Com. v. Davis

• Decision Date: 23 November 1994
• Citation: 650 A.2d 452,437 Pa.Super. 471
• Parties: COMMONWEALTH of Pennsylvania v. George DAVIS, Appellant.
• Court: Pennsylvania Superior Court

Page 452

650 A.2d 452

437 Pa.Super. 471

COMMONWEALTH of Pennsylvania v. George DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted March 30, 1994.

Filed Nov. 23, 1994.

Louis B. Priluker, Langhorne, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia for Com., appellee.

Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.

WIEAND, Judge:

George Davis was tried non-jury and was found guilty of involuntary deviate sexual intercourse, corruption of a minor and endangering the welfare of a child. Post-trial motions were denied, and Davis was sentenced for involuntary deviate sexual intercourse to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years, to be followed consecutively by a five (5) year period of probation imposed for corruption of a minor. ¹ On direct appeal from the judgment of sentence, Davis contends that (1) there was insufficient evidence to sustain his convictions; (2) the trial court abused its discretion by improperly limiting cross-examination of the victim's mother; and (3) defense counsel was constitutionally ineffective. Davis's principal argument, however, is that the trial court erred by refusing to permit the defense to review and introduce into evidence therapy session records made by the victim's family counselor.

In challenging the sufficiency of the evidence to sustain his convictions, appellant argues that absent various abuses of discretion by the trial court in its evidentiary rulings, the Commonwealth's remaining evidence would have been rendered so clearly inadequate that no reasonable trier of fact would have convicted him. Specifically, appellant argues that if his counsel had been permitted to examine and introduce into evidence the records of the victim's family counseling therapy sessions, the victim's testimony "would have been rendered so contradictory and biased as to render it meaningless."

In Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989), the Supreme Court observed:

The test to be applied is whether, viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

....

In assessing the sufficiency of the evidence to establish that a [crime] was committed and that the person or persons charged were those responsible, we are called upon to consider all of the testimony that was presented to the [trier of fact] during the trial, without consideration as to the admissibility of that evidence. The question of sufficiency is not assessed upon a diminished record. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert. denied,449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978); Commonwealth v. Baker 466 Pa. 479, 353 A.2d 454 (1976). Where improperly admitted evidence has been allowed to be considered by the [fact finder], its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Poteet, 434 Pa. 230, 253 A.2d 246 (1969); Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969); Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967).

Id. at 581-582, 568 A.2d at 602-603. See also: Commonwealth v. Lewis, 424 Pa.Super. 531, 539, 623 A.2d 355, 359 (1993); Commonwealth v. DiSabatino, 399 Pa.Super. 1, 4, 581 A.2d 645, 646 (1990).

It logically follows that the sufficiency of the evidence to sustain a criminal conviction also should not be assessed upon an enhanced record, as appellant has requested. Thus, where a trial court has erroneously excluded evidence proffered by the defense, such evidence may not be added to the record on appeal. Rather, review of the sufficiency of the evidence is limited to the evidence which was admitted at trial, and upon which the fact finder's verdict was actually based. The remedy for the erroneous exclusion of relevant defense evidence, as it is for the improper admission of evidence, is the award of a new trial.

Viewing the evidence in the light most favorable to the Commonwealth, the following facts may be discerned from the record in this case. Appellant married the victim's mother, Barbara Davis, in 1981. Thereafter, he, his wife and the victim, P.P., resided in a one bedroom apartment located at 1147 South 47th Street, Philadelphia. According to the victim, who was fourteen years of age at the time of trial, appellant had begun sexually abusing him when he was six years old. The sexual assaults would occur on alternate Fridays, when appellant received his pay. On these occasions, appellant would go out drinking after work and usually would return home after midnight. When appellant did return home, he would be drunk, and the victim's mother would be asleep in the bedroom. Appellant then would approach the victim, who slept on the living room sofa, and instruct him to perform oral sex. Thereafter, according to the victim, appellant "would put his dick up my butt." These assaults ceased in July, 1986, when the family moved into a two bedroom house located at 1225 South Peach Street in Philadelphia. In May, 1989, appellant and his wife separated, and thereafter the victim disclosed the abuse. He did so for the first time in 1991 during a family therapy counseling session at the Family Institute of Philadelphia.

