HomeMy WebLinkAbout93-0471 CriminalCOMMONWEALTH
IN THE COURT OF
CUMBER COMMON PLEAS OF
471 CR LAND CO UNTy, pENNSyLI%NIA
, CHARGE INAL 1993
INDECENT ASSAULT
AFFIANT:(5 CTS,)
TPR• FALTER HOFFMAN
673 CRIMINAL 19.
CAGE: INDECENT ASSAULT
AFFIANT: TPR.
WALTER HOFFMAN
674 CRIMINAL 1993
CHARGE: (A) INDECENT
ASSAULT
(B) CORRUPTION OF
• AFF TPR. WAL(2 CTS) MINOR
IANT: S
• 675 CRIMINAL 1993 TER HOFFMAN
RALPH PRESTON MERCHANT CHARGE: INDE CST ASSAULT
AFFIANT. TpR WALTER HOFFMAN
BEFORE OLER J.
ORDER OF COURT
AND NOW,thit4
day of November, omnibus pretrial s '� 1993, upon consideration of Defendant's
motion for relief, and of the Commonwealth's following a hearing and as follows: motion in limine,
for the reasons stated in the accompany
ORDERED and DIRECTED ing Opinion, it is
ows: Defendant's motion for a bill of
DENIED; Defenda.nt's motion for individual examinationparticulars is
of jurors on the issues of
Pretrial publicity and witness familiarity is G
motion for ad RANTED; and the Common`�,e�th's
mission of evidence of alleged prior criminal activity is DEFERRED.
BY THE COURT,
J• Wesley Oler, J '
J.
COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
471 CRIMINAL 1993
CHARGE: INDECENT ASSAULT
(5 CTS.)
AFFIANT: TPR. WALTER HOFFMAN
v.
673 CRIMINAL 1993
CHARGE: INDECENT ASSAULT
AFFIANT: TPR. WALTER HOFFMAN
674 CRIMINAL 1993
CHARGE: (A) INDECENT ASSAULT
(2 CTS.)
(B) CORRUPTION OF MINORS
(2 CTS.)
AFFIANT: TPR. WALTER HOFFMAN
675 CRIMINAL 1993
CHARGE: INDECENT ASSAULT
(2 CTS.)
RALPH PRESTON MERCHANT AFFIANT: TPR. WALTER HOFFMAN
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF
and COMMONWEALTH'S MOTION IN LIMINE
BEFORE OLER. J.
OPINION AND ORDER OF COURT
Oler, J.
For consideration in this criminal case, involving several charges of indecent
assault and corruption of minors, are an omnibus pretrial motion for relief filed by the
defendant and a motion in limine filed by the Commonwealth. A hearing on the
motions was held before the undersigned judge on Friday, October 29, 1993.
Statement of Facts
Defendant is a Cumberland County physician who is accused of having had
indecent contact with nine patients, including two minors, in the course of medical
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examinations.' The case has generated a considerable amount of pretrial publicity in
this county of the fourth class, including newspaper and television reports, continuing
to the present time.2
The charges relate to incidents allegedly occurring within the period from July
22, 1991, to December 1, 1992.3 The first of four criminal complaints was filed on or
about March 19, 1993,4 and the last around April 6, 1993.5 Informations were filed
on August 6, 1993,8 and the defendant was formally arraigned on August 10, 1993.
Trial is scheduled for the week of November 15, 1993.
Pretrial publicity has included reports on the fact that a condition of bail
imposed by a district justice in the case was that the defendant refrain from practicing
medicine' and that eventually the State Board of Medicine suspended his license.'
' Commonwealth's Exhibits 13-16, Hearing, October 29,1993 (hereinafter Commonwealth
or Defendant's Exhibit _).
2 Commonwealth's Exhibit 1; Defendant's Exhibits 1-5.
3 Commonwealth's Exhibits 2-12.
4 Commonwealth's Exhibit 15.
5 Commonwealth's Exhibit 13.
6 Commonwealth's Exhibits 2-12.
7 This condition was removed by the Court of Common Pleas.
8 Defendant's Exhibit 4.
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Typical headlines published in the case include "Police: Doctor molested students,"
"Doctor accused of fondling patients," and "Doctor is facing new court action as charges
grow."' Although not all publicity has been negative toward the defendant, some of
the publicity indicates a degree of adverse prejudgment. One letter to the editor reads,
in part:
To the Editor:
In my point of view of Dr. Merchant's case, I think he
should get 10 to 20 years on each count on the two 11 -year-
old kids.
