consciousness.
Dr. Pope discussed the rise and fall of the theory of repressed memory in
98
the scientific community. In this context, he spoke of “the memory wars,” where
“there has been a bitter controversy between advocates of repressed memory who
actually believe that it’s possible to have a terrible trauma and then not be able to
remember it, and scientists like myself on the other side who point out that this is
simply not supportive of the scientific evidence. That it is essentially nothing but
99
a piece of folklore that is devoid of empirical support.” The memory wars, in his
view, “[were] being won, if you will, by the scientists like myself who have
questioned the validity of repressed and recovered memory or have argued that
100
this is what people sometimes colloquially call junk science.”
Dr. Pope expressed two primary opinions:
The first of my two opinions, to a reasonable psychiatric certainty,
is . . . that this concept of repressed memory—this notion that one could
have a whole series of trauma of sexual abuse and then be unable to
remember it is a novel idea that has never come to be accepted generally or
101
to achieve any consensus in the relevant scientific community.
* * * *
. . . The second opinion, also to a reasonable degree of psychiatric
certainty, it that if an individual claims to have, quote, recovered, unquote,
a memory after a previous period of putative repression, as is the case in
97
N.T. 132-33, Hearing, August 2-4, 2006.
98
N.T. 138-43, Hearing, August 2-4, 2006.
99
N.T. 133, Hearing, August 2-4, 2006.
100
N.T. 142, Hearing, August 2-4, 2006.
101
N.T. 144-45, Hearing, August 2-4, 2006.
20
[the victim], that one should be highly suspicious of this alleged recovered
memory, that there is a high probability that this memory could represent a
pseudo memory or a false memory that might be fully or that might be
partially or entirely attributable to suggestion rather than a genuine
102
memory.
Maggie Bruck, Ph.D, a professor at Johns Hopkins University Medical
103
School with her doctorate from McGill University in experimental psychology,
testified as an expert in the areas of childhood memory, suggestivity, taint,
104
interview techniques, adult memories, and “some areas of repressed memory.”
Dr. Bruck opined that it was not possible to determine whether the victim’s
105
account of abuse by Defendant was true or not.
The bases for Dr. Bruck’s opinion in this regard were her views (a) that the
victim’s treating psychologist harbored a confirmatory bias in favor of the account
106
provided by her patient, mistakenly associated the patient’s eating disorder with
107108
prior abuse, and failed to explore alternative hypotheses, (b) that sexually
109
abused children usually do not deny having been abused when asked, (c) that
the victim’s purported recollection of events was the result of an impaired mental
110111
state, and (d) that repressed memory theory was not scientifically accepted.
Ultimately, Defendant’s omnibus pretrial motion to prohibit the victim
112
from testifying at trial was denied. Defendant’s somewhat related motion in
limine to preclude the victim from testifying unless the Commonwealth
102
N.T. 145, Hearing, August 2-4, 2006.
103
N.T. 11, Hearing, August 2-4, 2006.
104
N.T. 17-18, Hearing, August 2-4, 2006.
105
N.T. 56, Hearing, August 2-4, 2006.
106
N.T. 51, Hearing, August 2-4, 2006.
107
N.T. 51, Hearing, August 2-4, 2006.
108
N.T. 52-53, Hearing, August 2-4, 2006.
109
N.T. 52, Hearing, August 2-4, 2006.
110
N.T. 54, Hearing, August 2-4, 2006.
111
N.T. 61, Hearing, August 2-4, 2006.
112
Order of Court, August 7, 2006.
21
established through expert testimony that repressed memory was a scientifically
acceptable concept under Frey v. United States, 293 F. 1013 (D.C. Cir. 1923) was
113
also subsequently denied.
At the four-day retrial of Defendant in the fall of 2006, the Commonwealth
presented the testimony of seven witnesses and secured the admission of 23
exhibits. Defendant presented the testimony of five witnesses, including an
expert, and secured the admission of 13 exhibits.
The witnesses for the Commonwealth were the victim, the victim’s mother,
the victim’s father, the victim’s brother, one of the victim’s eighth grade teachers,
the victim’s eighth grade school counselor, and the affiant in the case, a
Pennsylvania State Trooper. In pertinent part, the testimony of the victim may be
summarized as follows:
Having been born in November of 1986, the female victim was 19 years old
at the time of her testimony and was a sophomore at Bryn Mawr College in Bryn
114
Mawr, Pennsylvania. In the summer of 1997, when she was ten years old, she,
her parents, her younger brother, and Defendant, her uncle, were living in a
115
residence on Old York Road in Cumberland County, Pennsylvania. Beginning
in June of that summer, Defendant began a practice of showing her pornography
116
on a computer in his room, and eventually started entering her room in the
117
middle of the night and engaging her in sexual activity. The sessions at night
118
lasted a half hour, and the sexual activity at various times included his fondling
of her, undressing himself and her, licking her, rubbing his penis on her, placing
113
Order of Court, October 17, 2006.
