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HomeMy WebLinkAbout92-2120 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 2120 CRIMINAL 1992 v. : CHARGE: (A) INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : (B) INDECENT ASSAULT : VIRGINIA WILKINSON : AFFIANT: DET. RONALD EGOLF OTN: E002122-1 IN RE: DEFENDANT'S POST-TRIAL MOTIONS BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of April, 1994, upon careful consideration of Defendant's Post-Trial Motions, as well as the briefs submitted on the matter, Defendant's Motions are DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, J. e'sley Ole . Jonathan Birbeck, Esq. Sr. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender :re COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 2120 CRIMINAL 1992 v. : CHARGE: (A) INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : (B) INDECENT ASSAULT VIRGINIA WILKINSON : AFFIANT: DET. RONALD EGOLF OTN: E002122-1 IN RE: DEFENDANT'S POST-TRIAL MOTIONS BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. At issue in the present case are post-trial motions filed by Virginia Lee Wilkinson (Defendant) following a jury trial in which she was found guilty~ of involuntary deviate sexual intercourse2 and indecent assault.3 More specifically, Defendant has filed a motion in arrest of judgment and, in the alternative and based upon the same grounds, a motion for a new trial, contending the following: (1) that the trial court erred in denying Defendant's omnibus pretrial motion to dismiss based upon the Commonwealth's failure to specify in the informations the exact dates on which the offenses occurred; (2) that the trial court erred in a pretrial finding that the six-year-old victim was competent to testify; and (3) that the trial court erred in overruling Defendant's objection during trial to the Commonwealth's use of a leading question in its direct examination of the victim. For the reasons set forth in this ~ Commonwealth v. Wilkinson, 2120 Criminal 1992, April 6-7, 1993, at 147-48 (hereinafter N.T. .). 2 Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. §3123. 3 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3126 (1993 Supp.). 2120 CRIMINAL 1992 Opinion, Defendant's post-trial motions must be denied. Statement of Facts. The alleged victim in this case is Sheree Dasher, a six-year-old girl as of the time of trial,4 who had been in the foster care of Malea Saphore since March 17, 1992, when the present allegations surfaced,s In the beginning of July, 1992, while in such foster care, Sheree approached Ms. Saphore and told her that her mother, Defendant, had "licked her cat."6 When asked to clarify what she meant, Sheree pointed to her vaginal area.7 Upon hearing this information, Ms. Saphone contacted Susan Rebecca Over, Sheree's caseworker at Cumberland County Children and Youth Services.8 Subsequently, Ms. Over interviewed Sheree in the agency office on July 17, 1992,9 at which point Sheree again indicated what Defendant had done to her.l° Additionally, using anatomically correct dolls, Sheree showed Ms. Over the "cat" on the doll by pointing to the vaginal area.~ Sheree also told Ms. Over that she could not remember when this incident occurred, but she N.T. 79. N.T. 33. N.T. 35; see N.T. 116-18. N.T. 37. N.T. 43. N.T. 48. N.T. 50. N.T. 51. 2 2120 CRIMINAL 1992 did recall that it was daylight out, and that there were two other people in the room in addition to herself and Defendant.~2 Following her interview with Sheree, Ms. Over referred the case to Detective Ronald Egolf of the Carlisle Police Department. Initially, Detective Egolf interviewed Defendant regarding the alleged contact, at which time Defendant stated that she wanted an attorney. ~3 Subsequently, on October 9, 1992, the detective interviewed Sheree regarding the alleged abuse. After obtaining the information from Sheree's interview, Detective Egolf secured a warrant for Defendant's arrest, charging her with involuntary deviate sexual intercourse and indecent assault. On January 13, 1993, Defendant filed an omnibus pretrial motion requesting a dismissal of the charges against her based upon the Commonwealth's inability to specify the exact dates on which the offenses allegedly occurred and requesting a determination of the competency of two minor witnesses, Sheree and her seven-year- old brother, Justin Dasher. A hearing on Defendant's pretrial motion was held before the undersigned judge on January 21, 1993.TM At that time, the Court denied Defendant's motion to dismiss based upon the failure of the Commonwealth to particularize the dates of N.T. 51. N.T. 16. ~4 Commonwealth v. Wilkinson, 2120 Criminal 1992, In Re: Omnibus Pretrial Motion, January 21, 1993 (hereinafter Omnibus N T. 3 2120 CRIMINAL 1992 the alleged offenses beyond specifying a period between August of 1991 and March of 1992.