Commonwealth v. Bizzaro

535 A.2d 1130, 370 Pa. Super. 21, 1987 Pa. Super. LEXIS 9755
CourtSupreme Court of Pennsylvania
DecidedDecember 31, 1987
Docket01449
StatusPublished
Cited by17 cases

This text of 535 A.2d 1130 (Commonwealth v. Bizzaro) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bizzaro, 535 A.2d 1130, 370 Pa. Super. 21, 1987 Pa. Super. LEXIS 9755 (Pa. 1987).

Opinions

BROSKY, Judge:

This is an appeal from the judgment of sentence following a jury conviction of corruption of minors, indecent assault and involuntary deviate sexual intercourse involving appellant’s six-year old daughter.

Appellant presents eight issues for our review:

I. Whether the trial court erred in allowing Dr. Fagenholz to testify as to her opinion of the truthfulness of the child-victim’s version of events.
II. Whether appellant’s Sixth Amendment right of confrontation was violated when the court permitted the introduction into evidence of the victim’s statement under an exception to the hearsay rule but the victim herself never testified.
III. Whether the trial court erred in refusing to grant appellant’s motion that the child-victim’s testimony be videotaped for use at trial.
IV. Whether the trial court erred in refusing to instruct the jury that the victim’s statements, which were admitted under an exception to the hearsay rule, should not be considered as substantive evidence.
V. Whether there was sufficient evidence to convict appellant since the victim’s statements, which were admitted under an exception to the hearsay rule, did not constitute substantive evidence.
VI. Whether the trial court erred in not allowing appellant to call to the witness stand Larry Bizzaro, the defendant’s brother, who would have admitted that he was present in the house on January 10, 1986, who has a prior conviction for sexual assaults on children, and who confessed to the sexual abuse of Annie Bizzaro.
VII. Whether the trial court erred in not allowing appellant to call Robert Workman to the stand to estab[24]*24lish that Larry Bizzaro had confessed to sexually assaulting Annie Bizzaro.
VIII. Whether the trial court erred in refusing to charge the jury that it could not consider the truthfulness of appellant’s confession when considering the voluntariness of that confession.

We vacate the judgment of sentence and remand for entry of an order of abatement upon record certification of appellant’s death.

Initially, we are confronted with an unusual problem focusing on the status of this case before us. Our determination whether to address the merits of this appeal and, assuming we do, the appropriate disposition thereof hinge upon our resolution of this preliminary concern.

At oral argument, this Court was advised by appellant’s counsel that appellant had since died. This fact was not disputed by the Commonwealth. Counsel for appellant then requested us to consider this matter on the merits, nonetheless. Pennsylvania Rule of Appellate Procedure 502(a) permits any party to make a suggestion of death on the record. The Rule then states that proceedings may be had as this court directs. The open-endedness of this Rule is evident. However, the weight of authority in this Commonwealth is that the death of an appellant pending appeal does not moot the appeal. Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972); Commonwealth v. Sargent, 253 Pa.Super. 566, 385 A.2d 484 (1978); Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972).

In Commonwealth v. Walker, supra, counsel for the then deceased appellant filed a petition requesting that, because of his client’s decease, the appeal be dismissed and appellant’s conviction for homicide be abated ab initio. The Commonwealth concurred in the request to dismiss the appeal but opposed abatement of the proceedings ab initio. The Supreme Court rejected both motions and stated:

We ... believ[e] instead that it is in the interest of both a defendant’s estate and society that any challenge initiated by a defendant to the regularity or constitutionality of a [25]*25criminal proceeding be fully reviewed and decided by the appellate process.

Id. 447 Pa. at 148, n. *, 288 A.2d at 742, n. *.

The Court then affirmed the judgment of sentence on the merits. Here, unlike Walker, neither the Commonwealth nor appellant’s counsel requested abatement of the proceedings or dismissal of the appeal. Rather, appellant’s counsel requested this court to consider the merits of this appeal despite appellant’s death, and the Commonwealth voiced no opposition.

In Commonwealth v. Sargent, supra, our Court considered the merits of the appeal even though the co-defendant/appellant, George Lee, had since died. There, we vacated both judgments of sentence and, due to improper and prejudicial prosecutorial remarks made in summation, we reversed and remanded for a new trial. It does not appear that any request to consider or dismiss the appeal or abate the proceedings was made to this court.

Finally, in Commonwealth v. Culpepper, supra, we vacated a then deceased appellant’s judgment of sentence on double jeopardy grounds after the trial court declared a mistrial. As in Commonwealth v. Walker, supra, the Commonwealth sought dismissal of the appeal on the basis of mootness. However, unlike the Walker case, appellant’s counsel objected and, instead, asked this Court to address the merits “in the interests of justice.” Commonwealth v. Culpepper, supra, 221 Pa.Super. at 477, n. 3, 293 A.2d at 124, n. 3. We agreed to do so, relying upon the rationale of Commonwealth v. Walker, supra.

Consonant with the directive of our Supreme Court and the teaching of this court, we, too, consider it proper, in the interests of justice, to address the merits of this appeal, especially since counsel for appellant, at oral argument, requested that we do so, and the Commonwealth proffered no objection.

However, the more troubling problem looming before us revolves around the appropriate disposition to be made [26]*26here, considering the unique feature of an unavailable-for-retrial defendant and compounded by our determination, based upon examination of the record and the parties’ briefs, to grant relief to appellant. Normally, our assessment of a record containing like errors would lead us to conclude that a new trial is warranted, and we would so order. Because we are not oblivious or insensitive to the difficulties attendant to the trial of a defendant who is unable to be present to defend himself, we will remand to the trial court for the entry of an Order of abatement upon record certification of appellant’s death. We believe this procedure to be the one which best resolves the unique factual situation at hand.

We now proceed to address the merits of this appeal. Appellant protests the allowance of testimony by Dr. Linda Fagenholz, a board-certified pediatrician who examined the victim, concerning the veracity of the child-victim’s delineation of the events which resulted in the instant charges. See, particularly, N.T., 7/11/86, 64, 81, 82, 84. As a corollary argument, appellant complains that his Sixth Amendment right to confrontation was violated when the trial court permitted Dr. Fagenholz’s testimony in this regard.

Our Supreme Court addressed this same child veracity issue in

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Bluebook (online)
535 A.2d 1130, 370 Pa. Super. 21, 1987 Pa. Super. LEXIS 9755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bizzaro-pa-1987.