HomeMy WebLinkAbout00-0848 CriminalCOMMONWEALTH
Vo
CARL NORMAN
JOHNSON
OTN: H1294963
OTN: H1294974
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-848 CRIMINAL TERM
NO. 00-849 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 21, 2001.
In these criminal cases, tried together, Defendant was found guilty
following a jury trial of two charges of indecent assault,t The victims were his
two- and four-year-old granddaughters.
Defendant has appealed to the Pennsylvania Superior Court from the
judgment of sentence.2 On appeal, Defendant contends that the court committed
reversible error in (1) declining to suppress an inculpatory statement of Defendant,
(2) admitting the inculpatory statement at trial in the absence of proof of a corpus
delicti, (3) admitting testimony of a physician as to the modes of transmission of a
venereal disease which the victims allegedly contracted from Defendant, and (4)
denying Defendant's request to poll the jury on the issue of proof of the corpus
delicti.3
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
~ See Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. {}3126(a)(7).
2 Defendant's Notice of Appeal, filed March 6, 2001. A post-sentence motion was disposed of
adversely to Defendant by order of court dated February 7, 2001.
Defendant received concurrent, standard range sentences of not less than nine months nor
more than 23 months in the Cumberland County Prison. Order of Court, January 25, 2001. He
remains free at this time on $10,000.00 unsecured monetary bail. Id.
3 Defendant's Brief Statement of Matters Complained of on Appeal, filed March 26, 2001.
STATEMENT OF FACTS; PROCEDURAL HISTORY
Defendant was arrested on March 9, 2000,4 and charged with indecent
assaults upon his two-year-old and four-year-old granddaughters.5 The offenses
were alleged to have occurred between March 8, 1997, and February 8, 2000,6 and
between June 15, 1995, and February 8, 2000,7 respectively.
The cases were joined for trial on May 8, 2000,8 and Defendant was
formally arraigned on May 15, 2000.9 On June 13, 2000, Defendant moved to
suppress an inculpatory statement which he had made to police on February 17,
2000.~°
A hearing on Defendant's suppression issue was held on July 3, 2000. At
the hearing, Defendant contended that the statement should be suppressed because
it was made without benefit of Miranda warnings and was not voluntary. ! l
The evidence at the suppression hearing established, to the court's
satisfaction, the following facts. Defendant was the grandfather of two sisters,~2
4 N.T. 38, Suppression Hearing, July 3, 2000.
5 See Criminal Complaints, Commonwealth v. Johnson, Nos. 00-0848 and 00-0849 Criminal
Term, Cumberland Co., filed March 1, 2000.
6 Information, Commonwealth v. Johnson, No. 00-0848 Criminal Term, Cumberland Co., filed
May 8, 2000.
? Information, Commonwealth v. Johnson, No. 00-0849 Criminal Term, Cumberland Co., filed
May 8, 2000.
8 See Notices of Trial Joinder, Commonwealth v. Johnson, Nos. 00-0848 and 00-0849 Criminal
Term, Cumberland Co., filed May 8, 2000.
9 See Acknowledgments of Arraignment, Commonwealth v. Johnson, Nos. 00-0848 and 00-0849
Criminal Term, Cumberland Co., filed May 15, 2000.
l0 Defendant's Omnibus Pretrial Motion, Commonwealth v. Johnson, No. 00-0848 Criminal
Term, Cumberland Co., filed June 13, 2000; Defendant's Omnibus Pretrial Motion,
Commonwealth v. Johnson, No. 00-0849 Criminal Term, Cumberland Co., filed June 13, 2000.
A Motion To Quash/Dismiss the Information, contained in Defendant's omnibus pretrial
motion at No. 00-0849 Criminal Term, was withdrawn by Defendant. See Order of Court, July 3,
2000.
il N.T. 65, Suppression Hearing, July 3, 2000.
~2 See N.T. 9, 50, Suppression Hearing, July 3, 2000.
