Com. v. Kunkle

• Decision Date: 13 April 1993
• Citation: 424 Pa.Super. 499,623 A.2d 336
• Parties: COMMONWEALTH of Pennsylvania v. John R. KUNKLE, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 336

623 A.2d 336

424 Pa.Super. 499

COMMONWEALTH of Pennsylvania v. John R. KUNKLE, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 11, 1993.

Filed April 13, 1993.

David J. DeFazio, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from the judgment of sentence entered by the trial court on September 11, 1991. For the reasons set forth below, we affirm.

Following a bench trial, appellant was found guilty of involuntary deviate sexual intercourse, ¹ indecent assault, ² and corruption of a minor. ³ Appellant timely filed post-verdict motions and supplemental post-verdict motions which the trial court denied. The trial court sentenced appellant to a term of imprisonment of not less than five (5) nor more than ten (10) years for his conviction of involuntary deviate sexual intercourse. The trial court suspended sentence on the remaining charges. This timely appeal followed.

Appellant raises the following issues for our review:

I. Was the evidence in this case insufficient for a conviction and was the verdict against the weight of the evidence?

II. Did the trial court err in denying appellant Kunkle the opportunity to inquire into during crossexamination [sic] the alleged victim's prior psychiatric therapy and the prior sexual assault on the victim by her natural father?

III. Did the trial court err when it denied defense counsel the opportunity to call Mr. Alan Collins in order to examine him as to his findings that the alleged victim fabricated charges against appellant Kunkle regarding sexual abuse and also to examine Mr. Collins as to any prior inconsistent statements made by the alleged victim during the time Mr. Collins was evaluating her complaint against appellant Kunkle?

We will address these issues in order.

Appellant first argues that the evidence is insufficient to sustain his convictions. It is well settled that when sufficiency of the evidence claims are raised, "an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction." Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, 512 Pa. at 546, 517 A.2d at 1259, and that "the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Harper, 485 Pa. at 576, 403 A.2d at 538.

The Crimes Code defines the offense of involuntary deviate sexual intercourse, in relevant part, as follows:

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution[.]

18 Pa.C.S.A. § 3123(1)-(2). The Crimes Code also provides that uncorroborated testimony of the sex offense victim may be sufficient to establish the guilt of the accused. Id. § 3106.

In the instant case, the trial court concisely reviewed the testimony of the victim as follows:

The victim testified that the first incident occurred when she was in the seventh grade. (T.T. p. 12). Sometime during September, 1987 when she was home "ill from school" (T.T. p. 10-12), defendant slapped the victim across the face, held his hand on her head, and forced her to perform oral sex. (T.T. p. 11). Knowing the victim was more afraid of vaginal intercourse (T.T. p. 14), defendant threatened her with this if she refused to perform. (T.T. p. 13-14). The victim also testified that on December 4, 1987, two days before her birthday, defendant forced her to perform oral sex because he "deserved something back for him buying me [a] kitten" as a birthday present. (T.T. p. 37).

The victim testified that these attacks occurred almost every weekend from September, 1987 until July, 1988, at which time she showed her diary to her brother. (T.T. p. 15). Upon reading a diary entry in which the victim accused defendant of molesting her (T.T. p. 44), the victim's brother showed the diary to his mother. (T.T. p. 68).

Trial Court Opinion filed July 14, 1992 at 3-4. This evidence, when reviewed under a light most favorable to the Commonwealth as verdict winner, is clearly sufficient to sustain appellant's conviction of involuntary deviate sexual intercourse.

Appellant next contends that the verdict is against the weight of the evidence. Our scope of review for a claim that a verdict is against the weight of the evidence is very narrow. Commonwealth v. Hamilton, 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988), allocatur denied, 521 Pa. 629, 558 A.2d 531 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982); Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Hamilton, 376 Pa.Super. at 414, 546 A.2d at 95-96. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice. Id.; Commonwealth v. Hunter, supra; Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987).

The trial court concisely reviewed the evidence presented in this case and determined that the verdict was not against the weight of the evidence. After reviewing the parties' briefs and the certified record, we find the trial court's analysis and conclusion to be clear and correct. Accordingly, we affirm on the basis of the trial court opinion filed July 14, 1992, with regard to this issue.

Next, appellant argues that the trial court improperly denied appellant the opportunity to question the victim about a prior instance of sexual assault by a person other than appellant, and about about her psychiatric treatment related thereto. The admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Wallace, 522 Pa. 297, 309 n. 15, 561 A.2d 719, 725 n. 15 (1989). Evidence is admissible if, and only if, it is relevant: the evidence must logically or reasonably tend to prove or disprove a material fact in issue, to make such a fact more or less probable, or afford a basis or support for a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Ingram, 404 Pa.Super. 560, 576, 591 A.2d 734, 742 (1991), allocatur denied, 530 Pa. 631, 606 A.2d 901 (1992). Accord Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975).

Testimony of prior sexual conduct involving the victim, whether consensual or the result of nonconsensual or assaultive behavior, is not admissible unless it has probative value which is exculpatory to the defendant. 18 Pa.C.S.A. § 3104(a) ("Rape Shield Law"); Commonwealth v. Smith, 410 Pa.Super. 363, 368, 599 A.2d 1340, 1342 (1991). Moreover, a defendant who proposes to offer evidence of the alleged victim's past sexual conduct must file a written motion and make a specific offer of proof at the time of trial. 18 Pa.C.S.A. § 3104(b). In determining whether the application of the Rape Shield Law violates a defendant's constitutional rights to confront and cross-examine witnesses against him, this court has recently held:

In Pennsylvania, we have come to resolve this question through a relatively elaborate procedure which is designed to ensure that no evidence of the victim's sexual history is introduced unless and until it can be established that to exclude such evidence would lay victim to the very raison d'etre of the trial itself: the pursuit of truth. The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense. See Commonwealth v. Smith, supra , 599 A.2d [1340] at 1342 [ (1991) ], Commonwealth v. Nieves, supra, [399 Pa.Super. 277,] 582 A.2d at 347 [ (1990), allocatur denied, 529 Pa. 633, 600 A.2d 952 (1991) ]. This procedure forces the defendant to frame the...