Com. v. Khamphouseane

• Decision Date: 15 September 1994
• Parties: COMMONWEALTH of Pennsylvania v. Anong KHAMPHOUSEANE, Appellant.
• Court: Pennsylvania Superior Court

Page 490

642 A.2d 490

434 Pa.Super. 93

COMMONWEALTH of Pennsylvania v. Anong KHAMPHOUSEANE, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 10, 1994.

Filed March 21, 1994.

Reargument Denied May 26, 1994.

Petition for Allowance of Appeal Denied Sept. 15, 1994.

Clifford B. Cohn, Philadelphia, for appellant.

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

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

WIEAND, Judge.

Anong Khamphouseane was tried by jury and was found guilty of rape, statutory rape and corruption of a minor. Post-trial motions were denied, and Khamphouseane was sentenced to serve concurrent terms of imprisonment for not less than five (5) years nor more than ten (10) years for rape and not less than two and one-half (2 1/2) years nor more than five (5) years for corruption of a minor. On direct appeal from the judgment of sentence, Khamphouseane asserts that the trial court erred by permitting the Commonwealth to introduce evidence of Human Leukocyte Antigen (HLA) blood tests without laying an adequate foundation therefor. Appellant also contends that his trial counsel was ineffective for failing to object to an erroneous jury charge regarding character evidence and for failing to object to the trial court's inadequate attempt to give curative instructions relative to an improper comment by the prosecuting attorney which highlighted appellant's failure to testify. We will consider these issues seriatim.

The factual scenario which led to appellant's convictions was summarized in the opinion of the trial court as follows:

The Complainant, Phimpha Bandith, was born on June 10, 1977 in the country of Laos. She moved to Philadelphia with her mother, brother and two sisters at the age of nine. She and her family resided with the Defendant (her uncle) and his family on Ormes Street in Philadelphia. On several occasions in 1989 and in 1990 the Defendant sexually assaulted the Complainant, who was then under the age of fourteen.

The first incident occurred when the Complainant, while sleeping in her bedroom, was awakened by the Defendant who entered her room and jumped on top of her. He removed her shirt and began to kiss her chest and touch her stomach. She told him to: "Stop, it's not the right thing to do". The Defendant threatened her by stating: "If [you] tell anybody [I] will kill [your] whole family".

On another occasion in 1989, which also occurred at the Ormes Street residence, the Defendant hit the Complainant and placed a 12 inch knife to her throat. He forced the Complainant upstairs, removed her clothes and forced her to have sexual intercourse with him. Again the Defendant threatened the Complainant stating: "If you tell anybody else, I will kill your whole family". Similar sexual assaults continued at the Ormes Street residence and even later when the Complainant moved, with her family, from the Defendant's house to Rosehill Street in 1990.

It was not until the Complainant became pregnant that she reported the incidents to the Police. No one other than the Defendant ever had sexual intercourse with the Complainant.

At trial, the Commonwealth called as an expert witness Dr. Berta Huggins, the director of the laboratory at Genetic Design Inc., a paternity testing laboratory located in Greensboro, North Carolina. Dr. Huggins testified regarding the results of HLA testing done on blood samples provided by appellant, the victim and the child who was born to the victim. The results of the testing disclosed that appellant could not be excluded as the father of the victim's child and that he was 8,754 times more likely to be the child's father than any other random Oriental man who was unrelated to appellant. Appellant contends, however, that the results of the HLA testing should have been excluded because the Commonwealth failed to lay a proper foundation to support their admission.

"In Pennsylvania, '[t]he admissibility of any experimental or scientific evidence depends upon presenting an adequate foundation.' " Commonwealth v. Miller, 367 Pa.Super. 359, 363, 532 A.2d 1186, 1188 (1987), quoting Commonwealth v. McGinnis, 511 Pa. 520, 524, 515 A.2d 847, 849 (1986). Thus, in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), the Pennsylvania Supreme Court held that the admissibility of scientific evidence "depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs." Id. at 231, 369 A.2d at 1281. See: Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). See also: Commonwealth v. Zook, 532 Pa. 79, 98-99, 615 A.2d 1, 11 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993).