2
among other grandchildren.13 One of these, Defendant's two-year-old
granddaughter, tested positive for gonorrhea.TM The matter was referred to
Cumberland County Children and Youth Services, which referred it to the Carlisle
Borough Police Department~5 on January 31, 2000.16 This child's older sister also
tested positive for gonorrhea, resulting in a second referral to the Carlisle Borough
police.17
Persons in close proximity to the children, including Defendant (the
children's grandfather) and his spouse (the children's grandmother), submitted to
testing for the disease.18 Those persons who tested positive for gonorrhea were
then to be interviewed as part of the investigation.19 Defendant's test was
positive?
On February 14, 2000, the Children's Services' caseworker assigned to the
case told family members that contact with the children was to be restricted? In
particular, Defendant and his spouse were precluded by the caseworker from
seeing their grandchildren prior to an interview with the caseworker and Carlisle
police?
It happened that a family party had been scheduled which Defendant and
his spouse were particularly desirous of attending.23 In the hope that his
13 N.T. 56, Suppression Hearing, July 3, 2000.
14 N.T. 9, Suppression Hearing, July 3, 2000.
~5 Carlisle Borough is in Cumberland County, Pennsylvania.
~6 N.T. 8, Suppression Hearing, July 3, 2000.
~7 N.T. 9, Suppression Hearing, July 3, 2000.
~8 N.T. 9, 50, Suppression Hearing, July 3, 2000.
~9 N.T. 49, Suppression Hearing, July 3, 2000.
20 N.T. 9-10, Suppression Hearing, July 3, 2000.
The test for Defendant's spouse was also positive. Id. at 50.
2t N.T. 50, 62, Suppression Hearing, July 3, 2000.
22 N.T. 48, 50, Suppression Hearing, July 3, 2000.
23 N.T. 27, Suppression Hearing, July 3, 2000.
submission to an interview would result in permission to attend the party,
Defendant went to the Carlisle Borough Police Station three times on the morning
of Thursday, February 17, 2000, in an attempt to be interviewed by the detective
to whom the case had been assigned.24 On the third occasion, the detective, who
had not contacted him or requested his appearance,25 was able to see him.26
The detective arranged for the caseworker's presence at the interview, as
well as that of a second borough detective? The interview was conducted in the
office of the second detective? The caseworker and detectives were in civilian
clothes;29 they remained seated throughout the interview;3° their voices were not
raised;3~ Defendant was not threatened or restrained;32 the door to the office
remained open;33 no warrant had been obtained for Defendant's arrest.34
Defendant was told that he was not under arrest, that he was free to leave at
any time he wished, and that he would not be arrested on this occasion under any
circumstances? Defendant stated that he understood that he was not under arrest
and that he was free to leave.36 He was given coffee, smoked cigarettes and
24 N.T.
25 N.T.
26 N.T.
27 N.T.
28 N.T.
29 N.T.
30 N.T.
3~ N.T.
32 N.T.
33 N.T.
34 N.T.
35 N.T.
36 N.T.
10, 23-24, Suppression Hearing, July 3, 2000.
10-11, Suppression Hearing, July 3, 2000.
11, Suppression Hearing, July 3, 2000.
10-11, 14, Suppression Hearing, July 3, 2000.
13-14, Suppression Hearing, July 3, 2000.
13, Suppression Hearing, July 3, 2000.
41, Suppression Hearing, July 3, 2000.
43-44, Suppression Hearing, July 3, 2000.
22-23, Suppression Hearing, July 3, 2000.
12, Suppression Hearing, July 3, 2000.
23, Suppression Hearing, July 3, 2000.
33, Suppression Hearing, July 3, 2000.
40, Suppression Hearing, July 3, 2000.
4
occasionally stood.37 At no time during the 25-minute38 interview did Defendant
indicate that he wished to terminate the questioning39 or to leave.4°
During the course of the interview, Defendant made allegedly inculpatory
responses.41 He also stated that he had not been threatened,42 had not been
promised anything,43 and had been treated well by the police.44 At the conclusion
of the interview, Defendant left the station and went home.45 He was arrested
three weeks later.46
Following the hearing, the court being of the view that Defendant had not
been in custody during the interview and that his statement had been voluntarily
given, the request for suppression was denied.47 A jury trial was held on
September 18, 19 and 20, 2001.
