Appeal from the Judgment of Sentence of November 8, 1985, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 4178-4186 October Term 1984.
Peter D. Goldberger, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Beck and Hester, JJ. Cirillo, President Judge, filed a concurring opinion.
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Following a jury trial, appellant Robert Cauto was convicted of six sex offenses against three juvenile males, all of whom were under the age of sixteen at the time of the incidents. In this appeal from judgment of sentence, appellant challenges the trial court's refusal to allow him to cross-examine two of the complainants for bias based on their juvenile records, the court's interpretation of the criminal solicitation statute, trial counsel's effectiveness, and other trial rulings. We agree that the prohibition against cross-examination with respect to the juvenile records of two complainants requires the granting of a new trial on
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the four charges pertaining to them; we affirm the remaining judgments of sentence.
Bills 4178 and 4179 pertained to fifteen-year-old J.R.; Appellant was convicted of solicitation to commit involuntary deviate sexual intercourse and corruption of the morals of a minor, based on a telephone call during which he offered to perform oral sex on the boy. Bills 4182 and 4183 resulted in convictions of corruption of a minor and involuntary deviate sexual intercourse (IDSI), based on evidence that appellant engaged in oral sex with R.H., who had a juvenile record, while the boy was between the ages of thirteen and sixteen. Numbers 4185 and 4186 involved fifteen-year-old D.D. Appellant was convicted of solicitation to commit sexual abuse of children by photograph or film and corruption of a minor, based on evidence that he showed the boy two photographs, one showing a male masturbating and another depicting two males engaged in oral sex, and asked D.D. to pose for such photographs. At the time of trial, D.D. had charges pending in juvenile court.
Following the denial of post-verdict motions, appellant was sentenced to concurrent terms of imprisonment. The longest, imposed on bills 4178 and 4183, was three to six years.
The issues are: 1) whether the trial court erred in refusing to allow defense counsel to cross-examine two of the complainants for bias; 2) whether defense counsel was ineffective in failing to object to the jury charge (a) omitting an element of one offense, and (b) stating that the jury might find the defendant guilty of another offense on a basis for which there was no evidence; 3) whether judgment should have been arrested on the charges of criminal solicitation; 4) whether the trial court erred in restricting cross-examination designed to show that certain prejudicial evidence was not seized from the defendant's home; 5) whether the trial court erred in admitting the defendant's statement, given as the fruit of an involuntary stationhouse detention, and was trial counsel ineffective for failing to raise that theory, although the trial court addressed it; 6)
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whether the trial court erred in permitting the prosecutor to misstate and assume facts in cross-examination and was counsel ineffective for failing to object to the prosecutor's closing argument of critical "facts" not in evidence; 7) whether the trial court erred in setting a sentencing guideline offense gravity score for IDSI of nine rather than five (and eight rather than four for soliciting IDSI), when the court made no finding of the facts underlying the difference in grading; and 8) whether the trial court erred in sentencing outside the guidelines for soliciting sexual abuse of a child by photography.
Appellant's first argument is that the trial court erred in refusing to allow complainants D.D. and R.H. to be cross-examined about their juvenile records in order to establish their potential bias. At the time of appellant's trial, D.D. had charges pending against him in juvenile court, and R.H. was on probationary status as a juvenile delinquent. The trial court recognized in its opinion that it should have allowed defense counsel to cross-examine D.D. about the pending juvenile charges in order to show bias, but because the notice of appeal had already been filed, the court was without power to grant relief. The court, however, declined to concede as error its refusal to allow the cross-examination of R.H. about his probationary status, concluding that the requested cross-examination was not to establish bias, but rather to impeach his credibility generally, which is prohibited by the Juvenile Act, 42 Pa.C.S. § 6354(b). See Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973); Commonwealth v. Mines, 321 Pa. Super. 529, 468 A.2d 1115 (1983).
The Supreme Court of Pennsylvania recently discussed when a criminal defendant should be permitted to cross-examine a prosecution witness about his criminal record in order to show bias. In Commonwealth v. Evans, 511 Pa. 214, 224-25, 512 A.2d 626, 631-32 (1986), the court held:
[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition
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against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The Commonwealth argues that the complainants' status as juvenile victims should immunize them from the application of the Evans rule. We cannot agree. The state's interest in protecting the confidentiality of a juvenile's record must yield to the accused's constitutional right to cross-examine an adverse witness to show bias. Commonwealth v. Bryner, 351 Pa. Super. 196, 198, 505 A.2d 335, 336 (1986).
Applying the Evans rule here, the trial court erred in denying appellant an opportunity to demonstrate the potential bias of the two juvenile complainants. In the instance of D.D., the potential for bias is evident from the fact that at the time of trial, he had charges pending against him in juvenile court. Similarly, the probationary status of R.H. as a juvenile delinquent, subject to the ongoing supervision of the juvenile court, presented an apparent potential for biased testimony.
The Commonwealth, however, contends that any error in restricting appellant's cross-examination of the two witnesses is harmless. We do not agree. The testimony of D.D. and R.H. was critical to proving the guilt of appellant; their credibility was a controlling issue in the trial. It is difficult to conceive of an instance in which the denial of the opportunity to cross-examine an adverse witness to show bias could be more prejudicial. This error requires the grant of a new trial on bills 4182, 4183, 4185, and 4186.
The second issue is whether the trial court erred in the instructions to the jury. Appellant claims that the instructions contained ...