Appeal from the Judgment of Sentence October 9, 2012 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0002421-2011, CP-14-CR-0002422-2011
BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]
Appellant, Gerald A. Sandusky, appeals from the judgment of sentence entered October 9, 2012, in the Court of Common Pleas of Centre County. We affirm.
A jury convicted Sandusky of 45 counts relating to the sexual abuse of young boys. The eight victims, now all adults, testified in detail about the sexual depravity they suffered as young boys at Sandusky's hands. Combined, the abuse spanned a thirteen-year period, 1995 to 2008. Sandusky met all the victims through a non-profit he founded called The Second Mile, an organization with the declared purpose of serving Pennsylvania's underprivileged and at-risk youth.
Immediately prior to sentencing, the trial court held a hearing at which time it determined that Sandusky was a sexually violent predator. The trial court then imposed an aggregate period of incarceration of thirty to ninety years. Sandusky filed post-sentence motions, which the trial court denied after a hearing. This timely appeal followed.
Sandusky first argues that the trial court erred in refusing to give the jury the prompt complaint instruction found at Section 4.13A of the Pennsylvania Suggested Standard Criminal Jury Instructions. Sandusky argues that the instruction was necessary as all but one of the victims waited several years to report the sexual abuse; there were delays of sixteen years, fourteen years, thirteen years, twelve years, ten years, six years, and approximately two years.
In relation to an issue such as this, our scope and standard of review is as follows:
In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is the function of this Court to determine whether the record supports the trial court's decision. In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the Appellant was prejudiced by that refusal.
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (internal citations, quotation marks, and brackets omitted).
The premise for the prompt complaint instruction is that a victim of a sexual assault would reveal at the first available opportunity that an assault occurred. See id. The instruction permits a jury to call into question a complainant's credibility when he or she did not complain at the first available opportunity. See Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa. Super. 1998). However, there is no policy in our jurisprudence that the instruction be given in every case.
"The propriety of a prompt complaint instruction is determined on a case-by-case basis pursuant to a subjective standard based upon the age and condition of the victim." Thomas, 904 A.2d at 970. For instance, "[w]here an assault is of such a nature that the minor victim may not have appreciated the offensive nature of the conduct, the lack of a prompt complaint would not necessarily justify an inference of fabrication." Commonwealth v. Jones, 672 A.2d 1353, 1357 n.2 (Pa. Super. 1996).
At the charging conference the trial court denied the requested instruction, reasoning that in its view "the research is such that in cases involving sexual abuse[, ] delayed reporting is not unusual and, therefore, is not an accurate indicia of honesty and may be misleading." N.T., Trial, 6/21/12, at 4. In its opinion addressing Sandusky's post-sentence motions, the trial court explains that its use of the word "'research' was not accurate." Trial Court Opinion, 1/30/13, at 7 n.4. The trial court notes that it did not conduct any research on this issue to prepare for the charge conference, but relied on its "experience in handling child sexual abuse cases in a variety of contexts…." Id.
The trial court opted to give only the standard credibility charge without the addition of the prompt complaint charge as it reasoned that "the jury would be more appropriately guided" by that charge. Id., at 10. The standard credibility charge, in the trial court's opinion, instructed the jury to consider "the specific credibility issues raised by the defense: memory, self-interest, motive, and bias." Id. The trial court concluded its thoughts on the prompt complaint instruction as follows:
The practical reality is that the standard prompt complaint charge does not take into account the complex and myriad factors that might cause a child victim to delay in reporting an assault, or in comprehending the long-term significance of the assault, or even a child's motivation to protect the person who assaulted them. No one who has had the slightest experience with child sexual abuse or given a whit of thought to the dynamics could conclude that failure to make a prompt complaint, standing alone, is an accurate indicia of fabrication.
Id., at 11.
Although well intentioned, the trial court's analysis of the prompt complaint instruction and its application to cases involving children is not supported in the case law. See, e.g., Commonwealth v. Lane, 521 Pa. 390, 398, 555 A.2d 1246, 1251 (1989) ("[I]t is important to note that evidence of a prompt complaint should also be considered when the victim is a child.") (emphasis added). As noted, its application is not determined by a blanket standard, but rather on a case-by-case basis. See Thomas, supra.; Commonwealth v. Ables, 590 A.2d 334, 340 (Pa. Super. 1991).
The prompt complaint instruction provides, in pertinent part, that evidence of "delay in making a complaint does not necessarily make [the victim's] testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make." Pennsylvania Suggested Standard Criminal Jury Instructions Section 4.13A(2). The instruction further states that the failure to promptly complain and the victim's explanation for the failure "are factors bearing on the believability of [the victim's testimony] and must be considered by you in light of all the evidence in the case." Id., at (3).
In this case, the trial court should have evaluated the appropriateness of the instruction with respect to the age and maturity of each victim. There is no question that there was lengthy delay in all but one of the victims' complaints; however, this fact alone does not justify the prompt complaint instruction. Because we can find no discussion by the trial court as to whether the minor victims would have "appreciated the offensive nature" of Sandusky's conduct, we must determine if the trial court's lack of analysis prejudiced Sandusky. See Commonwealth v. Marshall, 824 A.2d 323, 328 (Pa. Super. 2003) (an error is harmless if the court determines that the error could not have contributed to the verdict). We conclude there was no prejudice.
The trial court's credibility instruction largely tracked Section 4.17, Credibility of Witnesses, General, of the Pennsylvania Suggested Standard Criminal Jury Instructions. The trial court instructed the jury as follows:
Now, as the judges of the facts, you are also the judges of the credibility of the witnesses and of their testimony. This means that you must judge the truthfulness and the accuracy of each witness's testimony and decide whether to believe all of it, part of it, or none of it. So, how you may ask do you go about doing that? Well, there are many factors that you may or should consider when judging credibility and deciding whether or not to believe a witness's testimony.
You might consider, for example, was the witness able to see or hear or know the things about ...