At the trial, the evidence tended to show the following facts. At the
beginning of 2000, Defendant and his spouse were the grandparents of two sisters,
one two years old and one four years old.48 As the result of a discharge from the
vagina of the younger child, her mother took her to a doctor and she was
37 N.T. 12, 14, 26, Suppression Hearing, July 3, 2000.
38 N.T. 22, Suppression Hearing, July 3, 2000.
39 N.T. 42, Suppression Hearing, July 3, 2000.
40 N.T. 33, Suppression Hearing, July 3, 2000.
n~ See Commonwealth's Exhibit 7, Suppression Hearing, July 3, 2000.
42 Common~vealth's Exhibit 7, at 1, Suppression Hearing, July 3, 2000; N.T. 20, Suppression
Hearing, July 3, 2000.
43 Commonwealth's Exhibit 7, at 7, Suppression Hearing, July 3, 2000; N.T. 21, Suppression
Hearing, July 3, 2000.
44 Commonwealth's Exhibit 7, at 7; N.T. 21-22, Suppression Hearing, July 3, 2000.
45 N.T. 22, Suppression Hearing, July 3, 2000.
46 N.T. 38, Suppression Hearing, July 3, 2000.
47 Orders of Court, July 3, 2000, Nos. 00-0848 and 00-0849 Criminal Term, Cumberland Co.
48 N.T. 21, 34, Trial. The younger child was born on March 8, 1997; the older child was born on
June 15, 1995. N.T. 21, Trial. Whether Defendant was a step-grandparent or biological
grandparent of the children was not entirely clear from the record; the evidence seemed to suggest
that he was a step-grandparent. See, e.g., N.T. 22-23, Trial.
5
diagnosed with vaginal Neisseria gonorrhea.49 The older child was then diagnosed
with both rectal and vaginal Neisseria gonorrhea?
Defendant and his spouse had served as babysitters for the children?
They, and other persons having contact with the children, were tested for
gonorrhea and, in some cases, chlamydia.52 Defendant tested positive for penile
Neisseria gonorrhea and chlamydia.53 His spouse tested positive for vaginal
Neisseria gonorrhea? All other tests were negative?
In the opinion of a medical expert, in the absence of extraordinary
circumstances the source of gonorrhea in such children would have been sexual
contact?
On February 17, 2000, Defendant was interviewed by police and a
caseworker from Cumberland County Children and Youth Services.57 In the
interview, he admitted that on various occasions he bathed the children while he
himself was unclothed, that he would sometimes "carry on" with them afterward,
that they would frequently bounce on him while on the floor or on a bed, and that
their vaginas would at times come into contact with his penis.58
During the trial, two evidentiary issues of present interest arose. The first
involved the admission of testimony of a certain Commonwealth witness as to the
49 N.T. 23, 46, 60-61, Trial. The child was treated for the disease on January 27, 2000. See N.T.
47, Trial.
50 N.T. 102, Trial. This child was treated for the disease on January 31, 2000. N.T. 93, Trial.
5~ N.T. 22, Trial.
52 N.T. 24-28, 80 Trial; Commonwealth's Exhibits 2-18.
53 Commonwealth's Exhibit 18, Trial.
s4 N.T. 111, Trial.
55 See Commonwealth's Exhibits 2-18, Trial.
56 N.T. 167, Trial.
57 N.T. 241,244, Trial.
58 Commonwealth's Exhibit 20, Trial.
means of communication of sexually transmitted diseases,59 over a defense
objection that such testimony was not within his area of expertise.6° The second
involved the admission of Defendant's inculpatory statement over objection that
the Commonwealth's other evidence had not demonstrated a corpus delicti.6~
These matters will be discussed seriatim.
