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COMMONWEALTH PENNSYLVANIA v. GERARD JOSEPH KUBIAC (09/01/88)

submitted: September 1, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
GERARD JOSEPH KUBIAC, APPELLANT (TWO CASES)



Appeal from the Judgment of Sentence October 13, 1987 in the Court of Common Pleas of Allegheny County, Criminal No. 8705261. Appeal from the Judgment of Sentence October 13, 1987 in the Court of Common Pleas of Allegheny County, Criminal No. 8705263A.

COUNSEL

Howard B. Elbling, Assistant Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Cirillo

[ 379 Pa. Super. Page 407]

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Allegheny County, sentencing the appellant, Gerard J. Kubiac, to consecutive terms of imprisonment for convictions on two counts of involuntary deviate sexual intercourse, to be followed by two consecutive terms of five years of probation for convictions on charges of corruption of minors and criminal conspiracy. The trial court sustained a demurrer to a charge of indecent assault.

Jennifer K. was removed from her father's custody because of incorrigibility, and placed in the foster care of Rhonda and Gerard Kubiac in June of 1985. She was then fifteen years of age. In February of 1986, a sexual relationship between Gerard Kubiac and Jennifer began, and continued until October of that year, when Jennifer became pregnant, and was removed from their care. According to Jennifer's testimony, Rhonda Kubiac joined in the sexual

[ 379 Pa. Super. Page 408]

    activity in March, after having suggested to Jennifer that she have a child with Gerard.

Initially, Jennifer refused to press charges against the Kubiacs, believing that Gerard would obtain a divorce and live with her and the child. When Gerard, who had, in fact, filed for divorce, resumed his relationship with his wife, Jennifer agreed to bring charges against them.

The cases against Rhonda and Gerard Kubiac were joined for trial. They were convicted by a jury, and sentenced. Gerard Kubiac then filed a timely motion for a new trial and/or in arrest of judgment. He filed a motion for the commitment of a drug dependent person pro se. Both motions were denied. After sentencing, Mr. Kubiac filed a motion to modify sentence, which was also denied, and an untimely pro se motion to reconsider sentence. He appealed to this court from his sentences on convictions on charges of criminal conspiracy and corruption of minors, but failed to appeal the convictions on the two counts of involuntary deviate sexual intercourse. The trial judge, however, granted Mr. Kubiac's Post-Conviction Hearing Act petition, and reinstated his appellate rights nunc pro tunc. He then took a timely appeal to this court. Both appeals were consolidated.

On March 17, 1988, the trial judge, the Honorable Robert E. Dauer, entered an order stating that there had been a clerical error in the order of sentencing entered October 13, 1987, and correcting the sentence to impose a maximum of twenty years imprisonment. The original order of sentencing had stated that Mr. Kubiac had been sentenced to two consecutive terms of five to ten years imprisonment for involuntary deviate sexual intercourse. Mr. Kubiac petitioned this court for permission to file an amended brief, claiming that he only became aware of this change after reading the Commonwealth's brief. Permission was granted.

Mr. Kubiac argues six issues to us on appeal: (1) whether the trial court committed reversible error by allowing Jennifer K. to testify that he had allowed her to use alcohol and

[ 379 Pa. Super. Page 409]

    marijuana when those offenses were not charged in the information; (2) whether the trial judge erred in refusing to grant his pretrial motion for a postponement; (3) whether the trial court erred in refusing to grant his pre-sentence motion for commitment as a drug dependent person under Act 64; (4) whether the trial court erred in failing to merge the crimes of corruption of minors and criminal conspiracy with the crime of involuntary deviate sexual intercourse and whether the sentence imposed was therefore illegal; (5) whether the sentence imposed was a manifest abuse of discretion; and (6) whether the trial court violated his right to be free from double jeopardy by correcting the order of sentence, increasing the term to be served.

Mr. Kubiac complains that the trial court erred in permitting Jennifer's testimony that the Kubiacs had permitted her, as well as another minor, to smoke marijuana and drink alcohol in their presence. He argues that this was error because this testimony went to the general charge of corruption of minors, and not the specific charge brought against him -- corrupting morals through oral sexual intercourse. Because we agree with the trial court's determination that this evidence was relevant, and because we find that Mr. Kubiac was not prejudiced by this testimony, we find his claim to be meritless.

