Com. v. Stago

• Decision Date: 03 October 1979
• Citation: 406 A.2d 533,267 Pa.Super. 90
• Parties: COMMONWEALTH of Pennsylvania v. Jesse Carmen STAGO, Appellant.
• Court: Pennsylvania Superior Court

Page 533

406 A.2d 533

267 Pa.Super. 90

COMMONWEALTH of Pennsylvania v. Jesse Carmen STAGO, Appellant.

Superior Court of Pennsylvania.

Argued March 12, 1979.

Decided June 13, 1979.

Application for Allocatur Denied Oct. 3, 1979.

Richard L. Guida, Harrisburg, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty., Harrisburg, for Commonwealth, appellee.

Before CERCONE, President Judge, WIEAND and HOFFMAN, JJ.

HOFFMAN, Judge:

Appellant was convicted of rape, ¹ involuntary deviate sexual intercourse, ² corruption of a minor, ³ incest, ⁴ and simple assault. ⁵ In this direct appeal, he alleges several errors by the trial court and by his trial counsel. We conclude that his trial counsel was ineffective for not objecting to the court's failure to define simple assault and incest in its charge to the jury and, accordingly, reverse and remand for a new trial on those charges.

On January 24, 1978, Lower Paxton Township police arrested appellant and filed criminal complaints alleging that appellant committed all the above offenses at divers times between 1972 and 1977 against his daughter Angela, aged 13 years at the time of arrest.

On May 31, 1978, jury trial commenced. Prior to appellant's appearance in the courtroom and without objection from appellant's trial counsel, the trial judge posed several Voir dire questions to the jury panel: whether they personally knew appellant, members of his family, or either counsel; whether they were clients of either counsel's law firm. Appellant then appeared in the courtroom, the trial judge asked against whether any members of the panel personally knew appellant, and Voir dire proceeded. No member of the jury was selected in appellant's absence.

Viewed in the light most favorable to the Commonwealth, the following evidence was adduced at trial:

Appellant's 13 year old daughter Angela testified that from the time she was eight years old appellant had forced her to engage in genital and oral sexual intercourse with him approximately once or twice a week, usually upstairs in her bedroom. She testified that "If I didn't, he'd beat me up." Appellant would send his wife, Angela's mother, out to shop and would tell his two younger daughters to watch television or play outside. Angela last had sexual contact with appellant in May or June 1977. In August 1977, her parents were divorced, and the mother took custody of Angela and her two sisters. Angela never told anyone about her sexual encounters with her father until January 1978, after an altercation with her mother and younger sister, Stephanie. Angela also testified that appellant beat her approximately once a week, using his open hand, fist, or a belt, and that such beatings were painful and left visible bruises. Angela's mother testified that she was unaware of appellant's sexual molestation of Angela until January 1978 when Angela told her. Her description of appellant's sexual practices matched Angela's description. Both Angela's mother and family friends testified that appellant frequently wanted Angela's mother to go out shopping and that he would be upset when he could not find someone to accompany her. Angela's 11 year old sister Stephanie corroborated Angela's testimony that appellant would tell her to watch television while he and Angela were upstairs alone in the bedroom. Several family and school friends testified that they had seen appellant beat Angela and has seen large bruises on her face, neck, arms, and buttock.

Over appellant's objection, Angela's treating psychologist testified that child-victims of incest frequently felt depressed, guilty, and angry and required psychiatric care and hospitalization.

Appellant admitted that he had a bad temper and that he had beat Angela several times, leaving bruises. In general, he and his witnesses characterized his actions as disciplinary measures. Appellant admitted that he occasionally lost control. He categorically denied any sexual molestation of Angela and stated that Angela often lied and was a difficult child.

In its charge to the jury, the trial judge defined simple assault as "a physical contact by one person to another that is not accidental." He did not instruct the jury at all on the crime of incest. Appellant's trial counsel neither objected to the court's charge nor requested additional instructions. On June 2, 1978, the jury found appellant guilty on all charges, including simple assault and incest.

