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decided: April 22, 1986.


Appeal from the Judgment of Sentence of August 29, 1984 in the Court of Common Pleas of Bucks County, Criminal Division, at No. 3261/83.


Cynthia M. Weaver, Solicitor, Newtown, for appellant.

Gail Fairman, Assistant District Attorney, Doylestown, for Com., appellee.

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 354 Pa. Super. Page 134]

This is an appeal from the judgment of sentence for statutory rape, 18 Pa.C.S.A. § 3122, indecent assault, id. § 3126, indecent exposure, id. § 3127, and corruption of minors, id. § 6301. Appellant contends that (1) the lower court erred in limiting his expert's testimony at trial; (2) the statute granting sexual assault counselors an absolute privilege "not to be examined as a witness in any civil or criminal proceeding" concerning confidential communications made to them by sexual assault victims, 42 Pa.C.S.A. § 5945.1, is unconstitutional under various provisions of the United States and Pennsylvania Constitutions; (3) his trial counsel rendered ineffective assistance of counsel (seven allegations); (4) the sentencing guidelines, see 204 Pa.Code §§ 303.1-303.9, reprinted following 42 Pa.C.S.A. § 9721, are unconstitutional under various provisions of our state constitution; and (5) his prior misdemeanor convictions not involving the use of a deadly weapon were improperly counted in determining his prior record score under the sentencing guidelines because the Pennsylvania Commission on Sentencing had no authority to so allow their use. For the following reasons, we vacate the judgment of sentence and remand this case for resentencing.

On June 17, 1983, appellant was arrested in connection with the May 29, 1983 sexual assault of an eleven-year-old girl. He was charged with rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent

[ 354 Pa. Super. Page 135]

    exposure, corruption of minors, and simple assault. Following a July 28, 1983 preliminary hearing, appellant was held for court on each of the charges and arraigned on September 7, 1983. At a November 11, 1983 hearing on appellant's pre-trial motions, the Commonwealth withdrew the charge of involuntary deviate sexual intercourse. N.T. November 11, 1983 at 2.

Appellant was tried before a jury on November 18 and 21, 1983. Essentially two versions of what transpired in the early morning hours of May 29 were presented at trial.*fn1 Appellant lived with the victim's stepsister and their daughter. About 9:30 on the evening of May 28, appellant and his girlfriend picked up the victim at her home; the couple then drove her to their home to baby-sit their daughter while they went out to a bar. At this point, the versions diverge.

According to the Commonwealth, the couple returned after midnight, and then appellant proceeded to drive the victim home in her stepsister's automobile. At some point on the way there, appellant kissed the victim and then drove to an area where he committed the acts that form the basis of the charges filed against him. The victim testified that she smelled alcohol on appellant's breath, but did not know whether he was drunk. Notably, during the victim's struggle with appellant in the backseat of the car, she put her foot through the roof of the convertible. See N.T. November 21, 1983 at 10 (testimony of police officer Howard Bennett); id. November 18, 1983 at 35 (victim's testimony that she "tried to kick [her] way out of it"). Afterwards, appellant drove the victim home. Out of fear, she did not tell her father (who was awake when she came home) or her mother what had happened. In the morning she did, however, tell her fifteen-year-old friend and neighbor. Then, after a conversation with "two girlfriends [who] said if you don't tell them, [we] will," id. at 39, the victim told her mother about the attack on the following Tuesday (May 31)

[ 354 Pa. Super. Page 136]

    or Wednesday (June 1). Her mother took her, on June 2, to see Dr. Valerie Bossard, a physician who specializes in gynecology and obstetrics. Dr. Bossard testified that the victim had "a small area of ecchymosis [redness] about two by two centimeters, on the left labium minora" and a hymen that was not intact, factors suggesting that sexual intercourse had occurred. Id. at 79-80.*fn2

Appellant testified in his own defense. He and the victim's stepsister stayed at the bar until "last call," 2:00 a.m. He had two beers there. N.T. November 21, 1983 at 49-50. After leaving the bar, appellant's girlfriend "noticed the roof was cut and [he] checked out the car and noticed it." Id. at 47; see also id. at 17 (testimony of the victim's stepsister).*fn3 The couple drove her brother, who had gone with them, to his house, and then returned to their home. Next appellant drove the victim home and returned at about 3:15 a.m. His girlfriend did not accompany him because she was not feeling well and, because her car was low on gas, she did not want to get stranded outside so early in the morning. The following Monday, Memorial Day, the victim spoke to her stepsister and appellant at a cookout and was paid for baby-sitting. On Thursday (June 2), the victim's brother accused appellant of raping his sister, and appellant testified that he was "really shocked" and told him "that I did not do it." Id. at 46.

On November 21, 1983, the jury found appellant guilty of statutory rape, indecent assault, indecent exposure, and corruption of minors.*fn4 Timely post-verdict motions were

[ 354 Pa. Super. Page 137]

    filed, and because appellant alleged that he received ineffective assistance of counsel, new (present) counsel was appointed to represent him. A hearing on the ineffectiveness claims was held on March 22, 1984. All of appellant's post-trial motions were denied on August 3, 1984, and, on August 29, he was ordered to pay the costs of prosecution and was sentenced to a term of thirty-eight-months-to-fifteen-years imprisonment on "Criminal Action 3261 of '83."*fn5 Appellant thereupon filed a motion to modify or reconsider sentence, and, on September 7, 1984, the lower court lowered the maximum sentence to ten years imprisonment.*fn6 This appeal followed.


