HomeMy WebLinkAboutCP-21-CR-0002018-2011
COMMONWEALTH
v. IN THE COURT OF COMMON PLEAS
OF THE NINTH JUDICIAL DISTRICT
JAMES EDWARD GARRICK CP-21-CR-2018-2011
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925
Placey, C.P.J., 18 January 2013.
The Pennsylvania State Police charged Defendant with three counts: (1) Criminal
Attempt – Rape Forcible Compulsion, 18 Pa.C.S.A. § 901(a) to 3121(a)(1); (2) Indecent
Assault Forcible Compulsion, 18 Pa.C.S.A. § 3126(a)(2); and (3) Simple Assault, 18
Pa.C.S.A. § 2701(a)(1). The charges stem from an incident on 12 May 2011, at a home
on Petersburg Road in South Middleton Township, Cumberland County between 3:30
and 4:00 p.m. All charges were held for court following a preliminary hearing on 14 July
2011. Following formal arraignment, a pretrial conference was held in February of
2012, but the March 2012 trial date was continued until the April 2012 term, and the
Commonwealth was ordered to subpoena the victim’s medical records regarding her
treatment from an automobile accident that occurred approximately two weeks before
the alleged date of the offense. After a series of oral pretrial motions, trial began on 30
April 2012, on Counts 1 and 3, with Count 2 being dismissed prior to the start of trial.
On 1 May 2012, a jury of his peers found Defendant guilty of Counts 1 and 3, a sexually
violent predator assessment was ordered, and a sentencing date was set.
On 28 August 2012, Defendant was sentenced on Count 1 to not less than forty-
eight (48) months nor more than ninety-six (96) months in a State Correctional Facility
together with a consecutive unsupervised term of probation for one hundred and twenty
(120) months upon satisfactory completion of his parole. At Count 3, Defendant was to
serve a consecutive term of supervised probation for twenty-four (24) months upon
satisfactory completion of his parole, which was requested to be supervised by the
Board of Probation and Parole. Defendant filed a timely Post-Sentence Motion with this
court, alleging grounds for a new trial based on the verdict being against the weight of
the evidence and the verdict being based on incomplete statements of Defendant,
together with a motion to modify sentence and a motion for bail pending appeal. All of
those motions were denied by Order of Court dated 10 October 2012. Defendant
retained new counsel, who filed a notice of appeal and a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b) that incorporated trial counsel’s
grounds for a new trial as stated in the Post-Sentence Motion and further averred the
following: (1) the evidence of uncharged criminal conduct introduced at trial had no
probative value and was highly prejudicial and (2) Defendant was denied effective
counsel due to trial counsel’s failure to object to this evidence of uncharged criminal
conduct solicited at trial.
STATEMENT OF FACTS
On 12 May 2011, a veteran Pennsylvania State Police Trooper (the Trooper),
who was a seasoned member of the Carlisle Barracks Criminal Investigation Unit, was
1
dispatched to a reported rape. The Trooper went to the Petersburg Road area and
2
found Complainant in her vehicle pulled off to the side of the road in a pull-off area.
The Complainant appeared very distraught and was crying, trembling, and having
1
Notes of Testimony, 30 Apr. 2012, p. 97-8 (hereinafter N.T. __).
2
N.T. 100.
2
3
difficulty speaking with the Trooper. The location was less than a mile from
4
Defendant’s residence. The Complainant’s statement was recorded by the Trooper
5
that day in his vehicle. After taking the report from Complainant, the Trooper returned
6
to his station and interviewed Defendant the same day, which was also recorded.
The Complainant testified that she met Defendant through her employment in
7
2001. The Complainant further described herself as close friends with Defendant’s
8
wife. On 12 May 2011, Complainant was out driving and decided to stop and see
Defendant’s wife, who was supposed to have surgery in the near future and
9
Complainant was to watch her three cats. When Complainant arrived at the house,
10
she knocked on the door but received no answer. Complainant let herself into
Defendant’s home, where she saw Defendant standing in the doorway of the living
11
room. Complainant asked Defendant if his wife was home and he replied that she
was not, to which Complainant inquired further as to her whereabouts but Defendant
12
walked away into the living room. Complainant followed Defendant into the living
13
room and continued with her inquiry. In the living room, Defendant grabbed
Complainant, knocked a soda and cigarette out of her hands, and threw her on the
3
N.T. 101.
