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COMMONWEALTH PENNSYLVANIA v. GEORGE MCCLOUGHAN (08/01/80)

filed: August 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE MCCLOUGHAN, III, APPELLANT



No. 2309 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Criminal Division, at Nos. 475,476 of 1978.

COUNSEL

George A. Heitczman, Bethlehem, for appellant.

James J. Narlesky, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.

Brosky, Watkins and Cirillo, JJ.*fn*

Author: Watkins

[ 279 Pa. Super. Page 602]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Northampton County, Criminal Division, by the defendant-appellant, George McCloughan, III, after his convictions by a jury on various charges involving sexual acts with minor females.

The defendant was the stepfather of Brenda and Rhonda Strouse, who were children of his wife's first marriage. Both girls were minors at the time of the trial, Brenda being fourteen (14) years of age and Rhonda being sixteen (16) years of age. At the trial the defendant was found guilty of the statutory rape of Brenda Strouse and guilty of corruption of a minor, charges as to both Brenda Strouse and Rhonda Strouse. He was acquitted of having involuntary deviate sexual intercourse with Rhonda Strouse and of statutory rape of Rhonda Strouse. During the trial the Commonwealth alleged that the defendant had engaged in various sexual acts with the two minor girls for a period of four (4) years until the girls' mother, Judith McCloughan, defendant's wife, learned of this activity, and took measures to put a stop to it. At the trial the Commonwealth introduced

[ 279 Pa. Super. Page 603]

    into evidence the fact that Judith McCloughan, shortly after observing the defendant fondling one of the girls, sought legal counsel and filed a spouse abuse petition against the defendant. Both girls and their mother testified as to this fact, over the objections of the defendant's counsel. Defendant complains on appeal that the introduction of the testimony about the spouse abuse petition was irrelevant to his case and that it prejudiced the defendant in the eyes of the jury because it led them to believe that a judicial determination establishing the defendant's participation in the onerous activities had been made. We do not agree. The Commonwealth produced this testimony in order to demonstrate that the children's mother had made a prompt complaint of the defendant's actions once she knew about them and had taken decisive action with regard to them. The testimony about the spouse abuse petition was relevant, therefore, because it tended to show that the mother acted promptly when she learned of the defendant's actions with her daughters. This was important to the Commonwealth's case because the defendant based part of his defense on the fact that the sexual abuse of the children was alleged to have occurred for a period of four years and that during that time nothing had been done about it. The defendant argued that this tended to prove that the sexual abuse had not occurred at all and that testimony regarding same was a recent fabrication. Evidence is relevant if it tends to establish some fact material to the case or tends to make a fact at issue more or less probable. Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975). The making of a prompt complaint by the mother tended to disprove the defendant's defense and was highly probative evidence for that reason. Because its probative value outweighed any prejudicial effect it had on the defendant, we hold that the introduction of this testimony under the facts of this case was not error.

The defendant next claims that the trial court erred when it refused to grant a mistrial when Rhonda Strouse cried during her testimony. The trial court noted that the girl's crying episode lasted for only a brief period and that

[ 279 Pa. Super. Page 604]

    she was able to continue her testimony without a recess. She then went on to testify for 41 pages of the trial transcript without further crying. Since the crying episode was brief and since the trial court, which observed the episode, obviously felt that the jury had not been prejudiced by the brief incident we hold that the trial court did not abuse its discretion in refusing to declare a mistrial because of it. See Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 (1971).

The defendant also claims that the court below erred when it permitted a representative from the Children's Bureau, Joanne Ferraro, to testify regarding an attempt to have Brenda Strouse medically examined. The defendant contends that such testimony was irrelevant, prejudicial to the defendant, and constitutes grounds for a new trial. We do not agree. Ferraro testified that she took Brenda Strouse to a gynecologist in an attempt to have her examined but that no examination was made. During her cross-examination, defendant's counsel had inquired of Brenda Strouse whether she had been medically examined to which she responded, "No, because the female doctor wouldn't do it." The purpose of Ferraro's testimony was to make clear to the jury the reason why Brenda ...


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