Loading...
HomeMy WebLinkAbout93-1778 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : ROMAN TROY BARD : NO. 1778 CRIMINAL 1993 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., December 23, 1994. This case arises out of Defendant's alleged sexual intercourse with Tara R. Laughman, a minor. Following a jury trial, Defendant was acquitted of forcible rape~ and indecent assault2 but was found guilty of corruption of a minor3 and was thereafter sentenced.4 From the judgment of sentence Defendant has appealed to the Superior Court.5 In Defendant's statement of matters complained of on appeal, the following reasons for the appeal are given: 1. The Court erred in allowing the Assistant District Attorney to illicit testimony of the victims virginity and to argue that fact in opening and closing arguments. 2. The Court erred in not granting a mistrial when the Assistant District Attorney elicited testimony concerning sexual acts between the Defendant and other parties. 3. The evidence was not sufficient to ~ Act of December 6, 1972, P.L. 1482, Sl, as amended, 18 Pa C.S.A. S3121(1), (2) (1994 Supp.). · 2 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. ~3126(a)(1) (1994 Supp.). 3 Act of July 1, 1978, P.L. 573, ~1, 18 Pa. C.S.A. ~6301. 4 N.T. 9-10. In re: Sentencing Colloquy Commonwealth v. Bard, 1778 Criminal 1993. ' 5 Notice of Appeal, November 2, 1994. NO. 1778 CRIMINAL 1993 support a conviction for corruption of minors when the jury acquitted on all other charges specifically, rape and indecent assault. 4. The evidence was not sufficient to prove the crime of corruption when the act proven was voluntary sexual intercourse.6 This Opinion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925, in support of the judgment of sentence. STATEMENT OF FACTS At trial, the Commonwealth presented evidence tending to show the following: On July 9, 1993,7 around 3:00 a.m. Defendant, a 22- year-old male,8 returned home from taking his father to the hospital.9 Upon entering his home Defendant approached Tara R. Laughman, a 15-year-old female,~° who had been sleeping on the living room floor, and held her down while subjecting her to sexual intercourse.~ According to Ms. Laughman's testimony, she had not had sexual intercourse with anyone prior to this incident.~2 According to the testimony of Detective Richard Killinger of the Mid-Cumberland Valley Regional Police Department, the Defendant 6 "Matters Raised On Appeal," filed November 30, 1994. 7 N.T. 17, Trial, Commonwealth v. Bard, 1778 Criminal 1993 (hereinafter N.T. ). N.T. 77. N.T. 20. N.T. 15. N.T. 20-21. N.T. 22. 2 NO. 1778 CRIMINAL 1993 conceded in an interview on A~gust 27, 1993, that he had had sexual intercourse with Tara Laughman and that he was not denying that fact.~3 Following the Commonwealth's case-in-chief, the defense presented the testimony of a sister of Defendant's live-in girlfriend.TM She testified, inter alia, that the victim was sexually active before the date of this incident. During the prosecution's cross-examination of this witness the following exchange took place: Q You've had an affair with Roman Bard, have you not? A No, sir, I haven't. Q You've had sexual relations with Roman Bard, have you not? A No, sir, I have not. Q Why would your sister, Tammy tell people that you had sexual relations __~s At this point the defense counsel objected and subsequently asked for a mistrial.~ The Court denied the motion for a mistrial, but instructed the jury to disregard the question.~? Following the jury's verdicts of guilty as to corruption and N.T. 47. N.T. 17. N.T. 62. N.T. 62-63. N.T. 64. 3 NO. 1778 CRIMINAL 1993 not guilty as to rape and indecent assault,~" and after receipt of a presentence investigation report, the Court imposed a sentence of imprisonment upon Defendant of not less than 30 days nor more than 23 months in the Cumberland County Prison.~9 DISCUSSION Admissibility of evidence of m~nor's prior abstinence from sexual intercourse. With respect to Defendant's contention that the Court erred in permitting reference, argument and testimony as to the victim's virginity prior to the time of Defendant's intercourse with her, it is believed that the matter (a) was relevant to an element of the crime of corrupting the morals of a minor and (b) was not foreclosed by the Rape Shield Law. The statute respecting corruption of a minor provides as follows: Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.2° It would seem that a child's prior abstinence from sexual intercourse would be highly relevant on the issue of whether an ~" N.T. 116-117. ~9 Order of Court, October 18, 1994, Commonwealth v. Bard, 1778 Criminal 1993. 20 Act of July 1, 1978, P.L. 573, Sl, 18 Pa. C.S.A. §6301(a) (emphasis added). 4 NO. 1778 CRIMINAL 1993 ~dult's act in that regard corrupted or tended to corrupt her morals. See, e.g., Commonwealth v. Sampson, 250 Pa. Super. 157, 378 A.2d 874 (1977) (prior law); cf. Commonwealth v. DeBooth, 379 Pa. Super. 522, 550 A.2d 570 (1988) (victim's declarations as to virginity held admissible on issue of state of mind), appeal denied, 522 Pa. 588, 561A.2d 740 (1989). To the extent that Defendant's contention may in some way be based upon the Rape Shield Law,2~ it is noted that this law is not applicable by its terms to the chapter of the Crimes Code containing the corruption offense.TM Denial of mistrial in connection with alleqed elicitation or testimony as to sexual activity between Defendant and defense witness. With respect to Defendant's contention that the Court erred in refusing to grant a mistrial when the prosecutor "elicited testimony concerning sexual acts between the Defendant and other parties," it is believed that several factors militate against a finding of error. First, an examination of the record reveals that the testimony actually elicited was that the activity in question did not occur. Second, evidence on the subject of a witness' relationship with the party calling him or her is generally relevant for purposes of impeachment. "The partiality of a witness is subject 2~ Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S.A. ~3104. 