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HomeMy WebLinkAbout01-2019 Criminal (2)COMMONWEALTH GORDON NEAL DIEM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2019 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., December 2, 2003:-- On September 18, 2002, defendant, Gordon Neal Diem, was convicted by a jury of twelve offenses: criminal attempt and criminal conspiracy to the corruption of a minor "A," a seventeen-year-old girl, and criminal attempt and criminal conspiracy to indecent assault, aggravated indecent assault, statutory sexual assault, involuntary deviate sexual intercourse, and corruption of a minor Jessica, a fictitious fifteen-year- old girl. On March 18, 2003, defendant was sentenced: [o]n Count 2, conspiracy to involuntary deviate sexual intercourse, sentence is that you pay the costs of prosecution and undergo imprisonment in a state correctional institution for a term of not less than two and a half years nor more than ten years. You are given twelve days credit on that sentence. On Count 9, attempted aggravated indecent assault, sentence is that you pay the costs of prosecution and undergo imprisonment in a state correctional institution for a term of not less than two and a half years nor more than ten years. You are given credit for twelve days served. This sentence to run concurrent with the sentence just imposed on Count 2. 01-2019 CRIMINAL TERM On Count 14, number one, conspiracy to corruption of a minor, sentence is that you pay the costs of prosecution and undergo imprisonment in a state correctional institution for a term of not less than nine months nor more than five years. You are given credit for twelve days served. This sentence to run concurrent to the two sentences just imposed. On Count 14, number two, conspiracy to corruption of a minor, sentence is that you pay the costs of prosecution and undergo imprisonment in a state correctional institution for a term of not less than nine months nor more than five years. You are given credit for twelve days served. This sentence to run concurrent to the three sentences just imposed. On Count 6, number one, Count 6, number two, Count 7, Count 8, Count 10, Count 11, Count 12 and Count 13, sentence is that you pay the costs of prosecution. Defendant is ordered to register for ten years under Megan's Law and to submit to DNA testing.1 Defendant filed a written post-sentence motion pursuant to Pa.R. Crim. P. 720(A) and (B). The motion raised five allegations of error. By an order of May 28, 2003, supported by a written opinion, the motion was denied. Defendant then filed this direct appeal to the Superior Court of Pennsylvania. He has filed a concise statement of matters complained of on appeal raising various assignments of error, five of which were raised in his post-sentence motion. We incorporate the opinion of May 28, 2003 1 The ten year registration under Megan's Law was mandated by the Judicial Code. 42 Pa.C.S. § 9795.1(a)(2). On February 21, 2003, an order was entered, support by an opinion, that defendant was not a sexually violent predator. If defendant had been adjudicated a sexually violent predator, the registration requirement would have been for life. 42 Pa.C.S. § 9795.1(b)(3). -2- 01-2019 CRIMINAL TERM in support of the order denying relief on those five assignments of error? As set forth in the prior opinion the evidence at trial in a light most favorable to the Commonwealth was as follows. '%," a seventeen-year-old girl, used her computer to chat with people under a screen name, Deadly Siren. In July, 2001, she was contacted on her computer by defendant under his screen name, Pa. Master 1946. When defendant's inquiries turned to sex, "A" told her father. "A" then made a phone call to a number that defendant provided, and talked to him and to Pamela Garrett. Defendant asked "A" if she was interested in a threesome. She told defendant that she was seventeen, and his response was "no problem." "A" and her father then contacted the police. On August 26th, the police, using a computer, introduced a fictitious fifteen- year-old girl, Jessica, into chats between defendant and "A." The police did so for the purpose of determining if defendant was using the Internet to entice underage girls into illegal sexual activity. When told by a detective, playing the part of Jessica, that she was fifteen, defendant said "we can work around it." After a series of computer chats 2 The issues are: (1) was defendant entrapped as a matter of law; (2) was there sufficient evidence to establish guilt for criminal attempt to corruption of the minors, "A" and Jessica, and criminal attempt to indecent assault, aggravated indecent assault, statutory sexual assault, and involuntary deviate sexual intercourse of Jessica; (3) must either the conviction of criminal conspiracy to commit involuntary deviate sexual intercourse