*1 fact that there was suffi- jury primarily A on the immediately. practices Collincini’s jury permit record to cient evidence of on his inten- in favor found Collincini’s statements to Honeywell’s to conclude that contract claim with tional interference a matter of fact false, were both as puni- ATS compensatory him and awarded Second, did a matter of law. we and as damages. tive any authority support in not cite to ¶ Honeywell contended appeal, 17 On statement, acknowledged and we neither tortious be- could not be that its conduct potential applicability of nor discussed the alia, to ATS cause, its statements inter 772(a) (Second) section or our Restatement ruled in favor of were true. This Court (Yaindl in area prior decisions this “[tjruth Collincini, is an noting that while sug- Geyer). We decline Walnut Street’s defamation; it is not a absolute defense rejected in we gestion that Collincini interference with to intentional defense 772(a) silentio. adoption of section sub (empha- Id. at 296 relations.” contractual ¶ reviewing In the record original). reasons, adopt in Re- sis 19 For these we 772(a). however, (Second) this Court concluded appeal, As statement section provided a of record such, the evidence truthful Macrone’s statements jury’s conclusion improper sound basis for as a matter of Procacci were not conveyed by Honeywell to the information could not form the basis for law and thus at tri- admitted “Evidence contract claim. ATS tortious interference with false: Honeywell knew at the al indicated as a matter of BCI was entitled to JNOV written that it had law, first letter was time the therefore we reverse the we against action Collincini entry no cause of court’s order and remand further conclud- at 295-96. We ATS.” Id. in favor of BCI. JNOV Honeywell’s list of contract ed that “while remanded 20 Order reversed. Case factually might be renewals lost ATS with instructions. correct, characterization of the informa- its on to obtain those tion Collincini relied or trade secrets proprietary
contracts as at 296. of law.” Id.
false as a matter con- knowledge of customers’
Collincini’s only “gen- constituted
tract renewal dates experience” knowledge, Pennsylvania, eral skill COMMONWEALTH provided type for the of service the field Appellant ATS, Honeywell and and thus were proprietary protectable a matter of law as Daryl BOICH, Appellee. J. n. 4. information. Id. to follow Collincini 18 We decline Superior Pennsylvania. Court of First, for two reasons. present appeal Argued March 2008. that truth is in Collincini our statement Filed Oct. 2009. interference a defense to intentional “not dic- contractual relations” was obiter tum, relied deciding the case we since (although may precedential it be considered Dictionary obiter dic- 8. Black's Law defines "judicial while deliv- Dictionary as a comment made persuasive).” tum Law Black's ering judicial opinion, is un- but one that 2004). (8th ed. necessary and therefore not to the decision *3 Barletta, Frank P. Assistant District At- Wilkes-Barre, Commonwealth, torney, appellant. Flora, Fort, Forty appellee.
Albert J. ELLIOTT, P.J., BEFORE: FORD STEVENS, MELVIN, ORIE LALLY- *, KLEIN, BENDER, BOWES, GREEN GANTMAN, SHOGAN, JJ. GANTMAN, BY OPINION J.: ¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the order en- County tered in the Luzerne Court Pleas, granted pre-trial Common Daryl of rape Appellee, motion defendant Boich, rape complain- J. to direct the adult (“C.U.”) ant involuntary to submit to an purposes examination for of de- ciding her at trial. The Commonwealth asks whether court erred when it found rea- grant Appellee’s request. sons to holdWe the court erred it ordered an invol- untary psychiatric examination of C.U. on grounds alleged. Accordingly, we re- proceedings. verse and remand for further ¶ 2 Appellee’s The of C.U. at preliminary hearing that on revealed Octo- 13, 2005, approximately ber p.m., 10:00 and three friends went to bar Wilkes-Barre, bar, Pennsylvania. At the C.U. saw a co-worker Appellee. who knew * Judge Lally-Green participate did not in the consideration or decision of this case. they and oth- greeted Appellee, lap, while head down into his They forced C.U. stage perform were all crowded front of sex on him. ers oral When it became perform. a band was preparing where evident that C.U. would not participate. midnight, evening past wore on As Appellee released her head. Appellee C.U., drank, danced, Appellee, and others again purported leave but instead drove in a casually group mostly conversed car even more secluded area setting. Upon as to repeated questions Appellee behind the bar. and C.U. then Ap- content of her conversations vehicle, moved outside where gist could not pellee, C.U. recall forcibly jeans down pulled pant- bar conversations those because ies, car, pushed her onto the held her *4 the and loud. C.U. maintained crowded firmly, forced her to and have sexual inter- inconse- conversations were all casual and him course on the with hood of the car. point, accepted At one a quential. C.U. stop, told to Appellee C.U. but he refused another from her co-worker to kiss dare only and phone ceased C.U.’s cell female dancer C.U. did not know. C.U. rang. advised Appellee C.U. that her so, and did but on rebuttal dare agreed the police friends would contact the did she Appellee, the co-worker would kiss the phone, Appellee not answer so re- he that the also did. C.U. testified leased who was then able to him push C.U. just a prank. kiss was phone off of her. was car C.U.’s inside the ¶ Later, she when C.U. decided want- on the C.U. it floor. answered and had home, readily go she could not locate ed short conversation. phone After C.U. ter- with, so she the friends she had arrived call, Appellee get minated the told her to a ride from On accepted Appellee. home car, out of which she Appellee did. bar, way out of the encountered C.U. away left drove from C.U. and the area. co-worker, who C.U. a her also offered making her way While back to the bar’s home, As but not until later. C.U. ride lot, main co- parking she contacted her moment, to leave at that she told wanted told him what happened. worker and had co-worker she leave with going her was kit hospital rape C.U. went to where a C.U. out of Appellee. Appellee preceded performed. was The incident was later lot, and into the where he parking the bar (N.T. police. Preliminary reported to seat of passenger off the front his cleared 7-121). 12/12/05,at Hearing, was at- car C.U. C.U. admitted she exchange ¶ to Appellee hoped tracted a result of interviews with 5 As C.U. numbers with him. phone others, the police charged Appellee involuntary in- rape,1 deviate sexual ¶ Mercedes, 4 Once Appellee’s inside tercourse,2 as- and two counts of sexual Appellee kiss. C.U. began C.U. 12, 2005, sault.3 December the district On uncomfortable, Ap- became soon because preliminary conducted the magistrate “getting pushy” by grab- a little pellee solely hearing. Based on C.U.’s testimo- point, bing C.U.’s breasts. At that C.U. rigorous ny, including cross-examination Appellee just go home. told wanted to defense, by magistrate ruled agreed. drove C.U. Appellee Appellee instead bar, presented had parking stopped prima back the Commonwealth to the lot of the vehicle, hair, pulled charges her and bound grabbed his C.U.’s case on facie § § Pa.C.S.A. 3. 18 3124.1. 1. 18 3121. Pa.C.S.A. § Pa.C.S.A.
