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COMMONWEALTH PENNSYLVANIA v. LAWRENCE FANELLI (09/15/88)

filed: September 15, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
LAWRENCE FANELLI, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 84-02-44, 45, 46, 49.

COUNSEL

Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.

Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Popovich, JJ. Beck, J., files a concurring opinion. Cavanaugh, J., files a dissenting opinion, in which Wieand, J. and McEwen, J. join.

Author: Popovich

[ 377 Pa. Super. Page 556]

This is an appeal from the judgment of sentence (1-2 years imprisonment) for corrupting a minor by the appellant, Lawrence Fanelli. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, reveal that the child-victim (who was 6 years old at the time of the October, 1984 trial) was living with her mother and younger sister (Tina) at a Philadelphia address at the time in question. The appellant was the mother's boyfriend, resided with the family and was referred to by the children as "Daddy".

Sometime between September 29, 1981 and September 29, 1983, the victim testified that, with her mother and sister away, she was sexually assaulted by the appellant. She described it this way: She was lying on her back, the appellant's face was even with hers and their stomachs touched. The next thing she recalled was feeling a pain in her vaginal area. This caused her to cry and to ask the appellant to stop. He failed to do so, kissed her lips and threatened to "beat" her if she told anyone what occurred.

[ 377 Pa. Super. Page 557]

Nonetheless, albeit "afraid", the victim told the mother what transpired on her arrival home.

The foster mother, who obtained custody of the child beginning in September of 1983, related how the child's remarks about being "massaged" by the appellant, and the drawing of a male's penis, caused her to become "very upset". She spoke to her supervisor and was told to have the child checked at the hospital. She did so on October 7, 1983.

The attending pediatrician remembered conducting a pelvic examination of the victim. He found that the hymen was not intact and the vaginal orifice was large -- three centimeters as compared to one centimeter. These two facts, opined the doctor, would be consistent with penetration or trauma of the child's vagina, i.e., the application of abnormal force to that area.

The pediatrician also remarked that, even though there were no signs of trauma, bleeding or bruising to that area, "[t]he majority of cases in this age group [4-5 years] don't show evidence of trauma to the vaginal area. It can be a normal examination." This, according to the doctor, is consistent with "the experience of pediatricians throughout the years that you will not find signs of trauma."

On cross-examination, the doctor did admit that a broken hymen can result from certain activity on the part of the child. However, he cautioned that such a condition could not come about because of a fall or doing acrobatics, unless one is doing "abnormal" gymnastics. This holds true, in the words of the doctor, with the absence of bruising and bleeding in sexual abuse cases, i.e., you may "not necessarily" find those signs.

With the hospital examination, the police were called and, upon interviewing the victim, were told that her vaginal area had been hurt by the appellant. Further, she told the police that the appellant had threatened to "beat her up" if she mentioned the assault to others. Thereafter, the appellant was arrested and charged with rape, statutory rape, indecent assault, indecent exposure and simple assault.

[ 377 Pa. Super. Page 558]

Following a non-jury trial, the appellant was convicted of all charges, except for rape and statutory rape. At the time set for sentencing, a term of incarceration was imposed for indecent assault only, it being the ruling of the court below that the other offenses merged for sentencing purposes. This appeal followed.

Of the four issues raised for our consideration, we would defer to and adopt the trial court's opinion in disposing of issues one and four. The former challenges the child's competency to testify while the latter questions the due diligence of the Commonwealth in prosecuting the accused under Pa.R.Crim.P. 1100. No assault is made on the sufficiency of the evidence.

Issues two and three are read by this Court to present the same issue, i.e., did the Commonwealth establish with reasonable certainty that the assault of the child-victim occurred within the applicable statute of limitations so as to afford the appellant due process?

