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COMMONWEALTH PENNSYLVANIA v. THOMAS TODD (05/13/85)

submitted: May 13, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS TODD, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal No. 8106975A

COUNSEL

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

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Spaeth

[ 348 Pa. Super. Page 455]

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

[ 348 Pa. Super. Page 456]

    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

[ 348 Pa. Super. Page 457]

    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 ...


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