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COMMONWEALTH PENNSYLVANIA v. RICHARD SULLIVAN (03/16/88)

filed: March 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD SULLIVAN, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 1062 of 1986.

COUNSEL

Richard C. Tinucci, Media, for appellant.

Ann A. Osborne, Assistant District Attorney, Media, for Com., appellee.

Wieand, Kelly and Hester, JJ.

Author: Wieand

[ 372 Pa. Super. Page 90]

Richard Sullivan was tried by jury and was found guilty of involuntary deviate sexual intercourse, indecent assault, indecent exposure, unlawful restraint, and corrupting the morals of a child as a result of sexual acts, particularly anal intercourse, committed upon a ten year old, female child during the three month period between May and July, 1985.*fn1 Post-trial motions were dismissed, and Sullivan was sentenced to serve a term of imprisonment for not less than five years nor more than ten years. On direct appeal, he contends that the verdict was contrary to the weight of the evidence and that several evidentiary rulings by the trial court were erroneous.

"The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court." Commonwealth v. Larew, 289 Pa. Super. 34, 37, 432 A.2d 1037, 1038 (1981). In reviewing the weight of the evidence we must look at all the evidence. Commonwealth v. Gonce, 320 Pa. Super. 19, 26 n. 1, 466 A.2d 1039, 1043 n. 1 (1983). To warrant a new trial, "it must appear from the record that the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail." Commonwealth v. Barnhart, 290 Pa. Super. 182, 185, 434 A.2d 191, 192 (1981).

The child victim, who suffered from a mild learning disability, testified to fifteen or twenty instances of sexual contact with appellant, who was a neighbor and a friend of her parents. Because of this parental friendship, her parents initially said that they would not press charges if appellant would obtain psychiatric help. When the psychiatric appointments were discontinued, however, the victim's parents decided to prosecute. Dr. Steven Ludwig, a pediatrician, did not examine the child until approximately ten months after the abuse had been discovered. He testified that he found a "skin tag" in the child's rectal area which

[ 372 Pa. Super. Page 91]

    suggested a healed trauma consistent with penile-rectal contact. On the other hand, Dr. Charles Heil, who examined the child in July, 1985, found no evidence of sexual abuse and a hymen which had not been broken. It is also true that appellant denied the accusations. The trial court which heard the witnesses, however, did not find the jury's verdict shocking, and our own review of the record does not disclose any basis for reaching a contrary conclusion.

Appellant argues that Dr. Ludwig's examination of the victim on April 9, 1986 was too remote and that his findings, therefore, should have been excluded from the jury's consideration. "The question of remoteness, which is basically one of relevance, is properly vested in the discretion of the trial court, and its decision thereon will not be reversed unless a clear abuse of discretion is shown." Tolentino v. Bailey, 230 Pa. Super. 8, 13, 326 A.2d 920, 922 (1974) (footnote omitted). Although a medical examination closer in time to the alleged abuse would have been preferable, it cannot be said that the trial court's ruling was an abuse of discretion. Dr. Ludwig based his opinion that the child had been abused on a combination of social and psychological factors and said that his physical finding regarding the "skin tag" was merely a small piece of supportive evidence.*fn2

Appellant also contends that it was error to permit appellant's wife, who testified as a defense witness, to be cross-examined about inter-spousal sexual relations including, specifically, requests by appellant to his wife to engage in anal intercourse. However, appellant failed to object to this cross-examination. Therefore, any objection thereto was waived. Commonwealth v. Clark, 347 Pa. Super. 128, 131, 500 A.2d 440, 441 (1985), allocatur granted , 512 Pa. 1, 515 A.2d 1320 (1986).

The victim's parents initially determined that they would not prosecute appellant if he agreed to seek psychiatric help. Appellant ...


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