Com. v. Burns

• Decision Date: 31 December 2009
• Docket Number: No. 2127 Eastern District Appeal 2007,2127 Eastern District Appeal 2007
• Citation: 2009 PA Super 260,988 A.2d 684
• Parties: COMMONWEALTH of Pennsylvania v. Gerry BURNS, Appellant.
• Court: Pennsylvania Superior Court

988 A.2d 684

2009 PA Super 260

COMMONWEALTH of Pennsylvania v. Gerry BURNS, Appellant.

No. 2127 Eastern District Appeal 2007

Superior Court of Pennsylvania.

Submitted September 24, 2009.

Filed December 31, 2009.

Gary S. Server, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN, and ALLEN, JJ.

OPINION BY FORD ELLIOTT, P.J.:

¶ 1 Gerry Burns appeals from the judgment of sentence of March 29, 2007, following his convictions of involuntary deviate sexual intercourse ("IDSI"), sexual assault, aggravated indecent assault, and indecent assault. A divided panel of this court filed a memorandum opinion on December 19, 2008, which reversed the judgment of sentence and remanded the case for a new trial upon finding that the trial court should have allowed appellant to pierce the Rape Shield Law¹ and cross-examine the victim regarding whether she had engaged in sexual activity with another man earlier on the day in question. On February 26, 2009, we granted the Commonwealth's application for reargument en banc and withdrew the panel memorandum opinion. After careful review, we now affirm the judgment of sentence.

OVERVIEW

¶ 2 The victim in this case claimed that she was sleeping and awoke to find appellant performing oral sex on her. Appellant claimed that this was a case of misidentification. DNA testing performed on a pair of shorts the victim was wearing, and offered into evidence, excluded appellant as a contributor of any biological material found. However, in one area tested, the expert identified DNA belonging to neither the victim nor appellant. Thus, appellant wanted to make the argument that the unidentified DNA belonged to the attacker by asking the victim if she recently had consensual sex which might explain the third person's DNA. In other words, appellant claimed if she had not recently had sex with a third person, that would mean the DNA was left by the attacker. Appellant argues that it is unlikely that the victim had recently had sex as she had been in the hospital a week before the incident.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 Evidence from appellant's trial provided the following factual history. In June of 2005, 19-year-old T.B. ("the victim"), along with her mother and sisters, were living in a house located on 51st Street in Philadelphia. The family had been renting the house from Steven Burns, Sr., appellant's brother, for approximately two to three years. (Notes of testimony, 12/19/06 at 48.) The victim testified that she was familiar with appellant as he was the landlord's brother and occasionally came to the property. (Id. at 49.)

¶ 4 On June 26, 2005, at approximately 6:00 a.m., the victim was sleeping on the sofa in her bedroom; she had recently returned home from a hospital stay and was recuperating. The victim woke upon feeling a "poke" in her vagina. (Id. at 53-54.) When asked to be more specific, she described the sensation as "slight penetration." (Id. at 54.) The victim also stated that she felt "a moisture." (Id. at 69.) Having been asleep on her back, she lifted her head to see the top of appellant's head between her legs. (Id. at 54-55.) The victim exclaimed, "oh, my God," and told appellant to "get away." (Id. at 54.) Appellant started to push himself up and told her he was sorry. (Id. at 56-57.) The victim observed appellant's belt was unbuckled but she did not see his penis. (Id. at 56.) Appellant told the victim that he had been going through a lot and had a long night, and he left her bedroom. (Id. at 57.)

¶ 5 The victim, who was wearing a long pajama shirt without underwear beneath it, got up and pulled on some shorts that were in her "clean clothes" hamper. (Id. at 58-59, 103-104.) She ran to a neighbor's house where her mother was babysitting. (Id. at 60.) She told her mother that "Gerry tried to rape me." (Id. at 60, 61.) The police were immediately called. The victim later gave a statement at the special victim's unit. Upon returning home, she put the shorts in the dirty laundry hamper. (Id. at 70-71, 92-93.) Approximately a day later, the police came and took the shorts for analysis. (Id.)

