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HomeMy WebLinkAboutCP-21-CR-0922-2001 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JOHN JAY GEPHART NO. CP-21-CRIMINAL 0922 - 2001 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., April , 2005 The defendant, age forty (40), was charged with numerous offenses arising from a sexual encounter with a fifteen (15) year old female. 1 The offenses occurred in the defendant's home while the victim was babysitting his children. A jury found him guilty of statutory sexual assault2, age related involuntary deviate sexual intercourse3, age related indecent assault,4 and corruption of minors. 5 He was acquitted of rape,6involuntary deviate sexual intercourse by forcible compulsion7, and forcible indecent assault. 8 On October 9,2001, we sentenced the defendant to undergo a 5 IIz to 11 year term of imprisonment on the charge of involuntary deviate sexual intercourse. 9 We imposed a concurrent sentence of 1 to 2 years imprisonment on the count of indecent assault and a consecutive 10 year probationary sentence on the statutory sexual assault charge. 10 Additionally, we ordered the defendant to undergo an assessment by the State Board to 1 In his statement to the police, the defendant admitted to sexual activity with the girl. However, he contended that it was consensual. 218pa. C.S.A. ~ 3122.1. 318 Pa. C.S.A. ~ 3123(a)(7). 4 18 Pa. C.S.A. ~ 3126(a)(8). 5 18 Pa. C.S.A. ~ 6301(a)(1). 618pa. C.S.A. ~ 3121(a). 7 18Pa. C.S.A. ~ 3123(a)(1). 818pa. C.S.A. ~ 3126(a)(2). 9 The charge carried a mandatory five year minimum sentence. However, because of the defendant's prior record, the guidelines called for a minimum sentence of 66 to 84 months in the standard range. (See Sentencing Report). 10 No sentence was imposed on the corruption of minor's charge, which merged with the other charges. CP-21-CRIMINAL 0922 - 2001 Assess Sexually Violent Predators (hereinafter "Board") and to comply with the registration and DNA requirements of Megan's Law. 11 The defendant filed a timely appeal to the Superior Court. In a memorandum opinion filed on March 6, 2003 the Superior Court vacated that portion of our sentence that required petitioner to undergo an assessment by the State Board to Assess Sexually violent predators. The judgment of sentence was otherwise affirmed. Currently before us is Petitioner's request for relief under the Post Conviction Relief Act. We held an evidentiary hearing on September 29,2004. At the conclusion of the hearing we granted counsel time to file briefs in support of their respective positions. On December 20, 2004 after reviewing the briefs, we entered an order denying petitioner's request for relief. This timely appeal followed. The sole issue raised on appeal was articulated by Petitioner's counsel as follows: The PCRA court erred in denying Defendant's Petition as it relates to the claim of ineffectiveness of counsel based upon counsel's failure to call witnesses whose testimony would have been exculpatory and would have contradicted key evidence for the prosecution resulting in a likely result of . 112 acqmtta . At the evidentiary hearing, the defendant complained that his trial attorney failed to call medical personnel who had examined the victim in the days and weeks after the alleged incident. Primary among petitioner's complaints was counsel's failure to call Dr. Dedyo at trial. Dr. Dedyo had examined the victim and prepared a "Child Abuse Interview Report" . 13 1142 Pa. C.S.A. ~ 9791 et seq. 12 See Statement of Matters Complained of on Appeal. 13 Petitioner's Exhibit 1. 2 CP-21-CRIMINAL 0922 - 2001 Petitioner's defense at trial was that the sexual encounter between the victim and him was consensual. 14 He further contended that the victim led him to believe that she was 18 years old. He alleges that his counsel was ineffective in failing to call Dr Dedyo to testify regarding the following exchange with the victim: We asked Lauren if any of her sexual partners were over 18, and she replied "one person was in his twenties, 24." We asked Lauren how old she was when she was with this person, and she replied "13, but he didn't know that." We asked how old Lauren told this person she was, and she replied "18. Most people don't know my age. They always think I'm older than I am.,,15 Petitioner also contended that the inconsistent statements given by the victim to the medical personnel would have undermined her credibility and have provided support to his theory that she made up the rape story to avoid getting into trouble with her mother. Counsel is presumed to be effective until the defendant proves otherwise. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). As the Pennsylvania Supreme Court has noted: To prevail on a claim of trial counsel's ineffectiveness for failure to call a witness, the appellant must show: (1) that the witnesses existed; (2) that the witnesses were available; (3) that counsel was informed of the existence of the witnesses or should have known of the witnesses' existence; (4) that the witnesses were available and prepared to cooperate and would have testified on appellant's behalf; and (5) that the absence of the testimony prejudiced the appellant. Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312 at 320 (2001). The Meadows Court also held that failure to call a witness whose "testimony would have been merely cumulative" is "not ineffective assistance of counsel." Id In the instant case, we were 14 The jury's verdict shows that it accepted this particular defense. 15 Petitioner's Exhibit 1, p. 8. 3 CP-21-CRIMINAL 0922 - 2001 satisfied that defendant failed to meet the prejudice prong because the missing testimony would have been merely cumulative. 16 The defendant's trial counsel fully developed the defendant's willingness to lie to older men in her cross examination of the victim. The following exchange accomplished everything that she could have hoped to accomplish with Dr. Dedyo: Q. When you spoke to John Gephart and Etta Schmidt on April 13th, did you ever tell them that you were older than 16? 18 years old, perhaps? A No. Q. Did you ever tell them that you were older than 15? A No, I have no reason to lie about my age. Q. Do you remember speaking with Dr. - - I am going to spell this, Lorraine D-E-D- Y-O, - Dr. Dedyo? Do you remember speaking with her at Pinnacle Health Center about your case? A No. Q. You don't remember speaking with her in May of this year? A I don't know. I might have. I don't know. I went and saw a lot of people. Q. But specifically talking to this doctor she asked you various questions about your history, and you told her that you had lied to a gentleman before about your age, and told him you were 18. Do you remember telling her that? A Probably, when I was younger. Q. Yes. You told her you were 13, but you told this man you were 18; is that right? A He could have been 18 too. He probably wasn't a man. Q. Do you remember telling her that, Most people don't know my age. They always think I am older than I am? A Yeah, because a lot of people think I am older than I am, without telling them my age. Ms. WALLER: I don't have any further questions. Thank yoU.17 Trial counsel also established that fear of reprisal from her mother could have been a possible motive for her lying. This was done through the effective cross 16 We also note that there was no testimony presented at the PCRA hearing regarding the availability of the witnesses at the time of trial. 17 Trial Transcript, pp. 69-70 (emphasis added). 4 CP-21-CRIMINAL 0922 - 2001 examination of the victim's mother. 18 Finally, a review of the trial transcript makes it abundantly clear that trial counsel did a very effective job in attacking the victim's credibility. This was accomplished through the cross examination of the victim, her mother, and the police, in connection with the inconsistencies contained in her various statements. Her credibility was so undermined in the eyes of the jury that it chose to discount her allegations of forcible rape. While it believed defendant's version of a consensual sexual encounter it did not believe that he thought the victim was age appropriate. His knowledge of her age was established through the testimony of the victim's mother. Early on the day of the incident she told the defendant that she was concerned about her daughter babysitting his children because "she is 15 and she hasn't had a lot of experience with young babies."19 In view of the above, we concluded that defendant did not meet his burden of proving that he was prejudiced by the failure to call the medical witnesses. As a result, we denied his request for relief under the PCRA. DATE Edward E. Guido, J. cc: Jaime M. Keating, Esquire For the Commonwealth Susan K. Pickford, Esquire F or the Defendant 18 See Trial Transcript, pp. 116-120. 19 Trial Transcript, p. 99 (emphasis added). 5