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J.A11035/10 2010 PA Super 195 COMMONWEALTH OF PENNSYLVANIA, Appellant v. DAVID W. ANDERSON Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 495 WDA 2009

Appeal from the Order Entered February 6, 2009, In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000009-2001, CP-61-CR-0000636-2000 BEFORE: MUSMANNO, OLSON, and FREEDBERG*, JJ. OPINION BY: FREEDBERG, J.: Filed: October 22, 2010

This matter is before the Court on the appeal of the Commonwealth of Pennsylvania from the order entered by the Court of Common Pleas of Venango County, granting the motion of Appellee David W. Anderson, defendant below, and dismissing the prosecution because of prosecutorial misconduct. We reverse and remand. Appellee was charged in April 2000 with sex-related offenses against three developmentally impaired individuals, D.M., J.L., and T.C., who resided at the Polk Center State Hospital, where Appellee was employed as a residential service aid. The charges were brought based on alleged incidents

*

Retired Senior Judge assigned to the Superior Court.

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of sexual abuse of each of the three victims; some incidents were reported by the victims and others were reported by third parties who observed the conduct. On February 13, 2001, after a jury trial, Appellee was found guilty of indecent assault1 of D.M. The jury was deadlocked as to the charges

relating to J.L. and T.C. On March 26, 2001, Appellee was retried and found guilty of indecent assault of J.L. and T.C. and involuntary deviate sexual intercourse2 relating to J.L. Appellee appealed, and on April 21, 2004, a

panel of this Court reversed. The conviction relating to D.M. was reversed because of late amendment of the information, and Appellee was

discharged. The convictions relating to J.L. and T.C. were reversed based on prosecutorial misconduct during closing argument and were remanded for a new trial. Commonwealth v. Anderson, 855 A.2d 127 (Pa. Super. 2004) (unpublished memorandum). On September 8, 2005, a competency hearing was held for J.L. and T.C. The trial court found both individuals incompetent to testify.3 The

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18 Pa.C.S.A.

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