Anyone messing around with two 11 -year-olds should
pay for it....'o
Another letter to the editor states in part as follows:
To the Editor:
I just wanted to put my 2 cents in about Dr. Merchant.
I'll tell you that I believe that he's guilty.
I don't believe that two 11 -year-olds would he about
something like this and what about the other women?
What do they have to gain by this? Nothing.
He has too much evidence toward him. I hope he gets
s Id.; Commonwealth's Exhibit 1.
io Commonwealth's Exhibit 1 (Shippensburg News -Chronicle, May 13, 1993).
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what he deserves .... 11
The informations filed in the case utilize the language of the statutes involved,
and specify either a precise date on or about which a given offense is alleged to have
occurred, 12 or, where the Commonwealth has been unable to determine a specific
date, a month13 or several -month period14 during which a given offense is alleged
to have occurred. In addition, the defendant's knowledge as to the accusations against
him has been quite thoroughly informed by preliminary hearing testimony, complaints
containing probable cause affidavits,15 copies of the police reports, statements of
witnesses, and medical records.
The Commonwealth's investigation has allegedly resulted in the discovery of a
number of incidents similar to those charged, but beyond the statute of limitations."
Specifically, it is alleged: (1) that in 1987 the defendant, while examining a
Shippensburg University student for strep throat, placed the stethoscope "all over her
11 Id.
la Commonwealth's Exhibits 3-4, 7-12.
la Commonwealth's Exhibits 5-6.
14 Commonwealth's Exhibit 2.
" Commonwealth's Exhibits 13-16.
is Commonwealth's Motion in Limine, paragraphs 20-21.
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chest" and then placed it directly on the nipple of her left breast, above the bra, and
that on her dorm floor he was known as the "Boob Doctor"; (2) that between 1987 and
the spring of 1989 the defendant placed his stethoscope around the breasts of another
female patient during examinations, and in the spring of 1989 placed the stethoscope
on her nipple, above her bra, in an examination arising out of her appearance for a
thyroid condition; (3) that the defendant, in examining a certain 13- to 15 -year-old,
touched with a squeezing motion her breasts when she appeared for minor illnesses,
touched her breast when using a stethoscope, asked how it felt when he was in contact
with her breasts, and once put his groin area against the side of her knees; (4) that the
defendant once "rubbed on" another female patient, often placed his stethoscope on her
breasts, and once rubbed his groin against her shoulder as she lay on an examining
table, smiling as he did so; (5) that about 15 years ago the defendant, while examining
a woman who complained of bronchitis, had the stethoscope all over her breast and
pushed and slid his forearm over her right breast while examining the left side of her
chest; (6) that the defendant, in examining another woman who appeared for sore
throats from time to time, would subject her breast to "a feeling type motion" in using
the stethoscope, would put his hands under her shirt, feeling her breasts, and on two
occasions pushed her on her back onto the table and slid his hand inside her
underwear, pressing on her abdomen; (7) that the defendant once had contact with
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another woman's breast when she appeared for a cold, put his hand under her
underwear as she lay on the examining table, and squeezed her breasts one at a time,
using both hands; and (8) that the defendant asked a breast reduction patient who
appeared for a driver's permit examination to see the "final product," and reduced his
fee to $5.00 as a result of being permitted to do s0.17
It is alleged by the Commonwealth that the defendant, with respect to the
charged incidents, has stated to police that any contact was within the scope of
legitimate medical care, and, "if there was any such contact, that it would have been
accidental in the course of a legitimate examination." Commonwealth's Motion in
Limine, paragraphs 22-24.
In his omnibus pretrial motion for relief, the defendant seeks a pretrial
conference, additional discovery, a bill of particulars and a change of venue or venire.
