Com. v. Impellizzeri

• Decision Date: 12 June 1995
• Citation: 443 Pa.Super. 296,661 A.2d 422
• Parties: COMMONWEALTH of Pennsylvania v. Steve IMPELLIZZERI, Appellant.
• Court: Pennsylvania Superior Court

Page 422

661 A.2d 422

443 Pa.Super. 296

COMMONWEALTH of Pennsylvania v. Steve IMPELLIZZERI, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 15, 1995.

Filed June 12, 1995.

Albert P. Massey, Jr., Frazier, for appellant.

Jacquelyn C. Paradis, Asst. Dist. Atty., Allentown, for com., appellee.

Before WIEAND, BECK and BROSKY, JJ.

BECK, Judge:

In this appeal involving convictions for several crimes including rape and involuntary deviate sexual intercourse, we address, inter alia, the admissibility of certain sexually explicit materials. Finding none of appellant's challenges to his judgments of sentence meritorious, we affirm.

FACTUAL AND PROCEDURAL HISTORY:

Late one August evening in 1991, the victim, a twenty-three year old female, spent some time with friends, first at a local bar and later at a restaurant. While at the restaurant, the victim called her mother, with whom she lived, to let her know her whereabouts and to explain that she would be home soon. Upon leaving the restaurant, the victim drove one of her friends, Allison, to a nearby Ramada Inn. Allison worked at the hotel and her car was parked there. The victim waited for Allison while she went into the hotel so that the two could "follow one another home" in their cars.

While the victim waited in her car for Allison at a rear exit door, appellant opened the passenger side door, got into the car and at point of knife, commanded her to drive from the hotel parking lot. Once on the road, appellant took over at the wheel and continued to hold the victim at knifepoint as she huddled on the passenger side floor. He drove the victim to his home, dragged her out of the car and forced her inside his house to the bedroom. He pushed the victim on the bed, removed her clothes and, using neckties, tied her right wrist to her right ankle and her left wrist to her left ankle.

Once the victim was securely bound and no longer able to resist him, appellant subjected her to a series of forced, brutal indignities, including vaginal intercourse, anal intercourse and oral sex. Throughout the entire episode, while the victim screamed and cried, appellant ignored her pleas to be set free. After his vicious attack, appellant covered the victim's head with a shirt, picked her up and carried her to his basement. There, he tied her with a rope, binding all of her limbs together. The victim testified that the rope was also tied around her neck. Though she could not see, she explained that her position, and the pain she experienced whenever she moved, made her feel as though she was suspended from the ceiling. Appellant put a gag in the victim's mouth and went upstairs.

Several times, the victim was able to push the gag out and scream for help. Each time, appellant reappeared and forced the gag back in. He told the victim that he was sure she would "talk" and that he "had to think." Somehow, the victim managed to free herself of the restraints and after groping about in the dark basement, turned on a light. She located a window, opened it and punched out the screen behind it. Using a bolt that jutted out of the wall, she hoisted herself up and escaped through the window.

The victim, who was unfamiliar with the area, ran naked into the street and was helped by Christopher Schew, who was on his way home from work. Schew gave the victim his shirt, drove her past appellant's house so that she could identify it, and took her to a nearby convenience store where they found a police officer. The victim told police what had happened to her and she was placed in a police car. The officers then followed Schew back to the location the victim had shown him. There, the victim identified appellant's house and showed police the basement window and screen through which she had escaped. The victim was transported to the hospital while police set up surveillance of the residence and waited for the search warrant team to arrive.

At the hospital, medical personnel and the victim's parents observed that the victim was crying and distraught. She suffered ligature marks on her wrists and ankles, rope burns, cuts and a swollen lip. A physical examination revealed that her vaginal and anal areas were swollen and red and that she had a laceration in the perineal area. Samples collected from her vagina and anus showed the presence of acid photophase (found in semen and pre-ejaculate fluid) and sperm. After her medical treatment, the victim was transported to the police station where she was interviewed and photographed.

