HomeMy WebLinkAbout2001-0922 CRIMINALCOMMONWEALTH
V.
JOHN JAY GEPHART
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001-0922 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA R.A.P. 1925
Guido, J., February
,2002
The defendant, age forty (40), was charged with numerous sex related offenses
arising from a sexual encounter with a fifteen (15) year old female. ~ A jury found him
guilty of statutory sexual assault2, age related involuntary deviate sexual intercourse3, age
related indecent assault,4 and corruption of minors.5 He was acquitted of
rape,6involuntary deviate sexual intercourse by forcible compulsion7, and forcible
indecent assault.8
On October 9, 2001, we sentenced the defendant to undergo a 5 lA to 11 year term
of imprisonment on the charge of involuntary deviate sexual intercourse.9 We imposed a
concurrent sentence of 1 to 2 years imprisonment on the count of indecent assault and a
~ In his statement to the police, the defendant admitted to sexual activity with the girl. However, he
contended that it was consensual.
: 18 Pa. C.S.A. § 3122.1.
3 18 Pa. C.S.A. § 3123(a)(7).
4 18 Pa. C.S.A. § 3126(a)(8).
s 18 Pa. C.S.A. § 6301(a)(1).
6 18Pa. C.S.A. § 3121(a).
7 18Pa. C.S.A. § 3123(a)(1).
8 18 Pa. C.S.A. § 3126(a)(2).
9 The charge carried a mandatory five year minimum sentence. However, because of the defendant's prior
record, the guidelines called for a minimum sentence of 66 to 84 months in the standard range. (See
Sentencing Report).
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consecutive 10 year probationary sentence on the statutory sexual assault charge, l0
Additionally, we ordered the defendant to undergo an assessment by the State Board to
Assess Sexually Violent Predators (hereinafter "Board") and to comply with the
registration and DNA requirements of Megan's Law. ~ The defendant filed a motion to
modify sentence which we denied on October 22, 2001. This timely appeal followed.
In his statement of matters complained of on appeal, defendant raises the
following issues.
(1 .) We erred in failing to grant his recusal motion.
(2.) We erred in denying his request to admit into evidence the victim's prior
sexual conduct.
(3.) We erred in failing to charge the jury on the "false in one, false in all"
instruction requested by his trial counsel. ~2
(4.) We erred in denying his motion to modify his sentence.
(5.) Our sentence did not comply with 42 Pa. C.S.A. § 9795.
(6.) We erred in ordering him to undergo an assessment by the Board.
(7.) Trial counsel was ineffective for various reasons.
(8.) Megan's Law is unconstitutional.
We will address these issues in the opinion that follows.
Failure to Grant Defendant's Motion for Recusal.
Immediately prior to the commencement of trial, defendant's counsel requested
No sentence was imposed on the corruption of minor's charge, which merged with the other charges.
42 Pa. C.S.A. § 9791 et seq.
Defendant has obtained alternate counsel to represent him on appeal.
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that we recuse ourselves. The basis for the motion was our prior involvement in a
juvenile dependency proceeding dealing with the defendant's children. ~3 Defendant's
counsel articulated the grounds for recusal in the following exchange.
THE COURT: If you want to articulate the reasons you think this Court
should recuse itself.
MS. WALLER: The main reason, as outlined in our motion, is because
the Court is the judge in the Children and Youth Services matter that
involves both Mr. Gephart and Ms. Schmidt and the two minor children
they have together... And part of the information ! am concerned about is
the record or paperwork that was entered in as an exhibit stating the reason
for Mr. Gephart's parental rights being terminated with reference to his
two older children by his previous marriage .... involving abuse
allegations on one of the children and potentially the other child being at
risk - -
THE COURT: As ! recall there were sexual abuse allegations.
MS. WALLER: Sexual and physical, ! think the testimony says.
THE COURT: Okay. ! don't recall that. And ! agree that that would not
be admissible in this particular case.
MS. WALLER: Right.
THE COURT: And if! were the finder of fact, certainly ! would recuse
myself.
MS. WALLER: The other reason ! put in the motion was, although !
agree the Court isn't the finder of fact, the jury is, and that does remove
some of the issue or the problem.
The other thing is the Court does make legal rulings in the case,
and that may or may not taint the Court's position on legal rulings in terms
of ruling against Mr. Gephart's etcetera. That was the other concern.
THE COURT: I can assure you that it will not. I can assure you that I
will make the legal rulings based upon the law, and not based upon
something that went on in a prior hearing on matters that aren't even
related to this case.
See defendant's "Motion for Recusal."
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And as I recall from the prior case, there was no evidence that
came in with regard to this case, other than the fact that these people were
charged.
MS. WALLER: Right. ! believe that is the case. Nothing regarding the
charges. That wasn't the issue that we were concerned about. The facts
that came up regarding the Florida charges, because this case does involve
sexual conduct with a - -
THE COURT: And I understand that and if your concern is - - if your
concern is that ! would slant my rulings because of what ! know about the
defendant, ! can assure you that that would not happen.
! will make the rulings based upon the law as ! see it, and if! make
a mistake in that regard, certainly counsel as qualified as you will point
that out to the Superior Court, if it gets that far.
MS. WALLER: The third thing mentioned in the motion is in the event
that Mr. Gephart is convicted of any offense, it would be this Court that
would deal with sentencing.
Our other concern is the knowledge that came out in the Children
and Youth Services hearing would not necessarily make itself known in
the sentencing report, and the Court would have that knowledge, that
would be outside of the scope of this case, and that could effect the type of
sentencing on any charge or charges that Mr. Gephart would receive.
THE COURT: And again, ! can assure you that ! will base my sentence
only upon those things that the law allows me to consider, and so if those
are the reasons for your motion for recusal - -
MS. WALLER: Those are the reasons.
