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COMMONWEALTH PENNSYLVANIA v. THOMAS ROBINSON (04/26/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: April 26, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS ROBINSON, APPELLANT

No. 1188 Philadelphia, 1982, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1251-1252 January, 1981.

COUNSEL

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Rowley, Wieand and Popovich, JJ.

Author: Wieand

[ 316 Pa. Super. Page 154]

Thomas Robinson was tried by jury and found guilty of statutory rape*fn1 and corruption of a minor.*fn2 Post trial motions were denied, and appellant was sentenced to serve concurrent terms of imprisonment. In this direct appeal from the judgments of sentence, he contends that the evidence was insufficient to sustain the convictions because the Commonwealth failed to establish the exact dates upon which the offenses occurred. Robinson also argues that the trial court committed reversible error by permitting the

[ 316 Pa. Super. Page 155]

    victim to testify to alleged sexual acts with appellant on dates prior to those charged in the information. Finding appellant's arguments to be devoid of merit, we affirm the judgments of sentence.

"The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). Accord: Commonwealth v. Lee, 460 Pa. 374, 377, 333 A.2d 773, 775 (1975); Commonwealth v. Miller, 303 Pa. Super. 504, 507, 450 A.2d 40, 41 (1982); Commonwealth v. Riquelmy, 303 Pa. Super. 403, 405, 449 A.2d 750, 751 (1982); Commonwealth v. Corish, 296 Pa. Super. 92, 94, 442 A.2d 311, 313 (1982). In making this evaluation, all evidence received by the fact finder must be considered, whether the trial court's rulings thereon were correct or incorrect. Commonwealth v. Lovette, supra 498 Pa. at 669, 450 A.2d at 977; Commonwealth v. Cohen, 489 Pa. 167, 177, 413 A.2d 1066, 1072 (1980), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Commonwealth v. Corish, supra 296 Pa. Super. at 94-95, 442 A.2d at 313.

When so viewed, the evidence introduced at trial established the following facts: In 1976, the victim, Wanda F___, her younger sister, Willa, and her mother began sharing a home with appellant, the paramour of Wanda's mother. Wanda, then approximately 9 years of age,*fn3 treated appellant as her stepfather and called him "Pop." She testified that sometime in January of 1978 appellant informed her that she had contracted a venereal disease and required treatment for it. Wanda testified that appellant told her he had learned of her "illness" when he saw her

[ 316 Pa. Super. Page 156]

    name on records in a medical center and assured her that he was a paramedic and could administer the treatments necessary to cure her "disease." Wanda testified that it was approximately on a weekly basis, beginning in January of 1978, that appellant inserted a syringe and other objects as well as his penis into her vagina on the pretense of treating her for venereal disease. In August, 1980, Wanda attended a course in sex education and learned that appellant had been lying to her. She frequently visited her priest, Father McAteer, during the following two week period and was urged by him to explain to her mother what had been occurring. Wanda finally told her mother in November of 1980 and Wanda, her mother and sister immediately vacated the house in which they had been living with appellant. Prosecution followed.

Appellant argues that the evidence was insufficient to sustain the convictions for statutory rape and corruption of a minor because the Commonwealth did not "establish with any degree of certainty a particular date . . . on which an act of sexual intercourse was alleged to have occurred." While the Commonwealth must establish to a reasonable degree of certainty the approximate date of the offense charged, "[t]he Commonwealth need not always prove a single specific date of the crime." Commonwealth v. Devlin, 460 Pa. 508, 516, 333 A.2d 888, 899 (1975). Accord: Commonwealth v. Niemetz, 282 Pa. Super. 431, 441, 422 A.2d 1369, 1374 (1980) allocatur denied February 3, 1981; Commonwealth v. Speicher, 259 Pa. Super. 433, 440, 393 A.2d 904, 907 (1978). See also: Commonwealth v. Yon, 235 Pa. Super. 232, 237, 341 A.2d 169, 171-172 (1975).

