Loading...
HomeMy WebLinkAboutCP-21-CR-0000460-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JAMES RALPH HERBST : CP-21-CR-0460-2009 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE APPELLATE PROCEDURE 1925 Bayley, J., December 21, 2009:-- Defendant, James Ralph Herbst, was convicted by a jury of two counts of 1 indecent assault. On November 10, 2009, he was sentenced on the first count to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for a term of not less than six months or more than twenty-three months. On the second count, he was sentenced to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for a term of not less than six months or 2 more than twenty-three months, to run concurrent with the first count. Defendant filed a direct appeal from the judgment of sentences to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal he avers: 1. The court erred in admitting testimony and information that the defendant had committed a prior bad act or crime, where despite some similarities in the cases, the prior act(s) involved voluntary consensual sex acts, with a person not of the age of consent, whereas the current matter involved individuals capable of consent who claimed the acts occurred without consent. It was not relevant, and further to the extent it was relevant, it was more prejudicial than probative. 2. The court erred in not allowing defendant to call another young __________ 1 18 Pa.C.S. § 3126(a)(1). Defendant had indecent contact with both victims for the purpose of arousing sexual desire in himself and/or the victims and did so without the victims’ consent. 2 Both sentences were Pennsylvania Standard Guideline sentences. CP-21-CR-0460-2009 male worker to the stand to explain he had worked with defendant under the circumstances claimed by the victims in this case, and never was approached or touched, particularly where the government put this pattern type evidence at issue, by admitting the prior bad act complained of above. The evidence at trial was a follows. C.T., now age 20, testified that when he was sixteen and a half years old, defendant, who he did not know, approached him in a grocery store and offered him an “under the table” job of filling vending machines. C.T. was in an emotional support class at school and is bi-polar. He takes medication for his condition. Defendant had a vending machine route. He stored products in a warehouse which he picked up to fill vending machines at various locations. C.T. started working for defendant. Shortly thereafter, defendant told C.T. that he cared for him. Then, without C.T.’s consent, defendant put his hand on his knee, move his hand to his thigh, and then rubbed his genitals on the outside of his clothing. C.T. was afraid to tell his parents. In a couple of months C.T. graduated from high school and stopped working for defendant. However, needing money, he started again in March, 2008. The same things happened again. C.T. told his best friend, C.H., about the incidents. When C.H. was in school he was in an emotional support group. He takes medications for his condition. C.T. asked C.H. to come along when he worked so if the unwanted contact by defendant occurred again C.H. could put a stop to it. In June, 2008, C.H. went with C.T. and defendant to fill vending machines. Without his consent, defendant touched C.H. on his inter thigh and genitals from outside of his clothing multiple times, as well as touching C.T. in the same way, and despite both of them asking defendant to -2- CP-21-CR-0460-2009 stop. About a week later, C.H. told his parents what happened. Later, the police were contacted. Sergeant Michael Hope of the Camp Hill Police, after talking to both C.T. and C.H., met with defendant. Sergeant Hope asked defendant if he had touched any boys inappropriately. Defendant said, “No.” Sergeant Hope then told him what C.T. had reported. Defendant then said that they did touch consensually. Sergeant Hope told defendant what C.H. had reported. Defendant told him the same thing had happened with C.H. as happened with C.T. Defendant then gave a videotaped statement to Sergeant Hope. In that statement defendant said that we both touched each other in the genital area. Nothing came of it. It was like a joke. It happened two or three times. On one occasion, C.T. wanted $50 for oral sex, “But I did not do it.” L.Q., age 27, over a defense objection, testified that he had worked for defendant on his vending machine route about twelve years earlier. About a week after he started, defendant told him that masturbation helps your penis grow. Later, without his consent, defendant grabbed L.Q.’s genitals outside of his clothes. Then he did it a second time. Later, L.Q. reported the incident. Criminal charges were filed and defendant was convicted of indecent assault. Consent was not a legal issue in that case. Defendant maintains that it was prejudicial error to admit the testimony of L.Q. Commonwealth v. O’Brien, In 836 A.2d 966 (Pa. Super. 