Commonwealth v. Dotter

589 A.2d 726, 403 Pa. Super. 507, 1991 Pa. Super. LEXIS 926
CourtSuperior Court of Pennsylvania
DecidedApril 12, 1991
Docket2351 Philadelphia, 1990
StatusPublished
Cited by35 cases

This text of 589 A.2d 726 (Commonwealth v. Dotter) is published on Counsel Stack Legal Research, covering Superior 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. Dotter, 589 A.2d 726, 403 Pa. Super. 507, 1991 Pa. Super. LEXIS 926 (Pa. Ct. App. 1991).

Opinions

WIEAND, Judge:

David W. Dotter, II, was tried by jury and was found guilty of rape,1 aggravated assault2 and involuntary deviate [510]*510sexual intercourse.3 Post-trial motions were denied, and Dotter was sentenced to serve a term of imprisonment for not less than ten (10) years nor more than twenty (20) years for rape and to a consecutive term of imprisonment for not less than five (5) years nor more than ten (10) years for aggravated assault. The sentencing court did not impose a separate sentence for involuntary deviate sexual intercourse. A motion to modify sentence was denied. This appeal followed, in which appellant raises several alleged trial errors and complains of the severity of the sentence.

On March 10, 1989, at or about 9:20 p.m., Barbara Senchak had left her part-time job as a ski instructor at Blue Mountain Ski Area and was traveling south on Route 145 in the direction of Allentown. When the car in front of her stopped suddenly, Senchak executed a quick stop and avoided hitting the car. The car behind Senchak, however, failed to stop and hit the rear of Senchak’s automobile. Senchak drove her car to a nearby service station, where she spoke with David Dotter, the driver of the automobile which had struck her vehicle. Dotter admitted responsibility for the accident, and the parties exchanged identification and relevant information.

Dotter’s vehicle was not driveable following the accident and when his passenger was unable to find a ride for the men, Senchak offered to take them home. After Dotter’s passenger had been taken home, Senchak proceeded northwardly on Route 145, with Dotter giving directions. They proceeded past the turn for Northampton where Senchak had been told Dotter lived. At the traffic light in Daniels-ville, Dotter instructed Senchak to turn right. She did so and thereafter she was directed through numerous turns, onto dirt roads and ultimately into a wooded area. Senchak recalled a road sign indicating that they had entered Eldred Township, Monroe County. After driving only a little further, Dotter instructed her to stop in a dark wooded area. When she applied the brakes, Dotter grabbed the steering wheel with one hand and shifted the car into park with the [511]*511other hand. Senchak then tried to get out of the ear, but Dotter grabbed her by the neck and ordered her into the passenger’s seat. When she complied, Dotter locked the car doors. Senchak again tried to exit the car from the passenger side, but Dotter grabbed her neck in a “headlock”, instructed her that if she did not cooperate “this is what’s going to happen to you”, and squeezed her neck tightly. He ripped off Senchak’s glasses and sweater, tore her bra and ski pants and ordered her to remove her clothing. Dotter then drove the car to another spot, where he ordered Senchak into the back seat and removed his own clothing. Then, with Ms arms around her body and his hands forcibly clenching her breasts, Dotter performed anal intercourse. When Senchak lost control of her bowels and bladder, Dotter became enraged and hit her in the left eye. He also tied her up, left her naked in the back seat and began driving again toward Allentown. He untied Senchak in a wooded area where he had stopped the car and allowed her to dress after she promised that she would return to him the written accident information and not contact the police. Dotter then returned to Route 145 and, after driving awhile, stopped at a Jiffy Lube to make a telephone call. It was then that Senchak was able to drive away.

She drove home immediately and, on the following morning, called Rape Crisis and was sent to the Allentown General Hospital for examination. She was there interviewed for the first time by the police, but she later went to the State Police criminal investigation unit, Bethlehem, Pennsylvania, where she gave an official statement to Trooper Powell. Powell suggested that she write her version of the incident before giving an oral statement. He said that this was a technique used by police in assisting victims of sensitive sexual crimes. After she had made an oral statement, which police recorded, the notes prepared by Senchak were returned to her and not retained by the police.

When this procedure became known at trial, defense counsel moved for a mistrial because a copy of the victim’s [512]*512original notes had not been provided to the defense during informal, pre-trial discovery. An evidentiary hearing was held, but the motion for mistrial was denied when it became apparent that such notes were not in the possession of the Commonwealth when discovery requests were made. On appeal, Dotter contends that this was error. He argues that he was able neither to prepare adequately nor cross-examine Senchak fully because of the absence of this information.

“It is well established that where the Commonwealth has in its possession pretrial statements of its witnesses which have been reduced to writing and relate to the witness’ testimony at trial, it must, if requested, furnish copies of these statements to the defense.” Commonwealth v. Brinkley, 505 Pa. 442, 449, 480 A.2d 980, 984 (1984), citing Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977); Commonwealth v. Wright, 289 Pa.Super. 399, 404, 433 A.2d 511, 513 (1981). In the instant case, however, the victim’s initial notes were not in the possession of the Commonwealth at the time of the discovery request. They had been returned to Senchak after she made a formal statement. Whether they were still in existence at the time of the trial and, if so, their whereabouts at that time does not appear from the record. Under these circumstances, the trial court did not err in denying a defense motion for mistrial.

At trial, the Commonwealth introduced, over defense objection, a series of colored photographs taken of bruises on Senchak’s hands, legs, face and breasts on the day following the alleged rape. Appellant contends that it was error to allow the jury to examine photographs of Senchak’s naked and bruised breasts because of the inflammatory effect thereof. We reject this argument.

“The question of admissibility of photographs ... is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error.” Commonwealth v. Stein, 378 Pa.Super. 339, 345, 548 A.2d 1230, 1233 (1988), allocatur denied, 521 Pa. 620, 557 A.2d [513]*513723 (1989), quoting Commonwealth v. Buehl, 510 Pa. 363, 392, 508 A.2d 1167, 1181-1182 (1986). See also: Commonwealth v. Nauman, 345 Pa.Super. 457, 459-460, 498 A.2d 913, 914 (1985). The admissibility of photographs is based on a two-tiered analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors. Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381

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Cite This Page — Counsel Stack

Bluebook (online)
589 A.2d 726, 403 Pa. Super. 507, 1991 Pa. Super. LEXIS 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dotter-pasuperct-1991.