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COMMONWEALTH PENNSYLVANIA v. NEIL FRANKLIN DUNKLE (06/13/89)

filed: June 13, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
NEIL FRANKLIN DUNKLE, JR., APPELLANT



Appeal from the Order entered December 1, 1987, in the Court of Common Pleas of Lycoming County, Criminal, No. 86,10,560.

COUNSEL

Ronald C. Travis, Williamsport, for appellant.

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com.

Cavanaugh, Olszewski and Kelly, JJ. Kelly, Judge, dissenting.

Author: Olszewski

[ 385 Pa. Super. Page 320]

This is a direct appeal from the judgment of sentence following appellant's conviction for indecent assault, corruption of minors, and criminal attempt to commit involuntary deviate sexual intercourse. For the reasons stated below, we remand for a new trial.

In April of 1986, appellant was charged with rape, indecent assault, corruption of minors, and criminal attempt to commit involuntary deviate sexual intercourse. A jury trial commenced on March 23, 1987, and concluded on March 27, 1987. Appellant was found guilty of all of the charges except rape. Post-trial motions were filed and denied. Thereafter, appellant was sentenced to not less than two years and not more than four years on the criminal attempt to commit involuntary deviate sexual intercourse charge, with a concurrent sentence of not less than eighteen months and not more than three years on the corruption of minors charge. Sentence was reduced to judgment, and appellant filed a timely notice of appeal to the Superior Court on December 30, 1987.

The charges leveled against appellant arose out of an investigation by the state police following a report by appellant's stepdaughter that in April of 1983, appellant

[ 385 Pa. Super. Page 321]

    entered the bathroom while the victim was taking a shower and, after forcing her to the floor, sexually assaulted her, forced her to engage in oral intercourse, and raped her.

On appeal to this Court, appellant raises the following seven issues: (1) whether evidence of defendant's prior misconduct was admissible at trial; (2) whether expert testimony on child abuse characteristics was admissible at trial; (3) whether non-disclosure in discovery of a calendar/diary by the Commonwealth precluded its use at trial;*fn1 (4) whether defense counsel was entitled to review psychiatric records of the victim; (5) whether questioning on re-direct which exceeded scope of cross-examination was permissible; (6) whether defense counsel should have been permitted to introduce evidence of a similar incident involving the victim; and (7) whether evidence that victim bled during subsequent act of sexual intercourse was admissible.*fn2

Appellant's first allegation of error concerns the admission at trial of evidence concerning appellant's prior sexual misconduct towards the victim. Specifically, appellant contends that the trial court erred in permitting testimony that prior to the assault on the victim, the appellant engaged in voyeurism while the victim took showers and on one prior occasion had attempted to fondle her breasts while the

[ 385 Pa. Super. Page 322]

    victim pretended to be asleep.*fn3

Evidence of other criminal conduct of an accused is generally inadmissible at trial except in certain limited circumstances. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied, Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978). One such limited circumstance is a prosecution for incest. Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895). The Bell Court held that evidence of a prior illicit relationship between the parties is admissible if " it is one of a series of acts indicating continuousness of sexual intercourse." 166 Pa. at 412, 31 A. at 123 (emphasis added). Bell set a precedent to which our Court has steadfastly adhered. See e.g., Commonwealth v. McClucas, 357 Pa. Super. 449, 516 A.2d 68 (1986) (trial court did not err in admitting evidence of defendant's sexual abuse of daughter over five-year period); Commonwealth v. Rodriguez, 343 Pa. Super. 486, 495 A.2d 569 (1985) (trial court did not err in admitting testimony that defendant, the victim's uncle, had admitted that he "used to" perform the illicit sexual act upon the victim when the victim was younger); Commonwealth v. Ritchie, 324 Pa. Super. 557, 472 A.2d 220 (1984), case remanded, 509 Pa. 357, 502 A.2d 148, cert. granted, Pennsylvania v. Ritchie, 476 U.S. 1139, 106 S.Ct. 2244, 90 L.Ed.2d 690 aff'd in part rev'd in part, 480 U.S. 39, 107 S.Ct. 989,

[ 385 Pa. Super. Page 32394]

L.Ed.2d 40 (1987) (trial court did not err in permitting defendant's daughter to testify that he had been molesting her three or four times a week for a period of four years); Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980) (trial court did not err in admitting testimony by defendant's stepdaughter of a long and sordid pattern of sexual abuse; the victim was forced to submit to stepfather's sexual advances from the time when she was a third grader to the time she was in tenth grade and she left home); Commonwealth v. Buser, 277 Pa. Super. 451, 419 A.2d 1233 (1980) (trial court did not err in admitting evidence of defendant's sexual abuse of his daughter beginning when she was eight or nine years of age and continuing to age thirteen); Commonwealth v. Leppard, 271 Pa. Super. 317, 413 A.2d 424 (1979) (trial court did not err in admitting evidence of defendant's continuing sexual assaults on his daughter over a four-year period).

Instantly, the victim testified that she suspected appellant was spying on her while she was in the shower because he routinely retired to his bedroom during the times she showered. She testified that she, along with her sister, discovered that by removing a panel in the bedroom closet, one could see into the bathroom. Finally she related an incident where her mother discovered appellant on his knees in the bedroom closet while the victim was showering. The only other incident of misconduct which the victim testified to was the occasion where appellant attempted to fondle her breasts. Despite the morally repugnant nature of these alleged acts and the crimes for which appellant has been convicted, we are constrained to find that testimony regarding these acts was improperly admitted for the reason that the isolated occurrences of prior misconduct testified to by the victim simply do not constitute "a series of acts indicating continuousness of sexual intercourse." Bell, supra. By restricting the admissibility of evidence pertaining to prior misconduct to the above, it is apparent that the Bell Court was guarding against admission of evidence of isolated acts. See, Commonwealth v. Rodriguez, supra n.

[ 385 Pa. Super. Page 3244]

. See also, Commonwealth v. Campbell, 342 Pa. Super. 438, 493 A.2d 101 (1985), wherein our Court stated:

[O]ur sedulous review of the law in this jurisdiction, dealing with incest, statutory rape and indecent assault, has failed to unearth one decision condoning the admission of a single, prior accounting of a sexual assault (so distant in time as the one at bar) to buttress a prosecutrix's complaint of a subsequent sexual assault charged against the same assailant where there is no evidence of a continuous course of conduct linking the incidents of molestation.

Campbell, 342 Pa. Super. at 444, 493 A.2d at 105 (emphasis added). It was, therefore, improper for the trial court to permit testimony of appellant's prior misconduct.

Appellant's next allegation of error is that the trial court improperly admitted the expert testimony of Susan Shade, a Child Protective Service supervisor for the Department of Children and Youth. Ms. Shade's testimony concerned the dynamics of interfamily sexual abuse and behavior patterns of the child-victim. Pursuant to current case law, we are constrained to agree.*fn4

The question of a witness's credibility is reserved exclusively for the jury. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). As such, expert testimony which serves to bolster the veracity of a child sexual abuse victim impermissibly infringes upon the province of the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). Accordingly, this Court must ascertain the purpose for which Ms. Shades' testimony was offered.

In Seese, supra, the Pennsylvania Supreme Court determined that the expert testimony in question consisted of expert opinion regarding the veracity of the ...


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