Com. v. Todd

• Decision Date: 20 December 1985
• Docket Number: No. 994,994
• Citation: 502 A.2d 631,348 Pa.Super. 453
• Parties: COMMONWEALTH of Pennsylvania v. Thomas TODD, Appellant. Pitts. 1982.
• Court: Pennsylvania Superior Court

Page 631

502 A.2d 631

348 Pa.Super. 453

COMMONWEALTH of Pennsylvania v. Thomas TODD, Appellant.

No. 994 Pitts. 1982.

Superior Court of Pennsylvania.

Submitted May 13, 1985.

Filed Dec. 20, 1985.

Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.

SPAETH, President Judge:

This is an appeal from judgments of sentence for indecent exposure and corruption of a minor. This is appellant's second trial. At his first trial the jury acquitted him of indecent assault but could not reach a verdict on the charges of indecent exposure and corruption of a minor. Appellant's principal argument is that the doctrine of collateral estoppel precluded the admission at his second trial of evidence of his touching of the victim because that evidence had been introduced at his first trial and was not accepted by the jury. We agree, and therefore vacate and remand for a new trial on the charges of indecent exposure and corruption of a minor, with the instruction that at the new trial the Commonwealth may not try to prove corruption by evidence of indecent assault.

The facts are as follows: On August 28, 1981, the victim, a seven year old girl, had gone to appellant's home, looking for his children. Although the children were not at home, she decided to stay and help appellant and his wife pick beans from their garden. During the course of her stay, according to the victim's later testimony, appellant pulled down his zipper and exposed his genitals on two separate occasions. She also testified that while appellant was inspecting marks on her thigh, apparently consisting of drawings made by a felt tip marker, he slid his hands up into her underpants and touched her vagina. This, she testified, also occurred twice on that day.

The Commonwealth charged appellant with one count each of indecent assault, indecent exposure, and corruption of a minor. The corruption count was explicitly based on the incidents of indecent assault and indecent exposure. Trial was held on March 5 and 8, 1982. After the victim testified as we have just indicated, appellant testified and denied everything the victim had said regarding the sexual contact and exposure. Appellant's wife also testified, stating that she was present with her husband and the victim at all times on the day in question, and that it would have been impossible for her husband to have committed the acts described by the victim without her having seen them. The jury returned a verdict of not guilty on the indecent assault charge but was unable to reach a decision on the remaining charges of indecent exposure and corruption of minors. The trial judge declared a mistrial on those charges and on May 27, 1982, a second trial was held. In the course of that trial, and over defense counsel's objections, the Commonwealth reintroduced all of the testimony regarding appellant's alleged physical contact with the victim. In addition, the trial court denied defense counsel's request that the jury be told that appellant had been acquitted of indecent assault. The jury found appellant guilty of both indecent exposure and corruption of a minor.

On the indecent exposure conviction, the trial court sentenced appellant to two years probation, conditional upon appellant's complying with whatever psychological treatment the county probation office recommended. On the corruption of a minor conviction, the trial court suspended sentence, noting that the suspension was "by virtue of the sentence at Count One [indecent assault], the defendant having been found not guilty of that crime by a jury on March 8, 1982." N.T. 7/30/82, at 8.

As we have noted, appellant's principal argument on appeal is that the doctrine of collateral estoppel precluded the admission of the victim's testimony regarding appellant's touching her. Although this issue was raised in post-trial motions, it is not addressed in the trial court's opinion.

The doctrine of collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the parties in any future lawsuit." Commonwealth v. Grazier, 481 Pa. 622, 632, 393 A.2d 335, 340 (1978), quoting Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). In Ashe the United States Supreme Court held that the collateral estoppel effect of an acquittal in a criminal case is "embodied in the Fifth Amendment guarantee against double jeopardy," which is applicable to the states through the 14th Amendment under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). 397 U.S. at 445, 90 S.Ct. at 1195. The defendant in Ashe had been acquitted of the robbery of one of six members of a poker game. The acquittal rested on the inability of the state's witnesses to identify the defendant as one of the robbers. The state then brought a new prosecution against the defendant for the robbery of a second player at the game, and called the same witnesses as those at the first trial. This time the witnesses did identify the defendant and he was convicted. The Supreme Court held that the defendant's acquittal at the first trial precluded the second trial. "The situation [presented by the second trial was] no different", the Court said, from the situation that would have been presented had the victim been the same as at the first trial. 397 U.S. at 446, 90 S.Ct. at 1195-6. "For the name of the victim ... had no bearing whatever upon the issue of whether the [defendant] was one of the robbers." Id. The jury having determined at the first trial that "there there was at least a reasonable doubt that the [defendant] was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery ... in the hope that a different jury might find that evidence more convincing." Id. Thus, even where the offense charged is not literally the same as the one previously tried, both collateral estoppel and the double jeopardy clause may bar relitigation of issue actually determined at the first trial. Commonwealth v. Grazier, supra; Commonwealth v. Winter, 324 Pa.Super. 258, 262, 471 A.2d 827, 829 (1984). Our Supreme Court has on several occasions applied Ashe to bar a subsequent prosecution. See, e.g., Commonwealth v. Schomaker, 501 Pa. 404, 461 A.2d 1220 (1983) (prohibition against double jeopardy requires that defendant's acquittal for conspiracy bar his retrial for theft by deception; such retrial would require relitigation of the same issues); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) (prosecution for robbery brought six months after defendant had been tried and convicted of felony murder based on the same incident violates double jeopardy aspect of collateral estoppel); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (doctrine of collateral estoppel as embodied in double jeopardy clause bars defendant's trial for perjury based on his testimony at prior trial where he was acquitted on all counts of narcotics violations; his credibility was necessarily decided at first trial).

Appellant's citation of Ashe is to some extent misleading. As we have just indicated, the problem in Ashe was when application of the doctrine of collateral estoppel bars a second trial as double jeopardy. Appellant, however, while citing Ashe, does not argue that his second trial put him in double jeopardy. Instead, his argument is that at his second trial the issue of whether he had touched the victim should not have been relitigated. Brief for Appellant at 7, 10-12. This argument does not involve application of the doctrine of collateral estoppel in a constitutional sense, i.e., as implicating double jeopardy, but only in its common law sense, i.e., as precluding relitigation of an issue decided in a prior action. It is true, of course, that Ashe's definition of the doctrine of collateral estoppel is pertinent to our decision, as is Ashe's statement of the spirit in which the doctrine is to be applied. In this last regard, we may also note that our Supreme Court, citing Ashe, has said that in deciding whether the doctrine precludes relitigation of an issue, we must "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Commonwealth v. Hude, supra at 612, 425 A.2d at 319-20, quoting Ashe, supra 397 U.S. at 444, 90 S.Ct. at 1194. See also Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983).

With these prescriptions in mind, we may look first at the charge of indecent assault, of which appellant was acquitted at his first trial. Section 3126 of the Crimes Code, 18 Pa.C.S. § 3126, defines indecent assault as follows:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:

(1) He does so without the consent of the other person;

(2) He knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct;

(3) He knows that the other person is unaware that an indecent contact is being committed;

(4) He has substantially impaired the other person's power to appraise or control his or her conduct, by administering or employing without the knowledge of the other drugs, intoxicants or other means for the purpose of preventing resistance; or

(5) The other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him.

The phrase "indecent contact" is...