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HomeMy WebLinkAboutCP-21-CR-3009-2007 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-3001-2007 ROBERT SPOONER SMITH, JR. : CP-21-CR-3009-2007 OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., September 17, 2008:-- April 9, 2008 On , defendant, Robert Spooner Smith, Jr., was found guilty by a 12 jury at 3009-2007, of rape, two counts of sexual assault, and involuntary deviate 34 sexual intercourse. At 3001-2007, he was found guilty by a jury of simple assault, and 5 by the court of summary harassment. July 8, 2008 On , at 3009-2007, defendant was sentenced on the count of rape to pay the costs of prosecution, make restitution to the Victim’s Compensation Assistance Program in the amount of $233.10, submit to Megan’s law lifetime registration, submit to DNA testing, and to undergo imprisonment in a state correctional institution for not less than seventy-two months or more than fifteen years to date from October 18, 2007. On the count of involuntary deviate sexual intercourse, he was given a similar sentence concurrent to the sentence imposed for rape. On each count __________ 1 18 Pa.C.S. § 3121(a)(1). 2 18 Pa.C.S. § 3124.1. 3 18 Pa.C.S. § 3123(a)(1). 4 18 Pa.C.S. § 2701(a)(1). 5 18 Pa.C.S. § 2709(a)(1). CP-21-CR-3001-2007 CP-21-CR-3009-2007 of -2- CP-21-CR-3001-2007 CP-21-CR-3009-2007 sexual assault he was sentenced to pay the costs of prosecution. At 3001-2007, on the counts of simple assault and summary harassment, he was sentenced to pay the costs of prosecution. Defendant filed a direct appeal from the judgments of sentence to the Superior Court of Pennsylvania. In a concise statement of errors complained of on appeal, he avers: 1. The trial court erred in denying the Defense Motion for Mistrial when the Commonwealth played a videotape in which Commonwealth witness, Kenzee Smith, stated that Defendant was in jail. 2. The trial court erred in permitting testimony, over a defense objection, about the position of the tampon when it was removed from Commonwealth witness, Deana Miller. The Commonwealth conceded that this information was given to the defense on the 2nd day of the jury trial, which was the same day the witness, Lynne Gray, was to testify to this fact. 3. The evidence presented by the Commonwealth at trial was insufficient to sustain verdicts for rape, involuntary deviate sexual intercourse, sexual assault (2 counts), simple assault and harassment. Initially, we will review the claims of the insufficiency of the verdicts to sustain the convictions. There was evidence at trial of the following. Defendant was the boyfriend of Deana Miller. They lived with their daughter Kenzee in an apartment in Wormleysburg, Cumberland County. Shortly after midnight on October 18, 2007, while Miller and Kenzee were in bed, Miller woke up to hear defendant making noise in the kitchen. She went into the kitchen where defendant, who had been drinking, yelled, cursed at her and called her names. He threw food and other things at her. As Miller tried to calm defendant down, he locked Kenzee into her bedroom. Defendant grabbed -3- CP-21-CR-3001-2007 CP-21-CR-3009-2007 Miller’s head, took her to their bedroom, and threw her on the bed. He pulled her pants off. She told him that she had her period and did not want to have sex. When he persisted, she told him that she had a tampon in and again told him that she did not want to have sex. He punched her in the head and forced his penis inside her vagina as he repeatedly punched her in the head as she was trying to cover her face. Kenzee was screaming and banging on her bedroom door. Defendant then got Kenzee who came into their bedroom. Miller got defendant to calm down. Defendant then urinated on the bed. She hit him and he punched her in the face. Miller tried to get Kenzee to leave. Defendant had ahold of Miller, kept punching her, and urinated on her pants. Miller managed to get into the bathroom and locked the door. She took a shower. She tried to find the tampon she had in but could not. Miller hoped that defendant had fallen asleep. She went back into her bedroom. Defendant choked Miller. He ripped her tank top and took her pants off. He sat on her chest and forced his penis inside her mouth. He continued to choke and punch her. He punched out a window next to the bed. He forced his penis into her vagina. When he tried to put Miller on top of him she got away. She took Kenzee and went to the Holy Spirit Hospital. Miller had bruising and bite marks on her left forearm, bruising on the right side of the neck and the left side of the face, she