HLA testing "involves tissue typing of white cell blood groups." Turek v. Hardy, 312 Pa.Super. 158, 160, 458 A.2d 562, 563 (1983). The results of this testing can conclusively exclude one's paternity of a child and may also "be used to calculate the probability that a putative father is the actual father." Id. at 160-161, 458 A.2d at 563. The process has been more fully explained as follows:

'... The exclusion procedure comprises the identification of certain genetic markers in the blood of the mother, child, and putative father; followed by the application of "Mendelian rules of inheritance" to determine whether it would be genetically impossible for the accused to be the biological father. An exclusion may occur in two ways. First, the child may possess a genetic characteristic which had to have come from someone other than the defendant. Second, the child may lack a genetic marker that he would have to possess if the accused were the father. In either of these situations, the defendant is conclusively proved innocent without any statistical estimations. In many cases, the possibility of exclusion may approach 99% when several genetic marker systems are used. The credibility of the exclusion method is beyond reproach in the scientific community, and most courts will accept results indicating non-paternity as conclusive proof.

... Basically, the inclusion procedure commences where the exclusion procedure terminates. In other words, when the typing stage (the method described above as the "exclusion method") fails to exclude the accused, a statistical estimation of his "likelihood of paternity" is calculated. This calculation entails the use of a probability formula known as the "Essen-Moller" version of the "Bayes' Theorem." A simplified version of this formula may be summarized as follows: The ratio of the likelihood that the accused contributed certain genetic characteristics identified in the child, to the likelihood that one other "random man" contributed them. The "random man" variable is derived from the estimated frequencies of the particular characteristics in the relevant population. The ratio yielded by the Bayes' formula, called the "paternity index," is converted into a percentage value, "the likelihood of paternity," which is then presented to the trier of facts.'

Olson v. Dietz, 347 Pa.Super. 1, 4-5, 500 A.2d 125, 126-127 (1985), quoting Case Comment, Human Leukocyte Antigen Test Results Are Admissible in Paternity Cases to Show the Likelihood of Paternity, Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), 88 Dick.L.Rev. 565, 567-569 (1984) (footnotes omitted).

In Turek v. Hardy, supra, the Superior Court, after concluding that HLA testing is generally accepted in the scientific community as reliable, held that the results of such testing are relevant and admissible as "some evidence of paternity." Id. at 161-163, 458 A.2d at 564-565. However, "HLA blood tests are not conclusive evidence of paternity." Smith v. Shaffer, 511 Pa. 421, 427, 515 A.2d 527, 529 (1986). See also: Stahli v. Wittman, 412 Pa.Super. 281, 287-288, 603 A.2d 583, 586 (1992); Connell v. Connell, 329 Pa.Super. 1, 7, 477 A.2d 872, 875 (1984). Moreover, before the results of HLA testing may be admitted into evidence, a proper foundation must be laid. See: Jones v. Trojak, 402 Pa.Super. 61, 70, 586 A.2d 397, 401 (1990), aff'd, 535 Pa. 96, 634 A.2d 201 (1993); Turek v. Hardy, supra at 164, 458 A.2d at 565. In this regard, the Superior Court has observed:

The party seeking to affirmatively use the HLA results should show:

1. the effect of racial and ethnic variables

2. any factors which might invalidate the test or affect its accuracy (for example, the AMA-ABA Guidelines indicate that HLA results are most reliable when the test is conducted in conjunction with other blood group tests.)

3. The procedures of the actual test.

4. The qualifications of witnesses.

Of course, the foundation laid must suit each case and we do not consider these guidelines exhaustive. Furthermore, our holding that these test results are admissible is without prejudice to a defendant's right to challenge the reliability of the results and test methods in an individual case.

Turek v. Hardy, supra. See also: Jones v. Trojak, supra, 402 Pa.Super. at 70-71, 586 A.2d at 401.

Appellant contends that the Commonwealth failed to explain adequately the racial and ethnic variables as they related to his specific ethnic background. More specifically, appellant argues, the results of HLA testing in this case were of doubtful accuracy because the Gene Frequency Tables utilized by Dr. Huggins were based upon a population of Japanese and Chinese Americans and not upon a population of Laotians. Dr. Huggins' conclusions regarding the likelihood of his paternity of the victim's child, appellant contends, were based upon a comparison with the random Oriental man and not the random Laotian man.

After careful review, we are satisfied that an adequate foundation was laid regarding the effect of racial and ethnic variables upon the results of HLA blood testing. In this regard, Dr. Huggins testified as follows:

Q. Now, I notice that there is a paternity index figure next to each of the systems that were tested here. Would you explain for...