The admission or exclusion of evidence is within the sound discretion of the trial court; we will not overturn that determination absent an abuse of discretion. Commonwealth v. Underwood, 347 Pa. Super. 256, 262, 500 A.2d 820, 823 (1985). An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Id.; Commonwealth v. Niemetz, 282 Pa. Super. 431, 445 n. 12, 422 A.2d 1369, 1376 n. 12 (1980).

A review of the record indicates that that is not the case here. Jennifer did testify that the Kubiacs allowed her and another foster child to smoke marijuana and drink

[ 379 Pa. Super. Page 410]

    alcohol. Mr. Kubiac argues that this testimony was irrelevant, that is, that it did not tend to prove the specific crimes charged in the information against him. The trial judge found that the testimony in question was relevant to demonstrate the nature of the relationship between Jennifer and the Kubiacs. According to the trial judge, this testimony tended to show that that relationship was such that the charged conduct could have occurred. We find that this determination was not manifestly unreasonable, and hold that the trial court did not abuse its discretion in admitting the testimony.

Mr. Kubiac also contends that Jennifer's testimony mentioned prior criminal activity on his part, and that, therefore, a mistrial should have been granted. The decision to grant or deny a mistrial depends upon whether or not improper evidence was admitted at trial that would so prejudice the fact finder that it would be unable to remain impartial, thereby prejudicing the accused beyond a reasonable doubt. Commonwealth v. Larkins, 340 Pa. Super. 56, 63, 489 A.2d 837 (1985). That decision is within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. Id.; Commonwealth v. Fields, 317 Pa. Super. 387, 400, 464 A.2d 375, 382 (1983).

In this case, Jennifer testified to acts by the Kubiacs -- permitting alcohol and drug consumption -- which were presumably illegal. Although references to other criminal activities of an accused may be particularly prejudicial, there is no per se rule which demands a finding of such prejudice in every case in which references to criminal conduct occur. Commonwealth v. Morris, 513 Pa. 169, 175-76, 519 A.2d 374, 377 (1986); Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981). Prejudice arises in cases where the testimony conveys to the jury, either expressly or by implication, the fact that a prior criminal offense has occurred. Morris, 513 Pa. at 176, 519 A.2d at 377. Where the statements may be termed merely "passing references," no reversal is warranted unless the record illustrates that the defendant has been

[ 379 Pa. Super. Page 411]

    prejudiced by the testimony. Commonwealth v. Thomas, 361 Pa. Super. 1, 15, 521 A.2d 442, 449 (1987).

Here, although Jennifer's testimony might have conveyed to the jury the fact that criminal offenses were occurring in the household, we do not find that her statements that she was permitted to drink and use drugs in the presence of the Kubiacs deprived them of a fair and impartial trial. We agree with the Commonwealth's contention that the testimony included very brief and very generalized references to the alleged criminal activity, Commonwealth v. Heaton, 504 Pa. 297, 302, 472 A.2d 1068, 1071 (1984), and that such references could not have prejudiced Mr. Kubiac.

More importantly, we are convinced that no prejudice could have arisen from Jennifer's testimony because of the trial court's instruction to the jury on that subject. The trial court's instruction limited the effect of that evidence and effectively dissipated whatever prejudicial effect Jennifer's testimony could have had. See Morris, 513 Pa. at 178, 519 A.2d at 377 (1986) (cautionary instruction cured prejudice caused by mention of prior criminal activity); Richardson, 496 Pa. at 527, 437 A.2d at 1165 (prejudicial effect of reference to prior burglary cured by instruction). The trial court charged the jury that:

In these cases each of the defendants is charged with corruption of minors. Ladies and gentlemen, I am going to read to you exactly what they are charged with. You heard a lot of talk in the courtroom here, testimony about drinking and marijuana and whatever. That really is not charged in this case, ladies and gentlemen, the only reason I permitted it was to show that atmosphere in which the people lived. I think that's important in this case, but that is not charged against the defendants, but what you must find if you find the defendants guilty is that the defendants corrupted the morals of Miss K[.] by engaging in the act of involuntary deviate sexual intercourse.

Mr. Kubiac is charged a little bit differently [than his wife]. He's also charged with ...


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