With respect to a pretrial conference and additional discovery, both requests have been
satisfied, according to counsel.18 With respect to a bill of particulars, the defendant
seeks specific dates of the alleged offenses where more general periods are provided,
and the locations and details as to all alleged offenses. With respect to venue and
venire, defendant's counsel has modified defendant's motion at the hearing to request
17 Id., Exhibits 2-9 (offers of proof).
18 Order of Court, October 29, 1993.
on
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individual examination of jurors in the course of voir dire, on issues of pretrial
publicity and familiarity with witnesses, pursuant to a "list system" of juror
challenges19 — instead of a change of venue or venire.
The Commonwealth has declined to supply a bill of particulars and opposes the
defendant's request for individual examination of jurors, or a change of venue or
venire. In its motion in limine, the Commonwealth seeks to introduce in its case -in -
chief evidence of the prior incidents of alleged misconduct on the part of defendant, to
show intent and absence of accident or mistake.
Discussion
Bill of particulars. "The purpose of [a] bill of particulars is to give notice to the
accused of the offenses charged ... so that he may prepare a defense, avoid surprise, or
intelligently raise pleas of double jeopardy and the bar of the statute of limitations."
Commonwealth v. Mervin, 230 Pa. Super. 552, 557-58, 326 A.2d 602, 605, allocatur
refused, 230 Pa. Super. xxviii (1974). Where some ambiguity may reasonably exist as
to the theory of the prosecution in regard to a charge, a bill of particulars will serve
to place a defendant on notice as to any restrictions on the Commonwealth's proof.
Commonwealth v. March, 380 Pa. Super. 64, 551 A.2d 232, allocatur denied, 524 Pa.
is Such a system is described in Pa. R. Crim. P. 1106(e)(2).
F1
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5951 568 A.2d 1246 (1989). In the case of a request for a bill of particulars, the burden
is upon the defendant to provide justification for the request. See Pa. R. Crim. P.
304(b); 1 Wasserbly, Pennsylvania Criminal Practice §17.02 (1993). An application for
relief by a defendant is addressed to the sound discretion of the court, and the court
"may make such order as it deems necessary in the interests of justice." Id.; Pa. R.
Crim. P. 304(d).
In the present case, the Court is satisfied that the defendant has received all of
the information that the Commonwealth has at its disposal with which to notify the
accused of the offenses charged, and that he is able to prepare a defense, avoid
surprise, and intelligently raise any pleas such as double jeopardy and the statute of
limitations. In addition, there is no area of reasonable confusion as to the
Commonwealth's theory of the case. For this reason, a bill of particulars is not
required, and defendant's motion will be denied.
Change of venue or venire; individual examination of jurors. "Venue or venire
should be changed by the court when it is determined after a hearing that a fair and
impartial trial cannot otherwise be had in the county where the case is currently
pending." 1 Wasserbly, Pennsylvania Criminal Practice §11.08 (1993). The burden is,
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of course, on the moving party to show the necessity of a change of venue or venire.20
In this regard, "a [moving] defendant's normal burden [is that] of demonstrating actual
juror prejudice ...." Commonwealth v. Pursell, 508 Pa. 212, 221, 495 A.2d 183, 187
(1985). However, this burden is obviated where "the pre-trial publicity is [sufficiently]
pervasive and inflammatory ...." Id. In this connection, it has been said that
[p]retrial prejudice is presumed if. (1) the publicity is
sensational, inflammatory, and slanted towards conviction
rather than factual and objective; (2) the publicity reveals
the accused's prior criminal record, if any, or if it refers to
confessions, admissions, or reenactments of the crime by the
accused; and (3) the publicity is derived from police and
prosecuting officer reports.21
"Along with the existence of prejudicial material, the court must determine
whether such information is the product of reports by the police and prosecutorial
officers, the extent of the saturation as well as the possibility of a `cooling -off,' the
nature and the size of the population of the county, the nature of the publicity, and
of the defendant's notoriety, and the alternatives to change of venue." 22 A change of
venue is within the discretion of the trial court. Commonwealth v. McCullum, 529 Pa.
117, 602 A.2d 313 (1992).
20 1 Wasserbly, Pennsylvania Criminal Practice §11.08 (1993).
