Com. v. Frank

• Decision Date: 06 July 1990
• Citation: 395 Pa.Super. 412,577 A.2d 609
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. John K. FRANK, Appellant.

Page 609

577 A.2d 609

395 Pa.Super. 412

COMMONWEALTH of Pennsylvania v. John K. FRANK, Appellant.

Superior Court of Pennsylvania.

Argued May 22, 1990.

Filed July 6, 1990.

Glenn D. McGogney, Allentown, for appellant.

John T. Robinson, Dist. Atty., Selinsgrove, for Com., appellee.

Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.

MONTEMURO, Judge:

The appellant, John K. Frank, has appealed from the judgment of sentence entered on December 8, 1989, by the Court of Common Pleas of Snyder County, ordering him to undergo imprisonment for a period of not less than six years and three months nor more than fifteen years for the offense of rape by forcible compulsion or threat of forcible compulsion. See 18 Pa.C.S.A. § 3121(1) and (2). Appellant received the same sentence for the offense of involuntary deviate sexual intercourse as defined pursuant to 18Pa.C.S.A. § 3123(5). Appellant's sentences are to be served consecutively. The appellant presents six issues to this Court for review, which shall be addressed seriatim. Following a careful consideration of the issues raised by the appellant, in light of the record before us, we affirm.

Appellant initially contends that the trial court erred in admitting the testimony of six witnesses, offered by the Commonwealth to establish a "common scheme plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove others." Commonwealth v . Peterson, 453 Pa. 187, 197-198, 307 A.2d 264, 269 (1973). The victim involved in the instant case, T.Y., first met the appellant when T.Y. was eleven or twelve years of age. At the time of trial in the case at bar, T.Y. was seventeen years of age. T.Y. testified that, prior to the time he first met with appellant, he had been "kicked out from where my real parents live," and had resided in four or five different foster homes. N.T., May 23, 1989, at 41. T.Y. was taken to see the appellant by his adoptive mother at the time, P.Y. Appellant was a therapist and contracted with local social service agencies to provide counselling to troubled youngsters and their families. T.Y. testified that he was taken to see the appellant to be counselled concerning behavioral problems: lying and stealing. Id. Although the exact number of individual counselling sessions with the appellant was disputed at trial, appellant did counsel T.Y. from January of 1982 through February of 1983.

T.Y. was counselled in an office located within the appellant's Selinsgrove home. T.Y. testified that after a few months, the appellant requested that T.Y. sit on the appellant's lap for counselling. Id. at 44. After a few weeks of sessions where T.Y. would sit on appellant's lap, appellant began requesting that T.Y. kiss the appellant on the cheek or on the lips. Id. at 45. Again after a few weeks of this type of conduct during the sessions, T.Y. testified that the appellant began fondling T.Y.'s penis while T.Y. sat on his lap. Id. at 46. T.Y. stated that appellant, during the next several counselling sessions, would pull T.Y.'s pants down and masturbate T.Y. Id. at 48. T.Y. testified that throughout this progression, he was afraid and confused. At almost every session, appellant would warn T.Y. that if he revealed what was occurring during the counselling sessions to anyone, appellant would "screw up [T.Y.'s] adoption and ... hurt somebody that was close to [T.Y.]." Id. at 49. T.Y. testified that as time passed, the appellant added mutual oral intercourse to the sessions. Then, after several sessions involving this type of conduct, T.Y. testified that the appellant had T.Y. bend over a desk, and then the appellant engaged in anal intercourse with T.Y. Id. at 54. Anal intercourse in this manner occurred during two or three sessions. Id. at 55.

The Commonwealth, following the testimony of T.Y., was permitted to introduce the testimony of six individuals who, like T.Y., had been counselled by the appellant during their adolescence. Each of these witnesses testified that the appellant had initiated some type of sexual contact with them during counselling sessions. Appellant contends that this was prejudicial error, necessitating the grant of a new trial. The trial court ruled that the testimony of the witnesses was admissible to establish a common plan, scheme or design. Prior to examining the testimony of these witnesses, we review the precedent upon which we must rely in considering whether the admission of the testimony of these Commonwealth witnesses was prejudicial error.