After careful review, we are satisfied that the testimony of the victim was sufficient to permit the trier of fact to conclude beyond a reasonable doubt that appellant had committed the offenses of involuntary deviate sexual intercourse, ² corruption of a minor ³ and endangering the welfare of a child. ⁴ The law in this Commonwealth is clear that the uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is sufficient to convict a defendant, despite contrary evidence from defense witnesses. See: Commonwealth v. Poindexter, 435 Pa.Super. 509, 516-17, 646 A.2d 1211, 1214 (1994); Commonwealth v. Kunkle, 424 Pa.Super. 499, 503, 623 A.2d 336, 338 (1993); Commonwealth v. Trimble, 419 Pa.Super. 108, 113, 615 A.2d 48, 50 (1992); Commonwealth v. Ziegler, 379 Pa.Super. 515, 519-520, 550 A.2d 567, 569 (1988); Commonwealth v. Stoner, 284 Pa.Super. 364, 369, 425 A.2d 1145, 1148 (1981). Instantly, the trial court found the victim's testimony to be credible; and our review of the record discloses that such testimony, if believed, was sufficient to establish each element of the offenses charged beyond a reasonable doubt. Appellant's challenge to the sufficiency of the evidence, therefore, must be rejected.

At trial, the victim's mother and appellant's wife, Barbara Davis, corroborated in some respects testimony which had been given by the victim. On cross-examination of this witness, the following occurred:

Q. Now, during the time that you lived in the apartment there were periods of separation; right?

A. Yes.

....

Q. Okay. So you recall that the separation in 1984 was a brief separation?

A. Yes.

Q. And likewise with the one in 1985?

A. No, I don't remember being separated in '85. I remember being separated briefly when I moved into the house July 17th, 1986. He joined me, we were separated for about three months while I was pregnant in 1986. Now, you wouldn't forget something like that, a man leaves you while you're pregnant.

Q. And he came back in 1986; right?

A. Yes. When I moved in the house in June, he moved in with me.

Q. Okay. And that was after having been away for a while?

A. Couple months.

Q. And you remember that specifically; right?

A. Yes.

Q. Because it was hard on you him being away while you were pregnant; right?

A. I never thought that I would be a woman--I thought that when I got married I would never have my daughter alone. I had my son alone.

Q. In fact, when he came back, you again joined together, you had your marriage intact again; isn't that right?

A. We were back together.

Q. Okay. And at that time isn't it true that you contracted venereal disease?

MR. WAGNER: Objection, Your Honor. Relevance.

THE COURT: Sustained.

You don't have to answer.

MR. WAGNER: I ask that the question be stricken.

MS. WEIZENBAUM: Your Honor, if I may.

THE COURT: Don't argue with me please. When I make a ruling it's firm, do you understand me? You are going to enlighten me on the law? Move on with your next question.

MS. WEIZENBAUM: Your Honor, I--

THE COURT: Move on with your next question, ma'am.

(emphasis added).

Appellant contends that the trial court abused its discretion by refusing to permit his counsel to cross-examine Barbara Davis regarding her contraction of a venereal disease as a result of engaging in marital relations with appellant. Such questioning, appellant suggests, would have tended to refute the victim's allegations of sexual abuse by appellant. This is so, appellant argues, because the victim would probably have been infected also with a venereal disease if, as alleged, appellant had engaged in acts of anal intercourse with him. The absence of such infection, therefore, would tend to rebut the averments of anal intercourse.

It is well settled that " '[t]he scope and limits of cross-examination are largely within the discretion of the trial court and its actions...