or the conviction for attempted involuntary deviate sexual intercourse be dismissed because defendant was convicted of more than one inchoate crime; (4) can defendant's conviction be sustained for attempted corruption of a minor regarding the fictitious fifteen-year-old Jessica; and (5) was defendant denied a fair trial because the Commonwealth refused to grant his attorney or himself access to his computer and computer disks seized from his premises, which computer contained evidence that could have impacted the jury's decision. -3- 01-2019 CRIMINAL TERM over a period of six weeks, defendant stated that he was interested in establishing a relationship with "A" and Jessica in which they could become part of his dominant/submissive household. Defendant stated that the relationship would involve bi-sexuality, BDSM (bondage, discipline, sadism and masochism), and having babies together. A meeting was set for September 22 at the Harvon Motel in Carlisle. Defendant arrived at the Harvon, rented a room, and set it up with alcohol, sex paraphernalia and bondage devices. Defendant had Pamela Garrett on the scene, who he testified at trial was his "collared life partner--sex slave." Garrett was wearing a red satin corseted outfit with a restraint collar around her neck.3 Defendant phoned "A" and told her that he was in the room at the Harvon. Defendant went to the parking lot to watch for "A" and Jessica to arrive. The police arrested defendant in the parking lot, and then entered the motel room and arrested Garrett.4 DISCUSSION In his concise statement of matters complained of on appeal, it appears that defendant has assigned as error every instance in which the court sustained the objection by the Commonwealth and overruled an objection by defendant. Some of the 3 The police later had the collar removed with a bolt cutter. 4 Garrett pled guilty to conspiracy to corrupt the morals of "A." Defendant was a Lt. Colonel in the Army reserve, and has a bachelor, masters, and doctor of arts degrees. He testified at trial that he was studying the bizarre conduct of subcultures. When he set up the room in the Harvon Motel he was not expecting "A" and Jessica to arrive. Rather, he was expecting a pedophile madam engaged in the introduction of children into sexual slavery, a vice he sought to expose. -4- 01-2019 CRIMINAL TERM alleged errors were actually resolved in favor of defendant. Some questions objected to by defense counsel were withdrawn on the record but are still assigned as error. This approach reminds us of the comments of Judge Aldisert in United States v. Hart, 693 F.2d 286 (3rd Cir. 1982), quoted in Hughes v. GAF Corporation, 364 Pa. Super. 311 (1987): When I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttal presumption, but it is a presumption that reduces the effectiveness of appellant advocacy. We will review seriatim all of defendant's new assignments of error. All but two are alleged evidentiary errors. The standard for determining whether there is error and whether it warrants a new trial is set forth in Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998), in which the Supreme Court of Pennsylvania stated: The threshold inquiry with admission of evidence is whether the evidence is relevant. "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact." Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). In addition, evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact. Commonwealth v. Story, 476 Pa. 391,383 A.2d 155 (1978). However, where the evidence is not relevant there is no need to determine whether the probative value of the evidence outweighs its prejudicial impact. Id. Instead, once it is determined that the trial court erred in admitting the evidence, the inquiry becomes whether the appellate court is convinced beyond a reasonable doubt that such error was harmless. Id. Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of -5- 01-2019 CRIMINAL TERM guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Commonwealth v. Simmons, 541 Pa. 211,662 A.2d 621 (1995) citing Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990). I. DID THE COURT ERR IN ALLOWING "ASSUMPTIONS OF FACT OVER THE PROTEST OF THE DEFENSE?" Defendant's assignment of error relates to the testimony of "A" on direct examination at N.T. 34-35 when she recounted a conversation she had with defendant: A He said, my collared life partner keeps miscarrying so we decided to go the surrogate route. We both one [sic] one kid on the way as soon as possible. Yours can come later, laugh out loud. Q Let me stop you there, Colleen. Do you know what collared life partner means? A I assume it's something - MR. ORR: I object, Your Honor, to anything she may assume. BY MR. FREED: Q If you don't know, you don't know. A I don't know exactly. "A" did not testify as to what she assumed a collared life partner meant, thus