This claim, raised below, is the equivalent of a motion in arrest of judgment since it seeks the appellant's discharge, rather than a remand for a new trial. 10A P.L.E. Criminal Law § 802. In this context, the Supreme Court of Pennsylvania has indicated that a review of the entire record is to occur, and this is to include all evidence "presented at trial, whether or not such evidence was properly admitted." Commonwealth v. Ward, 235 Pa. Super. 550, 557, 344 A.2d 650, 653 (1975) (Citation omitted). Accord Commonwealth v. Cohen, 489 Pa. 167, 177, 413 A.2d 1066, 1072 (1980), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980).

We make mention of this because we believe an erroneous ruling occurred when the court below excluded relevant, competent and material evidence (relating to the time-frame in which the assault took place) by sustaining defense counsel's objection, on hearsay grounds, to the police officer's testimony that she was told by the child-victim that the assault "happened right before she went to stay at mom Mary", i.e., the foster parent that began to take care of the child in September of 1983.

[ 377 Pa. Super. Page 559]

Historically, the reasons for the exclusion of hearsay evidence from trial are three-fold. First, the out-of-court declarant commonly speaks or writes without the solemnity of the oath administered to witnesses in a court of law. Second, the out-of-court declarant's absence from trial denies the trier-of-fact the opportunity to observe his/her demeanor, which would reflect on his/her credibility if a witness on the stand. Lastly, considered by most scholars to be the main justification for the exclusion of hearsay, is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is reported by the in-court witness. See McCormick on Evidence § 245 (3rd ed. 1984).

Save for the first criterion cited supra, the trier-of-fact was afforded the occasion to see the declarant at trial and, more importantly, the accused was availed the opportunity to question the declarant/victim. Thus, the prejudices sought to be avoided with the implementation of the hearsay rule were obviated. See Commonwealth v. Rounds, 356 Pa. Super. 317, 320-21, 514 A.2d 630, 632 (1986), rev'd on other grounds, 518 Pa. 204, 542 A.2d 997 (1988) and compare with Commonwealth v. Maybee, 429 Pa. 222, 226, 239 A.2d 332, 335 (1968). Thus, the officer's testimony being, in actuality, admissible, it was for the trier-of-fact to attach what weight it deemed proper under the circumstances. We raise this matter in the hope that in the future similar exclusions of proper evidence do not occur and deprive the jurist or veniremen of the right to hear all evidence admissible in the rendition of a verdict.

Despite the trial court's evidentiary ruling excluding the officer's testimony, we find that the result reached was a proper one and is consistent with and supported by established case law in this Commonwealth. To explicate, in this jurisdiction the prosecution must establish the date of the alleged offense with "reasonable certainty" to withstand a demurrer or a motion in arrest of judgment. See Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975).

[ 377 Pa. Super. Page 560]

We consider Devlin to be the polestar in our assessment of whether the appellant's due process argument is to give way in favor of the child-victim's right to have her assault brought to justice. In Devlin, our Supreme Court opted for a balancing approach to resolve conflicting interests of the accused vis-a-vis the victim when it came to the specificity required to be proven as to the time-frame of the alleged crime. It wrote:

"Here, as elsewhere, 'The pattern of due process is picked out in the facts and circumstances of each case.'" Hoag v. New Jersey, 356 U.S. 464, 468, 78 S.Ct. 829, 833, 2 L.Ed.2d 913 (1958), citing Brock v. North Carolina, 344 U.S. 424, 427-28, 73 S.Ct. 349 [350-51], 97 L.Ed. 456 (1953); United States ex rel. Drew v. Myers, 327 F.2d 174 (3d Cir.1964). Due process is not reducible to a mathematical formula. Gibbs v. Burke, 337 U.S. 773, 781, 69 S.Ct. 1247 [1251] 93 L.Ed. 1686 (1949). Therefore, we cannot enunciate the exact degree of specificity in the proof of the date of a crime which will be required or the amount of latitude which will be acceptable. Certainly the Commonwealth need not always prove a single specific date of the crime. Cf. Commonwealth v. Morrison, supra; Commonwealth v. Mourar, supra. Any leeway permissible would vary with the nature of the crime and the age and condition of the victim balanced against the rights of the accused.

