Com. v. LN

• Decision Date: 12 December 2001
• Citation: 787 A.2d 1064
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. L.N., Appellant.
• Court: Pennsylvania Superior Court

787 A.2d 1064

COMMONWEALTH of Pennsylvania, Appellee, v. L.N., Appellant.

Superior Court of Pennsylvania.

Argued January 25, 2001.

Filed December 12, 2001.

Kingsley A. Jarvis, Norristown, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.

Before: EAKIN, ORIE MELVIN and TAMILIA, JJ.

ORIE MELVIN, J.

¶ 1 The Appellant, L.N.,¹ appeals from the judgment of sentence entered following his conviction of involuntary deviate sexual intercourse (IDSI), aggravated indecent assault and corruption of minors.² On appeal, the Appellant challenges the admissibility of certain evidence, the sufficiency of the evidence and the discretionary aspects of sentencing. For the reasons that follow, we affirm.

¶ 2 The facts and procedural history may be summarized as follows. The Appellant is the uncle of the eight-year-old victim. In July of 1996, the Appellant went into the victim's bedroom, closed the door, and asked the victim to play "the lollipop game." The Appellant pulled the victim's pants and underwear to his ankles and told him to lie on the floor. The Appellant got on top of the victim in a pushup position and licked the victim's penis. The Appellant then rolled the victim on his side and put his finger deep inside the child's anus, causing the victim pain. Appellant told the boy not to tell anybody. The victim testified that similar behavior occurred on three or four other occasions. See N.T. Trial, 4/12/00, at 63-75.

¶ 3 On April 13, 2000, a jury convicted the Appellant of IDSI, aggravated indecent assault and corruption of minors. Prior to sentencing, the Commonwealth filed a notice of its intent to pursue mandatory minimum sentences for the IDSI and aggravated indecent assault offenses pursuant to 42 Pa.C.S.A. § 9718. On June 6, 2000, the Appellant was sentenced to consecutive sentences of five (5) to fifteen (15) years' imprisonment for IDSI; three (3) to ten (10) years' imprisonment for aggravated indecent assault; and five (5) years' probation for corruption of minors. On June 16, 2000, the Appellant timely filed a motion to reconsider sentence which was subsequently denied. This appeal followed.

¶ 4 The Appellant essentially presents six questions for our review:

1. Whether the trial court erred in declining to suppress appellant's entire statement to the police.

2. Whether the trial court erred in refusing to exclude that part of appellant's statement in which he admitted to having been the victim of sexual abuse as a child because it would have been prejudicial to appellant and was not relevant.

3. Whether the trial court erred by excluding evidence of other incidents in which the victim was sexually assaulted by persons other than appellant.

4. Whether the evidence was sufficient to prove appellant guilty of involuntary deviate sexual intercourse.

5. Whether the trial court erred by considering the effect of the crime upon the victim without accounting for other factors that could have caused or contributed to the victim's emotional state after the crime.

6. Whether the trial court abused its discretion by imposing consecutive sentences for the charges of involuntary deviate sexual intercourse and aggravated indecent assault.

See Trial Court Opinion, 8/18/00, at 1-2; Appellant's brief, at 5-6.³

¶ 5 The Appellant first claims the trial court erred in refusing to suppress the statement he gave on February 3, 1999.

In an appeal from the denial of a motion to suppress[,] our role is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the [evidence supports the factual findings of the suppression court], we may reverse only if there is an error in the legal conclusions drawn from those factual findings. As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court's determination if the conclusions are in error or the law is misapplied.

Commonwealth v. Turner, 772 A.2d 970 (Pa.Super.2001) (quoting Commonwealth v. Hayward, 756 A.2d 23, 26 (Pa.Super.2000)) (citations omitted; alteration in original).

¶ 6 Appellant argues he was tricked into going to the police station; officers told him they wished to speak about some problems other members of his family were having. Therefore, the Appellant claims, even though he voluntarily went to the station, his statement was not voluntarily given.