In the instant case, Wanda testified that sexual acts had occurred on a weekly basis from January of 1978 until September of 1980. She had made entries in a diary on numerous dates during 1978 and 1979 and had noted in that diary three instances regarding appellant's "treatments" of her. While Wanda testified that only one of the entries had been made immediately after the event and that she was uncertain of which entry had been made contemporaneously,

[ 316 Pa. Super. Page 157]

    the evidence was sufficient to establish with reasonable certainty the dates on which acts constituting the crimes of statutory rape and corruption of a minor had occurred. Moreover, Wanda testified that appellant's "treatments" of her had occurred "about three times a week" between 1978 and September of 1980. This testimony was sufficient to establish to a reasonable certainty the dates of intercourse. The Pennsylvania Supreme Court in Commonwealth v. Devlin, supra, does not hold otherwise. There, the evidence established only that a crime had occurred some time within a fourteen month period. This, the Court held, was insufficient to satisfy the requirements of due process. The Supreme Court observed, however, that it would not "enunciate the exact degree of specificity in the proof of the date of a crime which will be required or the amount of latitude which will be acceptable. Certainly the Commonwealth need not always prove a single specific date of the crime. Any leeway permissible would vary with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused." Id. 460 Pa. at 516, 333 A.2d at 892 (footnote and citations omitted) (emphasis supplied). Where, as here, the victim was a child, the crime had been repeated frequently over a lengthy period, and the Commonwealth's evidence was sufficient to establish specific dates on several occasions, the convictions will be sustained.*fn4

Appellant also contends that the trial court committed error by permitting Wanda to testify that appellant had engaged in sexual intercourse with her on dates prior to those charged in the amended informations. The amended informations charged appellant with rape,*fn5 statutory rape

[ 316 Pa. Super. Page 158]

    and corruption of a minor "on or about January 1, 1980 and on divers dates thereafter up to and including September 30, 1980."*fn6 Wanda testified at trial that appellant had first engaged in sexual intercourse with her in January of 1978 and had continued to do so until September of 1980. Appellant's argument that it was error to permit testimony concerning acts which antedated those charged in the information is without merit.

"It is well settled in Pennsylvania that evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial except in certain limited circumstances. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955)." Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694-695 (1978). Accord: Commonwealth v. Martinez, 301 Pa. Super. 121, 124, 447 A.2d 272, 273 (1982); Commonwealth v. Lee, 297 Pa. Super. 216, 219-220, 443 A.2d 804, 805 (1982); Commonwealth v. Niemetz, supra 282 Pa. Super. at 443-444, 422 A.2d at 1375. "'The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to

[ 316 Pa. Super. Page 159]

    believe the accused guilty, and thus effectively to strip him of the presumption of innocence.'" Commonwealth v. Spruill, 480 Pa. 601, 604-605, 391 A.2d 1048, 1049-1050 (1978) quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975) (emphasis supplied). Accord: Commonwealth v. Styles, 494 Pa. 524, 527, 431 A.2d 978, 980 (1981); Commonwealth v. Lee, supra 297 Pa. Super. at 220, 443 A.2d at 805-806.

In the instant case, Wanda's testimony concerning appellant's ruse and the acts of intercourse occurring thereafter in 1978 and 1979 did not introduce evidence of "other crimes." Her testimony, rather, was evidence of part of one and the same transaction, a natural development of the facts surrounding the offenses for which appellant was being tried. This is an exception to the general rule. "In Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932), [the Supreme Court] spelled out [the "same transaction"] exception, saying that such evidence is admissible where '[the] prior . . . criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.'" Commonwealth v. Davenport, 286 Pa. Super. 212, 215, 428 A.2d 647, 649 (1981) quoting Commonwealth v. Brown, 462 Pa. 578, 590-591, 342 A.2d 84, 90 (1975) (emphasis in original). Accord: Commonwealth v. Ross, 413 Pa. 35, 40, 195 A.2d 81, 83 (1963); Commonwealth v. Lee, supra 297 Pa. Super. at 226-227, 443 A.2d at 809; Commonwealth v. Stufflet, 276 Pa. Super. 120, 125, 419 A.2d 124, 127 (1980); Commonwealth v. Stevens, 237 Pa. Super. 457, 463, 352 A.2d 509, 512 (1975). Pursuant to this exception, the evidence of intercourse prior to 1980 was properly received.

The judgments of sentence are affirmed.


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