Several hours later police secured a warrant for appellant's home and commenced a thorough search of the residence. In the basement, they observed many of the things the victim had described; they also recovered a rug and a pair of child's sweatpants, both of which had blood stains that matched the victim's blood type. The victim later explained that the sweatpants were used as the gag that prevented her from screaming while in the basement. The police did not find any of the victim's clothing or personal effects in the house.

Appellant did not return to his home while the police were there. Instead, he turned himself in to police later that day. The victim's car was located several days later in a lot near the Ramada Inn. It did not contain any of her personal effects, though the keys were found on the floor.

At trial, appellant claimed that he had met the victim at a bar earlier in the evening and made arrangements to meet her later at the Ramada Inn. They met as planned and appellant took her to his home where the two engaged in various types of consensual sex that included the victim being tied up voluntarily. Appellant testified that during their sexual encounter, the victim was quite aggressive and encouraged him to continue despite his difficulty in maintaining an erection. He claimed the victim enjoyed herself immensely until she realized that he could no longer perform. At that point, he testified, she became angry and violent, and he was forced to throw her out of the house. Appellant insisted that the victim left his home through the front door. He explained that she was familiar with the basement because he took her on a tour of it that night and used the opportunity to do some laundry.

The jury wholly rejected appellant's version of events and found him guilty of Rape, Involuntary Deviate Sexual Intercourse, Aggravated Assault, Indecent Assault, Kidnapping, Unlawful Restraint, False Imprisonment, Recklessly Endangering Another, Theft, Receiving Stolen Property and Unauthorized Use of Auto. He was sentenced to a total term of imprisonment of twenty to forty years. After denial of his post verdict motions and his motion to reconsider sentence, appellant filed this appeal. We will address each of his allegations of error.

VOIR DIRE:

Appellant's first issue concerns errors alleged to have taken place during jury selection. He argues that his counsel was forced to use peremptory challenges on two prospective jurors who should have been struck for cause. The trial court denied appellant's request to strike the jurors for cause and appellant insists that this was reversible error.

Where a criminal defendant is forced to use a peremptory challenge to excuse a juror who should have been excused for cause, and then exhausts his peremptory challenges before the jury is seated, a new trial will be granted. Commonwealth v. Johnson, 299 Pa.Super. 172, 445 A.2d 509, 514 (1982). A strike for cause typically is requested by one of the parties after questioning of a juror has elicited responses that establish that he or she cannot be impartial. Id. at 175-77, 445 A.2d at 511. Jurors should be disqualified for cause when they do not have the ability or willingness to eliminate the influences under which they are operating and therefore cannot render a verdict according to the evidence. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, 663 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987).

The jurors at issue here both stated that they read newspaper accounts of the crime and were uncertain whether they could be fair about the case. Upon further questioning by the court, the jurors stated that they believed they could put aside their emotions, follow the law as directed by the judge and render a decision based on the facts presented in court. One of the two jurors thereafter told appellant's attorney that she was not sure she could put aside her emotional reaction.

In considering this issue, we employ a standard of review which affords great deference to the trial judge who is in the best position to assess the credibility of the jurors and their ability to be impartial. See Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 256 (1988) (determination of juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record). Where a prospective juror indicates that he or she cannot be an impartial juror, "much depends upon the answers and demeanor of the potential juror as observed by the trial judge." Johnson, supra at 177, 445 A.2d at 512. Reversal by an appellate court is appropriate only in the case of palpable error. Id. However, it is not the court's function to persuade a prospective juror to put aside his or her influences, but only to determine if such can and will be done. Id. at 181-82, 445 A.2d at 514.

Individuals are not expected to be free from all prejudices in order to sit on a jury and the burden here is on appellant to establish that the challenged jurors possessed a "fixed, unalterable opinion that prevented [them] from rendering a verdict based solely on the evidence and the law." Smith, supra at 36, 540 A.2d at 256. Considering the deference we are required to show the trial court's conclusions, and based on the entire voir dire transcript, we cannot find that appellant met his burden. While the jurors were at times equivocal, the record reveals support for the trial court's denial...