Commonwealth v. Maloney , 409 Pa. Super. 516 ( 1991 )

BECK, Judge:

The Commonwealth appeals from the trial court’s order granting appellee Stephen Maloney a new trial after a jury convicted him of involuntary deviate sexual intercourse and indecent assault. Since we find that the trial court’s grant of a new trial constituted an abuse of discretion, we reverse the order and remand for the imposition of sentence.

The evidence which formed the basis for the convictions of involuntary deviate sexual intercourse and indecent assault was as follows. Both the defendant, Maloney, and the complainant, Katherine Lehmann, were students at Villanova University. At the time the offenses occurred, Maloney was a junior and Lehmann was a freshman. Both were members of the swim team and it was through participation on the team that they were acquainted.

On homecoming weekend, October 28-29, 1989, both Maloney and Lehmann attended a swim team party at a private home in Bryn Mawr. They did not arrive at the party together. Lehmann had been driven to the party by a friend after leaving her own car parked at the Villanova campus. Because Lehmann knew she eventually had to drive herself home from campus to her aunt and uncle’s house where she was residing, she did not have anything to drink at the party. At approximately midnight, Lehmann was ready to leave the party and she got a ride back to campus from a young woman, Mary Mayfield. Maloney was also in the car and during the ride to campus, he displayed a flask to Lehmann and remarked that it was grain alcohol and that he had been drinking it all night. Lehmann remembered seeing Maloney with the flask in his hands at the party.

When they arrived at Villanova, Lehmann and Maloney got out of Mayfield’s car and Lehmann headed toward her car to drive herself home. Maloney followed her and persuaded her to drive him to his dormitory, explaining that, even though the building was nearby, he was drunk and tired and needed the ride. Lehmann complied. When they arrived at his dormitory, Lehmann got out of the driver’s seat in order to let Maloney out of the car since the passenger’s door was broken. Maloney slid into the driver’s seat. Alone in the car he then began acting foolishly, at first driving Lehmann’s car around the parking lot and then running into the dorm with her car keys. Lehmann followed him, and Maloney convinced her to accompany him to his room on the pretext that she could say hello to other members of the swim team. When she arrived there was nobody else there. Maloney continued to insist that the others had “just run into the bathroom, they will be right back.” After Lehmann stepped into the room, Maloney, in order to keep the room dark, pushed the only lamp in the room onto the floor and Lehmann heard him locking the handle of the door.

Thereafter, Maloney began a sexual assault on Lehmann which lasted about two hours. At first, Lehmann was more disgusted and astonished than frightened. She continually attempted to push Maloney away and both physically and verbally refused Maloney’s advances. The episode culminated in Maloney forcing Lehmann to perform oral intercourse, during which he caused himself to ejaculate all over Lehmann’s hair and face. Then, claiming that he had “a big [swim] meet” the next day, Maloney climbed into his bed and appeared to either fall asleep or pass out. Lehmann left.

As soon as Lehmann left the room she began to search for her friend, Dave Wohlsifer, whom Lehmann described as her best friend on campus. She found him and another student, Mike Lobiondo, in the lounge of the dorm. Her appearance alarmed Wohlsifer who repeatedly asked her what was wrong. Lehmann’s eyes were red, her makeup was smeared and' she was crying. Wohlsifer gave her tissues to clean the semen from her hair and made her some tea because she complained of a bad taste in her mouth.

Mike Lobiondo also attested that Lehmann was “a wreck” when she entered the lounge. She was crying, fidgeting and upset almost to the point of making no sense. She referred to herself as having been humiliated and victimized. However, since Lehmann did not know Lobiondo nearly as well as she knew Wohlsifer, she hesitated to reveal the details of the assault while Lobiondo was still in the room. She waited instead until she was alone with her friend.