~5 On the issue of whether the two minor witnesses were competent to testify, Sheree Dasher,s testimony indicated that she knew on which date her birthday fell, what grade she was in, and where she went to school.~6 Additionally, Sheree's testimony indicated that she was aware of the difference between the truth and a lie, as well as the consequences of telling a lie.~7 Furthermore, Sheree demonstrated an awareness of the subject about which she was required to testify and could recall the events of the incident. On the other hand, Justin Dasher could not recall the alleged occurrence and demonstrated difficulty in understanding the questions which were posed to him. Consequently, the Court found ~5 Omnibus N.T. 3, 9. The Court's Order read as follows: AND NOW, this 21st day of January, 1993, upon consideration of the Defendant,s Omnibus Pretrial Motion in the form of a Motion to Dismiss based Upon the failure of the Commonwealth to file an adequate bill of particulars, and it being agreed by counsel that the answer of the Commonwealth to Defendant,s request for bill of particulars filed this date shall be considered to be a bill of particulars for procedural purposes, and it being further indicated by the Commonwealth that it is unable to furnish a more definite date than that supplied in the said bill of particulars, the motion of the Defendant is denied. Omnibus N.T. 9. ~6 Omnibus N.T. 13. ~7 Omnibus N.T. 16-17. 4 2'120 CRIMINAL 1992 Sheree competent to testify at trial; Justin was found to be incompetent to testify.~8 At trial, the Commonwealth called Sheree Dasher to testify. At this time, Sheree demonstrated that she was able to count from one to ten and could recite the days of the week.~9 Her testimony ~8 Omnibus N.T. 49-49. The Court's Order on this point read as follows: AND NOW, this 21st day of January, 1993, following a hearing on the Defendant s Omnibus Pretrial Motion in the form of a Motion for Determination of Competency of Minor Witnesses, and the Court having heard testimony from the two minors whom the Commonwealth proposes to call in this case, Sheree Dasher, age five, and Justin Dasher, age seven, the Court finds as follows: 1. With respect to Sheree Dasher, it is found that she does have the capacity to communicate, including both an ability to understand questions and to frame and express intelligent answers, requisite for competent testimony, she enjoys the menta necessar~ to ~ ..... 1 capacit · ~ ~ve onserve~ the o Y itself and the canaci~.. A= _ . ccurrence · ~ ~3 uA rememnerlng what it Ks that she will be called to testify about, and she has the requisite consciousness of [the] duty to speak the truth for purposes of competency to testify. For that reason, Sheree Dasher is found to be competent to testify in these proceedings; however, this determination shall be reviewable at any time by the trial judge as her testimony proceeds. 2. With respect to Justin Dasher, the Court finds that he lacks the mental capacity to remember what it is that he is to be called to testify about, and further, lacks the ability to understand questions and to frame · .- and express intelligent answers; consequently, he is found to be incompetent to testify at the trial. Id. ~9 N.T. 78. 2120 CRIMINAL 1992 also indicated that she knew where she went to school, what grade she was in, and what the name of her teacher was.20 Additionally, Sheree demonstrated that she knew her age and the date of her birthday.2~ When the Commonwealth asked Sheree if she knew why she was testifying, she indicated initially that she did not.2~ Consequently, the Commonwealth asked several leading questions, including the following: "Did Lucy [Defendant] do something to you," and "Is that what you're going to talk about today?..23 Additionally, the Commonwealth asked several leading questions as to who was present in the room when the alleged offense occurred.24 In response to these questions, only the first of which was objected to,25 Sheree stated that Lucy did do something to her, and that that was the topic about which she was going to testify. Moreover, Sheree indicated that Gerald Dasher (her father) and her brothers, Justin and Jeremy, were in the dwelling when the offenses occurred. Id. N.T. 79. N.T. 82. N.T. 83. N.T. 84. 