4
N.T. 100.
5
N.T. 101.
6
N.T. 103, 108.
7
N.T. 41.
8
N.T. 41.
9
N.T. 44.
10
N.T. 44-5.
11
N.T. 44-5.
12
N.T. 45.
13
N.T. 45-6.
3
14
couch, telling Complainant “that [she] owe[d] him a fuck.” Defendant threw
Complainant onto the couch, grabbed her ankles, and put her legs by her head, pulling
15
her hair as he tried to pull her pants down. The Complainant further described how
16
Defendant was attempting to remove her jeans, but was unable to pull them off. The
Complainant struggled free from Defendant and, when free, kicked him in either the
17
stomach or groin hard enough to get Defendant to back away. Once loose,
Complainant starting running out of the door and Defendant stated that if “[she] told
18
anybody he’d kill [her], if [she] called the cops.”
The Complainant got into her car, drove down the road, and called the police
19
who met her minutes later. As a result of the attack, Complainant indicated that she
suffered bruised legs and arms, a sore neck, and an injury to her head where Defendant
20
pulled her hair out. The Complainant’s statement to the Trooper concerning the
21
incident was played for the jury at the conclusion of her direct testimony. The
Trooper’s interview of Defendant was played at the conclusion of his direct testimony,
22
less the redacted portions referring to a polygraph examination.
14
N.T. 46.
15
N.T. 47.
16
N.T. 48-9.
17
N.T. 50.
18
N.T. 50.
19
N.T. 51.
20
N.T. 53.
21
N.T. 60.
22
N.T. 110; Order of Court, ¶ b, 30 Apr. 2012.
4
Immediately prior to trial, the court was confronted with oral cross motions in
23
limine. The third point of the Commonwealth’s motion requested permission to admit
evidence of a prior unreported incident in 2006 between Complainant and Defendant.
The court granted the Commonwealth’s motion in limine to permit reference to the prior
24
unreported incident. The Commonwealth had previously informed the defense of its
intention to elicit such information from Complainant, to which defense counsel did not
25
object.
On direct examination, the Commonwealth asked Complainant if anything
26
happened between her and Defendant back in 2006. The Complainant described how
she was staying at the home of Defendant and his wife after having a double hernia
27
repaired. The first evening that Complainant was staying at Defendant’s home after
leaving the hospital, Complainant testified that Defendant “came in and picked [her] up
28
and threw [her] on [her] stomach; and he raped [her].” The Complainant indicated it
was not consensual and the next day she moved out without telling Defendant’s wife
29
because she did not wish to hurt her. The defense cross examined Complainant
regarding the 2006 report by questioning why Complainant did not testify to this event at
30
the preliminary hearing held on 14 July 2011. Defense counsel challenged
Complainant’s credibility concerning the 2006 incident further by questioning why
23
N.T. 4-26.
24
Order of Court, ¶ c, 30 Apr. 2012.
25
N.T. 15.
26
N.T. 42.
27
N.T. 42.
28
N.T. 43.
29
N.T. 43.
30
N.T. 62.
5
Complainant asked Defendant to move a washer and dryer into her home, post
31
incident. The Commonwealth sought to rehabilitate Complainant’s credibility by
asking why Complainant had requested Defendant’s help with moving the appliances
alone, to which she replied that she asked Defendant’s wife if Defendant would be
willing to help her, Defendant’s wife was the only individual she knew with a truck,
Defendant’s wife was aware of where Complainant was at the time, and Complainant
32
called Defendant’s wife directly after.