Despite her ordeal in October, Lehmann did not report the assault to police until the following March. She was afraid of the publicity which might surround the disclosure and she feared that confronting a trial could be worse than the episode itself. Further, she felt that publicizing the assault might reflect negatively on the swim team and make her membership on the team difficult. She wanted to avoid further humiliation and pain. However, Lehmann changed her mind in March when she read a newspaper article about another girl on the swim team being sexually assaulted in her dorm room at Villanova. Lehmann felt guilty and reproached herself that her silence had somehow contributed to the assault on the second girl. As a result, she told the police what had happened to her the prior October. It must be noted that, in fact, Stephen Maloney was the accused in the March incident as well, and following his arrest for both assaults, the Commonwealth initially sought to consolidate the two cases for trial.- However, the trial court granted the defense motion to sever the trials and further imposed a limitation on the prosecution to prohibit reference to the other charges against Maloney. Thus, when Lehmann referred to the March incident, she alluded only to the victim of the crime and not at all to the alleged perpetrator.

Maloney’s defense was that he was the almost unwitting recipient of sexual favors from a freshman girl who was nearly a stranger to him until the night of the swim team party. Maloney testified that Lehmann offered to accompany him to his room and that she initiated and escalated the sexual advances. In fact, it was Maloney’s testimony that he intended to terminate the encounter but that Lehmann unexpectedly unbuckled his pants and “started giving [him] oral sex”. The incident ended with Maloney ejaculating in Lehmann’s hair which embarrassed him and allegedly angered Lehmann. According to Maloney, he and Lehmann saw each other regularly after that, but only in the capacity of teammates and “friends.” He testified that after the initial embarrassment of seeing her again after that night, relations between them were “calm and friendly.” Finally, Maloney testified that the following morning he told some friends, most of whom were male members of the swim team, that a freshman girl had accompanied him home after the party and performed oral sex on him. This testimony was the basis of the defense’s theory that Lehmann’s accusations regarding the sexual assault were occasioned by her resentment of Maloney’s “bragging” to his friends of their sexual encounter.

The jury convicted Maloney of indecent assault and involuntary deviate sexual intercourse. Post-verdict motions were filed and, in arguing for a new trial, defense counsel raised the two issues upon which the trial court has granted defendant a new trial. First, he argued that reversible error occurred when Katherine Lehmann testified on direct examination that the reason she came forward in March to report the assault after months of delay was because she had learned of another sexual assault on campus and that she was motivated by guilt. Defendant argued that her testimony tacitly implicated Maloney, thereby offending the trial court’s ruling excluding reference to Maloney’s other charges and irreparably prejudicing the jury. Defendant also sought a new trial because, during deliberations, the jury was allegedly exposed to and prejudiced by a newspaper article which disclosed the existence of the other charges against Maloney. The trial court found merit in both arguments and granted defendant a new trial. The Commonwealth appealed. We reverse.

As noted above and as stated by the trial court in its opinion, prior to trial the court instructed the prosecutor that “it would not permit any reference to other charges against the Defendant in this case.” During direct examination of Katherine Lehmann, the following occurred:

[Prosecutor]. Speaking of the police, did you report this to the police in November or December?

[Witness]. No.

[Prosecutor]. Did you report it to the police in January or February?

[Witness]. No.

[Prosecutor]. How about in March?

[Witness]. Yes.

[Prosecutor], What happened in March to prompt you to go to the police with this incident?

[Witness]. In late March, I read in the newspaper about another girl on the swim team being assaulted in her bedroom — on her dorm room in her bed.

[Prosecutor]. At Villanova this is?

[Witness]. On the campus. Yes.

[Prosecutor]. All right.

[Witness]. And I started to feel really guilty about not initially coming forward, so being that maybe somehow reporting my incident might have, I mean, somehow, prevented this girl from having to go through something similar to what I had to go through.

[Prosecutor]. And as a result of that, did you, in fact, go to the police?

[Witness]. Yes.

Lehmann then went on to testify about her reasons for failing to report the assault until March. At no point during the above-transcribed testimony did defense counsel object, seek a mistrial or request cautionary instructions. The Commonwealth argues that the trial court erred in granting a new trial on this belated claim of error. The Commonwealth contends that the trial court abused its discretion because Lehmann’s testimony made no reference to defendant and therefore did not prejudice him nor breach the trial court’s limitations.¹ We agree.