114
N.T. 88, Trial, October 30-November 2, 2006.
115
N.T. 90-91, Trial, October 30-November 2, 2006.
116
N.T. 98, 104, Trial, October 30-November 2, 2006.
117
N.T. 100-07, Trial, October 30-November 2, 2006.
118
N.T. 106, Trial, October 30-November 2, 2006.
22
119
his fingers in her vagina, and putting his penis in her mouth. Ejaculation
120
sometimes occurred. Defendant showed her pornography about thirty times,
and the total number of sessions of either pornography or physical sexual abuse
121
was between seventy and seventy-five.
122123
Defendant told the victim that she was beautiful, that he loved her, and
124
that this activity was their special secret. He also said that he would kill
125126
himself if it were discovered, and that she could not tell anyone about it.
In an attempt to protect herself from Defendant’s conduct, the victim began
127
to lock her bedroom door at night. However, she stopped doing this when her
128
parents forbade it. She also tried to avoid the activity by leaving her room at
129
night by way of a window. The incidents of abuse continued until Defendant
130
moved out of the residence in October of that year.
The victim developed a loathing for herself and her body, and the following
131
summer she went on a diet. Ultimately, she developed a serious eating disorder,
132
was hospitalized for a period in a psychiatric ward, and undertook a program of
133
therapy. On May 17, 2001, at the age of 14, she was in the eighth grade and,
119
N.T. 100-01, Trial, October 30-November 2, 2006.
120
N.T. 102, Trial, October 30-November 2, 2006.
121
N.T. 145-46, Trial, October 30-November 2, 2006.
122
N.T. 107, Trial, October 30-November 2, 2006.
123
N.T. 107, Trial, October 30-November 2, 2006.
124
N.T. 100, Trial, October 30-November 2, 2006.
125
N.T. 100, Trial, October 30-November 2, 2006.
126
N.T. 107, Trial, October 30-November 2, 2006.
127
N.T. 111, Trial, October 30-November 2, 2006.
128
N.T. 111, Trial, October 30-November 2, 2006.
129
N.T. 112, Trial, October 30-November 2, 2006.
130
N.T. 104, 107, Trial, October 30-November 2, 2006.
131
N.T. 116, Trial, October 30-November 2, 2006.
132
N.T. 116, Trial, October 30-November 2, 2006.
133
N.T. 117, Trial, October 30-November 2, 2006.
23
while at school, experienced a sensation that someone was touching her on the
134
shoulder.
135
She went to the office of a school counselor, where she hallucinated that
136
it was dark and that someone was touching and licking her. Upon contact with
137
her mother she said that she was “so sorry.” The victim was crying and “really,
138
really scared.” That day, her mother took her to see her (the victim’s)
139
psychologist, to whom she related that she had been abused. However, she was
more specific as to the abuse when she subsequently spoke to a Pennsylvania State
140
Trooper. Some of the victim’s hallucinatory symptoms were still occurring as
141
of May 23, 2001.
Prior to her breakdown on May 17, 2001, the memories of abuse by
142
Defendant during the summer of 1997 had been “under a blanket.” She had
143
kept them inside by not eating, running and exercising. She revealed more
144
details of her experience as time passed.
At no time was she coached or told what to say about the abuse by
145
anyone.
The testimony of the victim’s mother of a supplementary nature was to the
146
effect that the Old York Road address was in Dickinson Township, that
134
N.T. 119, Trial, October 30-November 2, 2006.
135
N.T. 119, Trial, October 30-November 2, 2006.
136
N.T. 129, Trial, October 20-November 2, 2006.
137
N.T. 120, Trial, October 30-November 2, 2006.
138
N.T. 121, Trial, October 30-November 2, 2006.
139
N.T. 121, Trial, October 30-November 2, 2006.
140
N.T. 121, Trial, October 30-November 2, 2006.
141
N.T. 140-41, Trial, October 30-November 2, 2006.
142
N.T. 136, Trial, October 30-November 2, 2006.
143
N.T. 136, Trial, October 30-November 2, 2006.
144
N.T. 143, Trial, October 30-November 2, 2006.
145
N.T. 122-126, Trial, October 30-November 2, 2006.
24
147
Defendant was her brother, that during the summer of 1997 she found on more
than one occasion around 10:00 or 10:30 at night that the victim had locked her
148
bedroom door, and that both she and the victim’s father had told her, for safety
149
reasons, never to do that again. During this summer the mother, according to
her testimony, also found that the victim had exited her window at night and was
150
outside, and she told her never to do that again either. The mother testified that
she had not noticed any evidence on the victim’s bedclothes of a male presence,
151
but noted that she had not been looking for such evidence.