DISCUSSION
Verdict against the weight of the evidence. The charge of Criminal Attempt to
Rape pursuant 18 Pa.C.S.A. § 901 to 3121(a)(1) is appropriate when a defendant does
an act, with the intent to commit the crime of rape, which constitutes a substantial step
toward the commission of a rape. Further, the charge of Simple Assault under 18
Pa.C.S.A. § 2701(a)(1) requires an attempt to cause or intentionally, knowingly, or
recklessly causing bodily injury to another. On appeal, Defendant asserts that the
verdict was against the weight of the evidence. Our Supreme Court has provided the
following standard of review when considering whether a verdict is against the weight of
the evidence:
[t]he weight of the evidence is exclusively for the finder of fact who is free to
believe all, part, or none of the evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its judgment for that of the finder
of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to
the evidence as to shock one's sense of justice. Moreover, where the trial court
has ruled on the weight claim below, an appellate court's role is not to consider
the underlying question of whether the verdict is against the weight of the
31
N.T. 74.
32
N.T. 86.
6
evidence. Rather, appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003), cert. denied, 542 U.S.
939 (2004) (citations omitted).
Redaction of statements concerning polygraph examination. Defendant’sMotion
for a New Trial is partially based upon the ruling in the cross motions in limine,
specifically the issue of redacting material from the Trooper’s recorded interview of
33
Defendant. This redaction involved the Trooper’s opinion testimony leading up to
Defendant’s offer to take a polygraph test. It is long been held under Pennsylvania law
that polygraph examinations are not fodder for a jury.
‘In the absence of a stipulation of the parties to the contrary, the results of lie
detector tests are inadmissible when offered in evidence for the purpose of
establishing the guilt or innocence of one accused of a crime, whether the
accused or the prosecution seeks its introduction. The reason most commonly
assigned for the exclusion of such evidence is the contention that the lie detector
has not as yet attained scientific acceptance as a reliable and accurate means of
ascertaining truth or deception.’ 2 Wharton's Criminal Evidence § 666. The
results of lie detector tests being inadmissible and precluded from consideration
by a jury because unwarranted inferences are likely to be drawn as to the guilt or
innocence of one accused of a crime, the mere offer or refusal to undergo such a
test is also properly excludable from the jury's consideration for the same reason.
Commonwealth v. McKinley, 123 A.2d 735, 739 (Pa. Super 1956)
[T]he Supreme Court of this Commonwealth has repeatedly held that any
reference to such examinations which raises an inference concerning either the
guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm, 443
Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31
L.Ed.2d 589 (1972); Commonwealth v. Kemp, 270 Pa.Super. 7, 410 A.2d 870
(1979). Evidence of the results of such tests remain inadmissible even in the face
of a knowing, voluntary and intelligent stipulation that they may be submitted into
evidence. Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980).
Commonwealth v. Nelson, 456 A.2d 1383, 1387-88 (Pa. Super. 1983)
33
Order of Court, ¶ b, 30 April 2012.
7
Prior crimes, wrongs, or acts. Defendant asserts on appeal that this court erred
in permitting evidence of prior uncharged criminal conduct. As a general rule, evidence
that a defendant has committed another crime wholly independent with that for which he
is on trial is inadmissible to prove guilt or propensity. Commonwealth v. Glass, 405
A.2d 1236, 1241 (Pa. 1979). This rule, however, it is subject to exceptions. Id. The
Pennsylvania Rules of Evidence, specifically Rule 404(b), provides the following:
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2)
of this rule may be admitted in a criminal case only upon a showing that the
probative value of the evidence outweighs its potential for prejudice.
(4) In criminal cases, the prosecution shall provide reasonable notice in advance
of trial or during trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at trial.
Pa.R.E. 404(b). Evidence of prior bad acts may be introduced for its probative value to
prove motive, intent, plan, design, ill will, or malice. Commonwealth v. Gwaltney, 442
A.2d 236, 241 (Pa. 1982). The relationship between a defendant and a complainant,
including prior bad acts, is an integral point of evidence in establishing the intent of a
defendant. Commonwealth v. Odum, 584 A.2d 953, 955 (Pa. Super. 1990), citing
Glass, 405 A.2d at 1241. In the same vein, past instances of physically abusive
conduct towards a complainant are admissible where an element of the offense charged
8
includes force or threat of harm. Commonwealth v. Richter, 711 A.2d 464, 466-7 (Pa.
1998).