2s Although Defendant,s Post-Trial Motions challenge the propriety of all of these leading questions, the record indicates that an objection was raised as to only one of the questions, namely, "Did Lucy do something to you?" See N.T. 82-83. 6 2120 CRIMINAL 1992 While testifying, Sheree stated that Defendant "licked [her] cat" and pointed to her vaginal area to show where her "cat" was.26 Sheree indicated that the incident occurred in a bedroom, and that there were four other people present at the time the incident °ccurred-27 Sheree stated that she had observed Defendant and Gerald Dasher engaging in sexual intercourse,~8 and that after they had finished Defendant pulled Sheree towards the bed, took off her clothes, and licked Sheree,s vaginal area.29 During her testimony, Sheree could not remember the date on which the alleged offenses occurred.30 However, she did indicate that the offenses occurred while she was living with Defendant, that she was four years old when it happened, and that she had gone to live with Ms. Saphore before she had turned five years Additionally, Defendant testified that Sheree was living with her from August, 1991, until March, 1992.32 Gerald Dasher testified that he had never witnessed Defendant N.T. 83. N.T. 84-85. N.T. 88. N.T. 90-91. N.T. 106-07. N.T. 92. N.T. 116-17. 7 2120 CRIMINAL 1992 lick the child's vagina.33 Defendant denied that she had ever done SO. 34 Following a jury trial at which the undersigned presided on April 6 and 7, 1993, Defendant was found guilty of involuntary deviate sexual intercourse and indecent assault.3$ In response to these verdicts, Defendant has filed the current post-trial motions seeking an arrest of judgment or, in the alternative, a new trial. S~tatement of law an,] discussion. With respect to Defendant,s contention that the informations should have been dismissed because of the Commonwealth,s failure to specify the exact dates on which the offenses occurred, it should be noted that Pennsylvania Rule of Criminal Procedure 225(b)(3) provides as follows: The information shall be siqned by attorney for the Commonwealth a~d sh the valid and ' · . ~ be the date sufficient in law.if it conta ... when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient .... More generally, it has been said that "the prosecution must establish the date of the alleged offense with 'reasonable N.T. 110. N.T. 121. N.T. 147-48. 8 2120 CRIMINAL 1992 certainty, to withstand a demurrer or a motion in arrest of judgment... Commonwealth v. Fanelli, 377 Pa. Super. 555, 559, 547 A.2d 1201,1203 (1988), allocatur denied, 523 Pa. 641, 565 A.2d 1165 (1989). However, "the Commonwealth must be allowed a reasonable measure of flexibility when faced with the special difficulties involved in ascertaining the date of an assault upon a young child... Commonwealth v. Groff, 398 Pa. Super. 353, 362, 548 A.2d 1237, 1241 (1988). In this regard, "the Commonwealth need not always prove a single specific date of the crime .... Any leeway permissible would vary with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused... Commonwealth v. Devlin, 460 Pa. 508, 516, 333 A.2d 888, 892 (1975). As the Superior Court of Pennsylvania has noted, [w]hen a young child is the victim of a crime, it is often impossible to ascertain the exact date when the crime occurred. He or she may have only a vague sense of ~ days of the week, the months of the year, and the year itself. If such children are to be protected by the criminal justice system, a certain degree of imprecision concerning times and dates must be tolerated. Commonwealth v. Groff, 398 Pa. Super. 353, 364, 548 A.2d 1237, 1242 (1988). So long as the evidence "tends to prove that the offense was committed prior to the commencement of the prosecution and that it was not committed at a time so remote that its prosecution is barred by the prescribed statutory period of limitations,., it is 9 2120 CRIMINAL 1992 sufficient to support a conviction. Commonwealth v. Devlin, 460 Pa. 508, 513, 333 A.2d 888, 890 (1975). In light of the foregoing authority, the Court believes that the Commonwealth,s inability to set forth a specific date on which the alleged offenses occurred did not warrant a dismissal of the informations against Defendant. Given the young age of the victim, and given the fact that the offenses allegedly occurred during the period in which the victim was living with Defendant,3~ which was within the applicable statutes of limitations,37 the Court is of the opinion that the Commonwealth established the date of the alleged offenses with sufficient and reasonable certainty. With respect to Defendant,s contention that the six-year-old victim was not competent to testify during trial, it is well settled in Pennsylvania that, "[w]hen the witness is under fourteen years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency... Commonwealth v. Short, 278 Pa. Super. 