Commonwealth v. Nauman

498 A.2d 913, 345 Pa. Super. 457, 1985 Pa. Super. LEXIS 8025
CourtSupreme Court of Pennsylvania
DecidedSeptember 13, 1985
Docket1258
StatusPublished
Cited by24 cases

This text of 498 A.2d 913 (Commonwealth v. Nauman) 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. Nauman, 498 A.2d 913, 345 Pa. Super. 457, 1985 Pa. Super. LEXIS 8025 (Pa. 1985).

Opinions

WIEAND, Judge:

Thomas T. Nauman, the appellant, was tried by jury and was found guilty of rape and indecent assault.1 Post-trial motions were dismissed, and Nauman was sentenced for rape to a term of imprisonment for not less than ten nor more than twenty years.2 On direct appeal from the judgment of sentence, Nauman argues (1) that the trial court erred in allowing the jury to see photographs taken of the victim four days after the alleged rape; (2) that the trial court failed to state adequate reasons for imposing a sentence in excess of that recommended by the sentencing guidelines; and (3) that trial counsel rendered ineffective assistance (a) by failing to request an alibi instruction and (b) by failing to request a poll of the jury.3

The admission of photographs is within the sound discretion of the trial court, and its ruling will not be reversed on appeal unless there has been an abuse of that [460]*460discretion. Commonwealth v. Woodward, 483 Pa. 1, 6, 394 A.2d 508, 511 (1978); Commonwealth v. Fields, 317 Pa.Super. 387, 402, 464 A.2d 375, 383 (1983). See also: Commonwealth v. Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984); Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 (1974); Commonwealth v. McClain, 325 Pa.Super. 29, 37, 472 A.2d 630, 634 (1984). “The mere fact ... that photographs were taken at a time different from that in question does not render them inadmissible if witnesses are able to verify them as substantial representations of the conditions as they existed at the time in question.” 29 Am.Jur.2d Evidence § 789 (1967). The rape in the instant case allegedly occurred on the evening of June 6, 1983. The photographs of the prosecuting witness were taken on June 10, 1983. There was evidence that her appearance on June 10, as depicted by the photographs, was the same as it was on the day following the alleged rape. This evidence was sufficient to establish the accuracy and relevancy of the photographs.

The relevancy of the photographs was not impaired because the defendant had given pre-trial notice that he intended to present an alibi defense. In the absence of an agreement regarding the facts—there was no agreement here—the Commonwealth was required to prove beyond a reasonable doubt each and every element of the offenses charged. It was not relieved of this burden merely because the defendant’s principal defense was that he was elsewhere at the time of the alleged offenses. The assertion of an alibi defense did not constitute an admission that the prosecuting witness had been forcibly compelled to participate in sexual intercourse. The photographs in this case were relevant to establish that forcible compulsion had been exercised by appellant to achieve sexual intercourse with the prosecuting witness. “Evidence is relevant if it tends to establish some fact material to the case or tends to make the fact at issue more or less probable.” Commonwealth v. Davenport, 462 Pa. 543, 555, 342 A.2d 67, 72 (1975). See [461]*461also: Commonwealth v. Dennis, 313 Pa.Super. 415, 422, 460 A.2d 255, 258-259 (1983).

To understand the nature and significance of appellant’s alibi defense, reference to the facts is necessary. Thomas Nauman and Linda Frye were not strangers. They had been dating for more than a month and had frequently engaged in sexual intercourse. On some of these occasions, according to the evidence, they had engaged in games of bondage, during which Linda agreed to be bound and appellant, while Linda was tied up, engaged in sexual acts with her. During this period and on various occasions, appellant gave Linda money in varying amounts. On the evening of June 6, 1983, they met and talked. What happened thereafter varies according to whether one accepts the testimony of the appellant or the prosecuting witness.

At or about 10:00 o’clock p.m., according to Linda’s version, appellant drove her to Forging Field where they parked. At this time, she testified, appellant “grabbed me and got between me and the bucket seats and tied me up.” (N.T. 37). She said that when she screamed, appellant “would smack me in the head and pull my hair and tell me to shut up bitch____” (N.T. 37). She continued: “Then he pulled my pants down. We had sex.” After that, she said, “[h]e picked me up and then sat me in the seat. He then took a fishook and stuck [it] in my breasts and made me have oral sex.” (N.T. 40).

Appellant testified that on the evening of the alleged offenses he met Linda at a bar where they talked. She was angry with him, he said, because he had very little money and had not paid her for prior sexual favors. He left the bar before 10:00 o’clock, he said, and returned to his home where he asked his mother to lend him some money. His mother testified that he had come home about 9:45 o’clock and remained there until approximately 10:30. He had then announced that he was going out. She remonstrated with him because of the lateness of the hour, but appellant ignored his mother’s plea and went to another bar. He arrived home, he said, at 1:30 a.m. Appellant’s father [462]*462confirmed that appellant had come home earlier in the evening. Although he had not seen his son, he testified that he had heard his voice. Appellant denied that the prosecuting witness had been in his car on the night of the alleged offense and denied having sexual relations with her that night.

Appellant’s trial counsel did not request a jury instruction explaining the defense of alibi; and the trial court said nothing to the jury about alibi. Indeed, the trial court did not make reference to any defense during its charge to the jury. At the conclusion of the court’s jury instructions, appellant’s counsel did not call this omission to the attention of the trial court. Counsel took no exceptions to the court’s instructions and, despite opportunity to do so, requested no additional instructions. Appellant argues that the failure to request an alibi instruction, after counsel had given notice of an alibi defense and had offered evidence of alibi, rendered counsel’s assistance ineffective.

“Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Vigorito
Court of Appeals of Arizona, 2026
Com. v. Markijohn, J.
Superior Court of Pennsylvania, 2023
Com. v. Myatt, K.
Superior Court of Pennsylvania, 2014
Commonwealth v. Hawkins
894 A.2d 716 (Supreme Court of Pennsylvania, 2006)
Commonwealth v. Hawkins
848 A.2d 954 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Hess
666 A.2d 705 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Harrison
663 A.2d 238 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Battista
26 Pa. D. & C.4th 395 (Delaware County Court of Common Pleas, 1995)
Commonwealth v. Horton
644 A.2d 181 (Superior Court of Pennsylvania, 1994)
Commonwealth v. Thuy
623 A.2d 327 (Superior Court of Pennsylvania, 1993)
Commonwealth v. Allison
622 A.2d 950 (Superior Court of Pennsylvania, 1993)
Commonwealth v. Schwartz
615 A.2d 350 (Superior Court of Pennsylvania, 1992)
Commonwealth v. Dotter
589 A.2d 726 (Superior Court of Pennsylvania, 1991)
Commonwealth v. Gainer
580 A.2d 333 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Weinder
577 A.2d 1364 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Smidl
577 A.2d 210 (Superior Court of Pennsylvania, 1990)
Commonwealth v. Markovitch
565 A.2d 468 (Supreme Court of Pennsylvania, 1989)
Commonwealth v. Harner
546 A.2d 1241 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Garcia
535 A.2d 1186 (Supreme Court of Pennsylvania, 1988)
People v. Wiley
120 A.D.2d 66 (Appellate Division of the Supreme Court of New York, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
498 A.2d 913, 345 Pa. Super. 457, 1985 Pa. Super. LEXIS 8025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-nauman-pa-1985.