Commonwealth v. Loner

836 A.2d 125, 2003 Pa. Super. 393, 2003 Pa. Super. LEXIS 3766
CourtSuperior Court of Pennsylvania
DecidedOctober 22, 2003
StatusPublished
Cited by229 cases

This text of 836 A.2d 125 (Commonwealth v. Loner) 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. Loner, 836 A.2d 125, 2003 Pa. Super. 393, 2003 Pa. Super. LEXIS 3766 (Pa. Ct. App. 2003).

Opinions

HUDOCK, J.

¶ 1 This is an appeal from the order of the court below denying Appellant’s petition seeking post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46. We affirm.

¶ 2 In March of 1990, a jury convicted Appellant of three counts each of rape and related charges as a result of the sexual abuse of his then nine-year-old daughter during the summer months of 1989. He was sentenced to an aggregate term of fifteen to thirty years of imprisonment. A timely appeal was filed to this Court, which resulted in a remand for a new trial because this Court concluded that the testimony of Cindy Miele, a Children and Youth Services (CYS) caseworker, imper-missibly infringed upon the province of the jury in that it bolstered the credibility of the child victim. See Commonwealth v. Loner, 415 Pa.Super. 580, 609 A.2d 1376 (1992).

¶ 3 In May of 1993, Appellant was convicted of soliciting the murder of Cindy Miele. A review of the certified record does not reveal the sentence Appellant received for this conviction.

¶ 4 Appellant’s second trial on three counts of rape and related charges began on November 16, 1993. As its first two witnesses, the Commonwealth called the nurse and doctor who had examined the victim approximately one week after she was removed from the Loner household. These witnesses testified that their findings were consistent with the history reported to them by the victim and that, given the observation of the victim’s broken hymen and enlarged vaginal opening, as well as other evidence of recent injury and scarring, the victim had been repeatedly penetrated by a fully developed male, within four to six weeks of the examination. The witnesses also noted the presence of venereal warts on the victim’s anus, which they testified was consistent with direct sexual contact. Upon cross-examination by trial counsel, both witnesses conceded that they could not identify the perpetrator from their physical examination, but rather, had to rely upon the history as reported by the victim. In addition, it was conceded that a seventeen-year-old male could have caused the injuries to the victim.

¶ 5 The Commonwealth next called the victim, who by then was fourteen years of [128]*128age. The victim testified that she attended the seventh grade and lived with a foster family. She testified that, in 1989, she was in the second grade and lived with her parents and five siblings in a trailer. The victim further testified that, during the months of June and July of 1989, Appellant would call her to his bedroom, lay her down and sexually abuse her. She stated that Appellant would start touching her in her vagina and on her chest. She further testified that Appellant would get on top of her and try to have sex with her but the first two times he was unsuccessful because she yelled. The victim testified that Appellant had sexual intercourse with her “maybe twice.” N.T., 11/16/93, at 73. The victim then testified about an incident in late July when Appellant got on top of her but she was “not sure he put his penis in my vagina that time” because someone came to the door. Id. at 76. She testified, however, that it happened about two times before this incident and that she would “yell stop,” but that Appellant would cover her mouth. Id. According to the victim, Appellant told her that if she told anyone he would kill her mother and hurt her brothers and sisters. The victim testified that she was afraid of Appellant. She also testified that she was taken from the trailer on July 31,1989.

¶ 6 On cross-examination by trial counsel, the victim testified that before the incidents happened, she and Appellant had a normal father/daughter relationship. She then stated that one of the days that Appellant penetrated her was the first day the police came to the trailer. The victim testified that, on this occasion, all of her brothers and sisters were home and that Appellant’s bedroom door was open. According to the victim, her younger brother, Jimmy, told her that he had called the police. She testified that she did not tell her paternal grandmother of the abuse because Appellant was her son and her grandmother may not believe her. The victim testified that she did not know who to tell, that she was only nine when the abuse occurred, and that she was scared. When asked who “Larry” was, the victim responded that he was a teenage neighbor who once laid her on the grass and gave her hickeys. Finally, upon cross-examination, the victim testified that she remembered writing a note to Appellant in the winter of 1990 in which she stated that she missed him and loved him. On redirect, the victim testified that she still loves Appellant.

¶ 7 The Commonwealth also called two police officers who investigated the allegations after receiving a complaint from a neighbor that Appellant “may have a problem with one of his children.” N.T., 11/16/93, at 100. Upon cross-examination by trial counsel, Corporal Harold D. Goodwin of the Pennsylvania State Police identified the neighbor as a woman who placed the call after she overheard a conversation two of the Loner children were having with her grandson, Larry Cliber. The corporal further testified that he did not talk to Larry before going to the Loner household. As its final witness, the Commonwealth called Trooper John Buzard of the Pennsylvania State Police. Based upon statements the victim made to him during an interview at the offices of CYS, Trooper Buzard prepared an affidavit of probable cause to support the issuance of an arrest warrant. The trooper further testified that an attorney called the station on Appellant’s behalf and asked what charges were going to be filed against Appellant. According to Trooper Buzard, the attorney told him that Appellant would turn himself in, but that Appellant was not to be subjected to questioning.

¶ 8 Upon cross-examination by trial counsel, Trooper Buzard testified that he spoke with the victim’s mother who said [129]*129that the victim was a liar and concocted the story. In addition, the trooper testified that the victim did not tell him of the threats Appellant allegedly made to her in order to keep her from telling anyone about the abuse.

¶ 9 Based upon the victim’s trial testimony, defense counsel demurred to one set of charges after the Commonwealth rested. The court heard argument from both counsel and the Commonwealth, but deferred ruling on the demurrer until the next day. The following morning the trial court denied Appellant’s demurrer. The defense then gave its opening statement and began its case by calling Appellant to the stand.

¶ 10 Appellant testified that, due to a medical disability, he was a stay-at-home dad while his wife worked as a typesetter. He stated that her work hours fluctuated. Appellant then drew a floor plan of the trailer, described its dimensions as twelve by sixty foot, and marked where each of his children slept. He further testified that the walls in the trailer were thin and that you could overhear persons in other rooms. Appellant stated that the week before Corporal Goodwin came to the trailer he was never alone with the victim and that all six of his children were always inside the home. He further testified that each child had household chores to do in helping him maintain the residence. Appellant testified that he believed he had a good relationship with the victim. Appellant ended his testimony by stating that he never had sexual intercourse with the victim, or engaged in other inappropriate contact with her.

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Cite This Page — Counsel Stack

Bluebook (online)
836 A.2d 125, 2003 Pa. Super. 393, 2003 Pa. Super. LEXIS 3766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-loner-pasuperct-2003.