Com. v. Cottam

Decision Date24 November 1992
Citation616 A.2d 988,420 Pa.Super. 311
PartiesCOMMONWEALTH of Pennsylvania v. Larry COTTAM and Leona Cottam, Appellants.
CourtPennsylvania Superior Court

Albert J. Flora, Jr., Wilkes-Barre, for appellant.

Scott Gartley, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.

Before CIRILLO, POPOVICH and HOFFMAN, JJ.

HOFFMAN, Judge:

This is a consolidated appeal from judgments of sentence for third degree murder, recklessly endangering another person, and endangering the welfare of children. 1 Appellants, Larry and Leona Cottam, raise the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN PERMITTING VOIR DIRE QUESTIONS OF THE COMMONWEALTH WHICH CHALLENGED [THE] COTTAMS' RELIGIOUS BELIEF ON TITHING?

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING A COMMONWEALTH WITNESS TO TESTIFY AS TO HIS RELIGIOUS BELIEFS WHICH WERE CONTRARY TO THE BELIEFS OF THE COTTAMS?

III. WHETHER THE TRIAL COURT ERRED IN DENYING [THE] COTTAMS' MOTIONS FOR MISTRIAL WHEN THE CUMULATIVE EFFECT OF THE OPENING AND CLOSING REMARKS OF THE PROSECUTOR CHALLENGED [THE] COTTAMS' RELIGIOUS BELIEFS AND INTERJECTED PERSONAL OPINION?

IV. WHETHER THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE ABSOLUTENESS OF THE RELIGIOUS BELIEFS OF [THE] COTTAMS AND THEIR CHILDREN, WHETHER THE CHILDREN HAD THE INTELLECTUAL AND PHYSICAL MATURITY TO UNDERSTAND THE SIGNIFICANCE OF THEIR ACTIONS AND TO FORMULATE AND EXERCISE THEIR OWN PERSONAL RELIGIOUS IDENTITY AND WHETHER THE COMMONWEALTH HAS THE BURDEN TO DISPROVE A MISTAKE OF FACT?

V. WHETHER THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS OF THE DECEASED?

VI. WHETHER SUBJECTING [THE] COTTAMS TO CRUEL AND UNUSUAL PUNISHMENT DURING THE JURY SELECTION PROCESS INTERFERED WITH THAT PROCESS TO THE EXTENT THAT THEY WERE DEPRIVED OF DUE PROCESS OF LAW AND ASSISTANCE OF COUNSEL?

VII. WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THE REQUISITE MENS REA FOR EACH OF THE CRIMES?

VIII. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING SENTENCE WHEN IT QUESTIONED THE COTTAMS' RELIGIOUS BELIEFS?

Appellants' Brief at 3. For the following reasons, we affirm.

Appellants were arrested and charged with murder in the third degree, voluntary manslaughter, involuntary manslaughter, recklessly endangering another person (two counts), and endangering the welfare of children (two counts). All charges stemmed from the starvation death of their fourteen-year-old son, Eric, and the malnutrition of their twelve-year-old daughter, Laura. Following a jury trial, on September 8, 1989, appellants were convicted of murder in the third degree, recklessly endangering another person (two counts), and endangering the welfare of children (two counts). Appellants filed post-verdict motions for a new trial and/or arrest of judgment on September 13, 1989. On October 31, 1990, by leave of court, appellants filed four additional assignments of error and amendments to two original assignments of error. The trial court denied all post-verdict motions on April 24, 1991. Appellants were then sentenced to not-less-than-four-nor-more-than-ten years incarceration for murder in the third degree, a consecutive term of not-less-than-one-nor-more-than-two years incarceration on count one of reckless endangering another person, a concurrent term of not-less-than-one-nor-more-than-two years incarceration for count two of recklessly endangering another person and two consecutive terms of five years probation for each count of endangering the welfare of children. A motion to modify sentence was filed and denied. This timely appeal followed.

I.

Appellants first contend that the trial court erred in permitting the Commonwealth to ask questions during voir dire which challenged appellants' religious beliefs on tithing. 2 Specifically, appellants take issue with the following Commonwealth question:

Q. The Commonwealth is alleging that the defendants, Larry and Leona Cottam, parents of Eric and Laura Cottam, ages fourteen and twelve, failed to provide food for a period of approximately six weeks for their two children. They did this, despite the fact that the Commonwealth is alleging that they had approximately three thousand dollars at their disposal. The Commonwealth further alleges, that as a result of their actions, fourteen year old Eric Cottam died and twelve year old Laura Cottam was severely [malnourished], keeping in mind that these [are] allegations, at this time, and the Commonwealth has the burden of proving each of these allegations, is there anything about the nature of the incident that would make it difficult for you to sit as a fair and impartial juror?