With respect to the first evidentiary issue, the Commonwealth's expert
witness concerning the communication of sexually transmitted diseases was Earl
F. Greenwald, medical director of the Children's Resource Center at Pinnacle
Health in the Polyclinic Hospital in Harrisburg, Pennsylvania.62 As the medical
director, he had medical responsibility for the day-to-day operation of the center
and provided care for most of the children referred to the center as possible
victims of abuse.63 About 450 children were seen at the center each year, of whom
twenty to thirty had contracted sexually transmitted diseases.64
He had received a medical degree from the University of Medicine and
Dentistry in New Jersey in 1965,65 was a medical doctor,66 had practiced for 35
years,67 and was licensed to practice in Pennsylvania.68 His clinical education in
medical school included training in sexually transmitted diseases.69 Following
graduation from medical school, internship, and military service as a physician
during the Vietnam War, in 1968 Dr. Greenwald received advanced training in the
59 N.T. 153-55, Trial.
60 N.T. 153-54, Trial.
6~ N.T. 222-24, Trial.
62 N.T. 89-90, Trial.
63 N.T. 90, Trial.
64 N.T. 117, 141, Trial.
65 N.T. 114-15, Trial.
66 N.T. 98, Trial.
67 N.T. 124, Trial.
68 N.T. 98-99, Trial.
69 N.T. 142, Trial.
7
form of a residency in obstetrics and gynecology.7° In gynecology, between a
third and a half of a specialist's practice involves sexually transmitted diseases.TM
After specializing in the area of obstetrics and gynecology, he developed a
second specialty in the area of sexual abuse of children, commencing in 1991.72 In
this area, he (a) trained and practiced under the medical director of the Center for
Children's Support in Stratford, New Jersey, (b) founded and operated a sexual
abuse clinic in Darby, Pennsylvania, and (c) eventually became medical director
of the more comprehensive program at the Children's Resource Center in
Harrisburg, previously mentioned.73
During the three years immediately preceding Defendant's trial, Dr.
Greenwald had also served as medical director of the STD (Sexually Transmitted
Disease74) clinic at Polyclinic Hospital.75 This publicly-funded clinic provided
sexually transmitted disease services to people who presented themselves to a
governmental health agency with concerns that they might have contracted such
diseases.76
The clinic served between 500 and 600 people each year? Dr. Greenwald
treated patients himself at the clinic, and supervised several other treating
physicians.78 His duties included determination of the source of a patient's
sexually transmitted disease, identification and notification of other persons at
70 N.T. 115, Trial.
?~ N.T. 140, Trial.
72 N.T. 115-16, Trial.
73 N.T. 115~ 17, Trial.
74 N.T. 13 8, Trial.
75 N.T. 120, 140, Trial.
76 N.T. 120, Trial.
77 N.T. 140, Trial.
7s N.T. 120, Trial.
medical risk for having contracted the disease, and instruction to patients as to the
means of transmission of such diseases?
In addition to having treated patients with sexually transmitted diseases
throughout his professional career,8° Dr. Greenwald maintained his familiarity
with sexually transmitted diseases and their transmission through the study of
literature on the subject,81 discourse with other persons in the field,82 consultations
with the Center for Disease Control,83 and yearly attendance at seminars? Papers
written by him included the subject of sexually transmitted diseasesfi5 Of
numerous appearances of Dr. Greenwald in court as an expert in child abuse
casesfi6 at least five centered upon the issue of the source of a sexually transmitted
diseasefi7
With respect to the second evidentiary issue mentioned above--the
admission of evidence of Defendant's inculpatory statement over a defense
objection that a corpus delicti had not been established--the evidence which
preceded admission of the statement included the following: the diagnoses of two-
and four-year-old sisters with vaginal Neisseria gonorrhea; the status of Defendant
and his spouse as grandparents with a history of contact with the children as
babysitters; the discovery that Defendant had penile Neisseria gonorrhea and that
his spouse had vaginal Neisseria gonorrhea; the discovery that others having
contact with the children did not have the disease in any form; and the opinion of
an expert in sexually transmitted diseases that in the absence of extraordinary
79 N.T. 140, 149, Trial.
so N.T. 140, Trial.
8~ N.T. 141-45, Trial.
82 N.T. 137-38, Trial.
83 N.T. 138, Trial.
84 N.T. 142, Trial.
85 N.T. 150, Trial.
86 N.T. 122, Trial.
87 N.T. 141, Trial.
9
circumstances the transmission of the disease to children of those ages would have
been by sexual means.