she made no assumption of fact and there was no error. Furthermore, defendant later testified that Pamela Garrett was his "collared life partner," which he said meant that she was his "sex slave." II. DID THE COURT ERR IN SUSTAINING PROSECUTION OBJECTIONS TO DEFENSE ATTEMPTS TO IMPEACH WITNESSES? In his concise statement of matters complained of on appeal defendant lists nine allegations to this general assignment of error. In a brief he states that "the Court -6- 01-2019 CRIMINAL TERM prevented Defense development of exculpatory evidence and thereby prevented Defendant from mounting an effective defense. The court's interference in Defenses' presentation prejudiced the outcome against Defendant and deprived Defendant of his due process rights." As set forth below, these allegations provide no basis for the grant of a new trial under the standards in Commonwealth v. Robinson, supra. (1) The court properly sustained a question of defense counsel to "A" about a profile she placed on the internet after the incidents occurred that resulted in this prosecution. (N.T. 125). A subsequent profile was not relevant. (2) At N.T. 127, the court again properly sustained an objection based on lack of relevance of the contents of a profile of "A" placed on the internet after the incidents occurred that resulted in this prosecution. (3) At N.T. 129, defense counsel cross-examined "A" and elicited from her that she told defendant that she was really into phone sex although she never had phone sex or cyber sex with anybody. She testified that defendant asked her: "Do you do any role play or are you into any fetishes," and she responded "the usual, handcuffs." Defense counsel then asked: "Is that something any other 17-year-old girl you know is interested in." The prosecution objected on the basis of speculation. The objection was sustained. Defendant assigns this as error. Defense counsel next asked '%," "You're not really interested in handcuffs though, are you," to which she answered, "No." She was then asked if several statements she made to defendant prior to police involvement were lies to which she answered they were. Sustaining the objection to -7- 01-2019 CRIMINAL TERM the one speculative question was not error. (4) At N.T. 135, defense counsel questioned "A" about e-mails between defendant and her. "A" testified that there were more communications than the prosecutor sought to admit into evidence but that she saved them all. Defense counsel then asked: Q But those are the only ones that you were asked to read into the record yesterday? A Q language? A question. Yes. Because the other ones didn't contain any provocative They did - MR. FREED: THE COURT: Objection. I don't believe she can answer that Sustained. At that point no groundwork was laid as to whether the witness could remember the specific language contained in other e-mails. Thereafter, defense counsel never followed up on this line of questioning. Defendant's complaint that this objection which was sustained prevented him from exploring the number and content of messages not entered into evidence by the prosecution, but which he does not claim he did not have access to before the trial, and which he did not seek to enter into evidence, does not warrant relief. (5) At N.T. 143 defense counsel questioned "A:" Q Now, there was admittedly talk between you and Dr. Diem about perhaps you getting pregnant and having a baby, is that correct? A Yes. Q Isn't it also true that he continuously made mention that he wanted to wait until after you were 18, isn't that true? A No. No. Q That's not. You don't recall reading into the record -8- 01-2019 CRIMINAL TERM yesterday where he was talking about you being--waiting until next September? Do you recall that testimony yesterday? THE COURT: You prefaced your prior question continuously. Follow up on that. Next question. BY MR. ORR: Q Do you recall Dr. Diem making mention waiting until after, quote, the next September until you would get pregnant? A Yes. Q And would the next September have been September of 2002? A Yes. Q And would you be 18 in September of 2002? A Yes. There was no error by the court ensuring that the questioning was kept in context as it progressed. Defendant further complains that the court improperly interrupted defense counsel's questioning of "A" at N.T. 145. The record reflects that after the court's comment defense counsel stated: "1'11 withdraw that question, Your Honor." (6) At N.T. 147, defense counsel had "A" acknowledge that during the course of defendant's discourse with her there were internet communications that she did not send to the police for almost a month. She was then asked with respect to one of these e-mails: "The content of this e-mail did not bother you too much, did it?" An objection was sustained. As the court stated in the record, whether "A" was bothered by those