460 Pa. at 515-16, 333 A.2d at 892 (Footnote omitted).

In Devlin, the Court found that a 14-month span within which the offense charged (sodomy of a 22-year-old retarded man who had the mental ability of a first or second grade child and the emotional stability of an even younger child) might have taken place was an egregious encroachment on the defendant's ability to defend himself. As a result, the judgment of sentence was reversed and the defendant was discharged.

From our analysis of the facts presented, considering the interests of the accused and the victim, the balance tips in favor of the Commonwealth. While there was some

[ 377 Pa. Super. Page 561]

    confusion on the part of the child-victim concerning the date of the assault, we view the evidence to have been sufficient to withstand a due process argument.

Instantly, we have the testimony of the victim recalling that when she was assaulted her sister (Tina) was 1 year old -- at the commencement of the October, 1984 trial the sister was 3. The victim indicated further that she was living with her mother, sister and the appellant during the incident. Likewise, the police officer who questioned the child remembers being shown the residence of the foster parent by the child. The Philadelphia address where the child stayed with her family before being removed from her mother's custody, and the only other premises denoted as the child's living quarters, was also designated to the police.

The victim, who was 4 or 5 years of age when attacked, was the object of abuse by a loco parentis. Indeed, the child was threatened with harm by her assailant to refrain from complaining, but even when the child vocalized her concerns to her mother she was not the impetus leading to an examination and the lodging of a complaint. Rather, it took a third party/foster parent to initiate medical inquiry that led to the appellant's arrest.*fn1

Given the child's age, threatened harm and apparent lack of support from her family, we will not turn our backs on the pleas of this child-victim to acknowledge her complaints and reprimand those at fault.

The views expressed by some of our sister states in this burgeoning area of the law, as of late, are encouraging and

[ 377 Pa. Super. Page 562]

    instructive. For instance, in State v. Berry, 101 Ariz. 310, 419 P.2d 337, 341 (1966), wherein a 6-year-old victim of child molestation was unable to testify regarding the exact dates of the assault, the court stated:

The fact that the victim seemed somewhat unsure of the time of the assault might be considered by the jury as going to the credibility of her testimony, but we find that it is insufficient grounds for declaring a fatal variance. The questions were posed at trial four months after the crime to a six-year-old girl that testified that she was not able to determine time on a clock nor dates on a calendar. That a jury might not pay much heed to counsel's vigorous attempts to extract an inconsistency in the witnesses' testimony by the use of such calendar dates with which she admittedly had no working knowledge does not seem unreasonable. If we were to find a fatal variance under such circumstances it would seem to behoove one who chooses to sexually assault children at the risk of irreparable psychological and physical damage to his victim, to make sure that the child is sufficiently young to be incapable of effectively testifying as to specific dates in the year and minutes on the clock. We recognize, rather, that it is for the jury to determine the trust of the witnesses' story, and that it is not the function of this court to retry that issue.

Similarly, the Indiana Supreme Court in Tapp v. State, 256 Ind. 422, 269 N.E.2d 367, 369 (1971) evaluated the sexual assault of an 11-year-old girl by the accused. The accused asserted on review that no proof was submitted at trial relating to the date of the offense. In responding, the court held:

Although the precise date of the offense was not determined, it is clear that it occurred in mid-summer 1968. Time in no way being of the essence of the offense, there being no claim or indication that the defendant was in anyway misled or prejudiced . . . and it clearly appearing that the offense took place in the period of the statute of

[ 377 Pa. Super. Page 563]

    limitations, defendant's position on this point is without merit.

Lastly, we note the remarks of the Montana Supreme Court in a case in which the defendant contended that his right to an affirmative defense was precluded because there was a ...


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