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Home My WebLink AboutCP-21-CR-1043-2004 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ALBERT J. BUNN : CP-21-CR-1043-2004 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., March 9, 2006:-- January 26, 2005 On , a jury convicted defendant, Albert J. Bunn, of the following crimes that occurred 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. July 12, 2005 On , an order was entered, supported by a written opinion, finding August 2, 2005 that defendant is a sexually violent predator. On , 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 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 CP-21-CR-1043-2004 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. August 12, 2005 On , defendant filed a post-sentence motion seeking a new trial based on after-discovered evidence pursuant to Pa.R.Crim.P. 720(c). Following a January 3, 2006 hearing, an order was entered on , supported by a written opinion, denying a new trial. Defendant then filed an appeal to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, defendant raises two issues: (1) alleged error in denying his post-sentence motion based on his Crawford v. claim of after-discovered evidence, and (2) alleged error, under Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in admitting at trial videotaped interviews of the three child victims that were conducted before the trial. As to the alleged error regarding the denial of a new trial on the claim of after- -2- CP-21-CR-1043-2004 discovered evidence, we incorporate herein and make a part of this opinion the opinion of January 3, 2006, in support of the order that denied relief. As to the second alleged error, there were out-of-court statements of the child victims, Kevin Askerooth, Anna Askerooth and Dawn Askerooth, made during videotaped interviews with a social worker at the Children Resource Center in Harrisburg, that were admitted into evidence at trial. This was after an order was entered on January 21, 2005, following a hearing pursuant to the Judicial Code at 42 Pa.C.S. Section 5985.(a)(1), that those out-of-court statements were admissible. Section 5985(a) provides: (a) General rule.--An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal not otherwise admissible intrusion) and 37 (relating to robbery), by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: the court finds, in an in camera hearing, that the evidence (1) is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and the child (2) either: testifies at the proceeding (i) ; or (ii) is unavailable as a witness. (Emphasis added.) Kevin Askerooth, Anna Askerooth and Dawn Askerooth testified at trial. The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Confrontation Clause applies to state as well as federal -3- CP-21-CR-1043-2004 Pointer v. Texas, prosecutions. 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Crawford v. Washington, supra, In the defendant was convicted by a jury in the state of Washington of first-degree assault while armed with a deadly weapon. Admitted at trial were out-of-court statements of defendant’s wife made to police officers that defendant stabbed the victim. The wife did not testify at trial because of Washington’s marital privilege. The trial court concluded that the out-of-court statements met an adequate indicia of reliability because they “bore particularized guarantees of trustworthiness,” and thus were admissible under a firmly rooted exception to the hearsay rule. The conviction was reversed by the Washington Court of Appeals, but reinstated by the Washington Supreme Court. The United States Supreme Court reversed, concluding that the out-of-court statements by the wife were testimonial, and although deemed reliable by the trial court, they were barred by the Confrontation Clause because the witness was unavailable and the defendant did not have a prior opportunity to cross-examine her. Crawford, In the present case, unlike the facts in Kevin Askerooth, Anna Askerooth and Dawn Askerooth were crossed examined by the defense at trial. The Crawford Supreme Court of the United States noted in that “[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Accordingly, there was no violation of the Confrontation Clause resulting from the admission into evidence of the videotaped out-of-court statements of Kevin Askerooth, Anna Askerooth and Dawn -4- CP-21-CR-1043-2004 1 Askerooth made to the social worker at the Children Resource Center. (Date) Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Jerry A. Philpott, Esquire For Defendant :sal __________ 1 We do not have to address whether the out-of-court statements of the three child victims would have been admissible under Section 5985.1(a)(2)(ii) of the Judicial Code if they had been unavailable as witnesses. -5-