581, 586, 420 A.2d 694, 696 (1980). In making this determination, the court should consider the following factors: ~6 As Defendant testified during trial, this period was between August, 1991, and March, 1992. N.T. 116-17. ~ See Act of July 9, 1976, P.L. 586, ~2, 42 Pa. C.S. ~5552 (Supp. 1993). 10 2120 CRIMINAL 1992 (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth. Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 319 (1959) (emphasis in original). On this issue, the Superior Court of Pennsylvania has u h a trial court's d-~ · . . P eld e~erm~nat~on that three v~ctims were competent to testify, despite the fact that all three victims were five years old or younger. Commonwealth v. McEachin, 371 Pa. Super. 188, 537 A.2d 883, allocatur denied, 520 Pa. 603, 553 A.2d 965 (1988). In so holding, the Superior Court emphasized that each witness knew his or her name, where he or she went to school, could distinguish colors, knew why he or she was in the courtroom, and knew the difference between the truth and a lie, as well as the consequences of telling a lie. Id'38 Moreover, that inconsistencies may exist in the testimony of the child witness does not necessarily warrant a determination of lack of competence to testify. "[I]f mere inconsistences were a sufficient basis for declaring a witness incompetent, few adult witnesses, much less child witnesses, would ever effectively testify in our courts... Commonwealth v. Davis, 394 Pa. Super. 591, 599, 576 A.2d 1005, 1009 (1990), rev'd on other 3~ See also Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974) (upholding competency of six-year-old to testify). 11 2120 CRIMINAL 1992 grounds, 532 Pa. 297, 615 A.2d 732 (1992). Based upon the testimony given by Sheree Dasher during the hearing on Defendant,s Omnibus Pretrial Motion, as well as during the trial, this Court is of the opinion that she was competent to testify as to the alleged offenses. Sheree was able to count to tenTM and could recite the days of the week.40 Additionally, Sheree knew the grade she was in, the school she attended and the name of her teacher.4~ Sheree was aware of her age and on what day her birthday fell.42 She was also aware of the subject about which she was going to testify.43 Finally, Sheree knew the difference between the truth and a lie.~4 With respect to Defendant,s contention that the Commonwealth improperly used leading questions when Sheree Dasher was on the witness stand, it has been noted that "It]he rules on leading questions are 'liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical considerations of who called the witness.,.. Bell v. City of Philadelphia, 341 Pa. Omnibus N.T. 15. Omnibus N.T. 29. Omnibus N.T. 13-14. Omnibus N.T. 13. N.T. 83. Omnibus N.T. 16-17. 12 2120 CRIMINAL 1992 Super. 534, 541, 491A.2d 1386, 1389 (1985), quoting Commonwealth v. Guess, 266 Pa. Super. 359, 375, 404 A.2d 1330, 1338 (1979). Moreover, "[1leading questions may be used when modesty and delicacy preclude full answers to general questions,.45 and the use of leading questions may be appropriate "to aid the victim in telling her account of the assault upon her.'. Commonwealth v. Bell, 328 Pa. Super. 35,/52, 476 A.2d 439, 448 (1984). Based upon the foregoing authority, and in light of the circumstances in the present case, this Court is of the opinion that it was not inappropriate for the Commonwealth to utilize the leading questions complained of on the direct examination of Sheree Dasher. Given the sensitive nature of the topic involved, as well as the young age of Ms. Dasher, the Commonwealth,s use of leading questions was appropriate to aid Sheree in reciting her account of the assault, and Defendant,s objection to one such question was permissibly overruled. Consequently, Defendant,s requested relief cannot be granted on this ground. QRDER OF COURT AND NOW, this ~L-~ day of April, 1994, upon careful consideration of Defendant,s Post-Trial Motions, as well as the briefs submitted on the matter, Defendant,s Motions are DENIED, a presentence investigation report is ORDERED, and Defendant is 4~ Commonwealth v. McGuiness, 204 Pa. Super 78 203 A.2d 326, 327-28 (1964). · 75, , 13 2120 CRIMINAL 1992 DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, Jonathan Birbeck, Esq. Sr. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender : rc 14