In the latter regard, Dr. Greenwald testified that, in his opinion, "in two and
four-year-old children, gonorrhea is transmitted by contact between the genitals
with gonorrhea of a person with gonorrhea to the genitals of the child.''88 He
stated that he had read no reports in literature of transmission of gonorrhea by
dried discharge or by discharge suspended in bath water?
While acknowledging the physical possibility that the disease could be
vertically transmitted from mother to child at birth, he testified that the disease
would have evidenced itself considerably earlier than it did in the children herein
had that been the case.9° While recognizing the occurrence of an incident at a
hospital nursery about a quarter of a century ago where a number of infants
contracted gonorrhea through improper use of a thermometer, Dr. Greenwald
suggested that modern instruments and practices rendered such an occurrence
today unlikely.91
In substance, Dr. Greenwald conceded the theoretical possibility that
gonorrhea could be contracted by children of the ages involved herein by means
other than sexual contact--such as by the application of a glob of infected
discharge directly to a girl's vagina __,92 but he noted the absence of a history of
such circumstances in the present case,93 and he indicated he was addressing the
subject on the basis of "what is overwhelmingly the most likely thing to
happen.''94
88 N.T. 159, Trial.
89 N.T. 160, Trial.
90 N.T. 159-60, 176, Trial.
9~ N.T. 159-60, 204-06, Trial.
92 N.T. 159, Trial.
93 N.T. 159, Trial.
94 N.T. 210, Trial. The opinions expressed by Dr. Greenwald were to a reasonable degree of
medical certainty. N.T. 214-15, Trial.
10
In this regard, Dr. Greenwald was reminded of an adage of his profession:
[W]hen you hear hoof beats, you think of horses, you
don't think of zebras .95
At the conclusion of the trial, the court instructed the jury, inter alia, that it
could not consider Defendant's statement to police as evidence against him unless
it was convinced beyond a reasonable doubt by other evidence that the crime of
indecent assault had in fact been committed (by someone) upon the alleged
victim.96 When the foreperson announced the verdicts of guilty, Defendant's
counsel requested that the jurors be polled as to the two verdicts and also as to the
corpus delicti.97 The court conducted a poll of the jury as to each verdict, but
declined to poll the jury as to the corpus delicti? The verdicts were then
recorded.99
Defendant was sentenced on January 25, 2001,l°° and a post-sentence
motion was disposed of adversely to Defendant on February 7, 2001.~°~ As
previously noted, the bases for his appeal to the Superior Court from the judgment
of sentence involve the propriety of (a) the court's order refusing to suppress his
inculpatory statement, (b) the court's acceptance of Dr. Greenwald as an expert in
the area of communication of sexually transmitted diseases, (c) the court's
admission of Defendant's inculpatory statement over objection that a corpus
95 N.T. 210, Trial.
96 N.T. 348, Trial. The court basically employed the language of the Pennsylvania Suggested
Standard Criminal Jury Instructions on this subject. See Pa. SSJI (Crim) {}{}3.01 (rev. 1972),
3.02A (rev. 1981); see also Commonwealth v. Ahlborn, 441 Pa. Super. 296, 657 A.2d 518 (1995),
appeal denied, 547 Pa. 713,688 A.2d 170 (1997).
97 N.T. 362, Trial.
98 N.T. 353-55, Trial.
99 N.T. 356-57, Trial.
~00 Order of Court, January 25, 2001. Concurrent, standard guideline range sentences were
imposed. See note 2 supra.
~0~ Order of Court, February 7, 2001.
11
delicti had not been demonstrated, and (d) the court's refusal to poll the jury on the
subject of corpus delicti.
DISCUSSION
Defendant's motion to suppress: Miranda warnings; voluntariness of
inculpatory statement. The requirement that Miranda warnings be administered to
a suspect is, in general, dependent upon the existence of custodial interrogation.