21 Commonwealth v. Pursell, 508 Pa. 212, 221, 495 A.2d 183, 187 (1985).
22 1 Wasserbly, Pennsylvania Criminal Practice §11.08 (1993) (emphasis added).
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In the present case, it does not appear to the Court that the record would
support withdrawal of the normal burden from the moving party to show actual juror
prejudice in order to merit a change of venue or venire. On the other hand, the
defendant's concerns in this area are far from frivolous, and he has modified his
motion in a way which appears to provide the type of reasonable alternative which
courts are instructed to consider. For this reason, the defendant's motion, as modified
to request individual examination of jurors on the issues of pretrial publicity and
witness familiarity, in accordance with Pennsylvania Rule of Criminal Procedure
1106(e)(2), will be granted.
Prior acts of defendant: intent and absence of mistake or accident. "The modern
system of [e]vidence rests upon two axioms:... [(1) none but facts having rational
probative value are admissible ... [and (2) a]ll facts having rational probative value are
admissible, unless some specific rule forbids." 1 Wigmore, Evidence §§9-10, at 289-93
(3d ed. 1940). A fact having rational probative value is one which "reasonably tend[s]
to prove or disprove a fact in issue or a fact relevant to the issue ...." Jenkins,
Pennsylvania Trial Evidence Handbook §4.1, at 71-72 (1974). Stated concisely,
"[e]vidence which tends to establish some fact material to the case, or which tends to
make a fact at issue more or less probable, is relevant." Commonwealth v. Scott, 480
Pa. 50, 54, 389 A.2d 79, 82 (1978), appeal after remand, 496 Pa. 188, 436 A.2d 607
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(1981); see 1 Packel & Poulin, Pennsylvania Evidence §401 (1987).
"It has long been the law that evidence of prior criminal activity `is inadmissible
against a defendant being tried for another crime because the fact of the commission
of one offense is not proof of the commission of another."' Commonwealth v. Scarfo,
416 Pa. Super. 329, 384, 611 A.2d 242, 269 (1992) (citation omitted). Such evidence
"may also unfairly prejudice the party against whom it is admitted."" As the
Pennsylvania Supreme Court has observed, "[evidence of prior criminal activity is
probably only equalled by a confession in its prejudicial impact upon a jury."
Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1050 (1978). However, it
has been said that
there sometimes exist special circumstances which operate
as exceptions to the general rule and bring the case within
the equally well established principle that evidence of other
crimes is admissible when it tends to prove (1) motive; (2)
intent; (3) absence of mistake or accident; (4) a common
scheme, plan or design embracing commission of two or
more crimes so related to each other that proof of one tends
to prove the others; or (5) to establish the identity of the
person charged with the commission of the crime on trial —
-in other words, where there is such a logical connection
between the crimes that proof of one will naturally tend to
show that the accused is the person who committed the
other.
za Packel & Poulin, Pennsylvania Evidence §405, at 160 (1987).
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Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269-70 (1973). In
addition, evidence of prior crimes has been held to be potentially admissible "to
impeach the credibility of a defendant who testifies in his own trial; in situations
where defendant's prior criminal history has been used by him to threaten or
intimidate the victim; and in situations where the distinct crimes were part of a chain
or sequence of events which formed the history of the case and were part of its natural
development (sometimes called [the] `same transaction' exception)." Commonwealth
v. Scarfo, 416 Pa. Super. 329, 385, 611 A.2d 242, 269-70 (1992).
Courts must, of course, "be ever vigilant to prevent the introduction of this type
of evidence under the guise that it is being offered to serve some purpose other than
to demonstrate the defendant's propensity to commit the charged crime."
Commonwealth v. Spruill, 480 Pa. 600, 606, 391 A.2d 1048, 1050-51 (1978) (emphasis
omitted). In addition, even where evidence of prior criminal activity is relevant on an
issue such as intent or absence of accident or mistake, its prejudicial effect may
outweigh its probative value, rendering the evidence inadmissible. Packel & Poulin,
Pennsylvania Evidence §405.1 (1987).