The testimony of the victim’s father, of a supplementary nature, may be
summarized as follows. The bedrooms of Defendant and the victim in the
152
residence in question were three steps apart. When the father found the screen
off the victim’s bedroom window, he discovered that she had been going outside
153
and was told by the victim that she had been “trying to get away.” He told her
154
to stop doing this.
In the spring of 2000, the victim developed an eating disorder, which
progressed into a condition known as anorexia nervosa and produced a drop in her
155
weight from 115 pounds to 69 pounds. She was hospitalized in the fall of 2000
156
for six weeks at the Hershey Medical Center.
146
N.T. 211, Trial, October 30-November 2, 2006.
147
N.T. 211, Trial, October 30-November 2, 2006.
148
N.T. 225, Trial, October 30-November 2, 2006.
149
N.T. 225, Trial, October 30-November 2, 2006.
150
N.T. 226, Trial, October 30-November 2, 2006.
151
N.T. 255, Trial, October 30-November 2, 2006.
152
N.T. 71, Trial, October 30-November 2, 2006.
153
N.T. 85, Trial, October 30-November 2, 2006.
154
N.T. 85, Trial, October 30-November 2, 2006.
155
N.T. 66, Trial, October 30-November 2, 2006.
156
N.T. 66, Trial, October 30-November 2, 2006.
25
Noncumulative testimony of the victim’s younger brother, who was 16 at
157158
the time of his testimony and had been seven in the summer of 1997,
recounted an incident at night during that period when he saw Defendant go into
159
the victim’s room.
160
Trooper George Kelly of the Pennsylvania State Police, the affiant in the
161
case, testified as to his interviews with the victim in June of 2001 and as to the
consistency of her initial version to him with her eventual preliminary hearing
162
testimony. However, he conceded that the victim’s allegation of oral sex being
performed on Defendant was made to him for the first time in an interview on July
163
17, 2002. Trooper Kelly was unsuccessful, due to the passage of time, in
securing physical evidence in the form of Defendant’s computer and the victim’s
bedsheets, when requested by Defendant to do so in October of 2002, according to
164
his testimony.
At the conclusion of the Commonwealth’s case, it was stipulated that
165
Defendant’s date of birth was April 5, 1950.
The witnesses for the defense were Defendant’s mother, Defendant’s
brother, the wife of Defendant’s brother, Defendant’s younger sister, and Michael
J. Labellarte, M.D. Defendant’s relatives testified variously to the apparently
166
happy state of mind of the victim during the summer of the alleged abuse, and
157
N.T. 182, Trial, October 30-November 2, 2006.
158
N.T. 179, Trial, October 30-November 2, 2006.
159
N.T. 172, Trial, October 30-November 2, 2006.
160
N.T. 264, Trial, October 30-November 2, 2006.
161
N.T. 269, 273, Trial, October 30-November 2, 2006.
162
N.T. 274, Trial, October 30-November 2, 2006.
163
N.T. 289, Trial, October 30-November 2, 2006.
164
N.T. 282, Trial, October 30-November 2, 2006.
165
N.T. 300, Trial, October 30-November 2, 2006.
166
N.T. 303, 306, 311 (Defendant’s mother), 316 (Defendant’s brother), 331 (Defendant’s sister-
in-law), 340 (Defendant’s sister), Trial, October 30-November 2, 2006.
26
the apparent absence of any tension in her relationship with Defendant at that
167
time.
Michael J. Labellarte, M.D., an assistant professor of psychiatry at Johns
Hopkins University School of Medicine, a clinical assistant professor of
psychiatry at the University of Maryland School of Medicine, and a practicing
psychiatrist who was board certified in both general psychiatry and child and
168
adolescent psychiatry and who was currently treating six or seven hundred
169170
patients, was permitted to testify, over the Commonwealth’s objection, as an
expert in the area of psychiatry, treatment of children, and repressed and recovered
171172
memory. Specifically, and to Defendant’s satisfaction, the court’s ruling on
the admissibility of his testimony was as follows:
Doctor Labellarte may testify as to whether in his opinion to a
reasonable degree of psychiatric certainty the mental health care and
treatment provided by [the victim’s treating psychologist] to the alleged
victim in this case fell below the standard of care in the profession, and if
it did, why. He may also testify as to the professional views of the
psychiatric community with respect to the existence of a mental
phenomenon known as repressed and/or recovered memory.
He may not express an opinion as to the v[e]racity of the alleged
victim in this case, including an opinion as to whether her version of the
events in question and testimony related to those events was “tainted” or
was otherwise unreliable or lacking to any degree in credibility. Nor may
he utilize his testimony to rebut diagnoses and conclusions of [the victim’s
treating psychologist] since the Commonwealth has not presented any such
173
diagnoses or conclusions in support of its case.
Dr. Labellarte testified that the victim was mismanaged clinically by her
treating psychologist. In particular, he opined that in view of the victim’s altered
167
N.T. 354, Trial, October 30-November 2, 2006.