Appellant first contends that the lower court erred in prohibiting his expert witness, James Rearick, from stating his opinion as to what kind of object caused the hole in the roof of the convertible. This claim is meritless.

The qualification of an expert witness is a matter within the discretion of the trial court. Kravinsky v. Glover, 263 Pa. Superior Ct. 8, 20, 396 A.2d 1349, 1355 (1979). "'If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert.'" Id. (quoting Ragan v. Steen, 229 Pa. Superior Ct. 515, 522, 331 A.2d 724, 728 (1974)). Moreover, "[i]t is not necessary that the witness possess all the knowledge in his special field of activity." Erschen v. Pennsylvania Independent Oil Co., 259 Pa. Superior Ct. 474, 477, 393 A.2d 924, 926 (1978).

Here, we find no "clear case of error" requiring reversal of the trial court's ruling. See Pratt v. Stein, 298 Pa. Superior Ct. 92, 152, 444 A.2d 674, 706 (1982). Appellant's

[ 354 Pa. Super. Page 138]

    witness testified that he had been doing upholstery work on cars "off and on [for] about 13 years." N.T. November 21, 1983 at 60. Rearick stated that he patched torn roof tops once every two weeks. Id. at 61. We believe that, given the foregoing, the court correctly concluded that Rearick was not qualified to give his opinion as to the cause of the cut. He did not testify that he had any specialized knowledge to determine what might cause a tear. We note, also, that the court did allow him to describe the nature of the cut, id. at 63-64, and from that testimony the jury could decide for itself what caused the tear. See Ryan v. Furey, 225 Pa. Superior Ct. 294, 298, 303 A.2d 221, 224 (1973) ("expert witness should not be permitted to state an inference or judgment as to the ultimate facts to be determined by the jury if the evidentiary facts can be fully developed so that [it] can reasonably estimate their bearing on the issues").

In any event, we believe that the defense conveyed its point to the jury that someone had broken into the car:

[Defense Counsel]: When you examined that roof, what type of cut was it?

[Rearick]: It was either done by a knife or razor blade.

[The Prosecutor]: Objection.

THE COURT: Sustained.

[Defense Counsel]: By "straight," how do you mean?

[Rearick]: Somebody took something and just cut it. Made a straight run out of it.

[The Prosecutor]: Objection.

THE COURT: Sustained. The jury will disregard that.

[Defense Counsel]: Do you have an opinion as to whether that cut was done by a foot or a straight cutting object?

[The Prosecutor]: Objection.

THE COURT: Sustained.

N.T. November 21, 1983 at 61-62. Furthermore, the Commonwealth's and the defense's versions of what caused the cut were not necessarily mutually exclusive: the victim

[ 354 Pa. Super. Page 139]

    could have more easily put her foot through an already torn car roof than an untorn one. Accordingly, we can find no merit in this contention and absolutely no prejudice to appellant by the court's limitation of Rearick's testimony.


Appellant next contends that the statute granting "sexual assault counselors" an absolute privilege "not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim" concerning "confidential communications" made by sexual assault victims, 42 Pa.C.S.A. § 5945.1,*fn7 is unconstitutional because (1) it denies

[ 354 Pa. Super. Page 140]

    him an opportunity to present evidence in his own behalf, a violation of due process, U.S.Const. amend. XIV; Pa. Const. art. I, § 9; (2) it denies him his right to compulsory process for obtaining witnesses in his favor, U.S. Const. amend. VI; Pa. Const. art. I, § 9; (3) it fails to define the nature and scope of communications protected from disclosure at trial, a violation of due process; and (4) it denies him the equal protection of the law, U.S. Const. amend. XIV; Pa. Const. art. III, § 32, because defendants charged with sex offenses are treated differently from other defendants not so charged with regard to obtaining prior statements of a witness. Appellant also contends that the trial court's post-trial review of the Bucks County Women Organized Against Rape (WOAR) files prejudiced him because, had he known that the files contained no relevant statements made by the victim, "he could have cross-examined [her] concerning the absence of any statements inculpating [him]." Brief for Appellant at 22. Lastly, he requests this Court, if it should find no error in the procedure utilized by the court below, to rule on the constitutional question thereby presented, the limitation of his ability to cross-examine the complainant, "because in this guise [the question] is capable of repetition yet evading review." Id. For the following reasons, we decline to rule on the constitutionality of § 5945.1 because, even assuming its applicability to the instant case, we find that appellant has not been prejudicially affected by its operation in this case. We also conclude that appellant was not prejudiced by the lower court's post-trial review of the WOAR files.

Our Legislature enacted the sexual assault counselors' privilege statute in response to our Supreme Court's decision in In re Pittsburgh Action Against Rape, (PAAR), 494 Pa. 15, 428 A.2d 126 (1981), see Commonwealth Ritchie, 509 Pa. 357, 359 n. 1, 502 A.2d 148, 149 n. 1 (1985) (LARSEN, J., dissenting); Note, Pennsylvania Establishes New Privilege for Communications Made to a Rape Crisis Center ...

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