Commonwealth v. G.Y.

63 A.3d 259

2013 PA Super 4

COMMONWEALTH of Pennsylvania, Appellant

v.G.Y., Appellee.

Superior Court of Pennsylvania.

Submitted Dec. 17, 2012.

Filed Jan. 9, 2013.

Stacy P. Miller, District Attorney, Bellefonte, for Commonwealth, appellant.

Ronald McGlaughlin, State College, for appellee.

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and ALLEN, JJ.

OPINION BY ALLEN, J.:

The Commonwealth appeals from the trial court's grant of PCRA relief to G.Y. After careful review, we reverse and reinstate the judgment of sentence.

We have gleaned the following facts from our review of the record. J.Y., G.Y.'s son, testified that his parents worked for a cleaning company. N.T., 2/1/05, at 63–64. J.Y. testified that when he was approximately 5 to 6 years old, G.Y. touched him “in a way [J.Y.] didn't like” while they were both at the cleaning company. Id. at 64–65. J.Y. stated that while he was using the restroom at the cleaning company, G.Y. “came in, pulled down [G.Y.'s] pants and told [J.Y.] to suck [G.Y.'s] penis.” Id. at 67. J.Y. complied and placed his mouth on G.Y.'s penis for “about two or three minutes.” Id. at 68–69. According to J.Y., G.Y. then ejaculated into a handkerchief. Id. at 69–70. J.Y. told his mother, S.Y. (“S.Y.” or “Mrs. Y.”), what had occurred, and she replied that G.Y. “wouldn't do that because he's your father.” Id. at 70. J.Y. further testified that when he was approximately 12 to 13 years old, and living in Pleasant Gap, Pennsylvania with his family, G.Y. again asked him to “suck” G.Y.'s penis. Id. at 72.

J.Y. admitted that he wrote “a statement for the defense's investigator in May of 2004” recanting his allegations that G.Y. molested him. Id. at 84–87. J.Y. explained he was “pressured” to recant his abuse allegations by his parents, and did so because J.Y. “wanted a family again.” Id. at 87–88. On cross-examination, the defense suggested that J.Y.'s abuse allegations were fabricated because, by his own admission, J.Y. was angry when his parents asked him to leave their home and J.Y. was placed in a group home. Id. at 107. J.Y. also admitted that he lied “all the time” and had “trouble telling the truth.” Id. at 113. J.Y. further indicated he had “difficulty remembering things.” Id. at 114.

Sometime in 1999 or 2000, while living in the group home, J.Y. told a case manager about G.Y.'s sexual abuse. The case manager in turn advised CYS caseworker Kerri Gill. Id. at 79–80. Ms. Gill testified that on January 17, 2000, she interviewed G.Y. at his home in the presence of Detective Bosak from the State College Police Department. Id. at 182. During the course of the interview, G.Y. stated that while at the cleaning business, J.Y. “was in the bathroom, and [G.Y.] had to go to the bathroom really bad, and [G.Y.'s] pants were coming down, and [J.Y.] was on the toilet and [G.Y.'s] penis went into [J.Y.'s] mouth for a few seconds.” Id. at 183. G.Y. also told Ms. Gill that his penis could have been in J.Y.'s mouth for “one or two minutes.” Id. At the conclusion of the interview, G.Y. reiterated his admissions in a written statement, which he authored and signed. Id. at 186; see Commonwealth's Trial Exhibit 10.

G.Y.'s January 17, 2000 written statement, which was read into the record by Ms. Gill, described that “somewhere between 1994 through 1995,” G.Y. was cleaning when he “had a hard on, as I had to go to the restroom bad. I had to pee. [J.Y.] was sitting down on the toilet at the time, and I started to pick him up and move him so I could go. When moving [J.Y.], my penis went into his mouth for about one minute or less[,] which afterwards I believe [J.Y.] left the room, and I went to the restroom.” Id. at 186–187. G.Y.'s statement further read: “This should not have happened. I did not jack off, and I am very sorry this happened. I might have said suck my dick out of anger.” Id. at 187.

Ms. Gill then interviewed S.Y. on January 18, 2000, the day after G.Y.'s initial interview. Mrs. Y. disclosed to Ms. Gill that G.Y. had admitted the cleaning company incident to Mrs. Y after Ms. Gill and Detective Bosak left the residence, leading Mrs. Y. to believe the incident had in fact occurred. Id. at 189. Mrs. Y. admitted to Ms. Gill that she had not believed J.Y. when he told her about the abuse. Id. Mrs. Y. prepared a written statement in which she described G.Y.'s admissions to her that J.Y. had “licked his penis” for approximately “one to two seconds or one to two minutes.” Id. at 191–192; see Commonwealth's Trial Exhibit 5. Mrs. Y.'s statement was read into the record by Ms. Gill. Mrs. Y.'s statement explained that “[a]fter Det. Bosak [and] [Ms. Gill] left our house last night (1/17/00) I ask [sic] [G.Y.] what happened and [G.Y.] told me that [J.Y.] had licked his penis at [the cleaning company] awhile back.” Commonwealth's Trial Exhibit 5.

