Com. v. Maloney

• Decision Date: 07 November 1991
• Citation: 598 A.2d 543,409 Pa.Super. 516
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Stephen W. MALONEY.
• Court: Pennsylvania Superior Court

Page 543

598 A.2d 543

409 Pa.Super. 516

COMMONWEALTH of Pennsylvania, Appellant, v. Stephen W. MALONEY.

Superior Court of Pennsylvania.

Argued April 16, 1991.

Filed Sept. 10, 1991.

Reargument Denied Nov. 7, 1991.

Ann A. Aschauer, Asst. Dist. Atty., Media, for Com.

John J. Duffy, West Chester, for appellee.

Before MONTEMURO, BECK and TAMILIA, JJ.

BECK, Judge:

The Commonwealth appeals from the trial court's order granting appellee Stephen Maloney a new trial after a jury convicted him of involuntary deviate sexual intercourse and indecent assault. Since we find that the trial court's grant of a new trial constituted an abuse of discretion, we reverse the order and remand for the imposition of sentence.

The evidence which formed the basis for the convictions of involuntary deviate sexual intercourse and indecent assault was as follows. Both the defendant, Maloney, and the complainant, Katherine Lehmann, were students at Villanova University. At the time the offenses occurred, Maloney was a junior and Lehmann was a freshman. Both were members of the swim team and it was through participation on the team that they were acquainted.

On homecoming weekend, October 28-29, 1989, both Maloney and Lehmann attended a swim team party at a private home in Bryn Mawr. They did not arrive at the party together. Lehmann had been driven to the party by a friend after leaving her own car parked at the Villanova campus. Because Lehmann knew she eventually had to drive herself home from campus to her aunt and uncle's house where she was residing, she did not have anything to drink at the party. At approximately midnight, Lehmann was ready to leave the party and she got a ride back to campus from a young woman, Mary Mayfield. Maloney was also in the car and during the ride to campus, he displayed a flask to Lehmann and remarked that it was grain alcohol and that he had been drinking it all night. Lehmann remembered seeing Maloney with the flask in his hands at the party.

When they arrived at Villanova, Lehmann and Maloney got out of Mayfield's car and Lehmann headed toward her car to drive herself home. Maloney followed her and persuaded her to drive him to his dormitory, explaining that, even though the building was nearby, he was drunk and tired and needed the ride. Lehmann complied. When they arrived at his dormitory, Lehmann got out of the driver's seat in order to let Maloney out of the car since the passenger's door was broken. Maloney slid into the driver's seat. Alone in the car he then began acting foolishly, at first driving Lehmann's car around the parking lot and then running into the dorm with her car keys. Lehmann followed him, and Maloney convinced her to accompany him to his room on the pretext that she could say hello to other members of the swim team. When she arrived there was nobody else there. Maloney continued to insist that the others had "just run into the bathroom, they will be right back." After Lehmann stepped into the room, Maloney, in order to keep the room dark, pushed the only lamp in the room onto the floor and Lehmann heard him locking the handle of the door.

Thereafter, Maloney began a sexual assault on Lehmann which lasted about two hours. At first, Lehmann was more disgusted and astonished than frightened. She continually attempted to push Maloney away and both physically and verbally refused Maloney's advances. The episode culminated in Maloney forcing Lehmann to perform oral intercourse, during which he caused himself to ejaculate all over Lehmann's hair and face. Then, claiming that he had "a big [swim] meet" the next day, Maloney climbed into his bed and appeared to either fall asleep or pass out. Lehmann left.

As soon as Lehmann left the room she began to search for her friend, Dave Wohlsifer, whom Lehmann described as her best friend on campus. She found him and another student, Mike Lobiondo, in the lounge of the dorm. Her appearance alarmed Wohlsifer who repeatedly asked her what was wrong. Lehmann's eyes were red, her makeup was smeared and she was crying. Wohlsifer gave her tissues to clean the semen from her hair and made her some tea because she complained of a bad taste in her mouth.

Mike Lobiondo also attested that Lehmann was "a wreck" when she entered the lounge. She was crying, fidgeting and upset almost to the point of making no sense. She referred to herself as having been humiliated and victimized. However, since Lehmann did not know Lobiondo nearly as well as she knew Wohlsifer, she hesitated to reveal the details of the assault while Lobiondo was still in the room. She waited instead until she was alone with her friend.

