Com. v. Knaub
| Decision Date | 20 April 1999 |
| Citation | 556 Pa. 340,728 A.2d 909 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Patrick Lynn KNAUB, Appellant. |
| Court | Pennsylvania Supreme Court |
Richard Robinson, for Patrick Lynn Knaub, appellant.
Laura A. Pawloski, H. Stanley Rebert, York, Thomas Kelly, for the Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
The appeal is dismissed as having been improvidently granted.
By Per Curiam Order, this Court has dismissed this appeal as improvidently granted. Because I believe that this case is properly before this Court, and because I agree with Appellant that he is entitled to a new trial, I must respectfully dissent.
On December 22, 1993, as a result of allegations made by his nine year old daughter, J.K., Appellant Patrick Lynn Knaub was charged with aggravated indecent assault, indecent assault and corruption of minors.1 During Appellant's preliminary hearing on December 30, 1993, J.K. related specific incidents of sexual abuse committed by Appellant.2 However, at trial in November of 1994, J.K. testified that Appellant had done things she knew he was not supposed to do, but that she could not remember the nature of her father's actions, her statements to the doctor, or her preliminary hearing testimony. As a result, the trial court declared J.K. unavailable and, over defense objections, allowed the Commonwealth to introduce her testimony from the preliminary hearing.
In addition to J.K.'s preliminary hearing testimony, the Commonwealth introduced the testimony of the doctor and nurse who had examined J.K. approximately one week after she had been sexually assaulted. Both testified that J.K. had described her father's sexual assault to them, however, they acknowledged that there was no physical evidence of digital penetration at the time of the examination. J.K.'s caretaker also testified that J.K. had mentioned the assaults, without providing any detail. Finally, the two detectives who interviewed Appellant testified that Appellant admitted to "rubbing" J.K.'s vagina and to lying on top of J.K. and "grinding." According to the detectives, Appellant also indicated that his penis may have "got her," but did not penetrate her.
At the close of the jury trial, Appellant was found guilty on all charges. Appellant filed post-trial motions alleging that the trial court erred in declaring J.K. unavailable for trial and in admitting J.K.'s preliminary hearing testimony. Appellant's post-trial motions were denied and he was sentenced to a term of imprisonment of five to ten years. On appeal, the Superior Court affirmed.
Appellant filed a Petition for Allowance of Appeal. This Court granted allocatur to determine whether the trial court erred in declaring J.K. unavailable for purposes of trial and in admitting her preliminary hearing testimony as substantive evidence at Appellant's trial. I agree with the Superior Court that the trial court properly found J.K. to be unavailable at trial.3 However, since I agree with Appellant that he was not given a full opportunity to cross-examine J.K. at the preliminary hearing, I believe the trial court erred in admitting J.K.'s preliminary hearing testimony as substantive evidence at Appellant's trial. Therefore, I would reverse the order of the Superior Court.
When a witness is declared unavailable, in order for prior testimony to be admissible in a subsequent proceeding as substantive evidence against the accused, there must have been a "full and fair opportunity to cross-examine" at the prior proceeding. Commonwealth v. Thompson, 538 Pa. 297, 311, 648 A.2d 315, 322 (1994), citing Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992).
Appellant alleges that he was not given a full and fair opportunity to cross-examine J.K. at the preliminary hearing due to the Commonwealth's failure to disclose an inconsistent statement made by J.K. to police. At the preliminary hearing, J.K. testified that Appellant placed his finger in her vagina but had not hurt any other part of her body. See N.T., 12/30/93, at 19, 39. However, prior to the preliminary hearing, J.K. had told Officer Timothy Utley during the initial investigation that Appellant had placed his finger in her anus and engaged in oral genital contact with her.4
In Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992), this Court examined the issue of what suffices to establish a "full opportunity" to cross-examine at a prior proceeding where the Commonwealth fails to disclose relevant impeachment evidence prior to the initial testimony. In Bazemore, although counsel for the defendant cross-examined the witness at the preliminary hearing, counsel was unaware or had not been informed of the witness' prior inconsistent statement to police, his criminal record, and that the District Attorney's officer was contemplating filing criminal charges against the witness for homicide and conspiracy. We held that without such information, Appellant was denied an adequate opportunity to test the veracity of the witness at the preliminary hearing, and thus was denied a full and fair opportunity to cross-examine.
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...as follows: For the declarant to be unavailable the failure to remember must be present throughout trial. See Commonwealth v. Knaub, 556 Pa. 340, 728 A.2d 909, 910 n. 3 (1999) (A child victim of sexual assault had testified that her father had done bad things but could not remember any prec......
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