Com. v. Dunkle

• Decision Date: 13 June 1989
• Parties: COMMONWEALTH of Pennsylvania v. Neil Franklin DUNKLE, Jr., Appellant. 15 HSBG. 1988
• Court: Pennsylvania Superior Court

Page 5

561 A.2d 5

385 Pa.Super. 317

COMMONWEALTH of Pennsylvania v. Neil Franklin DUNKLE, Jr., Appellant.

15 HSBG. 1988

Superior Court of Pennsylvania.

Argued Oct. 6, 1988.

Filed June 13, 1989.

Ronald C. Travis, Williamsport, for appellant.

Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com.

Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.

OLSZEWSKI, Judge:

This is a direct appeal from the judgment of sentence following appellant's conviction for indecent assault, corruption of minors, and criminal attempt to commit involuntary deviate sexual intercourse. For the reasons stated below, we remand for a new trial.

In April of 1986, appellant was charged with rape, indecent assault, corruption of minors, and criminal attempt to commit involuntary deviate sexual intercourse. A jury trial commenced on March 23, 1987, and concluded on March 27, 1987. Appellant was found guilty of all of the charges except rape. Post-trial motions were filed and denied. Thereafter, appellant was sentenced to not less than two years and not more than four years on the criminal attempt to commit involuntary deviate sexual intercourse charge, with a concurrent sentence of not less than eighteen months and not more than three years on the corruption of minors charge. Sentence was reduced to judgment, and appellant filed a timely notice of appeal to the Superior Court on December 30, 1987.

The charges leveled against appellant arose out of an investigation by the state police following a report by appellant's stepdaughter that in April of 1983, appellant entered the bathroom while the victim was taking a shower and, after forcing her to the floor, sexually assaulted her, forced her to engage in oral intercourse, and raped her.

On appeal to this Court, appellant raises the following seven issues: (1) whether evidence of defendant's prior misconduct was admissible at trial; (2) whether expert testimony on child abuse characteristics was admissible at trial; (3) whether non-disclosure in discovery of a calendar/diary by the Commonwealth precluded its use at trial; ¹ (4) whether defense counsel was entitled to review psychiatric records of the victim; (5) whether questioning on re-direct which exceeded scope of cross-examination was permissible; (6) whether defense counsel should have been permitted to introduce evidence of a similar incident involving the victim; and (7) whether evidence that victim bled during subsequent act of sexual intercourse was admissible. ²

Appellant's first allegation of error concerns the admission at trial of evidence concerning appellant's prior sexual misconduct towards the victim. Specifically, appellant contends that the trial court erred in permitting testimony that prior to the assault on the victim, the appellant engaged in voyeurism while the victim took showers and on one prior occasion had attempted to fondle her breasts while the victim pretended to be asleep. ³

Evidence of other criminal conduct of an accused is generally inadmissible at trial except in certain limited circumstances. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied, Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978). One such limited circumstance is a prosecution for incest. Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895). The Bell Court held that evidence of a prior illicit relationship between the parties is admissible if "it is one of a series of acts indicating continuousness of sexual intercourse." 166 Pa. at 412, 31 A. at 123 (emphasis added). Bell set a precedent to which our Court has steadfastly adhered. See e.g., Commonwealth v. McClucas, 357 Pa.Super. 449, 516 A.2d 68 (1986) (trial court did not err in admitting evidence of defendant's sexual abuse of daughter over five-year period); Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985) (trial court did not err in admitting testimony that defendant, the victim's uncle, had admitted that he "used to" perform the illicit sexual act upon the victim when the victim was younger); Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984), case remanded, 509 Pa. 357, 502 A.2d 148, cert. granted, Pennsylvania v. Ritchie, 476 U.S. 1139, 106 S.Ct. 2244, 90 L.Ed.2d 690 aff'd in part rev'd in part, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (trial court did not err in permitting defendant's daughter to testify that he had been molesting her three or four times a week for a period of four years); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980) (trial court did not err in admitting testimony by defendant's stepdaughter of a long and sordid pattern of sexual abuse the victim was forced to submit to stepfather's sexual advances from the time when she was a third grader to the time she was in tenth grade and she left home); Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980) (trial court did not err in admitting evidence of defendant's sexual abuse of his daughter beginning when she was eight or nine years of age and continuing to age thirteen); Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979) (trial court did not err in admitting evidence of defendant's continuing sexual assaults on his daughter over a four-year period).

