Com. v. Sullivan

• Decision Date: 16 March 1988
• Citation: 538 A.2d 1363,372 Pa.Super. 88
• Parties: COMMONWEALTH of Pennsylvania v. Richard SULLIVAN, Appellant.
• Court: Pennsylvania Superior Court

Page 1363

538 A.2d 1363

372 Pa.Super. 88

COMMONWEALTH of Pennsylvania v. Richard SULLIVAN, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 8, 1987.

Filed March 16, 1988.

Richard C. Tinucci, Media, for appellant.

Ann A. Osborne, Asst. Dist. Atty., Media, for Com., appellee.

Before WIEAND, KELLY and HESTER, JJ.

WIEAND, Judge:

Richard Sullivan was tried by jury and was found guilty of involuntary deviate sexual intercourse, indecent assault, indecent exposure, unlawful restraint, and corrupting the morals of a child as a result of sexual acts, particularly anal intercourse, committed upon a ten year old, female child during the three month period between May and July, 1985. ¹ Post-trial motions were dismissed, and Sullivan was sentenced to serve a term of imprisonment for not less than five years nor more than ten years. On direct appeal, he contends that the verdict was contrary to the weight of the evidence and that several evidentiary rulings by the trial court were erroneous.

"The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court." Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). In reviewing the weight of the evidence we must look at all the evidence. Commonwealth v. Gonce, 320 Pa.Super. 19, 26 n. 1, 466 A.2d 1039, 1043 n. 1 (1983). To warrant a new trial, "it must appear from the record that the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail." Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981).

The child victim, who suffered from a mild learning disability, testified to fifteen or twenty instances of sexual contact with appellant, who was a neighbor and a friend of her parents. Because of this parental friendship, her parents initially said that they would not press charges if appellant would obtain psychiatric help. When the psychiatric appointments were discontinued, however, the victim's parents decided to prosecute. Dr. Steven Ludwig, a pediatrician, did not examine the child until approximately ten months after the abuse had been discovered. He testified that he found a "skin tag" in the child's rectal area which suggested a healed trauma consistent with penile-rectal contact. On the other hand, Dr. Charles Heil, who examined the child in July, 1985, found no evidence of sexual abuse and a hymen which had not been broken. It is also true that appellant denied the accusations. The trial court which heard the witnesses, however, did not find the jury's verdict shocking, and our own review of the record does not disclose any basis for reaching a contrary conclusion.

Appellant argues that Dr. Ludwig's examination of the victim on April 9, 1986 was too remote and that his findings, therefore, should have been excluded from the jury's consideration. "The question of remoteness, which is basically one of relevance, is properly vested in the discretion of the trial court, and its decision thereon will not be reversed unless a clear abuse of discretion is shown." Tolentino v. Bailey, 230 Pa.Super. 8, 13, 326 A.2d 920, 922 (1974) (footnote omitted). Although a medical examination closer in time to the alleged abuse would have been preferable, it cannot be said that the trial court's ruling was an abuse of discretion. Dr. Ludwig based his opinion that the child had been abused on a combination of social and psychological factors and said that his physical finding regarding the "skin tag" was merely a small piece of supportive evidence. ²

Appellant also contends that it was error to permit appellant's wife, who testified as a defense witness, to be cross-examined about inter-spousal sexual relations including, specifically, requests by appellant to his wife to engage in anal intercourse. However, appellant failed to object to this cross-examination. Therefore, any objection thereto was waived. Commonwealth v. Clark, 347 Pa.Super. 128, 131, 500 A.2d 440, 441 (1985), allocatur granted, 512 Pa. 1, 515 A.2d 1320 (1986).

The victim's parents initially determined that they would not prosecute appellant if he agreed to seek psychiatric help. Appellant testified that he had made an appointment with an abuse counselling clinic but had been arrested before he could keep the appointment. In an effort to rebut this testimony, the Commonwealth called Patricia Rygiel, an intake worker at Media Child Guidance. ³ She identified an intake report which had been prepared upon receipt of a call received from a person identifying himself as Richard Sullivan, 1105 Third Avenue, Prospect Park, Pennsylvania, 19076, and having a birth date of January 6, 1955. ⁴ The witness also testified that, according to the intake report, an appointment had been made for January 23, 1986, but that the appointment had not been kept. In addition, the witness, over defense objection, was permitted to read from the intake report as follows:

Q. Patty, when you received this phone call, did you inquire as to why this individual was requesting....

A. Yes, I did.

Q. And what was the response?

A. He said his problem was that he had a high sex drive.

Q. Anything else as far as his problem?

A. And then I said, "Well, what do you mean by that?" And he said that his neighbors had accused him of molesting their daughter and that they were asking him to come for treatment.

On appeal, Sullivan argues that the trial court's allowance of this testimony was prejudicial error. More specifically, he contends (1) that because the witness was reading from a report, her testimony was hearsay; (2) that there was no evidence that the caller in fact was the defendant; and (3) that the caller's statement that he had a high sex drive was improper rebuttal, irrelevant, and unfairly prejudicial. The Commonwealth responds that the report was admissible as a business record and, because it was an admission made by appellant, was relevant to attack his credibility.

The Uniform Business Records as Evidence Act provides as follows:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S.A. § 6108(b). In Ganster v. Western Pennsylvania Water Company, 349 Pa.Super. 561, 504 A.2d 186 (1985), we said,

The rule

is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regularly kept records have a high degree of accuracy (as compared to other memoranda). The very regularity and continuity of the records are calculated to train the recordkeeper in habits of precision; if of a financial nature, the records are periodically checked by balance-striking and audits; and in actual experience the entire business of the nation and many other activities function in reliance upon records of this kind.

McCormick on Evidence § 306, at 872 (3rd ed. 1984).

To satisfy the requirements of the rule, a business record in the form of memoranda reports or data compilations must be made at or near the time of the events reflected in the records. "A determination as to whether the recording of the event is sufficiently contemporaneous with the event is left to the broad discretion of the trial court." In re Estate of Indyk, supra 488 Pa. at 572 n. 2, 413 A.2d at 373 n. 2 [ (1979) ]. See: Henderson v. Zubik, 390 Pa. 521, 524, 136 A.2d 124, 126 (1957).

The records must also be kept in the course of a regularly conducted business, and it must be the regular practice of the business to keep records of the type offered into evidence. "In the regular course of business" includes entries made systematically and as part of a regular routine which requires the recording of events or occurrences, the reflection of transactions with others. These essentials must be established by testimony of the custodian or of another qualified witness. It is not essential for the admission of evidence under this rule, however, to produce either the person who made the entries in question or the...