The Fifth Amendment right to counsel and the concomitant
rights guaranteed by Miranda [v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966),] are only triggered when an
individual is undergoing actual custodial interrogation. Before
an individual may be subjected to custodial interrogation, he
must make a knowing and intelligent waiver of his privilege
against self-incrimination and right to counsel after adequate
~vamings as to those rights. A person is deemed to be in
custody for Miranda purposes when he is physically deprived
of his freedom of action in any significant way or is placed in a
situation in ~vhich he reasonably believes that his freedom of
action or movement is restricted by the interrogation.
Commonwealth v. done& 758 A.2d 228, 229-30 (Pa. Super. Ct. 2000) (citations
omitted).
"In determining whether an individual was in custody, a court must
examine all of the circumstances surrounding the interrogation, but the ultimate
inquiry is simply whether there [was] a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest." Commonwealth v.
Busch, 713 A.2d 97, 99 (Pa. Super. Ct. 1998) (citations omitted).
The initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective views
of the law enforcement officer or the person being questioned.
The fact that [the person being interviewed] was the focus of
the investigation is a relevant factor in determining whether he
was in custody, but does not require, per se, Miranda warnings.
Commonwealth v. Smith, 732 A.2d 1226, 1234 (Pa. Super. Ct. 1999) (citations
omitted).
12
In the present case, the totality of the circumstances, including Defendant's
unscheduled appearance at the police station and request that he be interviewed,
the advice of police that he was not under arrest and was free to leave at any time,
Defendant's acknowledgment of his understanding of this advice, and his
departure from the station at the conclusion of the interview without having been
arrested led the court to conclude that he was not subjected to custodial
interrogation. For this reason, relief in the form of suppression of his inculpatory
statement due to the absence of Miranda warnings did not appear to be warranted.
With respect to the admissibility of inclupatory statements of a defendant to
police, it is well settled that "if, under the totality of the circumstances, a
confession by an accused is not voluntary because of factors that overwhelmed his
ability to exercise a reasoned choice, it must be suppressed." Commonwealth v.
Bracey, 541 Pa. 322, 334, 662 A.2d 1062, 1067 (1995), cert. denied, 517 U.S.
1122, 116 S. Ct. 1356, 134 L. Ed. 2d 524 (1996). As a general rule, custody is a
prerequisite to a determination that a statement to police was involuntary.
Commonwealth v. Bracey, 501 Pa. 356, 461 A.2d 775 (1983).
Factors to be considered in evaluating the voluntariness of an inculpatory
response to police questioning include the duration and methods of interrogation,
the conditions of detainment, the attitudes of police toward the suspect, the
suspect's physical and psychological state, and "all other conditions present which
may serve to drain one's power of resistance to suggestion and to undermine one's
self-determination." Commonwealth v. Jackson, 497 Pa. 591,598, 442 A.2d 1098,
1101 (1982), quoting Commonwealth v. Kichline, 468 Pa. 265,279, 361 A.2d 282,
290 (1976).
In the present case, almost all of the relevant circumstances militated
against a finding that Defendant's inculpatory statement to police was involuntary.
These included Defendant's unscheduled appearance at the police station with a
request that an interview be conducted, the absence of custody, the lack of
pressure by police, the short duration of the interview, and the solicitous treatment
13
of Defendant during the interview process. Based upon the evidence in the record,
the court was unable to agree with Defendant's position that his power of
resistance to suggestion had been drained and that his self-determination had been
undermined.
Corpus delicti rule: admissibility of inculpatory statements of defendants.
"The historical purpose of the [corpus delicti] rule is to prevent a conviction based
solely upon a confession or admission, where in fact no crime has been
committed." Commonwealth v. Verticelli, 550 Pa. 435, 441,706 A.2d 821, 823
(1998).
To this end, the rule in Pennsylvania has two aspects.
The corpus delicti rule is two-tiered; it must first be
considered as a rule of evidentiary admissibility using a prima
facie standard, and later, under a beyond a reasonable doubt
standard, as one of proof for the fact-finder's consideration at
the close of the case.
