Com. v. Trimble

• Decision Date: 23 September 1992
• Citation: 419 Pa.Super. 108,615 A.2d 48
• Parties: COMMONWEALTH of Pennsylvania v. Jesse Franklin TRIMBLE, Appellant.
• Court: Pennsylvania Superior Court

Page 48

615 A.2d 48

419 Pa.Super. 108

COMMONWEALTH of Pennsylvania v. Jesse Franklin TRIMBLE, Appellant.

Superior Court of Pennsylvania.

Submitted June 29, 1992.

Filed Sept. 23, 1992.

Daniel K. Taylor, Lancaster, for appellant.

Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for Comm., appellee.

Before CAVANAUGH, OLSZEWSKI and MONTGOMERY, JJ.

OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence of the Lancaster County Court of Common Pleas. Appellant, Jesse Franklin Trimble, was found guilty after a jury trial of rape, involuntary deviate sexual intercourse [hereinafter IDSI], incest and corruption of the morals of a minor. The convictions arose out of appellant's sexual contact with his four-year-old daughter. We take up the case below.

Appellant has raised four issues for our consideration. First, appellant argues that the evidence presented at trial was insufficient to establish the penetration element of rape and IDSI. Second, appellant argues that the trial court erred in finding that the child victim was competent to testify at trial. Third, appellant argues that his trial counsel was ineffective for failing to present certain evidence at trial. Fourth, appellant raises a challenge to the discretionary aspects of his sentence.

Appellant's first argument is that the evidence was insufficient to establish the element of penetration required for rape and IDSI. The standard of review in challenges to the sufficiency of the evidence is well settled.

In evaluating this contention [i.e., the defendant's challenge to the sufficiency of the evidence], we [must] view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Carbone, 524 Pa. 551, 553-554, 574 A.2d 584, 585 (1990) (quoting Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984)). See also Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. D'Angelo, 401 Pa.Super. 409, 585 A.2d 525 (1991). With this as our standard of review, we find that appellant's arguments surrounding the sufficiency of the evidence are without merit.

To evaluate appellant's challenge to the sufficiency of the evidence, it is necessary to determine what will satisfy the penetration requirement for rape and IDSI. The requirement for rape is "penetration, however slight." 18 Pa.C.S.A. § 3101 (Purdon's supp.1992). It is clearly established that there is no requirement that penetration reach the vagina or "farther reaches of the female genitalia...." Commonwealth v. McIlvaine, 385 Pa.Super. 38, 47, 560 A.2d 155, 159 (1989) (quoting Commonwealth v. Ortiz, 311 Pa.Super. 190, 457 A.2d 559 (1983)) rev'd on other grounds 529 Pa. 381, 603 A.2d 1021 (1992). The penetration requirement for IDSI is also "penetration, however slight." 18 Pa.C.S.A. § 3101 (Purdon's supp.1992). It has been held that oral contact with the female genitalia is sufficient to support the penetration requirement for IDSI. Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988). We must determine whether the evidence presented, viewed in a light most favorable to the Commonwealth as the verdict winner, was sufficient to establish the penetration requirement of rape and IDSI.

The court of common pleas is correct to direct this Court to McIlvaine where a panel of this Court examined the sufficiency of the evidence of penetration.

"[T]he uncorroborated testimony of the victim, if believed by the trier of fact, is sufficient to support a conviction, despite contrary evidence from defense witnesses." ... Further, as to the doctor's testimony that "[t]he medical examination revealed there had not been successful penetration," N.T. at 216, the statute requires only penetration "however slight."

McIlvaine, 385 Pa.Super. at 159, 560 A.2d at 159 (citations omitted). Applying the legal principles set forth above, we find that the evidence presented was sufficient to fulfill the penetration requirement of rape and IDSI.

The testimony of the child victim regarding the sexual contact involved is sufficient to support a finding of penetration for rape and IDSI. First, regarding rape, the child victim testified that appellant placed his "wiener" (referring to appellant's penis) in her "tooter" (referring to her vaginal area). N.T. January 9, 1991, at 109-111. Viewing this evidence in a light most favorable to the Commonwealth as verdict winner and allowing all reasonable inferences therefrom, this evidence is sufficient to establish penetration however slight. McIlvaine. Second, regarding IDSI, the victim testified that appellant made her suck his "wiener" (referring to appellant's penis) and that the appellant licked her "tooter" (referring to her vaginal area). N.T. January 9, 1991, at 112. Viewing this evidence in a light most favorable to the Commonwealth as verdict winner and allowing all reasonable inferences therefrom, this evidence is sufficient to establish penetration however slight. Accordingly, we find that appellant's argument that there was insufficient evidence of penetration to support rape and IDSI is without merit.

Appellant's second argument is that the trial court erred in finding that the victim was competent to testify. In this case the victim was four years of age at the time of the crimes and five years of age at the time of trial. The relevant inquiry into the competency of a child to testify is well established in this Commonwealth.

There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she [he] is called to testify about and (3) a consciousness of the duty to speak the truth.

Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 310 (1959). The determination of a child's competency to testify lies within the sound discretion of the trial court, and such a determination will not be reversed absent an abuse of discretion. Commonwealth v. Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990).

A witness is presumed competent to testify unless proven otherwise. When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness's chronological immaturity.

Commonwealth v. Stohr, 361 Pa.Super. 293, 296, 522 A.2d 589, 591 (1987) (citation omitted). Our review is not limited to the trial court's questioning of the child prior to the child's testimony. It is appropriate for an appellate court to look not only to the trial court's questioning of the child prior to the child testifying, but also to the child's actual testimony. Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978). Applying the well-settled rules of law stated above, we find no abuse of discretion in the trial court's finding that the victim in this case was competent to testify.

The victim in this case was examined by the trial court and counsel prior to testifying in order to determine the victim's competency to testify. N.T. January 9, 1991, at 72-96. After this examination, the trial court found that the victim was competent to testify. The victim then testified regarding the events underlying this case. N.T. January 9, 1991, at 99-132. We have reviewed all of the victim's testimony and find that the victim was competent to testify in this case. Throughout her testimony, the victim demonstrated an ability to communicate. The victim understood the questions asked of her and formulated intelligent, responsive answers to the questions. Further, throughout her testimony, the victim demonstrated an ability to observe and remember relevant events. Finally, the victim's testimony clearly reflects an appreciation of the duty to tell the truth. N.T. January 9, 1991, at 72-80, 98-102. We find no abuse of discretion in the trial court's finding that the victim was competent to testify.

Appellant's third argument is that his trial counsel was ineffective in failing to call several witnesses and in failing to present certain evidence. The trial court found no merit to appellant's allegations of ineffectiveness and denied appellant any relief without an evidentiary hearing.

Generally, it is presumed that counsel is competent, and appellant bears the burden of establishing otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). In order to prevail upon a claim of ineffective assistance of counsel, appellant must establish "that the course followed by trial counsel was unreasonable, that another meritorious course was available and that defendant [appellant] was prejudiced by counsel's ineffectiveness." Id. Further, the burden is upon appellant to set forth sufficient facts to allow a reviewing court to conclude that trial counsel was possibly ineffective before a case will be remanded for an evidentiary hearing. Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). An evidentiary hearing is not a discovery tool at the disposal of appellant for the purpose of developing testimony to support allegations of ineffective assistance of counsel. Id. "Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant's interests existed for counsel's actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary." Id., at 377, 534 A.2d at 485. Applying these legal principles, we agree with the trial court.

Appellant claims that his trial counsel was ineffective for failing to present evidence that...