Voir Dire Proceedings, August 15, 1989, at 63-64. Appellants argue that this question challenged the validity and sincerity of their religious beliefs on the concept of tithing and thus, was improper. We disagree.

Preliminarily, we note that the scope of voir dire rests in the sound discretion of the trial court and will not be reversed absent a gross abuse of discretion. Commonwealth v. Newman, 382 Pa.Super. 220, 238, 555 A.2d 151, 159 (1989); Commonwealth v. Delligatti, 371 Pa.Super. 315, 329, 538 A.2d 34, 41 (1988). Moreover, the sole purpose of voir dire is to secure a fair, competent, impartial and unprejudiced jury. Commonwealth v. Smith, 382 Pa.Super. 288, 301, 555 A.2d 185, 191 (1989); Commonwealth v. Merrick, 338 Pa.Super. 495, 500, 488 A.2d 1, 3 (1985). Accordingly,

[t]he voir dire examination [should] provide an opportunity to counsel to assess the qualifications of prospective jurors to serve. It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification. Thus the inquiry must be directed at ascertaining whether the venireperson is competent and capable of rendering a fair, impartial and unbiased verdict.

Commonwealth v. Drew, 500 Pa. 585, 588, 459 A.2d 318, 320 (1983); Commonwealth v. Smith, supra, 382 Pa.Super. at 301, 555 A.2d at 191.

In the instant case, we find that the Commonwealth question did not challenge the validity and sincerity of appellants' religious beliefs in tithing. First, the question is devoid of any mention of the process of tithing and of appellants' religious beliefs therein. Second, the question attempts to disclose any fixed opinion on the part of the prospective juror on what the appellants could have done with the money in their possession. Such probing is necessary in order to determine whether the prospective juror was predisposed to disregard any jury instruction pertaining to potential defenses and thus, to render a verdict based solely on his or her opinion. Accordingly, the trial court did not abuse its discretion in permitting the Commonwealth question.

II.

Appellants next contend that the trial court erred in permitting Commonwealth witness Gerry Page to testify as an expert on the concept of tithing. Particularly, appellants argue that the trial court permitted Page, who is a Seventh Day Adventist minister, to testify from a religious perspective as to the definition of tithing, as well as the scriptural basis for and the procedure of tithing. Appellants argue that while testifying, Page stated that tithe money was to be given to the church and that an exception to the requirement of tithing existed in cases of extreme need, such as where the money was needed to buy basic necessities. Appellants contend that these two concepts contradicted their beliefs that tithe money must be held by the individual and may not be used for any purpose. As a result, appellants argue that the jury was permitted to evaluate the sincerity and validity of appellants' religious beliefs in violation of their First Amendment rights.

In addition, appellants argue that during Page's testimony, the court reviewed and interpreted a passage of the Bible. Appellants argue that the court's doing so suggested to the jury that appellants' beliefs were unorthodox and that the trial court and the Commonwealth supported the dogma of Page's religious sect over that of appellants' beliefs. Consequently, appellants argue that the cumulative effect of Page's testimony and the court's actions served no other purpose than to isolate them in the eyes of the jury and thus, to prejudice them. 3 Appellants' claims are spurious.

The admission of expert testimony is within the sound discretion of the trial court, whose decision will not be overturned absent an abuse of that discretion. Commonwealth v. Giffin, 407 Pa.Super. 15, 27, 595 A.2d 101, 107 (1991); Commonwealth v. Emge, 381 Pa.Super. 139, 141, 553 A.2d 74, 74 (1988). Expert testimony is admissible where it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience. Giffin, supra, 407 Pa.Super. at 27, 595 A.2d at 107; Commonwealth v. Cepull, 390 Pa.Super. 167, 169-70, 568 A.2d 247, 248 (1990), allocatur denied, 525 Pa. 624, 578 A.2d 411 (1990). When evidence may be inflammatory or unduly prejudicial, the trial court must perform a balancing test in which it weighs the inflammatory nature of the evidence against its probative value. Commonwealth v. Welch, 401 Pa.Super. 393, 398, 585 A.2d 517, 520 (1991). Then, if the trial court finds that the probative value of the evidence outweighs any undue prejudice, it may in its discretion admit such evidence.

Gerry Page testified that an exception to the requirement to tithe existed in Matthew 12:2-4 of the Bible. However, before he was able to testify as to what the exception was, appellants' counsel objected. The trial court, in ruling on whether to permit Page to testify as to the passage, silently read the Bible passage and determined that it would be prejudicial to permit testimony on it. The court then sustained the objection. Accordingly, contrary to appellants' argument, the exception to tithing, that tithe money may be utilized to purchase...

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