168
N.T. 354-61, Trial, October 30-November 2, 2006; Defendant’s Exhibit 13, Trial, October 30-
November 2, 2006.
169
N.T. 358, Trial, October 30-November 2, 2006.
170
N.T. 351, Trail, October 30-November 2, 2006.
171
N.T. 361, 365, Trial, October 30-November 2, 2006.
172
N.T. 352, Trial, October 30-November 2, 2006.
173
N.T. 352, Trial, October 30-November 2, 2006.
27
mental state on May 17, 2001, a differential diagnosis should have been generated,
a medical examination should have been administered, objective tests, including
medical tests, should have been administered and performed, additional sources of
information should have been elicited, the victim should have been stabilized
before anything “emotionally important” was discussed, the victim should have
been sent to an emergency room, the victim should have placed in an inpatient
174
treatment facility, and a psychiatrist or pediatrician should have been consulted.
175
He noted, further, the extreme suggestibility of a person in a state of agitation.
In discussing the subject of repressed or recovered memory, Dr. Labellarte
testified in pertinent part as follows:
Repressed memory has many different titles and names and has a
historical context. About a hundred years ago Freud was talking about
what he imagined at the time and some of his theories have been supported
by current expertise and some of his theories have been kind of discarded.
At the time, before he invented the concept of sexuality that applied
even to a child—at the time he was trying to figure out the idea that maybe
mysterious things happened, that trauma occurred, and that a person
develops certain defenses to trauma.
And that 100 year old thinking, by the way, he kind of discarded
quickly. It sort of carried over and showed up in various forms about 80 or
90 years later in the midst of this sort of fireball of controversy, and it is
[a] fireball of controversy.
There were a great amount—a great number of therapists, and maybe
somebody has called them trauma memory therapists or trauma therapists
who put together this guild or—I don’t know, I might even say cultish way
of looking at things to say that anything that is unexplained might be
representative of trauma.
And for Freudian type people there is great appeal to this because in
our business of psychiatry, psychology, and under trying to understand
people, there is some sort of appeal to the idea that there is a mystery and
if we can just find this magical mystery—mysterious answer, we will say,
ah-ha, and we’ll have great relief, and then we will know the real answer.
The problem with that is it leads to an enormous amount of problems
just based on logic. For instance, a person who is sexually abused has
recollections and a great deal of suffering and often dissociative
symptoms. So a person who has sexual abuse, the way of dealing with
sexual abuse is very debilitating in some cases, but because a person is
174
N.T. 370-83, Trial, October 30-November 2, 2006.
175
N.T. 382, Trial, October 30-November 2, 2006.
28
debilitated or has a symptom like dissociation is not logically enough to
conclude that sexual abuse occurred, but people who have looked at it very
literally say, but wouldn’t it be interesting or wouldn’t it be nice to have an
explanation of why there is impairment down the road. Let’s imagine that
up the road trauma occurred.
That is an enormous problem in our business because it has so many
different meanings. So this idea is when a person has any kind of
unt[oward] event, they tend to have what’s called continuous memory.
Something bad happened. Today I remember that it happened yesterday.
Next week I remember that it happened yesterday. Ten years I remember
that it happened ten years ago.
Over time, how your brain works, it shrinks down the memory to a
certain bit so that it can be held in the memory. Nobody can remember—
you know, I could scan this room. I can’t remember all of the things that
are in it. I can only get kind of a brief look at it. If I can review it enough,
I can get a better image, but in ten years I will have a gist rather than a
clear memory of what happened.
People have come up with this, literally a theory, that in repressed
memory or recovered memory that the memory for the event is instantly
hidden by some mysterious mechanism, and that somewhere down the
road this mysterious mechanism fails, and then the memories which have
been so-called repressed over a number of years miraculously magically
appear in full form and in great vividness as if they were there yesterday.
And experts—and I have not written on this. I can only recount what
I have read on this, but the experts on this refer to experts and theorists,
and since the theorists are not the experts, the experts are the experts.
Richard McNally at Harvard, Elizabeth Loftus, a gentleman named
Fivuch . . . down in Georgia, write extensively on this case.
And the most touching story—or I should say the most touching
research I have seen is an article by Fivuch where he describes 12, in his
words, middle class white adult women who have, indeed, been sexually
abused, and they describe, in their own words, what their recollection and
their recall is of this experience. And universally these 12 women talk
about the wish to repress it, the wish to hide it, making a firm effort to not
think about it, to not recall it, but to their own suffering, unable to do it.
And so, again, that sort of—that description is what the—the experts
reviewed as the typical—the response to trauma. Any idea that there is a
magical mechanism of repression or a magical mechanism of dissociation
that allows things to—enormous topics to be hidden from view for years,
and then come out in full view through some mystical dream-like state that
176
elicits them is just—it’s just not valid.
