Com. v. Fisher, C.
419 WDA 2016
| Pa. Super. Ct. | Jan 20, 2017Background
- Victim ZS (14) was next-door neighbor who performed yard work for defendant Carl Fisher; on June 30, 2012 Fisher allegedly offered money for oral sex and said he liked red hair; ZS reported the incident within ~12 hours and gave a written statement to police July 3, 2012.
- Commonwealth charged Fisher with solicitation, criminal attempt (IDSI and indecent assault), and corruption of minors; an Amended Information (adding inchoate counts) was filed April 16, 2013.
- Case experienced multiple pretrial motions, continuances, counsel changes, Rule 600 delays, a contested hearing on pretrial motions, and ultimately proceeded to jury trial August 26–27, 2015; Fisher was convicted on multiple counts and sentenced within guideline range.
- Key contested evidentiary rulings: (1) denial of motions to quash Amended Information (Pa.R.Crim.P. 564/560 challenges); (2) exclusion of cross-examination about victim’s pretrial reluctance comments to the prosecutor; (3) admission of victim’s July 3 written police statement and allowing it to go to the jury; (4) admission of an August 2012 e-mail from defendant discussing photographing the victim and commenting on red hair.
- Fisher raised speedy-trial (Rule 600), sufficiency and weight challenges, objections to sentencing reliance on SOAB report, and ineffective-assistance claims; trial court and Superior Court affirmed convictions and sentence.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Fisher) | Held |
|---|---|---|---|
| Validity of Amended Information under Pa.R.Crim.P. 564/560 | Amendment was timely, arose from same factual situation, and provided adequate notice; omission of precise subsection citation does not invalidate information. | Amended Information was defective because the court’s permission was required under Rule 564 and Information lacked specific statutory subsections and factual allegations (Rule 560). | Amended Information upheld: Rule 564 does not mandate express court approval; amended counts arose from same facts and defendant had adequate notice; Rule 560 omission of citation not fatal. |
| Rule 600 speedy-trial claim | Commonwealth exercised due diligence; many delays attributable to defense, scheduling, and court administration; judiciary delays not per se charged to Commonwealth. | Delay between charging and trial (~2+ years) violated Rule 600; delays in resolving defense motions and discovery are attributable to Commonwealth. | Denial of dismissal affirmed: trial court found Commonwealth exercised due diligence; some delay attributable to court/defense; no Rule 600 violation. |
| Cross-examination about victim’s pretrial reluctance comments | Not argued for plaintiff (Commonwealth protected communications). | Fisher sought to impeach victim and mother regarding statements the victim allegedly made to prosecutor expressing reluctance to testify; court excluded as privileged (communications with prosecutor). | Exclusion affirmed: court treated those communications as privileged/part of pretrial negotiations; exclusion, even if error, would be harmless beyond a reasonable doubt. |
| Admission of victim’s July 3 police statement and jury access | Prior consistent statement was admissible to rehabilitate impeachment; trial court may permit exhibits in deliberation under Pa.R.Crim.P. 646. | Allowing written police statement to go to jury was unduly suggestive, hearsay, and bolstered victim improperly. | Admitted and sent to jury: court found statement admissible as prior consistent statement to rebut implied impeachment; furnishing it to jury was within discretion under Rule 646 and not unduly prejudicial. |
| Admission of e-mail (photograph/red-hair remarks) under Pa.R.E. 401/403/404(b) | E-mail was relevant to motive/interest in victim and made solicitation more probable; probative value outweighed any prejudice. | E-mail was highly prejudicial, suggested voyeurism/photographing, and constituted impermissible other-acts evidence. | Admissible: court exercised discretion, found relevance and probative value substantial and not outweighed by unfair prejudice; not a prior bad-act under 404(b). |
| Sentencing reliance on SOAB report and hearsay | Information in SOAB report is proper for sentencing consideration (PSI and hearsay routinely considered); no SVP designation required for court to consider report. | Use of SOAB report (mostly hearsay) was improper because no SVP hearing occurred and defendant did not participate in SOAB interview. | Use of SOAB report in sentencing affirmed: hearsay may be considered at sentencing; court sentenced within guideline range and gave reasons on record. |
Key Cases Cited
- Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (Rule 564 amendment inquiry focuses on whether amended charges arise from same facts and notice to defendant)
- Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006) (amendment allowed where crimes involve same basic elements and factual situation)
- Commonwealth v. Sims, 919 A.2d 931 (Pa. 2007) (information must provide sufficient notice to prepare a defense)
- Commonwealth v. Morales, 669 A.2d 1003 (Pa. Super. 1996) (omission or error in statutory citation does not invalidate information)
- Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014) (standard of review and dual purposes of Rule 600)
- Commonwealth v. Baldwin, 502 A.2d 253 (Pa. Super. 1985) (observing that child sexual-abuse victims often are reluctant witnesses)
- Commonwealth v. Jubilee, 589 A.2d 1112 (Pa. Super. 1991) (limits on use of prior consistent statements to bolster a witness where prior contradictions deny the incident)
- Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005) (permitting prior consistent statements to rehabilitate an impeached witness)
- Commonwealth v. Medley, 725 A.2d 1225 (Pa. Super. 1999) (hearsay admissible at sentencing; PSI and hearsay commonly considered)