Commonwealth v. Zugay, 745 A.2d 639, 652 (Pa. Super. Ct. 2000), appeal denied,
2000 Pa. Lexis 1965 (Pa. 2000).
At issue on Defendant's appeal is the aspect of the rule pertaining to
admissibility. In this regard, the rule has been expressed as follows: "Before
introducing an extra-judicial admission, the Commonwealth is not required to
prove the existence of a crime beyond a reasonable doubt. Rather, it is enough for
the Commonwealth to prove that the injury or loss is more consistent with a crime
having been committed than not." Id. (citations omitted).
While the burden of establishing the corpus delicti is not
equivalent to the Commonwealth's ultimate burden of proof,
the evidence of a corpus delicti is insufficient if it is merely
equally consistent with non-criminal acts as with criminal acts.
Id. at 653. Thus, a statement of a defendant subject to the corpus delicti rule will
be admissible if, "prior to introducing the statement, the Commonwealth ha[s]
established that it was more likely than not that a crime ... had occurred." Id.
14
In the present case, the evidence preceding the admission of Defendant's
inculpatory statement tended to show that Defendant's two- and four-year-old
granddaughters had contracted vaginal Neisseria gonorrhea, that Defendant and
his spouse had contact with the children as their babysitters, that Defendant and
his spouse were then discovered to have penile and vaginal Neisseria gonorrhea
respectively, that other persons who had contact with the children did not harbor
the disease, and that, in the opinion of a medical expert in the area of sexually
transmitted diseases, the likelihood that the disease would be transmitted to such
children by a means other than sexual activity was almost nonexistent. This
evidence satisfied, in the court's view, the condition precedent (of proof by a
preponderance of the evidence that a crime had been committed) for admission of
Defendant's inculpatory statement. For this reason, it declined to preclude the
introduction of the statement on the basis of the corpus delicti rule.
Admissibility of expert testimony. In Pennsylvania, "[t]he qualification of
an expert witness is a matter within the sound discretion of the trial court .... ,,~02
The following standard is applicable:
The test to be applied when qualifying a witness to testify as an
expert witness is whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation. If he does, he may testify and the weight to be
given to such testimony is for the trier of fact to determine.
Comment, Pa. R.E. 702.
In the present case, the medical education, areas of specialty, continued
study and extensive professional experience of Dr. Greenwald were such as to
render him not merely qualified, but almost uniquely credentialed, to serve as an
expert witness on the subject of sexually transmitted diseases, including their
modes of transmission, in the court's view. For this reason, the court was unable
to agree with Defendant that the doctor's testimony in this area should have been
excluded on the basis of lack of a reasonable pretension of expertise.
102 Packel & Poulin, Pennsylvania Evidence {}702-5, at 680 (2d ed. 1999).
15
Poll of jury. It is well settled that both the Commonwealth and the
defendant are entitled, upon timely request, to a poll of the jury with respect to the
verdict in a criminal case. See Commonwealth v. Downey, 557 Pa. 154, 732 A.2d
593 (1999); Pa. R. Crim. P. 648(F). No authority has been found, however, for the
proposition that either the Commonwealth or the defendant is entitled to a poll of
the jurors to determine whether each juror correctly applied a given point of law in
the court's instructions in arriving at the verdict. Nor, in the absence of some error
in the instruction or indication of misapprehension on the part of jurors, would
such a right seem necessary or conducive to a just and reasonably expeditious
conclusion of the trial.
In the present case, special interrogatories were not requested with respect
to the verdict slips, the optional findings on the slips were limited to either
"guilty" or "not guilty," the jury was properly instructed as to the condition
precedent for its consideration of Defendant's inculpatory statement, no
misapprehension on the part of the jury on the subject suggested itself, and
Defendant's right to poll the jurors individually as to the verdicts announced was
honored. Under these circumstances, the court did not believe that Defendant also
had a right to poll the jurors as to sub-aspects of case, such as the corpus delicti
rule, the elements of the offenses, the burden of proof, and so forth.
For the foregoing reasons, it is believed that the judgment of sentence
herein was properly entered.
BY THE COURT,
JffWesley Olfi_,,J Jr., J. ~'
Michelle E. Hamilton, Esq.
Assistant District Attorney
Karl E. Rominger, Esq.
Attorney for Defendant
16