Our reading of the entire record convinces us that the prosecutor’s direct examination and the answers given thereto by Lehmann remained within the bounds of the trial court’s directive not to refer to the other charges pending against this defendant. In the first instance, the prosecutor foretold precisely this aspect of Lehmann’s testimony in his opening statement to the jury. He stated:

She made a decision not to proceed with reporting this to anyone else that night, I specifically mean the police. The months passed and then in March of 1989, she saw an article in the newspaper where another Villanova student was assaulted in her room and she thought this is not right. “I cannot ignore what happened to me. It’s time for me to come forward.”

And ladies and gentlemen, that’s the reason you are here today. Because she made the decision, albeit five months later, through this article in the newspaper she saw, that she cannot remain silent when she saw this other thing happen in her university and she came forward and she is going to tell you the story that I just conveyed to you.

In his opening remarks the prosecutor thus evinced his understanding of the trial court’s admonition to keep evidence of the other charges against the defendant out of the case. Apparently, this understanding was shared by defense counsel and the trial court because at no point thereafter, during opening statements or at any other stage of the proceedings, did defense counsel object to the anticipated and elicited testimony by Lehmann.² Furthermore, the trial court did not at any time interrupt or warn the prosecutor that the testimony he planned to bring out would breach the court’s earlier ruling. Finally, during direct examination, when the complained-of testimony was introduced, no objection was made by defense counsel. If the testimony was the “flagrant” violation of the prior ruling by the court on “other crimes,” surely the prosecutor’s augering of the testimony and the testimony itself would have precipitated appropriate objections and motions by defense counsel. However, they did not.³

In addition, and more importantly, we do not think that Lehmann’s testimony, either expressly or implicitly, gave rise to an inference of prior criminal activity by this defendant. The rule by which such allegations are resolved is as follows: “Purported references to a defendant’s prior criminal activity will not be deemed prejudicial unless the remarks convey to the jury, either expressly or by implication, the fact that the defendant committed a prior criminal offense”. Commonwealth v. Hamm, 325 Pa.Super 401, 412, 473 A.2d 128, 134 (1984). Clearly, Lehmann’s testimony did not expressly convey to the jury that Maloney was the alleged attacker in the March incident. Nor, in our view, could the jury reasonably infer this from the testimony given. The witness’ testimony was singularly vague and sketchy. Lehmann’s testimony was designed to and did communicate only the notion that her eventual disclosures to the police were motivated by the dismaying suspicion an earlier report “maybe somehow” “might have” spared the other girl. In fact, the defendant used this testimony to his advantage by intimating that the newspaper article provided Lehmann with an “excuse” to seek revenge on Maloney, under the guise of jumping on the rape “bandwagon.” We conclude that the jury could not reasonably have inferred that this defendant was connected to the March incident which precipitated Lehmann’s delayed revelations. It was an abuse of discretion to grant a new trial on this basis.

Similarly, we find that the trial court erred in granting defendant a new trial on the ground that “a portion of the jury had breached its duty by exposing itself to [prejudicial] information” in a local newspaper. The conclusion that the jurors were “tainted” by media exposure is wholly unsupported by the record.

During the jury’s deliberations it came to the attention of the court that the Delaware County Daily Times had, in that morning’s edition, published an article concerning the charges facing the defendant. The article appeared on page 28 of the paper and was five columns long. The headline read “Ex-’Nova student denies charges.” The article recapitulated defendant’s theory of the case which was to paint the victim as a seductress who fabricated the charges when she learned that the exploits she allegedly initiated with Maloney were being publicized about campus by him. The article also summed up closing arguments.

Toward the end of the fourth column of the article, the following sentence occurred: “Maloney is also scheduled to stand trial next week on charges he indecently assaulted a 19-year-old student in her dormitory room on March 20, 1989.” If there was any reasonable way to conclude on this record that a juror or jurors had seen the aforementioned sentence, we would agree with the trial court that defendant is entitled to a new trial. However, the record affirmatively establishes otherwise.

