Appeal from the Judgment of Sentence of the Court of Common Pleas, Erie County, Criminal Division, at No. 439 of 1986.
Michelle M. Hawk, Erie, for appellant.
Timothy J. Lucas, Assistant District Attorney, Erie, for Com.
Cavanaugh, Brosky and Wieand, JJ. Cavanaugh, J., files a concurring opinion.
[ 370 Pa. Super. Page 23]
This is an appeal from the judgment of sentence following a jury conviction of corruption of minors, indecent assault and involuntary deviate sexual intercourse involving appellant's six-year old daughter.
Appellant presents eight issues for our review:
I. Whether the trial court erred in allowing Dr. Fagenholz to testify as to her opinion of the truthfulness of the child-victim's version of events.
II. Whether appellant's Sixth Amendment right of confrontation was violated when the court permitted the introduction into evidence of the victim's statement under an exception to the hearsay rule but the victim herself never testified.
III. Whether the trial court erred in refusing to grant appellant's motion that the child-victim's testimony be videotaped for use at trial.
IV. Whether the trial court erred in refusing to instruct the jury that the victim's statements, which were admitted under an exception to the hearsay rule, should not be considered as substantive evidence.
V. Whether there was sufficient evidence to convict appellant since the victim's statements, which were admitted under an exception to the hearsay rule, did not constitute substantive evidence.
VI. Whether the trial court erred in not allowing appellant to call to the witness stand Larry Bizzaro, the defendant's brother, who would have admitted that he was present in the house on January 10, 1986, who has a prior conviction for sexual assaults on children, and who confessed to the sexual abuse of Annie Bizzaro.
VII. Whether the trial court erred in not allowing appellant to call Robert Workman to the stand to establish
[ 370 Pa. Super. Page 24]
that Larry Bizzaro had confessed to sexually assaulting Annie Bizzaro.
VIII. Whether the trial court erred in refusing to charge the jury that it could not consider the truthfulness of appellant's confession when considering the voluntariness of that confession.
We vacate the judgment of sentence and remand for entry of an order of abatement upon record ...