Commonwealth v. Bungarz

41 Pa. D. & C.4th 191, 1998 Pa. Dist. & Cnty. Dec. LEXIS 87
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 7, 1998
Docketno. 3302-97
StatusPublished

This text of 41 Pa. D. & C.4th 191 (Commonwealth v. Bungarz) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bungarz, 41 Pa. D. & C.4th 191, 1998 Pa. Dist. & Cnty. Dec. LEXIS 87 (Pa. Super. Ct. 1998).

Opinion

LUDGATE, J,

On May 13,1998, Robert William Bungarz was found guilty by a jury of Count One, rape, 18Pa.C.S. §3121.1, Count Two, statutory sexual assault, 18 Pa.C.S. §3122.1, Count Three, involuntary deviate sexual intercourse, 18 Pa.C.S. §3123(a)(7), Count Four, sexual assault, 18 Pa.C.S. §3124.1, Count Five, indecent assault, 18 Pa.C.S. §3126(a)(8), Count Six, indecent exposure, 18 Pa.C.S. §3127, Count Seven, corruption of minors, 18 Pa.C.S. §6301(a) and Count Eight, terroristic threats, 18 Pa.C.S. §2706. The victim being a 15-year-old girl.

On May 13, 1998, based upon the verdict of the jury on the above charges, this court ordered the defendant to submit to an assessment by the Sexual Offender Assessment Board to determine whether the defendant is a “sexually violent predator” pursuant to 42 Pa.C.S. §9794. This section requires that “after conviction, but before sentencing, a court shall order a person convicted of a sexually violent offense specified in section 9793(b) to be assessed by the board.”

It is significant to note that the defendant is not challenging the constitutionality of Megan’s Law. This court recognizes the recent Superior Court decision in Commonwealth v. Halye, 719 A.2d 763 (Pa. Super. 1998), that found Megan’s Law to be unconstitutional. How[194]*194ever, as this issue remains an unsettled area of the law, this court will continue to address the procedure used in this case.

On July 7, 1998, pursuant to this court’s order dated May 13, 1998, the defendant, accompanied by his attorney, was interviewed by Sexual Offender Assessment Board member Francise Gibson LSW.

On July 27,1998, pursuant to this court’s order dated May 13, 1998, the defendant, accompanied by his attorney, was interviewed by Sexual Offender Assessment Board member Bruce E. Mapes Ph.D.

On June 14, 1998 and August 3, 1998, respectively, both Sexual Offender Assessment Board members submitted written evaluations to this court. A copy of each evaluation was disseminated to counsel on the date of the board member’s testimony.

On August 5, 1998, this court conducted a hearing pursuant to 42 Pa.C.S. §9794.1 Bruce E. Mapes Ph.D. was called to testify for the purpose of determining if the defendant was a “sexually violent predator.” He concluded that the defendant could be excluded from the classification of a “sexually violent predator.” Due to time constraints on the Sexual Offender Assessment [195]*195Board members, this court continued the hearing until August 27, 1998.

On August 27,1998, Francise Gibson LSW was called to testify for the purpose of determining if the defendant was a “sexually violent predator.” She concluded that the defendant should not be considered a “sexually violent predator” and may be excluded from the classification.

On August 27, 1998, at the conclusion of the testimony, this court concluded that based upon the testimony presented by Dr. Mapes, Francise Gibson, exhibits C-l, C-2, C-3 and C-4 and the conclusion of each expert that as a matter of law, the defendant is not a “sexually violent predator.”

Immediately following the hearing to determine if the defendant was a “sexually violent predator,” a sentencing hearing was conducted.

On August 27, 1998, the defendant was sentenced to be committed for a period of not less than six years nor more than 15 years to the Bureau of Corrections for confinement in a state correctional facility on Count One, rape. The defendant was sentenced to be committed for a period of not less than nine months nor more than 24 months to the Bureau of Corrections for confinement in a state correctional facility on Count Eight, terroristic threats. The sentence for Count Eight to run concurrent with the sentence imposed on Count One. The defendant having been sentenced on Counts One and Eight, this court granted the Commonwealth’s motion to dismiss Counts Two through Seven.

An appeal was timely filed on September 25, 1998. On September 28, 1998, this court entered a concise statement order, with which the defendant complied on October 8, 1998. This opinion is written pursuant [196]*196to Rule 1925(a) Pa.R.A.P. and in support of this court’s ruling in this matter.

On appeal, the defendant alleges 12 points of error:

(1) The evidence is insufficient to sustain the verdicts of guilty on charges of rape, statutory sexual assault, involuntary deviant sexual intercourse, sexual assault, indecent assault, indecent exposure, corruption of minors and terroristic threats.
(2) The finding of guilt by the jury is counter and against the weight of the evidence as to the charges of rape, statutory sexual assault, involuntary deviant sexual intercourse, sexual assault, indecent assault, indecent exposure, corruption of minors and terroristic threats.
(3) The trial court erred in not granting defendant’s motion for dismissal of the charges made after the Commonwealth’s repeated failure to file an answer to defendant’s bill of particulars, a failure which was in direct violation of an order of that honorable court.
(4) The trial court erred in allowing the Commonwealth to present the testimony of Susan Brennan, who was not a named witness on the Commonwealth’s response to the defendant’s bill of particulars, and thus should have been precluded from providing testimony pursuant to Pa.R.Crim.P. 304.
(5) The trial court erred in not granting defendant’s timely made motion for judgment of acquittal at the close of the Commonwealth’s presentation of evidence.
(6) The trial court erred in not allowing testimony by the defendant and/or defense witnesses regarding the physical conduct of the victim toward the defendant, subsequent to allowing the Commonwealth to present the testimony of the same, the morning after the offense allegedly occurred.
[197]*197(7) The trial court erred in not allowing testimony by the defendant and/or defense witnesses regarding the conversation held by the victim with the defendant the morning after the offense allegedly occurred.
(8) The trial court erred in not allowing testimony by the defendant and/or defense witnesses regarding the physical conduct of the defendant toward relative of the defendant, while the defendant was present along with the victim at HersheyPark Amusement Park the day after the offense allegedly occurred.
(9) The trial court erred in not allowing testimony by the defendant and/or defense witnesses regarding the act of the victim in seeking help from the defendant when the victim was approached in a threatening manner by other men at HersheyPark Amusement Park the day after the offense allegedly occurred.
(10) The trial court erred in not allowing testimony by the defendant and/or defense witnesses regarding the choice of physical attire in which the victim chose to present herself while at HersheyPark Amusement Park while in the presence of the defendant during the entire day after the offense allegedly occurred.
(11) The trial court erred in not granting the defendant’s timely motion for judgment of acquittal subsequent to the verdict by the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
41 Pa. D. & C.4th 191, 1998 Pa. Dist. & Cnty. Dec. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bungarz-pactcomplberks-1998.