176
N.T. 384-88, Trial, October 30-November 2, 2006.
29
To a “high degree” of clinical psychiatric certainty, Dr. Labellarte
expressed the opinion that the concept of repressed or recovered memory was not
177
scientifically acceptable.
In his closing argument to the jury, the prosecutor, in passing and without
objection, stated the following:
. . . Sure, we could have brought in every person who ever talked to
this child in theory and come up and put repressed memories on trial, but
that’s not the focus of this trial. That’s not what this is about. This isn’t a
battle of the experts. It doesn’t matter. No one is suggesting she repressed
the memories or didn’t repress it. Maybe she remembered it every day. It
doesn’t matter to you. What matters was that she was keeping his dirty
178
little secret the whole time until—May 17th.
As previously noted, at the conclusion of the trial and following
179
deliberations the jury found Defendant guilty of the charges against him. He
180
was sentenced on December 19, 2006. A post-sentence motion filed by
Defendant, which included a request for relief on the ground that ‘[t]he verdict in
181
this case shocks the conscience and relief is required in the interests of justice,”
182183
was, for purposes of the present discussion, denied on March 29, 2007.
184
Defendant’s direct appeal was filed on April 5, 2007.
177
N.T. 389, Trial, October 30-November 2, 2006.
178
N.T. 477-78, Trial, October 30-November 2, 2006.
179
Order of Court, November 2, 2006.
180
Order of Court, December 19, 2006.
181
Defendant’s Post Sentence Motion filed Pursuant To Pa. R. Crim. Pro. 720(B)(1)(a), filed
December 29, 2006.
182
Part of the motion was deemed premature. See Order of Court, January 26, 2007.
183
Order of Court, March 26, 2007.
184
Defendant’s Notice of Appeal, filed April 5, 2007.
30
DISCUSSION
Sufficiency of the Evidence
Statement of law. On a challenge to the sufficiency of the evidence in a
criminal case, the proper test is “whether, viewing the evidence admitted at trial in
the light most favorable to the Commonwealth and drawing all reasonable
inferences in the Commonwealth’s favor, there is sufficient evidence to enable the
trier of fact to find every element of the [crime] charged beyond a reasonable
doubt.” Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1354, 1353
(1996), quoting Commonwealth v. Carter, 329 A.2d 490, 495-96, 478 A.2d 1286,
1288 (1984).
The trier of fact is “free to believe all, part or none of the evidence.”
Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582, 585, quoting
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).
This principle is applicable to the testimony of an expert. Commonwealth v.
Passarelli, 2001 PA Super 377, ¶26, 789 A.2d 708, 715, citing Commonwealth v.
Carson, 559 Pa. 460, 741 A.2d 686 (1999).
In ruling upon such a challenge, a court “may not weigh the evidence and
substitute [its] judgment for the fact-finder.” Commonwealth v. Butler, 2004 PA
Super 294, ¶9, 856 A.2d 131, 135, quoting Commonwealth v. Clark, 2000 PA
Super 307, ¶4, 761 A.2d 190, 192.
With specific reference to sex-related offenses, Section 3106 of the Crimes
Code provides as follows:
The credibility of a complainant of an offense under this chapter shall
be determined by the same standard as is the credibility of a complainant
of any other crime. The testimony of a complainant need not be
corroborated in prosecutions under this chapter. . . .
Act of May 18, 1976, P.L. 120, §2, as amended, 18 Pa. C.S. §3106 (emphasis
added). This rule is consistent with case law. Commonwealth v. Lyons, 2003 PA
Super 360, ¶42, 833 A.2d 245, 258 (“the uncorroborated testimony of the
31
complaining witness is sufficient to convict a defendant of sexual offenses”). It is
also consistent with the general rule of criminal law that the uncorroborated
testimony of a victim is sufficient to convict a defendant of a crime to one’s
person. See, e.g., Commonwealth v. Mack, 2004 PA Super 158, ¶7, 850 A.2d 690,
693.
For purposes of the present case, the crime of corruption of minors is
committed by a person who, being 18 years of age or older, does an act which
185
corrupts or tends to corrupt the morals of a person less than 18 years of age.
The crime of indecent assault is committed by a person who has indecent contact
with a person who is under the age of 13, or causes such person to have indecent
186
to have contact with him, for the purpose of arousing sexual desire in either.
The crime of aggravated indecent assault is committed by a person who engages in
penetration, however slight, of the genitals of a person who is under the age of 13
with a part of the actor’s body for any purpose other than good faith medical,
187
hygienic or law enforcement procedures. The crime of involuntary deviate
sexual intercourse is committed by a person who has sexual intercourse by mouth
188
with a person who is under the age of 13.