2003), the defendant was charged with various sexual offenses against a ten-year-old boy. Prior to trial the -3- CP-21-CR-0460-2009 Commonwealth made a motion for the admission of defendant’s prior sexual assaults on victims for which he was convicted. The motion was denied and the Commonwealth filed an interlocutory appeal. The facts which the Commonwealth intended to prove at trial were: O’Brien is a homosexual who was previously involved in a relationship with Michael’s father. He was also a friend of Michael’s mother. On an unknown date in January of 1996 Michael went to O’Brien’s house to visit. While Michael was there alone with him, O’Brien asked him to go to the bedroom. Defendant turned on a pornographic videotape, placed Michael on the bed, pulled down his own pants and Michael’s pants and attempted to insert his penis into Michael’s anus. Michael pushed away from the defendant, pulled up his pants and left the house. Defendant told him not to tell anyone. Michael was afraid it was his fault and so he did not report the crime. Sometime later Michael’s mother caught him sexually assaulting his younger brother. The information of this crime was divulged to a therapist during questioning regarding the assault on his brother. The Commonwealth sought admission as to the facts of defendant’s 1985 guilty plea to the sexual assault of two male children in 1982 and 1985. Those facts were: O’Brien pled guilty to charges stemming from his sexual assaults of Timothy S. (“Timothy”) from 1982-1985, beginning when Timothy was eleven years old. The defendant was a friend of Timothy’s parents and Timothy visited his house on numerous occasions. On several of those occasions the defendant placed his penis in Timothy’s anus, put his penis in Timothy’s mouth or took Timothy’s penis into his mouth. In the second case, the defendant pled guilty to charges stemming from offenses related to two sexual assaults of Dennis S. (“Dennis”), age eight, committed in 1982 and 1983. Here also the defendant was friends with the victim’s parents and assaulted the child when they were alone in the defendant’s residence. Prior to the assault O’Brien showed Dennis pornographic pictures. He then placed his penis into Dennis’s mouth and told him not to tell about the sexual acts. On October 31, 1985, O’Brien was sentenced to a total to 3 1/2 to 15 years[’] imprisonment for both the offenses. He was paroled in April of 1990. -4- CP-21-CR-0460-2009 The Superior Court reversed the trial court, concluding that the evidence of prior crimes was relevant to establish a common scheme, plan or design with respect the commission of the crime for which he was facing trial, that the prior crimes were not too -5- CP-21-CR-0460-2009 remote in time, and that the probative value of the evidence outweighed the prejudicial See also, Commonwealth v. G.D.M., Sr., effect. 926 A.2d 984 (Pa. Super. 2007). sub judice, In the case despite the fact that consent was not an issue, the facts of defendant’s prior indecent assault of L.Q. were so similar to his indecent assault of C.T and C.H. that they showed a common scheme, plan or design, the absence of a 3 mistake, and the intent of defendant. The three young victims shared similar personal characteristics; each crime was committed while the victim was in a vehicle while working for defendant delivering products to vending machines; and defendant indecently assaulted each victim in the same way by grabbing each victim’s genitals outside of his clothing. The remoteness in time between the offenses is but a factor to Commonwealth v. O’Brien, consider in whether to admit prior crimes evidence. supra. Given the striking similarity of the multiple incidents, the time period is not remote enough to render the indecent assault on L.Q. inadmissible. As with any evidentiary ruling, the court must balance the relevancy and evidentiary need for the evidence of distinct crimes against the potential for undue prejudice. The credibility of C.T. and C.H., each a young boy with some emotional problems, who delayed in 4 reporting the crimes, was bolstered by the testimony of L.Q. of the prior similar crime. The evidentiary need for the testimony of L.Q. outweighed any prejudice to defendant. It was not error to admit that evidence. __________ 3 The jury was instructed on that limited purpose for which the evidence was admitted. 4 The court charged the jury with respect to the delay in reporting. -6- CP-21-CR-0460-2009 Defense counsel made the following offer at trial: I have a defense witness, David Martinez, who’s 18 years old. He would be called to the stand to testify that he’s been an employee for several years of the defendant’s, started working there as a young male following the same pattern the Commonwealth has claimed exists in this case. He would say that he was never approached, molested or touched; and he would also describe the general job duties and how infrequent the work actually is. The Commonwealth objected and the court rejected the offer, stating: It is not relevant. The fact that other people may have worked for him, and he may not have approached other people given their circumstances is not relevant as to whether or not he approached these two boys. The ruling was correct. It was not error to refuse to admit this evidence. (Date) Edgar B. Bayley, J. Christylee Peck, Esquire For the Commonwealth Karl E. Rominger, Esquire For Defendant :sal -7-