Despite her ordeal in October, Lehmann did not report the assault to police until the following March. She was afraid of the publicity which might surround the disclosure and she feared that confronting a trial could be worse than the episode itself. Further, she felt that publicizing the assault might reflect negatively on the swim team and make her membership on the team difficult. She wanted to avoid further humiliation and pain. However, Lehmann changed her mind in March when she read a newspaper article about another girl on the swim team being sexually assaulted in her dorm room at Villanova. Lehmann felt guilty and reproached herself that her silence had somehow contributed to the assault on the second girl. As a result, she told the police what had happened to her the prior October. It must be noted that, in fact, Stephen Maloney was the accused in the March incident as well, and following his arrest for both assaults, the Commonwealth initially sought to consolidate the two cases for trial. However, the trial court granted the defense motion to sever the trials and further imposed a limitation on the prosecution to prohibit reference to the other charges against Maloney. Thus, when Lehmann referred to the March incident, she alluded only to the victim of the crime and not at all to the alleged perpetrator.

Maloney's defense was that he was the almost unwitting recipient of sexual favors from a freshman girl who was nearly a stranger to him until the night of the swim team party. Maloney testified that Lehmann offered to accompany him to his room and that she initiated and escalated the sexual advances. In fact, it was Maloney's testimony that he intended to terminate the encounter but that Lehmann unexpectedly unbuckled his pants and "started giving [him] oral sex". The incident ended with Maloney ejaculating in Lehmann's hair which embarrassed him and allegedly angered Lehmann. According to Maloney, he and Lehmann saw each other regularly after that, but only in the capacity of teammates and "friends." He testified that after the initial embarrassment of seeing her again after that night, relations between them were "calm and friendly." Finally, Maloney testified that the following morning he told some friends, most of whom were male members of the swim team, that a freshman girl had accompanied him home after the party and performed oral sex on him. This testimony was the basis of the defense's theory that Lehmann's accusations regarding the sexual assault were occasioned by her resentment of Maloney's "bragging" to his friends of their sexual encounter.

The jury convicted Maloney of indecent assault and involuntary deviate sexual intercourse. Post-verdict motions were filed and, in arguing for a new trial, defense counsel raised the two issues upon which the trial court has granted defendant a new trial. First, he argued that reversible error occurred when Katherine Lehmann testified on direct examination that the reason she came forward in March to report the assault after months of delay was because she had learned of another sexual assault on campus and that she was motivated by guilt. Defendant argued that her testimony tacitly implicated Maloney, thereby offending the trial court's ruling excluding reference to Maloney's other charges and irreparably prejudicing the jury. Defendant also sought a new trial because, during deliberations, the jury was allegedly exposed to and prejudiced by a newspaper article which disclosed the existence of the other charges against Maloney. The trial court found merit in both arguments and granted defendant a new trial. The Commonwealth appealed. We reverse.

As noted above and as stated by the trial court in its opinion, prior to trial the court instructed the prosecutor that "it would not permit any reference to other charges against the Defendant in this case." During direct examination of Katherine Lehmann, the following occurred:

[Prosecutor]. Speaking of the police, did you report this to the police in November or December?

[Witness]. No.

[Prosecutor]. Did you report it to the police in January or February?

[Witness]. No.

[Prosecutor]. How about in March?

[Witness]. Yes.

[Prosecutor]. What happened in March to prompt you to go to the police with this incident?

[Witness]. In late March, I read in the newspaper about another girl on the swim team being assaulted in her bedroom--on her dorm room in her bed.

[Prosecutor]. At Villanova this is?

[Witness]. On the campus. Yes.

[Prosecutor]. All right.

[Witness]. And I started to feel really guilty about not initially coming forward, so being that maybe somehow reporting my incident might have, I mean, somehow, prevented this girl from having to go through something similar to what I had to go through.

[Prosecutor]. And as a result of that, did you, in fact, go to the police?

[Witness]. Yes.

Lehmann then went on to testify about her reasons for failing to report the assault until March. At no point during the above-transcribed testimony did defense counsel object, seek a mistrial or request cautionary instructions. The Commonwealth argues that the trial court erred in granting a new trial on this belated claim of error. The Commonwealth contends that the trial court abused its discretion because Lehmann's testimony made no reference...