Commonwealth v. Barger

• Decision Date: 13 December 1999
• Citation: 743 A.2d 477
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert K. BARGER, Jr., Appellant.
• Court: Pennsylvania Superior Court

743 A.2d 477

COMMONWEALTH of Pennsylvania, Appellee, v. Robert K. BARGER, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted September 8, 1999.

Filed December 13, 1999.

Brian D. Aston, Greensburg, for appellant.

Judith P. Petrush, Asst. Dist. Atty., Greensburg, for Com., appellee.

Before McEWEN, President Judge, and DEL SOLE, KELLY, POPOVICH, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE and STEVENS, JJ.

JOYCE, J.:

¶ 1 Robert K. Barger, Appellant, appeals from the judgment of sentence entered on February 7, 1997, as made final by the denial of post sentencing motions.¹ For the following reasons, we affirm. Before addressing the merits of this appeal, we recount the pertinent facts and procedural history of this case.

¶ 2 Appellant's case stems from events occurring in 1994 and 1995. During this period, the victim, M.C., resided with her mother and her stepfather, Appellant. N.T. Trial, 12/9-10/96, at 58. In June of 1994, when the victim was fifteen (15) years old, Appellant entered her bedroom at two or three a.m., laid down beside her and pressed his body against hers. Id. at 60. Appellant touched M.C.'s breasts, beneath her clothing, with his hands and placed his fingers inside of her vagina. When the victim tried to say no, Appellant covered her mouth. Id. at 61. The victim testified that, "[I was] [s]cared. I didn't know what to do, I didn't know if anybody would believe me if I told them." Id. at 62. ¶ 3 Appellant repeated this activity approximately every other week for a year until he temporarily moved out of the residence in June of 1995. Id. at 63, 66 and 69. In each instance, Appellant would enter her bedroom in the early morning, touch her breast and place his finger inside her vagina. Id. at 63. M.C. explained that on every occasion, she could smell the odor of alcohol on his breath and occasionally could smell the odor of marijuana on his person. Id., at 65 and 67.

¶ 4 The first time M.C. told anyone of these events was in the summer of 1995. Id. at 69. She told her cousin that very strange things were happening and that she was afraid of Appellant. Id. at 70. She also made the cousin promise not to tell anyone. Id. In November of 1995, the victim told her boyfriend everything that had occurred between her and Appellant, and made him promise not to tell anyone. Id. at 71. M.C. did not want her cousin or boyfriend to repeat the story because she was afraid that if it got back to Appellant, she would get hurt and that nobody would believe her because she had waited so long to say anything. Id.

¶ 5 In January of 1996, the victim told her guidance counselor that, "things were happening and that things did happen, ... he had touched me and stuff ... and I told her to go ahead and do what she had to do so I can get this fixed." Id. at 71-72 and 159. The guidance counselor proceeded to contact the Children's Bureau who then notified the police. Id. As a result of this information, Appellant was arrested and charged with various offenses arising out of his sexual assaults of M.C.²

¶ 6 During the course of the trial, the Commonwealth offered testimony regarding acts of assault and physical abuse committed by Appellant against M.C. and her mother which had occurred prior to and concurrent with the incidents for which Appellant was charged.³ The trial court admitted this testimony, ruling that Appellant's prior acts of assault toward M.C. and her mother were relevant to establish the reasons why the victim offered no physical resistance to Appellant and delayed in reporting the incidents. On December 10, 1996, a jury found Appellant guilty of aggravated indecent assault,⁴ indecent assault⁵ and corruption of minors.⁶ Thereafter, he was sentenced to three (3) to six (6) years' imprisonment.⁷

¶ 7 Trial counsel filed a post-sentence motion and then withdrew his appearance. New counsel, Brian Aston, Esquire, was appointed and filed an amended post-sentence motion.⁸ Following an evidentiary hearing, the trial court denied Appellant's post sentence motion. Appellant timely appealed.

¶ 8 Appellant presents the following issues for our review: (1) whether the trial court abused it's discretion in permitting the Commonwealth to introduce evidence that Appellant had assaulted his wife on previous occasions; (2) whether the trial court abused it's discretion in admitting evidence concerning Appellant's prior assaultive behavior towards M.C.; (3) whether the trial court erred in failing to issue a cautionary instruction with respect to the prior bad acts evidence; and (4) whether trial counsel was ineffective for failing to call Appellant's mother to testify.