The trial court, having been made aware of the article, took the appropriate, indeed necessary,⁴ step of interviewing each juror to determine the extent, if any, of the juror’s exposure to the article and its contents. Juror Number One, whose exposure to the article was potentially the most troublesome, told the court that he glanced through the paper, saw the headlines and “threw the newspaper down.” He unequivocally stated “I didn’t read it.” When pressed by the court further, the juror reiterated that he didn’t read it at all. He noted that no other juror even knew about the article until he mentioned its existence, but that no further discussion about it occurred. Juror Number Two stated that he didn’t hear anything about the article but that he knew one juror had a paper which was confiscated. Juror Number Three had the newspaper when she arrived in court that morning but the paper was taken from her. She told the court that she did not even see the article, much less read it. Juror Number Eight stated that he heard that “there was an article” from Juror Number One but that nothing more was said about it. Juror Number Nine similarly heard of the existence of the article and that it contained “[Maloney’s] side of the story. That’s all.”

The foregoing constituted the sum total of the jury’s “exposure” to prejudicial information. The rest of the jury had no knowledge about the article or of its existence. Defense counsel moved for a mistrial which the trial court denied. Subsequently, however, following post-verdict motions and argument thereon, the trial court reversed itself and found that “at least a portion of the jury had breached its duty by exposing itself to the information.”

We note that the trial court did not find the jurors’ representations regarding their familiarity with the contents of the article to be incredible or false. On the contrary, at the conclusion of post-trial argument, the trial court stated that he was “not finding that 12 people lied or that anyone lied.” He concluded merely that defendant had not received “a fair trial.” This conclusion is without record support and therefore constitutes an abuse of discretion.

Unless the trial court specifically disbelieved the testimony of one or more of the jurors, and had articulable reasons for so concluding, the record is altogether clear that not one of the jurors had any exposure to the prejudicial information in the article at issue. Not only had the jury not read the article but the little it did know was unexceptional. The most that any juror learned from the fleeting realization that an article on the case even existed was that Maloney denied the charges against him. Obviously, this was neither prejudicial nor new to the jury.

Moreover, we reject the conclusion that the members of the jury “breached” their duty to avoid media coverage of the case. Based on this record, we find instead that the jurors scrupulously attempted to avoid undue exposure. The only juror who actually saw the article only glimpsed at the headline which prompted his immediate discarding of the newspaper. Furthermore, the jury was instructed repeatedly to base its decision solely on the evidence it heard at trial and was pointedly cautioned following the news article incident to “completely forget” it and to continue with deliberations based on the evidence alone. Such precautionary instructions should suffice, particularly in a case where no actual prejudicial material was unearthed. See Commonwealth v. Jermyn, 516 Pa. 460, 483, 533 A.2d 74, 85 (1987); see also United States v. Polizzi, 500 F.2d 856 (9th Cir.1974); Adjmi v. United States, 346 F.2d 654 (5th Cir.1965).

We cannot conclude that the grant of a new trial is warranted on grounds as speculative as those found here. Mr. Justice Holmes long ago noted that: “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910). We agree.

We find nothing in the record to taint the integrity of the jury’s verdict. Therefore, we reverse the trial court’s grant of a new trial and remand for the imposition of sentencing. Jurisdiction is relinquished.

TAMILIA, J., files a dissenting opinion.

1 . The Commonwealth alternatively argues that even if the jury could have inferred that defendant was the accused perpetrator in the second incident, the error was nevertheless harmless because the evidence of defendant’s involvement in the second attack was independently admissible. We do not reach this issue because we are convinced that the jury could not have reasonably so inferred based on the testimony and the record in this case.

2 . Given the posture of the instant case, i.e., that the Commonwealth is appellant, the issue of whether counsel’s failure to object to Lehmann’s testimony waived the issue is not technically before us. However, were the case in a different procedural posture and, for instance, post-verdict motions had been denied and defendant was appealing on the ground that he was prejudiced by the admission of Lehmann’s now-contested testimony, the failure to object would certainly have constituted waiver and been fatal to his claim.

3 . In light of the above-quoted remarks by the prosecutor regarding Lehmann’s expected testimony, appellee cannot claim that the testimony "could not be anticipated by counsel.”

4 . See Commonwealth v. Bruno, 466 Pa. 245, 267, 352 A.2d 40, 52 (1976) ("The preferred procedure when highly prejudicial material is publicized during the trial and the jury is not sequestered is to question the jurors individually, out of the presence of other juror's.”)