Most recent authority recognizes that the problem is not
merely one of pigeonholing, but of classifying and then
balancing. In deciding whether the danger of unfair
prejudice and the like substantially outweighs the
incremental probative value, a variety of matters must be
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considered, including the strength of the evidence as to the
commission of the other crime, the similarities between the
crimes, the interval of time that has elapsed between the
crimes, the need for the evidence, the efficacy of alternative
proof, and the degree to which the evidence probably will
rouse the jury to overmastering hostility.
McCormick, Evidence §190, at 565 (3d ed. 1984).
The Pennsylvania Superior Court, in describing the balancing test to be applied,
has stated that there are "four factors a court should consider before it rules on the
admissibility of such evidence." Commonwealth v. Scarfo, 416 Pa. Super. 329, 385, 611
A.2d 242, 270 (1992). These factors are:
(1) The actual need for the other crimes evidence in the
light of the issues and the other evidence available to the
prosecution,
(2) the convincingness of the evidence that other crimes
were committed and that the accused was the actor, and
(3) the strength or weakness of their other crimes evidence
in supporting the issue, weighed against
(4) the degree to which the jury will probably be roused by
the evidence to over -mastering hostility.
Id. at 385, 611 A.2d at 270.
Finally, where the absence of mistake or accident exception to the general rule
is involved, the argument in favor of admissibility is "purely from the point of view of
the doctrine of chances .... [It is reasoned that] an unusual and abnormal element
might perhaps be present in one instance, but that the oftener similar instances occur
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with similar results, the less likely is the abnormal element likely to be the true
explanation of them." Commonwealth v. Donahue, 519 Pa. 532, 541-421549 A.2d 121,
126 (1988) (citation omitted).
In short, similar results do not usually occur through
abnormal causes; and the recurrence of a similar result ...
tends (increasingly with each instance) to negative accident
or inadvertence ....
Id. at 542, 549 A.2d at 126.
In the present case, it appears to the Court that the issue of admissibility of
prior allegedly indecent contacts on the part of defendant with patients may depend
upon the position taken by defendant at trial. If the defendant takes the position that
the allegedly offensive contacts did not occur, the occurrence of similar events in the
past would bear solely on his "propensity to commit the crime charged" — an
impermissible use of such evidence. If the defendant elicits evidence tending to show
that the allegedly unlawful contacts charged were intentional, or at least incidental,
aspects of proper medical examination technique, the fact that similar events had
occurred in the past would add little to the Commonwealth's case as it related to
intent and would be unnecessary to show an absence of accident or mistake. Again,
admission of the evidence would serve, primarily, "to show the defendant's propensity
to commit the charged crime."
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If, on the other hand, the defendant elicits evidence tending to show that the
contacts charged were accidents, mistakes and inadvertencies, the existence of other
such "accidents" becomes far more probative. In addition, in such a case a real
possibility exists that the exclusion of such probative evidence in an attempt to avoid
prejudice to the defendant will afford him an argument, based upon the rarity of such
accidents contained in the prosecution's case, that would be unfair to the
Commonwealth.
Being cognizant of the delicate balancing test which must be applied in this
area, and of the potential for extreme prejudice to a defendant which can result from
admission of evidence of prior alleged criminal activity, the Court believes that
disposition of the Commonwealth's motion to admit such evidence must await
developments at the trial. It does appear to the Court, however, that the incident
allegedly occurring 15 years ago is probably too remote in time to survive any
balancing test.
ORDER OF COURT
AND NOW, this �b day of November, 1993, upon consideration of Defendant's
omnibus pretrial motion for relief, and of the Commonwealth's motion in limine,
following a hearing and for the reasons stated in the accompanying Opinion, it is
ORDERED and DIRECTED as follows: Defendant's motion for a bill of particulars is
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DENIED; Defendant's motion for individual examination of jurors on the issues of
pretrial publicity and witness familiarity is GRANTED; and the Commonwealth's
motion for admission of evidence of alleged prior criminal activity is DEFERRED.
Kimberley Ann Kardelis, Esq.
Sr. Assistant District Attorney
David J. Foster, Esq.
Attorney for Defendant
:rc
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr. J.
16
Kimberley Ann Kardelis, Esq.
Sr. Assistant District Attorney
David J. Foster, Esq.
Attorney for Defendant
:rc