The Pennsylvania Superior Court has upheld the conviction and a lengthy prison sentence imposed on a former Altoona man convicted two years ago of sexually abusing an 8-year-old boy.
Brian Scott Cinko, 50, an inmate in the State Correctional Institution at Greene, is serving a sentence of 84.5 to 189 years imposed by Blair County President Judge Elizabeth A. Doyle, who presided over a three-day trial in which the jury found him guilty of committing 32 sexual crimes.
The crimes included child rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault and corruption of a minor.
Although Cinko asserted he was not guilty of the crimes and inferred they may have been committed by another male associated with the boy, his appeal focused on the youngster’s competency to testify.
The defense appeal, filed by Johnstown attorney David J. Weaver, contended the jury’s verdict was based on “the uncorroborated testimony of an 8-year-old alleged victim who lacked testimonial competency.”
It charged that Cinko was deprived of his right to conduct a “meaningful cross examination” of the victim — a violation of his Sixth Amendment rights to confront his accuser.
And it disagreed with Doyle’s decision not to grant Cinko a new trial.
A Superior Court panel that included Judges John T. Bender, Victor P. Stabile and Dan Pellegrini summed up the defense argument by noting all three of the issues turned on Doyle’s decision that found the boy competent to testify.
The appeals court explained the Pennsylvania’s Tender Years Hearsay Act allows child victims to testify in court, but a trial judge must first interview the youngster in chambers to determine if he knows the importance of telling the truth and whether he can distinguish between “real life” and “fictional portrayals.”
The Superior Court opinion reported that Doyle concluded the youngster was competent but stated he had a tendency to make “fantastical statements” and cited his story about how he once saved a deer who was caught in a bear trap.
The judge concluded that story was not real, but in her opinion she said he identified Darth Vader as a make-believe character and identified her as a “real judge”
He was also able to describe his favorite video game and noted the vehicles in those games were not real.
The Superior Court opinion concluded the defense had failed to show the boy was incompetent to testify.
The primary evidence against Cinko was presented in a statement the boy gave to an interviewer at a child advocate center.
The boy and his family had moved to Blair County from another state and after meeting Cinko the family decided it would take over his apartment because he intended to move.
So for 60 days Cinko lived with the family. Cinko had his own bedroom, but one night the boy’s mother went to check on him in another bedroom and found Cinko in bed with the boy.
That incident was reported to Blair County Children, Youth & Families and an interview was scheduled at a child advocate center.
In the interview, the child stated Cinko had been kicked out of the apartment where the family was living “because he was doing weird stuff.”
The boy related every night Cinko would assault him. The boy disclosed “oral sex” and gave graphic descriptions about what occurred.
The interview led to charges being brought against Cinko by Logan Township police.
In her post-trial opinion, Doyle rejected a request for a new trial and stated that the boy knew the difference between the truth and a lie and she stated the boy “demonstrated that he could cogently respond to questions about himself, as he knew his birthdate, how old he was, his family members, and could discuss activities that he enjoyed.”
“In ruling on a competency motion, we defer to the trial court’s assessment as it observed the witness’ demeanor and responses firsthand,” the Superior Court opinion stated.
It also explained that the boy’s statements about what happened to him went to his “credibility” and not his “competency.”
His believability was a question for the jury, it explained.
The appeals found that the Cinko’ defense attorney was able to cross-exam the youngster after he told his story.
“We therefore find no violation of (the defense) right to confront (the child,)” the opinion concluded.
Cinko was a repeat child molester having previously served a state sentence for molesting a 12-year-old boy.
Blair County District Attorney Pete Weeks described the case as “one of the most disturbing I ever participated in.”
Doyle, during sentencing, said Cinko’s acts against the child were “heinous and painful.”
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