Commonwealth v. Butler , 423 Pa. Super. 472 ( 1993 )

FORD ELLIOTT, Judge:

Appellant comes before us challenging the judgment of sentence entered November 22, 1991. Appellant’s post-trial Motions for a New Trial and in Arrest of Judgment were denied. We have entertained this appeal en banc because one of the issues raised by appellant is a matter of first impression in this Commonwealth. We note that this same issue is raised in companion cases¹ also being decided by this panel.

Appellant was charged with two counts of indecent assault,² two counts of endangering the welfare of children,³ and two counts of corrupting minors.⁴ The court granted appellant’s demurrer to three of the counts,⁵ but appellant was convicted by a jury on all remaining charges.

The charges against appellant arose from conduct that allegedly occurred at the Apostolic Christian Academy, a school operated by the Apostolic Tabernacle Church located in Pittsburgh, and of which appellant is the pastor. The charges stemmed from the complaint of an 11 year-old student at the school, Raketa Cordo, that appellant had indulged in a prolonged “hugging” episode with her on December 12, 1990. During this encounter, appellant allegedly reached under the victim’s skirt and fondled her buttocks, as well as rubbed his clothed genital area against her.

Following his arrest, appellant claims that his attorney entered into an agreement with Pittsburgh police detective James McCarthy, whereby if appellant volunteered to take a polygraph test and passed said test, the charges against him would be dropped. Appellant did, in fact, take such a test and passed it. However, after the victim also passed a polygraph test, the Commonwealth decided to bring charges and arrested appellant. Appellant’s counsel moved to dismiss the charges on the basis of the alleged deal and the Commonwealth’s repudiation of it.

At an ensuing evidentiary hearing on the matter, Detective McCarthy had a somewhat different recollection of the discussions prior to the polygraph test than did appellant’s original counsel. Detective McCarthy was generally equivocal, but the tenor of his testimony indicated that he did not remember making any deal with appellant, whereby appellant could wholly escape prosecution merely by passing a lie detector test. The trial court ruled against appellant’s motion on the basis that police officers do not have the authority to bind the Commonwealth to agreements. Moreover, the court also found that no agreement actually occurred because there was no meeting of the minds, given the vague, equivocal statements of the police to appellant’s attorney. The case then proceeded to trial and, ultimately, conviction. Appellant’s post-trial Motions for a New Trial and in Arrest of Judgment were denied.

Appellant raises four issues on appeal. Appellant first claims that the trial court erred in failing to dismiss the charges against him because he had complied with the terms of a binding agreement with agents of the Commonwealth. The contention as to whether police officers can bind the Commonwealth to agreements made with defendants is the issue that connects this ease with its companions, Commonwealth v. Stipetich and Commonwealth v. Scuilli.

Appellant also recites three errors which transpired during the course of his trial. First, appellant claims the trial court erred in refusing to allow admission of his polygraph results at trial. Second, appellant attempted to introduce the testimony of two witnesses who would have testified as to the victim’s bad reputation in the community for telling the truth. The court barred this testimony, ruling that reputation evidence was inadmissible. Appellant claims this was error. Third, appellant argues that it was error for the trial court, during voir dire, to disallow the proposed question, “Have you or has any member of your family ever been involved in a rape proceeding or a proceeding involving a sexual crime?”

For the reasons which follow, we vacate the judgment of sentence and remand this case for a new trial.

Appellant’s first claim asks us to hold that the Commonwealth may be bound by the agreements entered into between ordinary policemen and criminal defendants. While such is precisely our ruling in the companion cases Commonwealth v. Stipetich and Commonwealth v. Scuilli, we find this principle unavailing for the instant appellant. This is so because while the police may bind the Commonwealth by their deal-making, instantly, we are unable to find that an agreement was reached between appellant’s lawyer and Detective McCarthy. The trial court specifically stated that the vague statements made to appellant’s attorney by the police were insufficient to amount to a meeting of the minds and a bona fide agreement. Our review of the testimony has led us to a similar conclusion. We find no relief for appellant based upon this alleged error.

We may also quickly dismiss appellant’s second argument, that the results of his polygraph test should have been admitted at trial. The trial court properly barred this evidence under long-standing precedent in this Commonwealth. Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985).

It is the matter which appellant raises as his third issue which requires us to reverse his conviction. At trial, appellant attempted to introduce evidence of the victim’s reputation in the community for untruthfulness. The following exchange transpired:

Q. Now, you have indicated that you have known Raketa Cordo for some period of time?

A. Yes.

Q. How long is that?

A. Three to five years, roughly.

Q. And did you know other individuals in the community who know—

THE COURT: See you a side-bar, Counsel.

(Side-bar discussion.)

MISS ORIE [COMMONWEALTH]: I’d object to this testimony.

MR. LEVENSON [DEFENSE]: Excuse me.

MISS ORIE: I would object to you asking her this stuff about her credibility at this point.

THE COURT: Not her credibility, reputation. Reputation is not at issue. Credibility is at issue not reputation. You can’t attack credibility by reputation; talking about reputation testimony.

MR. LEVENSON: I intend to elicit testimony that she has a reputation for being untruthful.

THE COURT: No. Not that way. You can attack credibility but not through reputation character, reputation evidence as to character unless you have case law.

MR. LEVENSON: No.

THE COURT: If you have no case law, I’ll sustain the objection.

MR. LEVENSON: I would just indicate for the Court that—

THE COURT: Credibility is always at issue; but you can’t attack it by use of reputation character evidence.

MR. LEVENSON: I would just state for the record that I had intended to call as a second witness by the name of Tina Martin who was also going to testify as to her reputation in the community for being untruthful.

THE COURT: No.

Notes of testimony, 9/23-24/91 at 139-40. The ruling of the trial court was incorrect. In deference to the trial court, there may have been some misunderstanding that the defense was attempting to introduce one individual’s opinion as to the victim’s capacity for deceit. That sort of testimony would properly be excluded. See Commonwealth v. Smith, 389 Pa.Super. 626, 567 A.2d 1080 (1989), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1990). Nevertheless, it seems obvious to us that the defense was trying to introduce general reputation evidence for truth and veracity, and that is a valid line of attack. Commonwealth v. Smith, supra. See also Commonwealth v. Hansell, 185 Pa.Super. 443, 137 A.2d 816 (1958). Therefore, we must reverse the judgment of sentence and remand for a new trial.

Appellant’s final contention is that the trial court erred in not allowing appellant to ask jurors at voir dire whether they or any member of their family had ever been involved in a proceeding connected to a rape or other sexual crime. Appellant cites Commonwealth v. Fulton, 271 Pa.Super. 430, 413 A.2d 742 (1979), in which this court found prejudicial error in the trial court’s refusal to permit this very question. Because our prior determination that a new trial is required renders this issue moot, we specifically decline to review it.

In conclusion we reiterate that we find merit in appellant’s contention that the trial court committed reversible error in barring testimony as to the victim’s reputation in the community for truth and veracity.

Accordingly, the judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction relinquished.

OLSZEWSKI and POPOVICH, JJ. concur in the result. OLSZEWSKI, J. files a Concurring Statement in which ROWLEY, P.J. joins. CIRILLO, J. files a Dissenting Opinion.

1 . Commonwealth v. Stipetich, 423 Pa.Super. 427, 621 A.2d 606 (1993), and Commonwealth v. Scuilli, 423 Pa.Super. 453, 621 A.2d 620.

2 . 18 Pa.C.S.A. § 3126.

3 . 18 Pa.C.S.A. § 4304.

4 . 18 Pa.C.S.A. § 6301.

5 . One count each of the three crimes charged.