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HomeMy WebLinkAboutCP-21-CR-1043-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALBERT J. BUNN CP-21-CR-1043-2004 IN RE: POST-SENTENCE MOTION FOR A NEW TRIAL BASED ON AFTER-DISCOVERED EVIDENCE OPINION AND ORDER OF COURT Bayley, J., January 3, 2006:-- On January 26, 2005, a jury convicted defendant, Albert J. Bunn, of the following crimes that occurred sometime between January 1, 2000, and June 1, 2003: 1. Indecent assault against Kevin Askerooth, born June 17, 1995-- a misdemeanor in the first degree. 2. Indecent assault against Anna Askerooth, born November 27, 1991-- a misdemeanor in the first degree. 3. Indecent assault against Dawn Askerooth, born August 29, 1990-- a misdemeanor in the first degree. 4. Involuntary deviate sexual intercourse against Kevin, a felony in the first degree. 5. Involuntary deviate sexual intercourse against Anna, a felony in the first degree. 6. Involuntary deviate sexual intercourse against Dawn, a felony in the first degree. 7. Rape against Anna, a felony in the first degree. 8. Rape against Dawn, a felony in the first degree.1 On July 12, 2005, an order was entered, supported by a written opinion, finding that defendant is a sexually violent predator. On August 2, 2005, defendant was sentenced on one count of involuntary deviate sexual intercourse to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less 1 All three children testified at trial as to the acts committed against that child by defendant. CP-21-CR-1043-2004 than five years or more than ten years. On the second count of involuntary deviate sexual intercourse, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, consecutive to the first sentence. On the third count of involuntary deviate sexual intercourse, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, consecutive to the other two sentences. On the first count of rape, defendant was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, concurrent to the other sentences. On the second count of rape, he was sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, concurrent to the other sentences. On each of the three counts of indecent assault, he was sentenced to pay the costs of prosecution. On August 12, 2005, pursuant to Pa.R.Crim.P. 720(c), defendant, with new counsel, filed a post-sentence motion seeking a new trial based on after-discovered evidence. A hearing was conducted on October 24, 2005.2 The evidence was as follows. Erica Moffitt, now age 14 and in the ninth grade, lives in Harrisburg with her mother, Susan Phillips. Erica testified that in the summer of 2002, Judy Bunn, the wife 2 On December 2,2005, an order was entered pursuant to Pa.R.Crim.P. 720(B)(3)(b), extending to January 9, 2006, the time for which to decide the post-sentence motion. -2- CP-21-CR-1043-2004 of defendant, and Dawn Askerooth were at her home. Dawn told Erica that she and her sister, Anna Askerooth, were going to start saying that Albert Bunn touched them improperly, and although it was not true, it was a way to get out of chores they did not like doing where they were living in the Bunn home. On April 8, 2005, Erica gave a statement about the conversation in the summer of 2002 to a defense investigator. On April 10, 2005, Erica sent Judy Bunn an email about the conversation. In neither the statement nor the email did Erica state that Dawn had said that Anna intended to say that Albert Bunn had improperly touched her. Susan Phillips testified about what she heard when Judy Bunn and Dawn Askerooth were at her home in the summer of 2002. She recalled that Erica told her that Dawn said that she did not like doing chores and would say that her grandfather was improperly touching her. Dawn did not mention Anna, but Phillips "assumed" she meant Anna too. Phillips testified that she immediately told Judy Bunn what Dawn said. Bunn responded that she did not think that Dawn and Anna would do anything like that. Phillips testified that she told Judy Bunn, before the trial of defendant, that she and Erica were willing to testify because they wanted to help her husband. Judy Bunn called her on the day of the jury verdict, and Phillips asked her why she and Erica were not called as witnesses. Bunn said no one was called. Trial counsel testified that in all of his conversations with Judy Bunn before the trial, she never brought up any statement that Dawn made to Erica in the summer of 2002. Judy Bunn testified that she remembers being at the Phillips' house, and Erica whispering something to her -3- CP-21-CR-1043-2004 mother to the effect that the girls were going to say something bad about their grandpa. She did not recall directly to Erica about it, and did not discuss it with anybody else. She thought nothing about it until March 2005, after the trial, when Susan Phillips came to her house and said that Erica had remembered something. STANDARD FOR AFTER-DISCOVERED EVIDENCE As set forth in Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), a new trial is not warranted on the basis of after-discovered evidence unless such evidence could not have been discovered until after the trial despite reasonable diligence, it is not used for merely cumulative or impeachment purposes, and it is of such a nature that it would compel a different outcome. DISCUSSION At the post-sentence hearing, trial counsel testified that he involved Judy Bunn in his preparations for trial, but she did not mention the purported statement by Dawn Askerooth. Whatever was said by Dawn Askerooth in the summer of 2002, it apparently did not register to Judy Bunn as significant enough to mention to trial counsel. There was no information known by trial counsel that would have otherwise led him to interview Erica Moffitt and Susan Phillips. Using reasonable diligence, trial counsel did not have access prior to trial of the purported statement by Dawn Askerooth. The purported statement by Dawn Askerooth would not be cumulative. However, it would be used to impeach her. Dawn's testimony at trial was to facts -4- CP-21-CR-1043-2004 showing that Albert Bunn committed indecent assault, involuntary deviate sexual intercourse, and rape upon her. Any statement earlier attributed to her, that she was going to assert untruthfully that defendant touched her improperly as a way of getting out of chores, would impeach her testimony, likewise with Anna Askerooth. Impeachment attacks the credibility of a witness, the truthfulness and veracity of the witness's testimony, and the motive of the witness to give false testimony. See Commonwealth v. Robinson, 507 Pa. 522 (1985). Impeachment is directed at revealing how or implying that the witness's preceding testimony is inaccurate or untrue. After-discovered evidence constituting impeachment does not warrant a new trial. See Commonwealth v. Albrecht, supra. Notwithstanding that we do not believe that any purported impeachment testimony would compel a different outcome, the impeachment purposes of such testimony alone mandates the following order. ORDER OF COURT AND NOW, this 3rd day of January, 2006, the post-sentence motion of defendant for a new trial based on after-discovered evidence, IS DENIED. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Jerry A. Philpott, Esquire F or Defendant -5- CP-21-CR-1043-2004 :sal -6- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALBERT J. BUNN CP-21-CR-1043-2004 IN RE: POST-SENTENCE MOTION FOR A NEW TRIAL BASED ON AFTER-DISCOVERED EVIDENCE ORDER OF COURT AND NOW, this 3rd day of January, 2006, the post-sentence motion of defendant for a new trial based on after-discovered evidence, IS DENIED. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Jerry A. Philpott, Esquire F or Defendant :sal