Application of law to facts. In the present case, the testimony of the victim
alone, if found credible beyond a reasonable doubt, was sufficient as a matter of
law to support verdicts of guilty of the offenses charged. In view of additional
evidence tending to corroborate her version of the events in the form of (a) third-
party testimony supporting her assertions that Defendant had a computer in his
room, that she had unsuccessfully tried to keep her bedroom door locked at night
to protect herself, that she had tried to escape from Defendant by exiting her
185
Act of July 1, 1978, P.L. 573, §1, as amended, 18 Pa. C.S. §6301(a).
186
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3126(a)(7) (2007 Supp.).
187
Act of February 2, 1990, P.L. 6, §5, as amended, 18 Pa. C.S. §3125(a)(7) (2007 Supp.).
188
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3123(a)(6); Act of
December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3101 (2007 Supp.) (definition of
deviate sexual intercourse).
32
bedroom at night through a window, and that Defendant had been seen entering
her bedroom at night and (b) the affiant’s testimony that Defendant admitted that
he had entered the victim’s bedroom at night during this period, the court was of
the view that the evidence was sufficient to sustain the jury’s verdicts of guilty.
Weight of the Evidence
Statement of law. In a determination of whether a new trial should be
granted based on a challenge to the weight of the evidence, the proper test is
whether the verdict is so contrary to the evidence presented at trial as to “shock
[the court’s] sense of justice.” McElrath v. Commonwealth, 405 Pa. Super. 431,
443, 592 A.2d 740, 745 (1991). While this issue requires a review of all evidence
presented at trial, credibility determinations are within the province of the trier of
fact. Id. at 442-43, 592 A.2d 740, 745. In a jury trial, the jury is free to believe
all, part or none of the evidence presented. Commonwealth v. Hanible, 575 Pa.
255, 836 A.2d 36 (2003). This principle, as noted previously, applies to expert as
well as lay testimony. Commonwealth v. Passarelli, 2001 PA Super 377, ¶26, 789
A.2d 708, 715, citing Commonwealth v. Carson, 559 Pa. 460, 741 A.2d 686
(1999).
Application of law to facts. In the present case, where the eyewitness
testimony of the victim was of a positive nature and corroborated in some respects
by the testimony of others, and where her version of the events was not directly
contradicted by eyewitness testimony, but was contested in a more indirect
manner, primarily involving expert opinion and cross-examination, it could not be
said that the evidence presented at trial was so heavily weighted against the
prosecution that the jury’s verdict was shocking to the court’s sense of justice.
Preclusion of victim’s testimony due to incompetency. “Every person is
competent to be a witness except as otherwise provided by statute or in [the
Pennsylvania Rules of Evidence].” Pa. R.E. 601(a). Under the Rules, a person is
incompetent to testify if the Court finds that because of a mental condition or
immaturity the person
33
(1) is, or was, at any relevant time, incapable of perceiving
accurately;
(2) is unable to express himself or herself so as to be understood
either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
Pa. R.E. 601(b).
Furthermore, the Pennsylvania Supreme Court has held that a child witness
in a sexual abuse case may be rendered incompetent to testify where his or her
memories of the events at issue have been tainted. Commonwealth v. Delbridge,
578 Pa. 641, 855 A.2d 27 (2003). In this context,
[t]aint is the implantation of false memories or the distortion of real
memories caused by interview techniques of law enforcement, social
service personnel, and other interested adults, that are so unduly suggestive
and coercive as to infect the memory of the child, rendering that child
incompetent to testify.
Id. at 655, 855 A.2d at 35.
In addition, by case law certain types of testimony have been ruled
inadmissible. See, e.g., Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170
(1981) (hypnotically refreshed testimony held inadmissible, where witness had no
prior independent recollection of events in question). In this regard, some
jurisdictions have held that expert testimony is required from the proponent of
testimony based upon repressed memory to support its admission. See, e.g., State
v. Hungerford, 142 N.H. 110, 697 A.2d 916 (1997). In so holding, the Supreme
Court of New Hampshire in Hungerford stated the following:
. . . [I]t does seem to be accepted in the psychological community that
people are capable of repressing or dissociating conscious recollection of
all or part of certain traumatic events. . . . There is, however, a vigorous
debate on the questions of how the process of repression occurs, how the
process of retrieval occurs, and indeed if in fact retrieval is possible at all.
Id. at 119, 697 A.2d at 921 (citations omitted).
Pennsylvania appellate courts have not, however, yet affirmatively adopted
such a rule. See generally Commonwealth v. Crawford, 553 Pa. 195, 718 A.2d
768 (1998); cf. Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997) (Newman,
34
J., concurring opinion). Indeed, in Crawford, where the explanation of a witness
for his delay in reporting what he had observed “suggested revival of repressed
memory,” the Court stated that “[t]he jury was capable of assessing [the witness’]
testimony without the expert testimony [proffered by Defendant] regarding
revived memory,” where the Commonwealth had introduced no such testimony in
its case. Commonwealth v. Crawford, 553 Pa. 195, 206, 718 A.2d 768, 774
(1998).