22 Id. 5 NO. 1778 CRIMINAL 1993 to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.'" Commonwealth v. Shands, 338 Pa. Super. 296, 303, 487 A.2d 973, 977 -(1985) quoting Davis v. Alaska, 415 U.S. 308, 326, 94 S. Ct. 1105, 1110 (1974) (citation omitted). "A party against whom a witness is called has the right to show that the witness has an interest, direct or collateral, to the result of the trial. That right may not be abridged because incidentally facts may be developed that are prejudicial to the other party." Commonwealth v. Shands, 338 Pa. Super. 296, 303, 487 A.2d 973, 977 (1985) (citation omitted). "[E]xposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.- David v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353-54 (1974). Third, a mistrial is a drastic measure and its utilization is generally a matter within the trial court's discretion. "As a general rule, the decision whether to declare a mistrial in a criminal prosecution rests within the sound discretion of the Trial Court and will not be reversed on appeal absent an abuse of discretion .... [A] new trial is only required when [a witness' testimony] is so prejudicial in its nature or substance or manner of delivery that it may reasonably be said to have deprived the defendant of a fair and impartial trial." Commonwealth v. Twilley, 417 Pa. Super. 511, 517, 612 A.2d 1056, 1059 (1992) (citations omitted). 6 NO. 1778 CRIMINAL 1993 Finally, a cautionary instruction will usually be sufficient to correct difficulties in evidence occurring during trial. In general, "an immediate curative instruction to the jury can alleviate the harmful effects of the improper admission of evidence." Commonwealth v. Johnson, 516 Pa. 527, 532, 533 A.2d 994, 996-97 (1987). "[T]he award of a new trial is not the only effective remedy in an otherwise fair trial." Id. at 532, 533 A.2d at 997; see Commonwealth v. Miller, 333 Pa. Super. 38, 481 A.2d 1221 (1984). In the present case, to the extent that the prosecutor exceeded proper limits of cross-examination by premising a question upon hearsay, it is believed that the Court's instruction to the jury to disregard the question sufficiently protected Defendant's rights. Insufficiency of evidence as to charqe of corruption wher~ Defendant acquitted of rape and indecent assault. With respect to Defendant's contention that the evidence was "not sufficient to support a conviction for corruption of minors when the jury acquitted ... [Defendant of] rape and indecent assault, two responses may be made. First, inconsistent verdicts are usually considered a prerogative of juries. "[C]onsistency in verdicts between the different counts of a criminal information is unnecessary." Commonwealth v. Anderson, 379 Pa. Super. 589, 593, 550 A.2d 807, 809 (1988), citing Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932). "The law requires only that there be sufficient evidence to support the convictions that 7 NO. 1778 CRIMINAL 1993 the jury has returned. Commonwealth v. Anderson, 379 Pa. Super. 589, 594, 550 A.2d 807, 809 (1988), citing Commonwealth v. Shaffer, 279 Pa. Super. 18, 420 A.2d 722 (1988) (verdict of not guilty on rape will not invalidate verdict of guilty of corruption of minor). Commonwealth v. Purcell, 403 Pa. Super. 342, 589 A.2d 217 (1991), appeal denied, 529 Pa. 657, 604 A.2d 248 (1992). Second, the verdicts were in fact not inconsistent, because consent is not an issue with respect to a corrupting charge, as it was with respect to the remaining charges herein. "In a corruption of minors prosecution ... consent is never an issue. Commonwealth v. Anderson, 379 Pa. Super. 589, 550 A.2d 807 (1988); Commonwealth v. Bricker, 397 Pa. Super. 457, 580 A.2d 388 (1990), alloc, denied, 527 Pa. 596, 589 A.2d 687 (1991); 18 Pa. C.S.A. § 6301. So long as the Commonwealth pleads and proves that an underlying act (without regard to consent) tends to corrupt the morals of a minor, a conviction for corruption will stand. Anderson, supra (acquittal for indecent assault not inconsistent with conviction for corruption of the morals of a minor)." Commonwealth v. Reed, Pa. Super. __, , 644 A.2d 1223, 1228 (1994) (per Olszewski, J., with two judges concurring in result); see Commonwealth v. Wolff, 273 Pa. Super. 27, 416 A.2d 1072 (1979), overruled on other grounds, Commonwealth v. Anderson, 379 Pa. Super. 589, 550 A.2d 807 (1988). Insufficiency of evidence as to charge of corruption where consent of victim shown. With respect to Defendant's contention 8 NO. 1778 CRIMINAL 1993 that the evidence was not sufficient to prove the crime of corruption when the act proven was voluntary sexual intercourse, it must be noted that the premise of the contention is inconsistent with the victim's testimony that the act was committed without her consent. In reviewing a challenge to the sufficiency of the evidence, a court "views the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, viewed in this light, in sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Douglass, 403 Pa. Super. 105, 115, 588 A.2d 53, 58 (1991). Assuming, arguendo, that the act of intercourse between Defendant and the victim was consensual, the Court must nevertheless refer to the authorities cited above for the proposition that the victim's consent would not preclude a finding of guilt on the part of Defendant on the charge of corrupting the morals of a minor. For the foregoing reasons, it is believed that the judgment of sentence appealed from herein by Defendant was proper. William I. Gabig, Esq. Sr. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender :rc 9