¶ 9 We will address the first two issues together because they both relate to the admissibility of prior bad acts evidence. As our Supreme Court has stated, the admissibility of evidence is a matter directed to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Commonwealth v. Richter, 551 Pa. 507, 512, 711 A.2d 464, 466 (1998). Additionally:

[E]vidence of other crimes may be admitted where there is a legitimate evidentiary purpose for such evidence.... Some of the exceptions recognized ... as legitimate bases for admitting [such evidence] include, but are not limited to, (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design ...; (5) to establish the identity of the person charged with the commission of the crime on trial...; (6) to impeach the credibility of a defendant who testifies ...; (7) situations where a defendant's prior criminal history had been used by him to threaten and intimidate the victim....

Commonwealth v. Mayhue, 536 Pa. 271, 297, 639 A.2d 421, 434 (1994) (citation omitted). Evidence of prior bad acts generally are not admissible if offered merely to show bad character or a propensity for committing bad acts. Richter, 551 Pa. at 512, 711 A.2d at 466.

¶ 10 In admitting Appellant's prior assaultive acts, the trial court relied upon Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985) and this Court's decision in Commonwealth v. Richter, 450 Pa.Super. 383, 676 A.2d 1232 (1996).⁹ Both Claypool and Richter upheld the admission of evidence relating to the defendants' prior criminal acts, reasoning that the evidence was relevant to prove an element of the crime of rape, namely forcible compulsion or threat thereof. Claypool, at 179; Richter at 467. Appellant asserts that these cases are distinguishable from the case at bar because force or threat of force was not an element of the crimes with which Appellant was charged. Appellant's Brief at 15. Accordingly, Appellant argues that the Commonwealth has failed to demonstrate any logical connection between Appellant's assaultive behavior and the sexual assaults. Id. We find Appellant's reasoning to be in error.

¶ 11 Contrary to Appellant's assertions, the evidence was relevant insofar as it pertained to the victim's failure to promptly report the crimes. With regard to this issue, our Supreme Court has held:

[T]he lack of a prompt complaint is a factor to be considered by a juror in cases involving sexual offenses.... [A] prompt complaint is a factor which must be assessed with all of the other pertinent evidence bearing upon the question of the credibility of the complaining witness.... [T]he question of the sincerity of the complaint is raised if it is established that the delay under all of the factors present was either unreasonable or unexplained.... [T]he inference of insincerity is only justified where the facts of the case fail to disclose a reasonable explanation for the challenged time lapse prior to the complaint.

Commonwealth v. Lane, 521 Pa. 390, 398, 555 A.2d 1246, 1250 (1989) (citation omitted).

¶ 12 During cross examination and closing, trial counsel attempted to cast doubt on the reliability and sincerity of M.C.'s testimony by establishing that the victim had many opportunities to tell someone her story and never did, until she finally broke her silence after one and a half years. N.T. Trial, 12/9-10/96, at 81, 85, 87, 173 and 176-177. Thus the prior bad acts were relevant to help explain victim's failure to make a prompt complaint.

¶ 13 In the present case, although it is lack of consent and not forcible compulsion that the Commonwealth must prove, given Appellant's past history of physically abusive conduct towards the victim and her mother, his earlier actions were intimidating and threatening to the victim. She testified to a domestic situation in which both her and her mother were physically threatened and abused. The psychological coercion created by Appellant thus facilitated the repeated indecent assaults by intimidating the victim into silence. Other than the victim's initial attempt at objection, which was squelched when Appellant covered her mouth with his hand, the victim's failure to protest or resist could only be described by reference to the climate within the household.

¶ 14 The prior abusive conduct speaks louder than words and was used to compel the victim to participate in the assaults without her consent. See Commonwealth v. Richter, 551 Pa. at 513, 711 A.2d at 466-467

(finding that although appellant made no threatening or intimidating statements, his prior acts of physical abuse intimidated and threatened the victim, thus evidence of appellant's prior intimidation was admissible to prove forcible compulsion or threat of forcible compulsion where the victim testifies she did not consent to the act of intercourse). Therefore, evidence of Appellant's prior abusive and intimidating behavior directed at victim and victim's mother were properly admitted to prove M.C.'s lack of consent to Appellant's sexual contact with her. Id.

¶ 15 Furthermore, our failure to allow the admission of such prior abusive and intimidating acts would, in essence, grant immunity to criminals who, like Appellant here, have intimidated the victim with physical...