Com. v. Tunsil, B.
1990 EDA 2016
| Pa. Super. Ct. | Dec 8, 2017Background
- Barrett Tunsil (defendant) was convicted by a jury of unlawful contact with a minor, aggravated indecent assault of a child, corrupting the morals of a minor, endangering the welfare of a child, and indecent assault based on repeated sexual abuse of an 8–9 year-old victim while living in the same home. He denied the allegations.
- At trial, the PCA-recorded forensic interview of the victim was played for the jury; other witnesses (DHS investigator, detective, foster mother) testified about the victim’s disclosures and related observations. Defense counsel’s cross-examination was limited in several respects by the trial court.
- After conviction, Tunsil proceeded pro se in parts of the post-conviction process and waived (with standby counsel) for his SVP hearing; the court found him an SVP and imposed an aggregate sentence of 25 to 54 years, plus lifetime SORNA registration as a Tier III offender.
- On appeal Tunsil raised multiple claims: evidentiary rulings/cumulative error, challenge to a stipulation substituting foster-mother testimony (confrontation), denial of a continuance to secure a defense witness at sentencing, discretionary aspects of sentencing (consecutive terms/cruel and unusual), and insufficiency of SVP designation.
- The Superior Court affirmed convictions and sentences in all respects except it reversed the SVP designation and remanded solely for statutory notice of registration requirements, holding that the statutory SVP adjudication procedure (trial-court factfinder + clear-and-convincing standard) was unconstitutional in light of Muniz and related precedent.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Tunsil) | Held |
|---|---|---|---|
| Evidentiary rulings / cumulative error | Trial court’s limits and admission rulings were proper exercises of discretion; videotape was played and cumulative testimony was permissible. | Court improperly sustained objections on cross, allowed summary testimony of the videotape, and cumulative errors deprived him of a fair trial. | No abuse of discretion; individual evidentiary rulings and cumulative-error claim fail because videotape was admitted and cumulative testimony was harmless. |
| Allowing stipulation to substitute live foster-mother testimony | Stipulation was an accepted practice; defense counsel agreed to it; no duty to colloquy defendant about stipulation. | Stipulation violated right to confrontation/cross-examination; court should have ascertained Tunsil’s consent or continued to secure live testimony. | Issue waived (not preserved). Even if preserved, court had no duty to colloquy; strategic defense decision and not reversible on direct appeal. |
| Denial of continuance to present daughter at sentencing | Numerous prior continuances at defendant’s request; Commonwealth stipulated to relevant facts; further delay was unwarranted. | Pettis was a necessary witness to strengthen defense at sentencing/SVP hearing; defense exercised diligence to secure her attendance. | No abuse of discretion — denial proper given lengthy prior continuances, timing at sentencing (not trial), and stipulation offered; continuance denial not prejudicial. |
| Sentencing (consecutive terms / cruel and unusual) | Sentencing court reasonably considered §9721 factors, prior history, victimization, and risk of reoffense; consecutive sentences within discretion. | Aggregate 25–54 years is manifestly excessive given nature of offenses (no intercourse/evidence of serious physical injury) and long gap since prior offense. | No substantial question; sentencing court acted within discretion — consecutive sentences and aggregate term not facially excessive or cruel and unusual. |
| SVP designation under SORNA §9799.24(e)(3) | Court followed statutory SVP procedure (SOAB report, SVP hearing, court made finding by clear and convincing evidence). | Designation challenged as unsupported by clear-and-convincing proof (and implicated procedural protections). | Reversed SVP designation as unconstitutional in light of Muniz/Apprendi/Alleyne jurisprudence (trial-court finding by clear-and-convincing standard increases criminal penalty — must be found beyond a reasonable doubt by chosen factfinder); remanded for statutory notice of registration periods only. |
Key Cases Cited
- Commonwealth v. Johnson, 42 A.3d 1017 (Pa. 2012) (standard of review for admissibility and trial-court discretion)
- Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) (scope of cross-examination is within trial court discretion)
- Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (two-part test for whether limitation on cross-examination violates Confrontation Clause)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts that increase criminal penalty must be treated as elements)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts that increase mandatory minimum must be found beyond reasonable doubt)
- Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (SORNA registration found punitive; retroactive application violates ex post facto)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (consecutive versus concurrent sentencing is discretionary; extreme aggregate sentences can raise substantial question)