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HomeMy WebLinkAboutCP-21-CR-1595-2002COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LANE C. HURLEY CP-21-CR-1595-2002 IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., February 20, 2004. In this criminal case involving allegations of sexual abuse by a child against her uncle, Defendant was found guilty following a jury trial of corruption of minors,~ indecent assault,2 aggravated indecent assault,3 and involuntary deviate sexual intercourse,4 arising out of incidents alleged to have occurred in 1997.5 Due to a delay of several years by the victim in reporting the alleged offenses, charges were not filed against Defendant until April of 2002.6 The 53-year-old defendant, who had no criminal record and was a graduate of Duke Divinity School,7 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 1 Act of July 1, 1978, P.L. 573, 81, as amended, 18 Pa. C.S. 86301(a)(1). This offense is a misdemeanor of the first degree. Id. 2 Act of December 6, 1482, P.L. 1482, 81, as amended, 18 Pa. C.S. 3126(a)(7). This offense is a misdemeanor of the first degree. Id. 83126(b). 3 Act of December 6, 1972, P.L. 573, 81, as amended, 18 Pa. C.S. 83125(a)(7). This offense is a felony of the second degree. Id. 4 Act of December 6, 1972, P.L. 573, 81, as amended, 18 Pa. C.S. 83123(a)(6). This offense is a felony of the first degree. Id. See Order of Court, May 8, 2003. 5 See Information, Commonwealth v. Hurley, No. 02-1595 Criminal Term (Cumberland Co.). 6 N.T. 59, Trial; see Criminal Complaint, Commonwealth v. Hurley, No. 02-1595 Criminal Term (Cumberland Co.). 7 See N.T. 9-10, Sentencing Colloquy, September 30, 2003; N.T. 478, Trial. intercourse charge.8 In accordance with a recommendation of the Pennsylvania Sexual Offenders Assessment Board, Defendant was not designated a sexually violent predator.9 For disposition at this time is Defendant's post-sentence motion, based upon alleged ineffective assistance of counsel,l° A hearing on this motion was held on January 21 and January 22, 2004. For the reasons stated in this opinion, the motion will be granted and a new trial awarded. STATEMENT OF FACTS The Commonwealth's case against Defendant rested upon the credibility of J.B., a female child who was sixteen years old at the time of trial.~ She testified that when she was fourteen-and-a-half years old~2 a memory had come to her~3 that she had been sexually abused by Defendant when she was ten years old.TM According to her testimony at trial, about 60 to 120 incidents of abuse~5 occurred in the summer of 1997~6 in her bedroom~7 in a Cumberland County, Pennsylvania, house~8 which she shared with her parents, her brother, and Defendant (her maternal uncle),~9 while her parents and brother were present on the same floor2° asleep.2~ Defendant testified that no such abuse had occurred.~ Order of Court, September 30, 2003. Order of Court, September 30, 2003. l0 Defendant's post-sentence motion, filed September 30, 2003. N.T. 348, Trial. ~2 N.T. ~3 N.T. ~4 N.T. ~s N.T. 16 N.T. ~7 N.T. ~8 N.T. ~9 N.T. 348, 378-79, Trial. 407-08, 375,378-79, 383, 388-89, Trial. 348, 352, 361-63, Trial 423-27, 458, Trial. 349-68, Trial. 362, 365, Trial. 33, 349, Trial. 348-50, 352, 362-64, Trial.. 2 The evidence at trial, in pertinent part, tended to show the following: 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.23 The occupants of the house--Defendant, his sister,24 his brother-in-law, ten-year-old J.B.,25 and J.B.'s eight-year-old brother26--slept in rooms on the first floor.27 Defendant, who was at that time engaged to his present wife,~8 moved out of the residence in October, 1997, without incident, to marry his fiance.29 He and his wife now have one child.3° In the spring of 2000, J.B. developed an eating disorder3~ in the form of an inadequate intake of food,3~ known as anorexia nervosa,33 which apparently coincided with or replicated the development of a similar disorder in a close friend.34 As this ordeal developed, J.B.'s mother asked her whether Defendant had ever inappropriately touched her.35 J.B. said that he had not36 because, according to her testimony, she had no recollection of any abuse.37 20 N.T. 37-41,348, 352, 361, Trial. 2~ N.T. 363-64, Trial. 22 N.T. 548-51,570, Trial. 23 N.T. 33, 35-36, 310, Trial. 24 N.T. 77, Trial. 25 N.T. 38-40, Trial. 26 N.T. 39-40, Trial. 27 N.T. 36-42, Trial. 28 N.T. 547, 552, 554, Trial. 29 N.T. 53, 74, 85, 111, Trial. The wedding was on November 1, 1997, and was attended by J.B. and her family. N.T. 394-95, Trial. 