Application of law to facts. In the present case, the victim was an adult at
the time of her testimony, with the benefit of a presumption of competency. The
evidence did not, in the court’s view, support a conclusion as a matter of law that
her recollection of the events in question had been tainted by the implantation of
false memories or the distortion of real memories caused by interview techniques
of law enforcement, social service personnel, or other interested adults of such an
unduly suggestive and coercive nature as to infect those memories and render her
incompetent. At most, the evidence regarding the style of treatment of the victim
by her psychologist provided material with which to challenge the credibility of
the victim, utilizing expert testimony and cross-examination techniques, which
Defendant was permitted to do.
In addition, if it is assumed for the sake of argument that the victim’s
professed suppression of memories “under a blanket,” facilitated as she testified
by excessive physical activity and regulation of food intake, implicated the
concept of repressed or recovered memory, Pennsylvania case law did not compel
the exclusion of her testimony, either absolutely or in the absence of another
person’s testimony to the effect that such recollections were acceptable to the
scientific community. The adult witness, in this case, was articulate, positive,
unwavering and intelligent; her version of the events in question was to some
degree corroborated by the testimony of others and by Defendant’s own
admission; and Defendant was permitted, over the Commonwealth’s objection, to
35
present to the jury expert testimony on the scientific community’s view of the
validity of repressed or recovered memory.
Under these circumstances, it was the court’s view that the drastic measure
of prohibiting the victim from presenting her own testimony as to abuse allegedly
inflicted upon her by Defendant was neither required by Pennsylvania law nor
consonant with the general presumption of competence to which she was entitled
and the evidentiary effect which the testimony of a complainant in a sex abuse
case is normally permitted.
Motions for Continuance of Trial and Withdrawal of Counsel
Under Pennsylvania Rule of Criminal Procedure 106(a), a court may grant
a continuance “in the interests of justice.” In general, a ruling on a motion to
continue is within the sound discretion of the trial court. Commonwealth v. Roser,
2006 PA Super 365, 914 A.2d 447. This principle has been applied to requests for
continuances based upon a defendant’s desire to obtain expert testimony. Id.
“The refusal to grant a continuance constitutes reversible error only if
prejudice or palpable and manifest abuse of discretion is demonstrated.” Id. at
¶25, 914 A.2d at 456. In the present case, a number of factors, in the court’s view,
weighed against a conclusion that the court’s discretion was abused in denying
Defendant’s request for a continuance of trial to the following year based upon the
purported unavailability of certain expert witnesses for trial. These included the
following: (a) the case had already been continued multiple times over the years at
Defendant’s request; (b) Defendant’s prior continuance request had been obtained
with the understanding that a further continuance would not be granted to facilitate
the appearance of Defendant’s experts; (c) the reasons provided by Defendant’s
experts for their unavailability were far from necessitous; (d) Defendant was, in
the court’s view, engaged in a delaying tactic; and (e) Defendant was able to
secure the services of an alternative expert for trial, thereby mitigating any
prejudicial effects of the denial.
36
The right of a criminal defendant to counsel, embodied in the sixth
amendment to the federal constitution and Section 9 of Article I of the
Pennsylvania Constitution, is a basic one, and “includes the right to a reasonable
opportunity to obtain counsel of his or her own choice.” Commonwealth v. Atkins,
285 Pa. Super.464, 427 A.2d 1380, 1381 (1981). However, while the right to
counsel is an absolute right, the right to choose a particular attorney is less than
absolute. Thus, the Pennsylvania Superior Court has stated as follows:
[T]he desirability of permitting a defendant additional time to obtain
private counsel of his choice must be weighed against the public need for
the efficient and effective administration of justice. . . . The matter of
continuance is traditionally one within the discretion of the trial judge, and
no prophylactic rule exists for determining when a denial of a continuance
amounts to a violation of due process. Each case must be decided by
balancing the competing interests, giving due regard to the facts
presented . . . . The answer must be found in the circumstances present in
every case, particularly in the reasons presented to the trial judge at the
time the request is denied. . . .
Commonwealth v. Atkins, 233 Pa. Super. 202, 207-08, 336 A.2d 368, 371-72
(1975). Consistent with the foregoing, under Pennsylvania Rule of Criminal
Procedure 120(B)(1), “[c]ounsel for a defendant may not withdraw his or her
appearance except by leave of court,” and, in ruling upon such a motion, “the
court should determine [whether] the change in attorneys will . . . delay the
proceedings . . . .” Comment, Pa. R. Crim. P. 120.
“Although the accused may personally elect to waive his right to a speedy
trial, he clearly cannot be permitted to utilize his right to choose his own counsel
so as unreasonably to clog the machinery of justice and hamper and delay the state
in its efforts to do justice with regard both to him and to others whose rights to a
speedy trial may thereby be affected.” Commonwealth v. Rucker, 563 Pa. 347,
351, 761 A.2d 541, 543 (2000). Furthermore, “[t]he accused’s right to choose
counsel must be exercised at a reasonable time and in a reasonable manner.”