was swollen at the eye and some of her hair had been pulled out. She underwent a rape kit examination. She told -4- CP-21-CR-3001-2007 CP-21-CR-3009-2007 6 a SANE nurse, Tina Lowe, about the tampon. Lowe tried but could not locate it. A police officer who had responded to the hospital and talked to Miller went to her residence. He noticed broken items in the kitchen and the table had been turned over and a leg was missing. A dresser was blocking the bedroom door from the inside. The officer was able to push the door and move the dresser away. He found defendant on the bed. Defendant was arrested and removed from the residence. Miller returned home but she was later asked by the police to go back to the hospital. She returned th with Detective Horstick and Detective Mertz at 11:50 a.m. on October 18. She saw another SANE nurse, Lynne Gray, who had her examined by a physician. The 7 physician discovered the bent tampon in the vaginal vault and removed it. The test for determining the sufficiency of the evidence, viewing the evidence in a light most favorable to the verdict winner, is whether the jury reasonably could have concluded that all the elements of the crime were established beyond a reasonable Commonwealth v. Robinson, doubt. 721 A.2d 344 (Pa. 1998). The credibility of the witnesses is for the jury which can believe all, part of or none of the evidence. Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007). Miller’s testimony, defendant’s admissions, and the physical evidence of her injuries constituted sufficient evidence to __________ 6 A Sexual Assault Nurse Examiner. 7 Defendant testified that he did throw food and other items at Miller but that both of the incidents during which there was sex were consensual. While they were sexually engaged, he stopped each time to accuse Miller of cheating on him. He admitted he smacked Miller in the head and face, ripped her top, and urinated on the bed and on her. -5- CP-21-CR-3001-2007 CP-21-CR-3009-2007 support the guilty verdicts to the sexual assault that occurred before Miller took a shower and summary harassment. The verdicts of guilty to the separate sexual assault that occurred after Miller took a shower, and to rape and involuntary deviate sexual intercourse also after she took a shower, are also supported by the evidence. Defendant further maintains that the court erred in denying a mistrial when a videotape of an interview with Kenzee Smith was being played to the jury, and she stated that her father was in jail. The offenses occurred on October 18, 2007. Kenzee Smith, who was born on December 25, 2002, was four years old on October 18, 2007. On October 24, 2007, a blind interview of Kenzee was conducted by Crystal Deitch, a forensic interviewer, at the Children’s Resource Center of the Pinnacle Health System. The videotape of this interview was played to the jury. Early in the interview, before there was any discussion as to what Kenzee saw and heard during the incident on th October 18, Deitch was asking Kenzee, who was drawing a picture of her family members, about her living situation: CRYSTAL DEITCH: . . . Who lives with you? KENZEE SMITH: Heather. CRYSTAL DEITCH: Heather. Who is Heather? KENZEE SMITH: Heather, um, she’s, um, is my friend that watches me all the time. CRYSTAL DEITCH: She’s your friend that watches you all the time. Ok. Who else lives with you? KENZEE SMITH: My mom. CRYSTAL DEITCH: Your mom. KENZEE SMITH: But my dad is in, is in jail. CRYSTAL DEITCH: Your dad is in jail. Ok. We’ll draw dad over here. KENZEE SMITH: Yes. In jail. -6- CP-21-CR-3001-2007 CP-21-CR-3009-2007 CRYSTAL DEITCH: That’s in jail. Here, we’ll write jail here. KENZEE SMITH: Yeah. CRYSTAL DEITCH: Who else lives with you, your mom and Heather? KENZEE SMITH: Nobody else. Then the following occurred: MS. WALLER: Your Honor, can we approach? (The taped interview was stopped.) THE COURT: Folks, go on upstairs. You are in recess. Counsel in chambers with the stenographer. (Whereupon, the following discussion was held in chambers:) THE COURT: It looks like I missed this. I took all kinds of 8 references out to him being in jail. MS. WALLER: Right. There were two that are listed in yours, so they were out, but this one was missed. THE COURT: Did you see it when you reviewed the transcript? MS. WALLER: I reviewed it, and I reviewed the transcript a couple of times. I must have overlooked it too. I think I was just assuming, like, oh, there’s a reference to jail, it’s in the order. THE COURT: How about you, Miss Peck? MS. PECK: I went through last night and specifically followed Your Honor’s order for the