particular e-mails was not relevant. (7) At N.T. 153, defendant complains that the court interrupted his counsel when a question asked called for a conclusion. The record reflects that counsel then stated: "1'11 withdraw the question, Your Honor." -9- 01-2019 CRIMINAL TERM (8) Defendant objects to two questions that were asked by his counsel to "A" at N.T. 155, for which objections were sustained. One question was: "There's nothing obscene or provocative about Commonwealth No. 5, is there?" The other question was: "Isn't it true that the only obscenities or the only provocative words used in Commonwealth Exhibit 5 come from your screen name halfway down?" The questions were properly sustained as seeking conclusions from "A," not facts. (9) At N.T. 443, defense counsel sought introduction into evidence of Defense Exhibit Number 1. An objection was sustained, as previously had been sustained to the Exhibit at N.T. 125, because it was a profile of "A" prepared after the incidents for which the charges against defendant arose. iii. DID THE COURT ERR IN ALLOWING "EXPERT TESTIMONY BY PERSONS NOT QUALIFIED IN THE FIELD OF EXPERTISE REQUIRED?" Defendant cites N.T. 250 alleging error in allowing an investigator to state an opinion of what a bag full of various color clothespins seized in his room at the Harvon Motel would be used for. The record at N.T. 252, however, reflects that defendant's objection was sustained. Defendant cites N.T. 259 alleging that the court allowed a detective to identify a prescription drug found in his motel room over an objection that he was not qualified to do so. Defendant misstates the record which reflects that the court allowed the detective to read the writing on the pills which was: "Pfiser - Vgr 100." -10- 01-2019 CRIMINAL TERM IV. DID THE COURT ERR BY ALLOWING HEARSAY TESTIMONY DETRIMENTAL TO DEFENDANT WHILE DISALLOWING HEARSAY TESTIMONY BENEFICIAL TO DEFENDANT? (1) Defendant complains of a telephone conversation between "A" and himself that was overheard by a detective to which the detective testified at trial. N.T. 285-286. The statements of defendant which the detective overheard were against his interest, thus they were admissible. (2) At N.T. 294, a detective testified that when defendant registered at the Harvon Motel he paid cash for the room and he put his correct address and phone number on the registration card. The defense then asked the detective "so he wasn't trying to deceive the Harvon Motel in any way, was he." The objection was properly sustained as the question called for a conclusion. (3) At N.T. 313, the defense asked Pamela Garrett what defendant said he was going to do when he went outside of the Harvon Motel just before "A" and Jessica were to arrive. Garrett answered that defendant said that he was going outside to watch for who came. The court then properly sustained an objection to a question asking Garrett for an opinion as to why defendant left the room. (4) On cross-examination at N.T. 321, the prosecution asked Pamela Garrett if she was aware of the items seized by the police from the room in the Harvon Motel in which she and defendant were waiting to meet "A" and Jessica. Defendant complains that it was error to allow her to answer because the subject was outside the scope of direct -11- 01-2019 CRIMINAL TERM examination. The prosecution was attacking the credibility of Pamela Garrett, a co- conspirator. Allowing some questioning beyond the scope of the direct examination was within the discretion of the court. Commonwealth v. Birch, 532 Pa. 563 (1992); Commonwealth v. Cheatham, 429 Pa. 198 (1968). V. DID THE COURT ERR BY ALLOWING "EVIDENCE THAT WAS ALTERED BY THE VICTIM BEFORE RECEIPT BY THE POLICE?" At N.T. 303, the court allowed testimony by Commonwealth witnesses to authenticate the documents that were admitted into evidence. This evidence included how the e-mails were gathered, preserved, and then presented. There is no credible evidence that the substance of the documents was altered. VI. DID THE COURT ERR BY NOT SEQUESTERING ONE OF THE AFFIANT POLICE OFFICERS? There were two lead police investigators who also assisted the prosecution in preparing the case for trial. At the start of the trial defense counsel stated at N.T. 16, "1 just want to sequester at least one of the police officers." The request was denied. Defendant assigns this as error but does not suggest that it prejudiced his client. He cites no authority in his brief that the court did not act within its discretion in allowing both lead investigators to sit through the trial. Commonwealth v. Counterman, 719 A.2d 284 (Pa. 1998). -12- 01-2019 CRIMINAL TERM Vii. DID THE COURT ERR ON SUSTAINING THE "PROSECUTIONS OBJECTION TO DEFENSE'S QUESTIONING WHETHER DETECTIVE SMITH HAD RUN A CRIMINAL RECORDS CHECK ON DEFENDANT?" The objection at N.T. 291 was properly sustained. Commonwealth v. Russell, 473 Pa. Super. 