Modification of sentence. Defendant also asserts that he is entitled to a
modification of his sentence. When an inmate is committed to the Department of
Corrections, the Department, inmate, or a person whom the court grants standing, may
petition the sentencing court to transfer inmates in need of medical treatment. 42
Pa.C.S.A. § 9777. In order to meet the requirements for this compassionate
sentencing, a defendant must establish, inter alia, that he or she is terminally ill, not
.
ambulatory, and likely to die in the near future. Id at 9777(2)(i).
Application of law to facts. In finding Defendant guilty of Criminal Attempt to
Rape and Simple Assault, the verdict of the jury does not shock the conscience of the
court and is supported by the evidence presented at trial. The jury was free to accept or
reject that evidence which it found most worthy of credibility and belief. As described to
the jury, the actions of Defendant indicate that Defendant knew what he was doing
when he grabbed Complainant and attempted to remove her jeans, and Complainant
understood Defendant’s then present intent due to his actions during the 2006 incident.
The defense strategy to attack Complainant’s credibility, although sound, failed against
the weight of timely reporting by a woman who fought off her attacker and was seen as
demonstrably shaken when the police arrived. Defense counsel’s argument that it is
incredulous that a woman who had been previously raped would voluntarily allow
herself to be alone again with her rapist was rejected by the jury. The jury further
rejected defense counsel’s position that Complainant entered Defendant’s house
9
without authorization. Finally, the jury rejected the attacks on Complainant’s credibility
based on claims of habitual drug use, hallucinations, or other altered perceptions.
The exclusion of Defendant’s offer to take a polygraph, together with the
precatory language leading up to that offer, was clearly warranted under Pennsylvania
law. The pretrial decision to redact the polygraph statement prevented the need for a
cautionary or corrective instruction to the jury. When being accused of lying or simply
not telling the whole truth, Pennsylvania courts have made it clear that any reference to
the accused offering to take a polygraph or lie detector test is clearly inadmissible, as it
can be interpreted as an expression of guilt or innocence. Commonwealth v.Nelson,
456 A.2d 1383, 1387-8 (Pa. Super. 1983).
The permitted use of the unreported 2006 incident as evidence in the
Commonwealth’s case-in-chief was done with pretrial notice to defense and only for the
limited purpose of proving Defendant’s intent and past relationship with Complainant.
The probative value of allowing testimony concerning the 2006 incident outweighed the
potential for prejudice. The allowance of this testimony clearly displayed that, as a
result of Complainant’s prior experience with Defendant, she was aware of the
consequences of failing to extricate herself from the situation. A sufficient nexus exists
between Complainant being restrained and raped in 2006 and the 2011 attack that
enabled Complainant to infer Defendant’s clear intent. The 2006 event established a
past instance of physical abuse by Defendant against Complainant and was admissible
as an exception to the general rule, as the offenses charged included the element of
force or threat of harm. It is noted that defense counsel’s trial strategy was partially
dependent on the 2006 incident, as the defense planned to utilize Complainant’s 2006
10
unreported rape to challenge her character and make the 2006 unreported rape seem
incredulous. Pa.R.E. No. 404(a)(2).
Finally, Defense counsel’s Motion to Modify Sentence is simply premature. The
sentence is squarely in the middle of the standard range pursuant to the Pennsylvania
Sentencing Guidelines. The main thrust of this motion is that Defendant’s health is at
risk by this standard range sentence. If that is true, the law provides for compassionate
release for inmates in need of medical treatment pursuant to 42 Pa.C.S.A. § 9777. The
defense seems to urge the court to reduce Defendant’s sentence in advance of
Defendant being deemed terminally ill, which is not mandated or permitted under the
sentencing guidelines.
CONCLUSION
In summary, Defendant was convicted by a jury of his peers after a fair and full
opportunity to challenge the witnesses against him. The mere fact that the jury chose to
believe the Commonwealth’s witnesses over the defense does not shock one’s sense of
justice and is not cause to warrant a new trial. Furthermore, both the redaction of the
polygraph statement and the use of prior bad acts are consistent with the Pennsylvania
Rules of Evidence and supporting case law as it currently exists. The courts imposition
of a standard range sentence is not grounds to modify sentence for health reasons,
especially when compassionate sentencing laws are available in the event that it
becomes appropriate.
BY THE COURT,
____________________________
Thomas A. Placey C.P.J.
11