After the verdict, appellant engaged new counsel who filed post-verdict motions alleging both trial court errors and several instances of trial counsel ineffectiveness. After hearing testimony on July 21, 1978 relating to the ineffectiveness claims, the lower court denied appellant's post-verdict motions. On September 19, 1978, the court sentenced appellant to the following concurrent terms of imprisonment: (1) 10 to 20 years for rape and involuntary deviate sexual intercourse, (2) 2 1/2 to 5 years for incest and corrupting a minor, and (3) one to two years for simple assault. This appeal followed.

Appellant contends that his conviction for all charges except simple assault was not supported by sufficient evidence or by the weight of the evidence. We have stated the test for sufficiency many times. See e. g. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Eddington,255 Pa.Super. 25, 386 A.2d 117 (1978). Examination of the record shows that, taken in the light most favorable to the Commonwealth, the evidence and all reasonable inferences therefrom were sufficient to prove appellant guilty beyond a reasonable doubt of rape, involuntary deviate sexual intercourse, and corrupting a minor. Appellant correctly points out that Angela's testimony concerning appellant's improper sexual conduct was crucial to his conviction. He urges us to conclude, As a matter of law, that her testimony is not worthy of belief because she had been hospitalized in a psychiatric unit for 2 1/2 months before trial, she delayed in telling anyone of the sexual assaults, and she indicated after her parents' divorce that she wanted to live with appellant. Appellant never challenged Angela' competency to testify. Her testimony was lucid and unambiguous; moreover, she explained that her long silence and previously stated desire to live with appellant were products of her fear of appellant. "It is the exclusive function of the factfinder to assess the credibility of witnesses and determine the weight to be accorded their testimony." Commonwealth v. Bridell, 252 Pa.Super. 602, 607, 384 A.2d 942, 945 (1978). See Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). The jury chose to believe Angela and not appellant; we find no basis to overturn its choice.

Appellant next contends that the court erred in allowing Angela's psychologist to give his opinion of Angela's credibility. Our review of the record shows that the psychologist gave no such opinion; accordingly, this contention is without merit.

Appellant's remaining contentions all concern his trial counsel's alleged ineffectiveness. Because his new counsel raised specific instances of ineffectiveness at the first opportunity in timely filed written post-verdict motions and reasserts them in this direct appeal, appellant has properly preserved the issue for our review. See Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n. 6, 372 A.2d 687, 695 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). We must first determine whether appellant's claims of ineffectiveness have arguable merit; if so, we must then analyze whether the course chosen by trial counsel had " 'Some reasonable basis designed to effectuate his client's interest.' " Hubbard, supra, 472 Pa. at 277-79, 372 A.2d at 695, quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

Appellant first contends that counsel was ineffective for not objecting to the trial court's partial Voir dire examination of the jury panel in appellant's absence. Although none of the jury was selected during his absence, See Commonwealth v. Tolbert, 246 Pa.Super. 23, 369 A.2d 791 (1977), he claims that his inability to observe the prospective jurors' reactions to the court's questions prejudiced his later exercise of peremptory challenges. Pa.R.Crim.P. 1117(a) provides: "The defendant shall be present at . . . every stage of the trial including the impanelling of the jury . . . . The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict." The court found, and the record supports the finding, that appellant's late arrival was not excused; accordingly, the court did not err in commencing Voir dire in his absence. See Commonwealth v. Andrews, 245 Pa.Super. 547, 369 A.2d 762 (1977). Moreover, "(v)oir dire examination is not intended to provide a defendant with a better basis upon which to utilize his peremptory challenges." Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). Because appellant's contention is without arguable merit, his trial counsel was not ineffective for failing to object.

Appellant next contends that his counsel was ineffective for not objecting to the trial judge's remark wherein he presumed that appellant would later testify. The remark occurred when the court, over Commonwealth objection, allowed a defense witness to testify concerning the contents of a telephone conversation he overheard between appellant and a child even though no foundation had been laid that the child he heard was Angela. There followed this exchange:

"THE COURT: All right, if he (the witness) was on the extension (of the telephone), we will let him testify.

"If he was on an extension And presumably your client is going to testify that it was the daughter.

"MR. KOGAN (APPELLANT'S TRIAL COUNSEL): Yes." (emphasis added) Appellant...