¶ 6 Appellant's 15-year-old nephew, Steven Burns ("Burns"), was present in the home at the time of the assault and testified for the Commonwealth. (Id. at 135.) Burns explained that on the date in question, he was awakened upon hearing the victim say "get away from me." (Id. at 136-137.) "I walked out my door and I ran to the banister because I seen [sic] [appellant] running downstairs." (Id. at 137.) Burns then saw appellant run toward the back door of the house and, shortly thereafter, watched the victim leave through the front door. (Id. at 138-139.) Burns testified that he also recognized appellant on the day in question due to his cane and his limp. (Id. at 151-152.)

¶ 7 Officer Paul Rann testified that he arrived at the scene and searched the house but was unable to locate appellant. He returned later that day with Officer Brian Scalio and was advised by Burns that appellant was in the basement. As the lights in the basement were not working, Officer Rann used a flashlight to go into the basement. The officers repeatedly announced their presence, that they knew appellant was hiding in the basement, and that he should "come out." (Notes of testimony, 12/20/06 at 30-36.) Eventually, the officers found appellant hiding behind a large pipe, and they took him into custody. (Id. at 32-33, 35.)

¶ 8 Laurie Wisniewski, a forensic scientist, testified regarding the DNA identification laboratory report performed on the shorts the victim put on after the attack. Four areas on the shorts, labeled A, B, C, and D, were tested. (Id. at 47.) Wisniewski testified that amylase, an enzyme present in saliva, serum, urine, sweat, tears, and semen, was detected in all four areas. (Id.) However, the DNA test did not identify appellant's DNA on any of the four areas. (Id. at 62-63.) DNA from the victim and at least one other unidentified person was found on the shorts. (Id.) Wisniewski also testified to various reasons why appellant's DNA might not have been detected on the shorts.

¶ 9 Appellant's brother, Robert Burns, testified on behalf of the defense. Robert Burns stated that he served eviction papers on the victim's mother. (Id. at 10.) It was explained that although the deed to the house was still recorded in the names of appellant's parents, both parents had died and there was a dispute among the siblings as to who owned the property. (Id. at 809; notes of testimony, 12/19/06 at 48-52, 67, 100.) The defense presented testimony indicating that the victim's accusations were in retaliation against appellant and his family for having evicted the victim's family from the home.

¶ 10 A jury trial commenced in December of 2006 before the Honorable Lillian H. Ransom. Prior to trial, appellant made an oral motion seeking permission to cross-examine the victim about her past sexual conduct in order to support appellant's defense of mistaken identity. The trial court denied the motion but permitted appellant to argue that someone other than appellant was responsible for the DNA found.

¶ 11 On December 21, 2006, appellant was convicted of involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, and indecent assault.² On March 29, 2007, Judge Ransom sentenced appellant to 80 to 160 months on the charge of involuntary deviate sexual intercourse and two years of probation on each of the other charges. Appellant filed timely post-sentence motions which were denied by operation of law on August 3, 2007.

¶ 12 On August 14, 2007, a timely notice of appeal was filed; and in compliance with an order to do so, appellant timely submitted a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court responded with a Rule 1925(a) opinion. On appeal, appellant claims that the trial court abused its discretion by precluding him from piercing the Rape Shield Law and denying his post-verdict motion challenging the weight of the evidence. He further contends that the evidence was insufficient to sustain his convictions for involuntary deviate sexual intercourse and aggravated indecent assault.

WHETHER THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO PIERCE THE RAPE SHIELD LAW

¶ 13 Turning to the first issue, in presenting his defense of mistaken identity, appellant sought to argue that the attacker was the source of the unidentified DNA found on the shorts. In support thereof, appellant sought to question the victim about her prior sexual conduct as a means to possibly exclude any consensual sexual partner that would have accounted for the "extra" DNA that was neither appellant's nor the victim's.³ Appellant contends that by precluding such cross-examination of the victim, the trial court misapplied the rape shield statute. We are not persuaded.

¶ 14 Our standard of review of a trial court's ruling on the admissibility of evidence is limited.

A trial court's ruling on the admissibility of evidence of the sexual history of a sexual abuse complainant will be reversed only where there has been a clear abuse of discretion. `An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.'

Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa.Super.1998), appeal denied, 559 Pa. 662, 739 A.2d 163 (1999) (citations omitted), quoting Commonwealth v. Spiewak, 533 Pa. 1, 7, 617 A.2d 696, 699 (1992).

¶ 15 Appellant claims he should have been permitted to question the victim about her "sexual encounter or encounters close in time to the act complained of." (Appellant's...