Instantly, the victim testified that she suspected appellant was spying on her while she was in the shower because he routinely retired to his bedroom during the times she showered. She testified that she, along with her sister, discovered that by removing a panel in the bedroom closet, one could see into the bathroom. Finally she related an incident where her mother discovered appellant on his knees in the bedroom closet while the victim was showering. The only other incident of misconduct which the victim testified to was the occasion where appellant attempted to fondle her breasts. Despite the morally repugnant nature of these alleged acts and the crimes for which appellant has been convicted, we are constrained to find that testimony regarding these acts was improperly admitted for the reason that the isolated occurrences of prior misconduct testified to by the victim simply do not constitute "a series of acts indicating continuousness of sexual intercourse." Bell, supra. By restricting the admissibility of evidence pertaining to prior misconduct to the above, it is apparent that the Bell Court was guarding against admission of evidence of isolated acts. See, Commonwealth v. Rodriguez, supra n. 4. See also, Commonwealth v. Campbell, 342 Pa.Super. 438, 493 A.2d 101 (1985), wherein our Court stated:

[O]ur sedulous review of the law in this jurisdiction, dealing with incest, statutory rape and indecent assault, has failed to unearth one decision condoning the admission of a single, prior accounting of a sexual assault (so distant in time as the one at bar) to buttress a prosecutrix's complaint of a subsequent sexual assault charged against the same assailant where there is no evidence of a continuous course of conduct linking the incidents of molestation.

Campbell, 342 Pa.Super. at 444, 493 A.2d at 105 (emphasis added). It was, therefore, improper for the trial court to permit testimony of appellant's prior misconduct.

Appellant's next allegation of error is that the trial court improperly admitted the expert testimony of Susan Shade, a Child Protective Service supervisor for the Department of Children and Youth. Ms. Shade's testimony concerned the dynamics of interfamily sexual abuse and behavior patterns of the child-victim. Pursuant to current case law, we are constrained to agree. ⁴

The question of a witness's credibility is reserved exclusively for the jury. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). As such, expert testimony which serves to bolster the veracity of a child sexual abuse victim impermissibly infringes upon the province of the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). Accordingly, this Court must ascertain the purpose for which Ms. Shades' testimony was offered.

In Seese, supra, the Pennsylvania Supreme Court determined that the expert testimony in question consisted of expert opinion regarding the veracity of the victim. In part, the expert had testified that:

It is very unusual that a child would lie about sexual abuse ... [P]repubertal children usually do not lie about matters of sexual abuse no matter how chaotic or uncomfortable their home situation is ...

Seese, 512 Pa. at 441-442, 517 A.2d at 921.

Upon determining that this testimony was offered to sustain the credibility of the victim, the Court determined that it was inadmissible. In doing so, the Court stated that:

Such testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called "expert" assessment of the truthfulness of the class of people of which the particular witness is a member.

Seese, 512 Pa. at 443-44, 517 A.2d at 922. As such, the primary concern with regard to this type of testimony is that it has the potential to invade upon the province of the jury and incorrectly influence their decision as to the credibility of a witness.

Instantly, upon review of the record, it is apparent that the victim questionably delayed in reporting the incident and failed to recall certain details of the incident. As such, the credibility of the victim was somewhat shaky. In response, the Commonwealth offered the expert testimony of Ms. Shade to explain: (1) a victim's delay in reporting an offense; (2) a victim's inability to recall exact dates and times; and (3) the victim's behavior as the result of the offense. In offering this testimony, the Commonwealth clearly hoped to legitimize the victim's lengthy...