redacted portions and wrote down the times, and I did not see that part. I don’t recall it being in the front part, and I thought that Your Honor had redacted all parts with respect to the jail. THE COURT: I thought so too. My mistake. Where are we? MS. WALLER: I mean, I’m going to have to ask for a mistrial. THE COURT: You are going to ask for a mistrial? MS. WALLER: Yeah. I don’t think that we can have curative instruction. I think it’s reversible error for them to have heard that; and then the interviewer reiterates it in the next line, oh, he’s in jail, let’s write jail here. * * * THE COURT: I am comfortable here in giving them a cautionary instruction and continuing, which is what I am going to do. * * * __________ 8 The transcript had been redacted to remove references to defendant being in jail. -7- CP-21-CR-3001-2007 CP-21-CR-3009-2007 MS. WALLER: Your Honor, just for record purposes, if an appeal is necessary, I am still making an official motion for a mistrial. THE COURT: Absolutely. Your record motion is made, and it is denied. (Whereupon, the discussion in chambers was concluded.) (Whereupon, the jury returned to the courtroom.) THE COURT: Folks, there was a reference by the little girl on the tape about the defendant being in jail which you should not have heard, but I am going to continue the trial. I want to tell you these instructions. I remind you again that this tape, I believe the evidence was, occurred on October 24; and the allegations in this case, I believe, were October 18, a few days before. It is a fundamental principle of our system of law that a defendant is presumed to be innocent. The mere fact that he was arrested and is accused of a crime is not any evidence against him. Furthermore, defendant is presumed innocent throughout this trial unless and until you conclude based on careful and impartial consideration of all of the evidence the prosecution has proved his guilt beyond a reasonable doubt. The fact that someone is arrested and accused of a crime and that he was held in custody, that is not any evidence against him. You should not draw any conclusions or any inferences from that set of circumstances. You should disregard that matter when you come to your ultimate deliberations. The brief reference Kenzee made on October 24, 2007, to her father being in jail was clearly related to the crimes for which he was charged six days earlier on October 18, 2007. This is not a case of a reference to a separate crime or bad act. It is comparable to a jury seeing a defendant in handcuffs during the course of the trial, and thus learning he was in prison on the charges which are being tried. In Commonwealth v. Carson, 741 A.2d 686 (Pa. 1999), a direct appeal from a conviction for murder in the first degree and other crimes, the Supreme Court of Pennsylvania stated: In his next claim of trial error, Appellant asserts that the trial court -8- CP-21-CR-3001-2007 CP-21-CR-3009-2007 abused its discretion in denying Appellant’s motion for a mistrial on the basis that one or more jurors might have seen him in handcuffs outside the courtroom. On the second day of trial, immediately following a lunch recess, trial counsel informed the court that Appellant had told him that two jurors observed Appellant as he was brought into the courtroom. At this time, counsel made no mention of handcuffs or law enforcement officers; counsel merely requested that the court ensure that such an incident did not reoccur. When trial resumed the next day, counsel moved for a mistrial asserting that, “one, possibly two of the jurors in this case have observed my client in handcuffs out in the hall.” N.T. 7/11/95 at 2. The court denied counsel’s request for a mistrial and offered to give a cautionary instruction. The trial court concluded that any prejudice resulting from such a limited, unintentional alleged exposure was not sufficient to mandate a mistrial. We agree. “Clearly, the mere possibility that some of the jurors might have seen appellant briefly in the hallway in handcuffs is not grounds for a mistrial, as a brief viewing of a defendant in handcuffs is not so inherently prejudicial as to strip defendant of the presumption of innocence.” Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 501 (1988) (emphasis in original); see also Commonwealth v. Evans, 465 Pa. 12, 348 A.2d 92 (1975). Further, any conceivable prejudice was cured by the following cautionary instruction given by the trial court: It is a fundamental principle of our system of criminal law that the defendant is presumed to be innocent. The mere fact that he was arrested and is accused of a crime is not any evidence against him. Furthermore, the defendant is presumed innocent throughout the trial, unless and until you conclude based on careful and impartial consideration of the evidence that the prosecution has proven him guilty beyond a reasonable doubt. The fact that someone is arrested and accused of a crime or even the fact that he might be held in custody, that is not any evidence against him and you should not draw any conclusion from those facts. N.T. 7/13/95 at 4. This instruction effectively conveyed to the jury that whether the defendant is in the custody of law enforcement officials is irrelevant to the determination of guilt or innocence, without drawing attention to any particular incident or to handcuffs in general. The trial court did not abuse its discretion in denying Appellant’s mistrial request. -9- CP-21-CR-3001-2007 CP-21-CR-3009-2007 sub judice In the case , the reference Kenzee made to her father being in jail in this case occurred on October 24, 2007, almost a half a year before the jury heard the statement during the trial in April, 2008. A cautionary charge was given that tracked Carlson. the cautionary charge given by the trial judge in Not granting a mistrial is not a sufficient ground for the grant of a new trial. -10- CP-21-CR-3001-2007 CP-21-CR-3009-2007 Defendant further maintains that the court erred in permitting testimony, over a defense objection, about the position of the tampon when it was removed from Deana Miller. Prior to calling the two SANE nurses, defense counsel made the following objection: Your Honor, there is new evidence that came to my attention this morning. There are pictures that were taken by the hospital nurse and also statements that when the tampon was removed it was horizontal and not vertical, and I’m going to object to that evidence coming in. The testimony about the tampon and the pictures, we’re in the middle of trial and all of a sudden, wham, new evidence. That should have been turned over to the investigating officer prior to trial, and it should have been turned over to the defense before the second day of the trial. The District Attorney responded that she was not going to introduce any additional pictures. She continued: The thing I do want to introduce is the tampon. When it was removed, it She was provided was not straight up and down. It was vertical. medical records that discussed the removal of the tampon and who did it and so on and so forth. It did not include in the nurse’s notes the location of it, and I did not know that until recently. (Emphasis added.) Defense counsel responded: My problem is that unfortunately that’s going to give strength to their force argument, and that should have been turned over prior to trial, not in the middle of trial. . . . THE COURT: I don’t see how that’s critical to provide information as to what the position of it is. MS. WALLER: Because they’re going to use that to argue the force for the rape because it normally is inserted and removed vertically, and they are going to argue force. I don’t think they should get the benefit of that I understand Ms. testimony when it was not turned over in discovery. Peck just found out about it, but the end result is still the same. It is -11- CP-21-CR-3001-2007 CP-21-CR-3009-2007 a violation of due process. (Emphasis added.) The court responded that the witnesses could testify. Lynne Graytestified that she was present when a physician, using tongs, removed the tampon from the vaginal vault. Gray testified that the “tampon was bent at an angle. Typically, when a tampon goes in it’s, a cylinder shaped object; and it typically would maintain that cylinder shape. However, it was bent . . . in the vaginal vault.” This issue arose during trial. Because of an amendment in Rule of Appellate Procedure 1925(b)(4)(iii), effective sixty days after July 25, 2007, we are deprived of the ability to require appellant or appellee to file a brief or memorandum of law in response to the concise statement of errors complained of on appeal. Defense counsel was provided medical records that discussed the removal of the tampon. It was not error to allow the evidence of the removal and condition of the tampon to be admitted at trial nor was it otherwise a violation of due process. The location and condition of the tampon were relevant to support the credibility of Miller that she was menstruating and did not consent to have sex with defendant. (Date) Edgar B. Bayley, J. Christylee Peck, Esquire For the Commonwealth Arla Waller, Esquire -12- CP-21-CR-3001-2007 CP-21-CR-3009-2007 For Defendant :sal -13-