Ms. Gill testified that she conducted a second interview with G.Y. on January 24, 2000, which was witnessed by Detective Bosak. N.T., 2/1/05, at 197. During the January 24, 2000 interview, G.Y. again discussed the cleaning company incident, and admitted that there had been one additional sexual incident between G.Y. and J.Y. at their home in Pleasant Gap, Pennsylvania, and two incidents in Bellefonte, Pennsylvania. Id. at 198. At the conclusion of the January 24, 2000 interview, G.Y. gave a taped statement, which was admitted into the record. Id. at 249; see Commonwealth's Trial Exhibit 8.

Detective Bosak supported Ms. Gill's recollection of G.Y.'s admissions during the January 17, 2000 and January 24, 2000 interviews. Id. at 232–234. During his testimony, Detective Bosak read into the record a letter dated January 26, 2000, which was authored by G.Y. See Commonwealth's Trial Exhibit 7. In his January 26, 2000 letter, G.Y. indicated that while living in Bellefonte, “[J.Y.] got me down and for some reason he got my pants down, underwear still on, and was going to touch me near the penis area-I told him to stop that which he did.” Id. at 245. G.Y. further stated that in another Bellefonte residence, G.Y. “grabbed [J.Y.'s] genitals, and [G.Y.] asked [J.Y.] how he would like that.” Id. at 246. G.Y. further described that while living in Pleasant Gap, “[J.Y.] pulled down my ... sweatpants ... [J.Y.] had a hard on. Said I love you. Touched my penis for about two or three seconds. I got mad. I told him to go and take a shower which he did.” Id. at 247. G.Y.'s January 26, 2000 letter also reiterated the prior details he had disclosed regarding the cleaning company incident. Id. at 247–248. G.Y. concluded his January 26, 2000 letter by stating “I am very sorry for any of this. Just wasn't sure what I was thinking of.” Id. at 248.

At trial, G.Y. testified that he “did admit” to Detective Bosak and Ms. Gill that he had “oral sex with [J.Y.] in [the cleaning company].” N.T., 2/2/05, at 442. However, G.Y. claimed his statements to Detective Bosak and Ms. Gill were not true, and were only furnished to secure help for his son. Id. at 451. G.Y. stated that “but for [J.Y.'s] need of help” he “doubt[ed] he would have answered the same way.” Id. During direct questioning by his trial counsel, G.Y. testified that he “admitted to [his wife] what I told Det. Bosak.” Id. at 443. At the conclusion of his trial testimony, G.Y. testified that he was acquitted of the Pleasant Gap incident, and that the two Bellefonte events had never gone before the jury. Id. at 447.

G.Y.'s trial counsel called Mrs. Y. to testify concerning her January 18, 2000 statement to Detective Bosak and Ms. Gill. Id. at 534. Mrs. Y. testified that she never suspected G.Y. of sexually abusing their son. Id. at 535. Mrs. Y. testified that she did not believe J.Y.'s sexual abuse allegations concerning G.Y. because of J.Y.'s “history of lying.” Id. at 536.

The PCRA court recounted the procedural history of this case as follows:

[G.Y.] was originally charged in 2000 with various child sex abuse offenses in three separate cases [involving his own son] docketed at No. 2000–0345 (the cleaning company incident), No. 2000–0346 (the Larimer Street incident), and No. 2000–0347 (the Bellefonte incident). The three cases were consolidated, and a jury trial was scheduled. The Bellefonte case was dismissed pre-trial based on a violation of the corpus delicti rule, and a jury trial was held for the remaining two cases. At the conclusion of the jury trial, [G.Y.] was acquitted of the Larimer Street charges, but convicted of the [cleaning company] charges. [G.Y.] was subsequently sentenced to a period of incarceration for the [cleaning company] conviction. Upon the filing of a post-sentence motion, however, [G.Y.'s] sentence was vacated because [G.Y.'s] alleged confession had been improperly sent out with the jury during deliberations. [G.Y.] was granted a new trial for the [cleaning company] charges. The Commonwealth then appealed this Court's order granting [G.Y.'s] post-sentence motion.

While the post-sentence motion order was on appeal, in 2004, [G.Y.] was charged with two counts of Intimidation of a Witness or Victim, docketed at No. 2004–1547. [G.Y.'s] wife, [S.Y.], was charged with the same two offenses, docketed at No. 2004–1548. After the Superior Court affirmed the post-sentence motion order in the [cleaning company] case, and the Pennsylvania Supreme Court denied the Commonwealth's Petition for Allowance of Appeal, the two Intimidation of Witness cases were consolidated with [G.Y.'s] new trial on the [cleaning company] charges.

At trial, both [G.Y.] and [Mrs. Y.] were represented by Bruce Manchester. Following trial, [G.Y.] was again convicted of the [cleaning company] charges, but acquitted of both charges in the Intimidation of Witness case. [Mrs. Y.] was also acquitted of both charges in her Intimidation of Witness case. [G.Y.] was sentenced to a period of incarceration of seven (7) to fourteen (14) years on the new [ ] conviction. [Trial counsel] filed an appeal to the Superior Court, but the appeal was dismissed due to ...