30 N.T. ~ N.T. 32 N.T. ~ N.T. 34 N.T. ~5 N.T. 78-79, 541, Trial. 53-54, 87, 90-91,295-96, 371-72, 432-33, Trial. 53, Trial. 53, 236, Trial. 209-10, 213-14, 238, 250-51,296-97, 372-73, Trial. 86-87, 291-94, 327-29, Trial. 3 The eating disorder of J.B. ultimately produced life-threatening consequences38 and, in August, 2000, resulted in her hospitalization in a psychiatric inpatient unit39 for a period of six weeks,4° where her ultimate recovery from the disorder began.4~ On May 15, 2001,42 according to J.B.'s testimony she had a premonition that something bad was going to happen.43 On May 17, 2001, J.B. experienced an incident at school where she had an emotional breakdown.44 She was taken by her mother to a psychologist with whom she had been treating.45 On that date, J.B. told the psychologist that she now had a memory of being sexually abused by Defendant during the summer of 1997.46 The psychologist testified variously, and without objection: (a) that she believed J.B. was an innocent girl,47 that she believed that J.B. had not remembered the sexual abuse,48 that J.B. always wanted to do the right thing,49 and that J.B. was pretty honest to a fault;5° (b) that feelings of being a bad person 36 N.T. 87, 327-29, Trial. J.B. continued to deny any history of sexual abuse until May 17, 2001. N.T. 132, 241,460, Trial. 37 N.T. 374, 407-08, 460, Trial. 38 N.T. 56, 96, 242, Trial. According to her mother, J.B. dropped in weight to under 70 pounds. N.T. 96, Trial. She had weighed 115 pounds, according to her father. N.T. 56, Trial. 39 N.T. 75, Trial. 40 N.T. 55-57, Trial. 41 N.T. 95-96, Trial. 4: N.T. 160, Trial. 43 N.T. 160, 413-14, Trial. 44 N.T. 57-58, 101-02, 121,260-62, 263-67, Trial. 45 N.T. 103, Trial. The psychologist had been treating J.B. since her discharge from the hospital, inthe fall of 2000. N.T. 117. 46 N.T. 105, 115, 121-23, 129, 189-90, 444, Trial. 47 N.T. 127, Trial. 48 N.T. 125, Trial. 49 N.T. 201, Trial. 50 N.T. 145, Trial. 4 which J.B. experiencedsi were a common symptom of sexual abuse;s2 (c) that depression requiring medications3 and insomnia as experienced by J.B.s4 were common incidents of sexual abuse;ss (d) that J.B.'s eating disorder was caused by sexual abuse;s6 and (e) that memory loss of the type J.B. experienced was a defensive mechanism,s7 and a common symptom and consequence of sexual abuse,sa A treating psychiatrist testified, without objection, that it was common in his experience for victims of child sexual abuse to initially deny and then to avow the abuse,s9 He also, by implication, attributed J.B.'s eating disorder in part to sexual abuse.® Based upon the evidence received, the prosecutor was able to argue in support of J.B.'s credibility in his closing that J.B. "almost starved to death because she was trying to remain silent about the truth.''6~ Following guilty verdicts by the jury and Defendant's sentencing, Defendant filed a post-sentence motion, requesting a new trial based upon ineffective assistance of counsel.62 Specifically, the motion faulted Defendant's trial counsel for allowing the receipt of testimony "bolstering" the credibility of J.B., for allowing the receipt of certain hearsay testimony, for failing to request an alibi instruction, for failing to object to a certain instruction on conflicting 5~ N.T. 124-25, 220, Trial. 52 N.T. 124-25, Trial. 53 N.T. 92, 172, 243,434-35, Trial. 54 N.T. 72, 97-98, Trial. 55 N.T. 171-72, Trial. 56 NT. 207, Trial. 57 N.T. 125, Trial. 58 N.T. 191, Trial. 59 N.T. 233, 255, Trial. 60 N.T. 255, Trial. 61 N.T. 657, Trial. 62 Defendant's post-sentence motion, filed September 30, 2003. 5 testimony, and for failing to call an expert to oppose the proposition that repressed memory is an incident of sexual abuse, inter alia.63 At a hearing on Defendant's post-sentence motion, Defendant's trial counsel testified that the defense theory of the case had been that J.B.'s version of events was not credible.64 He indicated that he had not objected to testimony by the psychologist which "bolstered" her credibility, although he was aware that such an objection would have been sustained and would have effectively foreclosed that type of testimony, because he was concerned that the objection would have been viewed by the jury as obstructive and because he did not believe the psychologist's testimony was convincing to the jury due to an obvious bias on behalf of her patient. He said that he had not called an expert on the issue of repressed memory because he did not want to shift the focus of the case to a dispute between experts. At the conclusion of the hearing on Defendant's post-sentence motion, the court took the matter under advisement. DISCUSSION Statement of Law Ineffective assistance of counsel. "It is by now axiomatic that a defendant in a criminal case is entitled to effective representation at trial." Commonwealth v. Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence 148 (2d ed. 1998). The Pennsylvania Supreme Court has stated a general rule for the analysis of a claim of ineffective assistance of counsel as follows: 63 Defendant's post-sentence motion, filed September 30, 2003. 64 The notes of testimony of the hearing on Defendant's post-sentence motion have not been transcribed as of this writing. 6 There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission .... If he did, our inquiry ends. If not, the [defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice .... Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see Commonwealth v. Beasley, 544 Pa. 554, 564-65, 678 A.2d 773, 778 (1996), cert. denied 520 U.S. 1121, 117 S. Ct. 1257, 137 L. Ed. 2d 337 (1997); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, p.j.).6s The Pennsylvania Superior Court has noted in this context that "it is not enough for [a defendant] to show that he suffered some prejudice as a result of counsel's action or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result of the trial is inherently unreliable." Commonwealth v. Weinder, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990); see generally Commonwealth v. Kimball, 555 Pa. 299, 306-07, 724 A.2d 326, 330 (1999). In this regard, it must be remembered that, [a]lthough a perfectly conducted trial is the ideal objective of our judicial process, the defendant is not necessarily entitled to relief simply because of some imperfections in the trial .... A defendant is entitled to a fair trial not a perfect one. Commonwealth v. Hill, 540 Pa. 477, 481-82, 301 A.2d 587, 590 (1973) (citations omitted). 65 The test for ineffective assistance is the same for collateral and direct challenges. See Commonwealth v. Jordan, 2001 Pa. Super. 111,772 A.2d 1011 (2001). 7 Bolstering of witness' credibility. As a general rule, it is not permissible for one witness to bolster the credibility of another witness by expressing a favorable opinion of his or her truthfulness.66 The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness .... The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury. Commonwealth v. Seese, 512 Pa. 439, 443,517 A.2d 920, 922 (1986). Thus, in a child sexual abuse case in which the credibility of the alleged victim was a critical element of the prosecution, the Pennsylvania Superior Court affirmed an award of a new trial to a defendant on the basis of ineffective assistance of counsel where defendant's trial attorney failed to avoid the jury's receipt of a favorable opinion by the child's therapist as to her patient's truthfulness. Commonwealth v. Smith, 389 Pa. Super. 626, 567 A.2d 1080 (1989). It is similarly impermissible for a witness in a child sexual abuse case to bolster the credibility of an alleged victim through "child sexual abuse syndrome" testimony. Testimony concerning typical behavior patterns exhibited by sexually abused children is also referred to as the "Sexually Abused Child Syndrome," "the Child Abuse Syndrome," and the "Child Sexual Abuse Accommodation Syndrome."... The existence of such a syndrome as either a generally accepted diagnostic tool or as relevant evidence is not supportable. The difficulty with identifying a set of behaviors exhibited by abused children is that abused children react in a myriad of 66 Commonwealth v. Smith, 389 Pa. Super. 626, 567 A.2d 1080 (1989). 8 ways that may not only be dissimilar from other sexually abused children, but may be the very same behaviors as children exhibit who are not abused. Researchers have been unsuccessful in their attempts to find common reactions that children have to sexual abuse. Commonwealth v. Dunkle, 529 Pa. 168, 173-74, 602 A.2d 830, 832 (1992). An eating disorder is an example of behavior sometimes said to be a typical consequence of child abuse. Id. at 178, 602 A.2d at 834. Thus, in another child sexual abuse case where the credibility of the alleged victim was a critical element of the prosecution, the Pennsylvania Supreme Court granted a new trial to a defendant on the basis of ineffective assistance of counsel where defendant's trial attorney failed to preserve an objection to testimony suggesting that the alleged victim's behavior in failing to fully disclose the abuse was typical of child abuse victims. Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341 (2000). Finally, it is likewise impermissible for a witness in a child sexual abuse case to buttress the testimony of the alleged victim by opinions corroborating the child's veracity as to an alleged memory failure. A child's recollection of the event is another factor for the jury to determine when weighing credibility and we believe it would impermissibly infringe upon their determination to permit expert testimony on this point. Commonwealth v. Dunkle, 529 Pa. 168, 184-85, 602 A.2d 830, 838 (1992) (new trial granted where bolstering evidence received in form of explanations for lapses of memory of victim, inter alia). In summary, the general rule in Pennsylvania is that it is not permissible in a child sexual abuse case for a witness to directly vouch for the truthfulness of the alleged victim or to indirectly support his or her credibility by comparing "the general behavioral characteristics of sexually abused children to the specific behavioral characteristics displayed by the child at bar following the alleged 9 incidents.''67 In a case where the credibility of the victim is critical to the Commonwealth's case, a failure of defense counsel to take such measures as are necessary to protect the defendant against such evidence will generally be deemed ineffective assistance and will compel an award of a new trial. Application of Law to Facts In the present case, the persuasiveness of the Commonwealth's case was singularly dependent upon the credibility of the alleged victim, when weighed against the credibility of the Defendant. Although both counsel performed with their customary high degree of competence in almost all respects, the court has been constrained to conclude, after a careful review of the entire record, that the profusion of bolstering testimony with regard to the credibility of the victim in the case was not justifiable from a defense standpoint and prejudiced the Defendant to the extent that one can not say with any confidence that the outcome of the trial was unaffected by its presence. This conclusion has been reached with considerable reluctance, not only because trials of this type are extremely difficult for victims and their families, who wish to move on with their lives,6s but also because Defendant's trial counsel provided a superb defense in almost all other respects. Nevertheless, as the Pennsylvania Supreme Court has said in this context: We are all aware that child abuse is a plague in our society and one of the saddest aspects of growing up in today's America. Nevertheless, we do not think it befits this Court to simply disregard long-standing principles concerning the presumption of innocence and the proper admission of evidence in order to gain a greater number of convictions. A conviction must be obtained through the proper and lawful admission of evidence in order to maintain the integrity and fairness that is the bedrock of our jurisprudence. No shortcuts 67 Commonwealth v. Smith, 389 Pa. Super. 626, 633 n. 1,567 A.2d 1080, 1084 n. 1(1989). 68 See, e.g., N.T. 442, Trial. 10 are permissible that erode this concept, no matter how noble 69 the purpose. For the foregoing reasons, the following order will be entered. ORDER OF COURT AND NOW, this 20th day of February, 2004, upon consideration of Defendant's post-sentence motion, following a hearing and for the reasons stated in the accompanying opinion, the motion is granted and a new trial is awarded. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Norris E. Gelman, Esq. Public Ledger Building 620 Chestnut Street Suite 940 Philadelphia, PA 19106 Attorney for Defendant William C. Costopoulos, Esq. P.O. Box 222 831 Market Street Lemoyne, PA 17043 Attorney for Defendant s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 69 Commonwealth v. Dunkle, 529 Pa. 168, 185,602 A.2d 830, 838 (1992). 11 12 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo LANE C. HURLEY CP-21-CR-1595-2002 IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this 20th day of February, 2004, upon consideration of Defendant's post-sentence motion, following a hearing and for the reasons stated in the accompanying opinion, the motion is granted and a new trial is awarded. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Norris E. Gelman, Esq. Public Ledger Building 620 Chestnut Street Suite 940 Philadelphia, PA 19106 Attorney for Defendant William C. Costopoulos, Esq. P.O. Box 222 831 Market Street Lemoyne, PA 17043 Attorney for Defendant J. Wesley Oler, Jr., J.