Commonwealth v. Novak, 395 Pa. 199, 214, 150 A.2d 102, 109 (1959).
In the present case, several factors, in the court’s view, contributed to a
conclusion that the refusal to excuse Defendant’s counsel from further
37
participation in the case did not constitute prejudicial error. First, in view of
Defendant’s unwillingness to represent himself and the unavailability of
alternative counsel for trial in the immediate future, the effect of the withdrawal of
counsel when requested would have been to unreasonably delay the trial into the
following year. Second, the basis for the motion to withdraw—a deterioration of
the attorney/client relationship—was a condition precipitated entirely by
Defendant. Third, Defendant’s purpose in creating the condition was, the court
believed, to provide an alternative basis for a delay of trial. Fourth, in the final
analysis the attorney/client relationship proved satisfactory to both counsel and
Defendant.
Prosecutorial Misconduct
Initially, it may be noted that it is axiomatic that a failure to raise in a
timely manner an issue in a trial court generally constitutes a waiver of the right to
subsequent pursuit of the issue. See, e.g., Commonwealth v. Johnson, 2005 PA
Super 123, 874 A.2d 66 (waiver of issue of prosecutorial misconduct in closing
argument by failure to object at time). “In the vast majority of cases, the rubric ‘in
a timely manner’ requires contemporaneous objection; and our rules and cases
rigorously enforce the contemporaneous objection rule.” Commonwealth v.
Griffin, 271 Pa. Super. 228, 236, 412 A.2d 897, 901 (1979).
The primary rationale for the waiver doctrine is, of course, that it insures
the introduction of an issue at a time when the trial court can still effectuate a
remedial measure. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d
114 (1974). It also prevents “gamesmanship.” Takes v. Metropolitan Edison Co.,
440 Pa. Super. 101, 655 A.2d 138 (1995).
In the present case, the trial court was not presented with a timely
objection, motion for mistrial, motion to strike, motion to dismiss, exception to
instruction or similar request for curative action with respect to any purported
misconduct on the part of the prosecutor. In such a situation, a defendant can “not
38
remain silent and take his chances on a verdict and then complain that it is
189
adverse.”
On the merits of the issue, it may be noted that prosecutorial misconduct
can take many forms, but typically involves comments or actions, not based upon
the evidence, that prejudice the jury to such an extent “that a true verdict cannot be
rendered because the existence of bias and hostility makes it impossible to weigh
190
the evidence in a neutral manner.” The court has found no cases in which a
mere failure on the part of law enforcement authorities to thoroughly investigate a
191
case has been categorized as prosecutorial misconduct.
Counsel, of course, are accorded “wide latitude” with respect to arguments
made to the jury. Commonwealth v. Freeman, 573 Pa. 532, 580, 827 A.2d 385,
414 (2003). Thus, such comments are not improper when they invite the jury to
192
draw inferences reasonably derivable from the evidence presented, nor do they
afford a basis for relief “unless they are such as to arouse the jury’s emotions to
such an extent that it is impossible for the jury to reach a verdict based on relevant
193
evidence.”
In short, when reviewing a claim of prosecutorial misconduct, the court’s
goal is “to determine whether the defendant was deprived of a fair trial and not
whether the defendant was deprived of a perfect trial.” Commonwealth v. Kemp,
562 Pa. 154, 162, 753 A.2d 1278, 1282 (2000). In the present case, in the court’s
view, the incidents complained of, including statements of the Commonwealth’s
189
Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 110, 655 A.2d 138, 143 (1995).
190
Commonwealth v. Baker, 531 Pa. 541, 558, 614 A.2d 663, 671 (1992).
191
Such a failure, of course, is commonly utilized by defendants to persuade a jury that the
prosecution’s case is flawed, and it might also serve as a basis for a missing witness or missing
evidence charge. See generally Commonwealth v. Whaley, 290 Pa. Super. 97, 434 A.2d 147
(1981).
This is not a case, it should be noted, where the Commonwealth suppressed, destroyed or lost
evidence in its possession. See id.
192
Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003).
193
Commonwealth v. Bronshtein, 547 Pa. 460, 484, 691 A.2d 907, 919 (1997).
39
attorney, did not rise to the level of misconduct that deprived Defendant of a fair
trial.
For the foregoing reasons, it is believed that the judgment of sentence in the
present case was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
Barnaby C. Wittels, Esq.
1429 Walnut Street
Suite 1301
Philadelphia, PA 19102
Attorney for Defendant
R. Nicholas Gimbel, Esq.
1735 Market Street
Suite 700
Philadelphia, PA 19103
Attorney for Defendant
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
40