1383 (1984). VIII. DID THE COURT ERR IN OVERRULING DEFENSE'S OBJECTION TO INTRODUCTION OF A DOCUMENT NOT PREVIOUSLY SEEN BY THE DEFENSE? The objection of defendant to the document referred to in N.T. 334-335 was sustained. IX. DID THE COURT ERR IN OVERRULING DEFENSE'S OBJECTION TO THE PROSECUTION'S "IRRELEVANT SENSATIONALIZING OVER WHAT DEFENDANT HAD USED VIBRATORS FOR IN THE PAST?" Defendant testified that even though he set up the room in the Harvon Motel with sex paraphernalia he was not expecting "Al' and Jessica to arrive. Rather, he was expecting a pedophile madam engaged in the introduction of children into sexual slavery. On cross-examination, the prosecutor showed defendant two battery operated vibrators that were found in the motel room. In light of the manner in which this rendezvous with "A" and Jessica was set up, it was the prosecution's theory that defendant and Garrett were there to engage in sex with the young girls. Thus, the prosecution asked defendant whether he "ever inserted one of those vibrators into someone's vagina or anus." Defendant answered that "1 believe they have been." This -13- 01-2019 CRIMINAL TERM questioning was relevant on whether defendant had the sexual paraphernalia displayed simply as props, as he had testified, or whether, based on using them in the past, an inference could be drawn that on this occasion he intended to use them for the real thing. There was no reversible error. X. DID THE COURT ERR IN CUTTING SHORT "DEFENSE'S OBJECTIONS TO THE PROSECUTION'S BELABORED AND LONG-WINDED PROCESS OF ASKING A SINGLE QUESTION AS BADGERING THE WITNESS AND ASKING QUESTIONS PREVIOUSLY ANSWERED?" In his concise statement of matters complained of on appeal defendant makes this allegation citing N.T. 361. Defense counsel was questioning defendant at N.T. 361. There was no defense objection to defense counsel's own question. Xl. DID THE COURT ERR IN OVERRULING "DEFENSE'S OBJECTIONS TO THE PROSECUTION ASKING IRRELEVANT, SENSATIONALIZING QUESTIONS FOR THE SAKE OF DEMORALIZING DEFENDANT TO THE JURY?" The objection at N.T. 438 occurred during the recross-examination of defendant by the prosecutor. Defendant had already identified numerous documents referring to sexual slavery to add credibility to his position that he and Garrett were waiting at the Harvon Motel to do research on a pedophile madam. The questioning included: Q Your loyal life subbie who's referred to in these documents, that is someone who does exist? A Yes. Q And that is someone with whom you've engaged in sex and used these articles that were presented to you today? -14- 01-2019 CRIMINAL TERM MR. ORR: Objection to the relevance of that, Your Honor. Overruled. It goes to the redirect. You THE COURT: may answer it. THE WITNESS: As I said, some of them, yes. (Emphasis added.) This was relevant cross-examination referring to defendant's loyal life subbie (Pamela Garrett), who is referred to in the documents defendant identified while questioned by his attorney. Xll. DID THE COURT ERR IN ADMITTING EVIDENCE THAT WAS THE FRUIT OF AN ILLEGAL SEARCH? The last two new assignments of error set forth in defendant's concise statement of matters complained of on appeal allege error as to the legality of the admission at trial of evidence seized in the room at the Harvon Motel. Defendant filed a motion to suppress evidence on March 1, 2002, that was denied by an order on March 22, 2002. The sole challenge to the legality of the evidence was to the e-mail and internet chat room conversations between himself, "A" and the detective acting as Jessica. For the first time in this appeal defendant challenges the legality of the admissibility of certain evidence seized in his room at the Harvon Motel on September 22, 2001. Any such issue is waived. Xlll. DID THE COURT ERR IN NOT SUPPRESSING EVIDENCE OF DEFENDANT'S INTERNET COMMUNICATIONS WITH "A" AND THE DETECTIVE ACTING AS JESSICA? Defendant's March 1, 2002 motion to suppress evidence of e-mail and internet -15- 01-2019 CRIMINAL TERM chat room conversations between defendant, "A" and the detective acting as Jessica was denied by an order on March 22, 2002. Defendant maintains that this evidence was obtained without a search warrant and violates the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. Section 5701 et seq., the Fourth Amendment of the United States Constitution, and Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania. Defendant's position has been rejected by the Superior Court of Pennsylvania in Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001). That holding controls the issue in this case? (Date) David Freed, Esquire For the Commonwealth Paul Bradford Orr, Esquire For Defendant :sal Edgar B. Bayley, J. 5 The Supreme Court of Pennsylvania has granted an allowance of appeal in Proetto. 790 A.2d 988 (Pa. 2002). -16-