Com. v. Kasko, No. 2857

• Court: Superior Court of Pennsylvania
• Writing for the Court: CAVANAUGH
• Citation: 469 A.2d 181,322 Pa.Super. 62
• Parties: COMMONWEALTH of Pennsylvania v. Charles Russell KASKO a/k/a Charles Day, Appellant.
• Docket Number: No. 2857
• Decision Date: 18 November 1983

Page 181

469 A.2d 181 322 Pa.Super. 62 COMMONWEALTH of Pennsylvania
v.
Charles Russell KASKO a/k/a Charles Day, Appellant. No. 2857. Superior Court of Pennsylvania. Argued Jan. 20, 1983.
Filed Nov. 18, 1983.

Page 183

[322 Pa.Super. 65] Mark A. Hutchinson, Norristown, for appellant.

J. William Ditter, III, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.

CAVANAUGH, Judge:

Appellant was charged in two criminal cases and in each he was accused of involuntary deviate sexual intercourse, ¹ recklessly endangering another person, ² indecent exposure, ³ endangering welfare of children, ⁴ indecent assault, ⁵ corruption of minors, ⁶ simple assault, ⁷ criminal solicitation, ⁸ and criminal attempt. ⁹ In one case, he was accused of these offenses with respect to the six-year-old niece of his girlfriend. ¹⁰ In the other case he was accused of the same offenses with respect to his own four-year-old niece and five-year-old nephew, the children of his two step-sisters. The two cases were consolidated for trial, and appellant's motion to sever was denied.

At the conclusion of the Commonwealth's case, appellant's demurrer to the charges of criminal attempt, recklessly endangering another person and endangering welfare of children was sustained with respect to both consolidated [322 Pa.Super. 66] cases. At the conclusion of the trial, the jury returned a verdict of not guilty with respect to both counts of involuntary deviate sexual intercourse, one count of indecent exposure, one count of indecent assault, both counts of simple assault and one count of criminal solicitation. However, the jury returned a verdict of guilty of the misdemeanor offenses of criminal solicitation, indecent assault and corruption of minors in one case, and indecent exposure and corruption of minors in the other. On these offenses the maximum terms of imprisonment were imposed and made consecutive to each other, resulting in a sentence of seven to fourteen years imprisonment. This appeal followed.

Appellant contends that the lower court erred in consolidating these two cases in one trial, and in admitting certain hearsay evidence. We agree with appellant, and reverse and remand for a new trial.

The criminal activities encompassed by the first of the two consolidated cases were alleged to have occurred "on or about February or March of 1980." In this case, appellant was charged with sexually molesting his girlfriend's six-year-old niece while the girlfriend baby-sat the child at an apartment shared by the girlfriend and her sister, the child's mother. The specific acts alleged involved the touching of appellant's exposed genitals to the child's anal area, and anal intercourse. These acts were alleged to have occurred in the presence of appellant's girlfriend.

The second of the two consolidated cases alleged similar misconduct with the four-year-old daughter of appellant's step-sister, as well as the corruption of this child and the five-year-old son of appellant's other

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step-sister by teaching or encouraging the two to have indecent contact with each other. These offenses allegedly occurred sometime between December 15, 1980 and January 26, 1981, while the children were visiting their grandmother at her apartment, which was shared by appellant. These incidents were not alleged to have been committed in the presence of appellant's girlfriend or any other adult.

[322 Pa.Super. 67] Appellant flatly denied the occurrence of any of the sexual misconduct charged in either case, and defended on that basis.

Appellant first contends that the lower court should have granted his motion to sever the trial of these two cases. Our review in this matter is limited to whether the trial court abused its discretion in allowing the consolidated trial of the two cases. Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975).

In making our determination, we first look to whether evidence of the commission of one offense would have been admissible in the separate trial of the other offense. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). In Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), our Supreme Court summarized the law controlling the admission of such evidence as follows:

It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. See Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) 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 the others; or (5) to establish the identity of the person charged with the commission of the crime on trial--in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).

Commonwealth v. Peterson, supra, at 197-8,...