"One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of the testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant." Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). One "special circumstance" which may provide a basis for the admission of evidence of other criminal acts by a defendant has become known as the common plan, design or scheme exception. This Court has recognized that to fit within this exception, the "crimes must embrace distinctive elements and be so nearly identical as to bear the 'signature' or be the 'handiwork' of the same person." Commonwealth v. Shirey, 333 Pa.Super. 85, 124, 481 A.2d 1314, 1335 (1984) (citation omitted).

The appellant has directed us to our decision in Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976), wherein the appellant was a member of the supervisory staff of an institution for mentally retarded children known as the Hillcrest School. The appellant in Bradley had been convicted of performing involuntary deviate sexual intercourse with a thirteen year old resident of the institution during December 1968. During trial, the Commonwealth called four former residents of the Hillcrest School, and these individuals testified that either they had witnessed the appellant performing sexual acts with other residents of the institution, or that they personally had been been forced to engage in sexual acts, such as anal or oral intercourse, with the appellant. The Bradley Court held that the admission of this evidence had been erroneous, because it did not fit within the common plan exception:

The alleged acts of sodomy in the case at bar could not be dated with precision, but some acts may have occurred almost three years before the December 1968 incident charged in the indictment, and some acts may have occurred as much as three years after December, 1968. These random and remote acts are not relevant in establishing that appellant acted according to an explicit and premeditated plan on December, 1968.

Id. at 214, 364 A.2d at 946-947. Further, the Bradley Court recognized that there was nothing so distinctive about the alleged acts of oral and anal sodomy "as to be tantamount to the appellant's unique 'signature.' " Id. at 214 n. 2, 364 A.2d at 947 n. 2.

In discussing the common plan exception as it relates to sex offenses, the Court in Bradley distinguished the decision of the Pennsylvania Supreme Court in Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949). In Kline, the appellant had been convicted for a rape occurring on October 20, 1946, and the Commonwealth had presented the testimony of a woman who stated that during approximately the same time, the appellant had exposed himself to her. The Supreme Court found no error in the admission of this testimony and in doing so, opined:

The word 'design' implies a plan formed in the mind. That an individual who commits or attempts to commit abnormal sex offences is likely to have such a mental 'plan' finds recognition in the fact that when a defendant is charged with the commission of a sexual offence the law is more liberal in admitting as proof of his guilt evidence of similar sexual offences committed by him than it is in admitting evidence of similar offences when a defendant is charged with the commission of non-sexual crimes.... [I]f A is being tried for rape or attempted rape of Y the fact that recently he raped or attempted to rape X is admissible in evidence because it tends to prove that he possessed such an abnormal mental or moral nature as would likely lead him to commit the offence charged.

Id. at 443-444, 65 A.2d at 351. In Bradley, this Court stated that the more liberal "mental plan" exception, recognized in Kline as available for cases involving sex offenses, should not be applied to evidence of events occurring more than one year prior to the offense charged in the indictment, as the inference of a common mental plan set forth in Kline would be rendered too weak and speculative under such circumstances. Bradley, supra 243 Pa.Super. at 215, 364 A.2d at 944.

We do not and need not rely upon the more liberal mental plan exception applicable to sex offenses as set forth in Kline. Several of the witnesses in the present case testified concerning events which occurred outside of the "one year cutoff" announced by our decision in Bradley. Moreover, we note that in Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981), two justices, with two justices concurring in the result and two justices dissenting, were of the opinion that Kline should be overruled. ¹ Finally, in finding no error in the admission of the testimony of the six witnesses here, we have determined that such evidence, when judged under the standard employed in cases involving non-sex crimes, satisfies the requisites of the common plan exception to the general rule that evidence of other criminal activity on the part of a criminal defendant in not admissible evidence.

We are cognizant of the fact that a determination of whether evidence is admissible...