¶ 7 The test for determining whether a statement is voluntary and whether a waiver of rights is valid is the totality of the circumstances. See Commonwealth v. Reiss, 440 Pa.Super. 151, 655 A.2d 163, 167 (1995) aff'd by an equally divided court,543 Pa. 479, 672 A.2d 784 (1996). If deception is used by law enforcement,

the deception must not pertain to the consent itself, in some sense it must be collateral to the content of the permission voluntarily granted. Thus, the accused must know what is being consented to, and if the police exceed the scope of that consent, then they have passed their limits of permissible deception. This is consistent with the line of cases which have held that if the accused does not understand what it was that was consented to, then the consent is invalid.

Id., at 166 (citing Commonwealth v. Haynes, 395 Pa.Super. 322, 577 A.2d 564, 572 (1990)).

¶ 8 The suppression court found the Appellant was advised of the real reason for the interrogation prior to waiving his rights. See Trial Court Order, 4/5/00, at ¶ 7. The suppression hearing transcript indicates the police advised the Appellant of their specific interest after they read and he signed the Miranda⁴ warning card. The Appellant did not make any incriminating statements at that point; instead, he demanded a polygraph test. The test was administered, and the Appellant failed. When the police met with him to discuss the results of the test, the Appellant suddenly admitted sexual involvement with his nephew. He was given Miranda warnings again and signed another waiver card. On the card, in response to the question whether he wished to remain silent, the Appellant answered, "no." Then he gave the police the challenged statement.

¶ 9 "Problems other members of the family were having" encompasses sexual assaults on the victim, but whether tactful or deceitful, any misapprehension that led the Appellant to the station is irrelevant. His statement was made after he was advised of the specific interest of the police and twice warned of his rights. The Appellant was not in custody and was free to leave the police station. He was coherent and alert. He never requested an attorney or indicated he did not wish to answer the officers' questions. Under the totality of the circumstances, we conclude the Appellant's statement was voluntarily given.

¶ 10 In issues two and three, the Appellant alleges the trial court erred in admitting a portion of his statement indicating he had been sexually abused as a child, and in refusing to admit evidence of other instances in which the victim had been sexually assaulted by individuals other than the Appellant.

¶ 11 Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and we will not reverse the court's decision absent a clear abuse of discretion. Commonwealth v. Chmiel, 558 Pa. 478, 493, 738 A.2d 406, 414 (1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000). Rule 401 of the Pennsylvania Rules of Evidence states, "`[r]elevant evidence' means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401, 42 Pa.C.S.A. Rule 403 states, "[a]lthough relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Pa.R.E. 403, 42 Pa.C.S.A.

¶ 12 The trial court ruled that the portion of the statement dealing with prior abuse of the Appellant "goes into the background and is relevant from the standpoint of [the Appellant's] experiences." N.T. Trial, 4/12/00, at 91. As the prosecutor pointed out, "[I]t's part of his confession.... [I]t's an explanation for his behavior that the defendant offered...." Id., at 90. That his excuse on the night of the confession differs from his strategy at trial does not make the proffered excuse any less admissible. Had he claimed insanity or intoxication, the result would be the same. We perceive no abuse of discretion by the trial court in admitting this evidence.

¶ 13 The trial court also excluded evidence which would purportedly show the victim had previously claimed he was sexually assaulted by persons other than the Appellant. The Rape Shield Law⁵ does not always preclude evidence the complainant was a victim of a prior sexual assault, see Commonwealth v. Johnson, 536 Pa. 153, 158, 638 A.2d 940, 942 (1994),

but the proffered evidence must still be relevant and material under the rules of evidence. Id. Thus, the question is whether allegations of complaints against other persons are relevant to the issue at hand: whether the Appellant sexually abused the victim.

¶ 14 We conclude, as did the trial court, that this evidence is not relevant. In the Appellant's motion in limine, he asserted this evidence would indicate the victim was trying to please his parents by following their suggestions that he accuse the Appellant. Evidence of fabrication would of course be relevant, but it is hard to see how prior abuse allegations would comprise such...