THE COURT: - - it will be denied.TM
Canon 3 of the Code of Judicial Conduct "prescribes standards by which judges
should exercise their discretion in ruling upon questions of recusal." Commonwealth v.
Williams, 557 Pa. 207, 732 A.2d 1167, 1174 (1999). Canon 3(C) provides in relevant
part as follows:
See Transcript of Pre-Trial Motions, p. 3 - 6.
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C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned, including but not limited
to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the
proceeding;
IN the instant case, there was no allegation of personal bias or prejudice. Nor was
the motion based upon our "personal knowledge of disputed evidentiary facts" involved
in the proceeding before us. Rather, it was based upon unrelated evidence heard in an
unrelated proceeding. The defendant was concerned that our knowledge of an allegation
of prior sexual misconduct admitted into evidence at the dependency hearing would
influence our decisions in this matter. We were satisfied that it would not and that we
could impartially preside over this case. Therefore, we denied the motion for recusal.
Victim's Prior Sexual Conduct.
Defendant filed a motion to admit evidence of the victim's prior sexual conduct.
The motion was decided in accordance with by Section 3104 of the Crimes Code which
provides:
{}3104. Evidence of Victim's Sexual Conduct.
(a) General rule. -Evidence of specific instances of the alleged victim's
past sexual conduct, opinion evidence of the alleged victim's past
sexual conduct, and reputation evidence of the alleged victim's past
sexual conduct shall not be admissible in prosecutions under this
chapter except evidence of the alleged victim's past sexual conduct
with the defendant where consent of the alleged victim is at issue and
such evidence is otherwise admissible pursuant to the rules of
evidence.
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(b)
Evidentiary proceedings. - A defendant who proposes to offer
evidence of the alleged victim's past sexual conduct pursuant to
subsection (a) shall file a written motion and offer of proof at the time
of trial. If, at the time of trial, the court determines that the motion and
offer of proof are sufficient on their faces, the court shall order an in
camera hearing and shall make findings on the record as to the
relevance and admissibility of the proposed evidence pursuant to the
standards set forth in subsection (a). 15
We conducted an evidentiary hearing on the motion immediately prior to trial. None of
the prior sexual conduct was alleged to have occurred with the defendant. Therefore, we
applied the terms of the statute and denied the motion. ~6
Failure to Change the Jury on False in One, False in All.
Appellate counsel alleges that we erred in failing to give defense counsel's
requested point for charge #9 which provides:
The requested
If you decide that a witness deliberately testified falsely about a material
point (that is, about a matter which could affect the outcome of this trial),
you may, for that reason alone, choose to disbelieve the rest of his
testimony. But you are not required to do so. You should consider not
only the deliberate falsehood, but also all other factors bearing on the
witness's credibility in deciding whether to believe other parts of his
testimony. Pa. SSCJ! § 4.15.
instruction was, in fact, given to the jury as part of our charge.
~5 18Pa. C.S.A. § 3104.
16 Even if we erred in denying defendant's motion, we cannot conceive of the harm. The jury acquitted him
of all charges involving forcible compulsion. He was convicted only of those charges involving consensual
sex with a minor, which he freely admitted to in his written statement to the police. Furthermore, all of the
evidence he proposed to admit came into evidence when the prosecuting officer read his written statement
to the jury. See Trial Transcript, pp. 137 - 140.
~7 See Transcript of Proceeding, "Jury Charge, Questions and Verdict", p. 11.
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Failure to Grant Motion to Reduce Sentence.
Defendant's trial counsel filed a timely motion to modify sentence. It contained
documents to back up the arguments made by counsel at the time of sentence, i.e. that the
defendant was sorry for his offenses and that he was involved in various counseling
We articulated the reasons for our sentence on the record as
programs at the prison.
follows:
! have imposed standard range sentences, and frankly ! see no
reason to deviate on the mitigated side of the sentencing guidelines.
Because of your prior record, the standard range is actually higher than the
mandatory minimum. In view of the seriousness of this offense, the
danger that you pose to the youngsters in this community, ! could not
justify a deviation on the low side, and that's why ! have imposed a
~8
standard range sentence.
After a thorough review of the Motion to Reduce Sentence, and the attachments thereto,
we could still find no reason to deviate on the mitigated side of the sentencing guidelines.
Therefore, we denied his motion.
Non Compliance With 42 Pa. C.S.A. § 9795.
Defendant alleges that our sentence did not comply with 42 Pa. C.S.A. {} 9795.
However, he does not specify the particular portion with which we did not comply. We
note that Section 9795 was repealed and replaced with 42 Pa. C.S.A. {} 9795.1 et seq.
which covers a lot of ground. We are not sure exactly which provisions he alleges we did
not comply with and we would rather not speculate. ~9
~8 See Sentence Colloquy, p. 8.
19 However, we do note that we erroneously failed to inform the defendant on the record of the registration
requirements as required by 42 Pa. C.S.A. § 9795.3.
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Assessment by the State Board to Assess Sexually Violent Predators.
Defendant alleges that we erred in ordering him to undergo an assessment by the
Board. However, since he was convicted of involuntary deviate sexual intercourse,2° we
were required by law to order the assessment.2~
Other Issues Raised on Appeal.
The remaining issues raised by defendant on appeal include various allegations of
ineffective assistance of counsel and constitutional challenges to the validity of Megan's
Law. None of those issues were raised before us. Therefore, it is neither necessary nor
appropriate for us to address them in this opinion.
DATE:
Edward E. Guido, J.
2o 18Pa. C.S.A. § 3123(a).
21 See 42 Pa. C.S.A. § 9795.4(a).
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