Com. v. Luktisch

• Decision Date: 06 September 1996
• Citation: 451 Pa.Super. 500,680 A.2d 877
• Parties: COMMONWEALTH of Pennsylvania v. Peter George LUKTISCH, Appellant.
• Court: Pennsylvania Superior Court

Page 877

680 A.2d 877

451 Pa.Super. 500

COMMONWEALTH of Pennsylvania v. Peter George LUKTISCH, Appellant.

Superior Court of Pennsylvania.

Argued May 21, 1996.

Filed June 25, 1996.

Reargument Denied Sept. 6, 1996.

Jack I. Lowe, Jr., Public Defender, Clarion, for appellant.

William E. Hager, III, District Attorney, New Bethlehem, for Com., appellee.

Before CIRILLO, President Judge Emeritus, and DEL SOLE and OLSZEWSKI, JJ.

OLSZEWSKI, Judge.

On August 29, 1995, a jury found appellant Peter George Luktisch guilty of rape and statutory rape. These convictions stem from an incident with his step-daughter, D.G., who was eleven years old at the time. This meritless appeal follows the imposition of an eighty-two month to twenty year prison sentence.

Initially, Luktisch alleges that the trial court erred in allowing T.L. (D.G.'s step-sister and Luktisch's natural daughter) to testify concerning sexual abuse Luktisch had also inflicted upon her. T.L., who was twenty-nine years old at the time of trial, testified that Luktisch "started touching her improperly when she was 5 and that between the ages of 5 and 8 he started having oral sex with her, and at age 8 [Luktisch] started having sexual intercourse with her." Opinion, 12/28/95 at 7. When T.L. was ten years old, sometime in 1976 or 1977, her mother moved her away from appellant and the sexual assaults ended. Id.

First, Luktisch contends that "the uncharged acts committed on [T.L.] were too remote from the charged crime to be properly admitted into evidence under the common scheme, plan, design or course of conduct exception to the general rule that evidence of uncharged acts is inadmissible against a defendant." Appellant's brief at 9. We disagree. Admittedly, the atrocities committed upon T.L. occurred fourteen years prior to those committed upon D.G. Focusing solely upon this time lapse, however, is improper. At trial, C.G. (D.G.'s natural sister and Luktisch's step-daughter) testified that she, too, had been victimized by appellant. C.G., who was twenty-one years old at the time of trial, testified that in 1982, when she was eight or nine years old, Luktisch started touching her breasts and vagina. This contact progressed to oral sex and, finally, when she was eleven years old, Luktisch began engaging her in sexual intercourse. This abhorrent contact continued until 1990, when C.G. moved away from appellant. Thus, at most, six years elapsed between the time Luktisch's assaults on T.L. ended and the time he turned his depraved intentions upon C.G. This is the time period we must focus upon. See Commonwealth v. Smith, 431 Pa.Super. 91, 94-96, 635 A.2d 1086, 1088 (1993) ("the issue of remoteness under the common plan exception is determined by analyzing the time involved between each of the criminal incidents"). Was this six year time period excessive under the circumstances? We think not.

Our Supreme Court has recently stated that "[w]hile remoteness in time is a factor to be considered in determining the probative value of other crimes evidence under [the theory of common scheme, plan or design], the importance of the time period is inversely proportional to the similarity of the crimes in question." Commonwealth v. Miller, 541 Pa. 531, 548-50, 664 A.2d 1310, 1319 (1995). See also Smith, supra. In the case at hand, Luktisch's tactics concerning his young victims were nearly identical. The similarity of appellant's approach to victimizing the children was aptly addressed by the trial court as follows:

The acts committed upon [D.G.], [C.G.], and [T.L.] were strikingly similar. The three victims were near the same age when [Luktisch] molested them; they all had the relationship of daughter or step-daughter to [Luktisch]; all three were living with [Luktisch] when the acts occurred; and the nature of the acts were almost identical. The progression of the acts performed on each victim was similar; improper touching first, then oral sex, then sexual intercourse. It is true that [D.G.] only made passing references to acts performed upon her by the [appellant] other than the singular act of sexual intercourse for which the [appellant] was charged and convicted, but [C.G.] and [T.L.] gave descriptions of how [Luktisch's] molesting them had progressed. Certainly what [D.G.] did describe fits squarely into the overall common scheme and course of conduct as it progressed from [T.L.], to [C.G.], to [D.G.].

Opinion, 12/28/95 at 9-10. Since the pattern of molestation committed upon his young victims was so distinct, especially concerning T.L and C.G., we cannot find that the six-year lay-off between the victimization of T.L. and C.G. was excessive as to render T.L.'s testimony overly prejudicial. See Miller, supra. Consequently, we find no trial court error and Luktisch's first issue on appeal must fail. ¹

Next, Luktisch contends that the trial court should not have allowed T.L. to testify because, in doing so, the trial court reversed its own previous ruling. Prior to trial, the trial court ruled that since C.G.'s testimony alone would establish a common plan, scheme or design, T.L.'s testimony would have been cumulative and, thus, its prejudicial effect outweighed its probative value. At trial, however, the credibility of D.G. and C.G. was severely undermined when it was revealed that their mother had threatened to "get her daughters to swear that [their former landlord] had molested them" if the landlord attempted to prosecute them for back rent. When the believability of C.G. and D.G. became crippled, the Commonwealth's need to present T.L.'s evidence under the common plan exception became inflated. At that point, the trial court did not err in determining that T.L.'s testimony was more probative than prejudicial, and, therefore, it was entirely proper to allow T.L. to testify. See generally Commonwealth v. Frank, 395 Pa.Super. 412, 421-23, 577 A.2d 609, 614 ("Commonwealth's need to present evidence under the common scheme exception" must be examined to determine whether the probative value of such evidence is outweighed by its prejudicial impact), alloc. denied, 526 Pa. 629, 584 A.2d 312 (1990).

Next, Luktisch alleges that the Commonwealth failed to establish the date of D.G.'s rape with reasonable specificity, and, therefore, his judgment of sentence should be reversed and he should be discharged. We disagree. It is true that "the date of the commission of the offense must be 'fixed with reasonable certainty.' " Commonwealth v. Devlin, 460 Pa. 508, 513, 333 A.2d 888, 890 (1975) (emphasis original) (citation omitted). Nevertheless, this rule has been somewhat relaxed when the victim is a child. In Commonwealth v. Groff, this Court stated that

[w]hen a young child is a victim of crime, it is often impossible to ascertain the exact date when the crime occurred. He or she may only have a vague sense of the days of the week, the months of the year, and the year itself. If such children are to be protected by the criminal justice system, a certain degree of imprecision concerning times and dates must be tolerated.

378 Pa.Super. 353, 364, 548 A.2d 1237, 1242 (1988). Moreover, the Groff Court concluded that

the Commonwealth must be allowed a reasonable measure of flexibility when faced with the special difficulties involved in ascertaining the date of an assault upon a young child. On the other hand, in order to ensure a fair trial for the defendant, the Commonwealth should conduct a thorough examination and come forward with any evidence which indicates when the alleged crime is most likely to have taken place.

Id. at 360-62, 548 A.2d at 1241.

In the case at hand, D.G. testified...