2. 18 3123. “mental in- Appellee repeated that C.U.’s of Common Pleas to the Court matter over stability” at the time of the incident was for trial. credibility. Ap- impeach her admissible ¶ Thereafter, request filed a in- admitted pellee further averred C.U/s 20, 2006, July on particulars for a bill of toxication, inability drugs, use of narcotic 20, July on discovery requests several her to “remember material facts” and 2006, 14, August August instability” affected her credibili- “mental pre-trial motion as well as an omnibus (See Supplemental Rea- ty. Appellee’s involuntary psy- an hearing, 1). 10/3/06, sons, at On these examination filed psychological chiatric or expert, and disclosure Appellee again requested, a defense inter grounds, C.U. medical, psychologi- psychiatric and alia, involuntary compel the court August 2006. cal treatment records evaluation psychological and/or expert. by Appellee’s defense Id. motion, Ap- pre-trial 7 In his omnibus had demonstrated pellee averred C.U. 5, 2006, the Court of 9 On October inability hearing “an preliminary pretrial Pleas trial court held a Common specific facts about remember *5 testimony of hearing. Appellee presented (See Motion Omnibus Pretrial incident.” expert, psychiatry the defense forensic 2^4). 8/14/06, Relying Appellee, of filed Fischbein, the Richard M.D. Over Com- the transcript preliminary on the from objection, Dr. Fischbein was monwealth’s (1) specifically asserted hearing, Appellee permitted say perform he would want to “I don’t recall” no less responded C.U. had of to find out interview C.U. (35) during question- times thirty-five why prescription on a medication C.U. was (2) hearing; she ing preliminary at the that medi- problems, for stomach night intoxicated on the admitted she was typically depression to treat cation is used incident; she admitted alleged of the anxiety or an disorder. Dr. Fischbein said on the of medications” taking “a number examination, could not tell without an he incident; day alleged “dem- why failed to remember all the de- inability either onstrated substantial 5, 2005, that tails of the incident of October accurately materi- remember or remember helpful” figur- an examination “would be during the occurrences regarding al facts cross-examination”; difficulty and ing why her direct and out C.U. had remember- history exaggerating inti- C.U. “has a ing opined the He also the event. boy- physical prior mate contacts with admitted prescription medications C.U. allegations of resulting friends in false taking compatible were not with alcohol abuse, physical tempered ap- hot and words, person intake. In other on her during pears emotionally periods unstable drinking limit alcoholic medications should id.) (See intimacy.”4 On these Dr. he beverages. Fischbein also stated concluded C.U. was grounds. Appellee being for suspected C.U. was also treated testify at trial. legally competent not just depression prob- rather than stomach lems, because the she took on medication filed a 8 On October morning of 2005 was a October “Supplemental document called Reasons drug usually prescribed “commitment” Involuntary Psychiat- Supporting Need for term disorders. Dr. Fischbein Complainant” ric short Examination allegation gratuitous and scurrilous that was 4. The certified record does not sustain in point concerning the fifth developed supported. manner whatsoever not ever appears wholly history to be a C.U.’s why the pelling examination; wanted to know medications had need for an consid- Coupled significant prescribed. been together ered clearly one is warranted. testing, Dr. Fischbein wanted to dis- other simply [c]ourt This lacks sufficient ex- any “personality had issues” cover C.U. pertise to understand and evaluate the post-traumatic consistent with stress disor- physical/psychiatric affects effects der. ingestion of these substances cross-examination, 10 On Dr. Fisch- alleged victim. This evaluation and de- bein conceded C.U. had remembered termination becomes more difficult given many details about the incident. He also victim’s acknowledged alcohol the details agreed C.U. failed to remember consumption. Dr. Fischbein’s things, were minor such as whether the ingestion establishes the of a combination beer she drank was draft or in a bottle. of these constituent implicates substances Dr. Although Fischbein insisted the issue a person’s ability perceive and recall. intoxication, just for him was more than he We cannot make a factual determina- also conceded real issue was not neces- tion on the ultimate issue of testimonial sarily why prescription drugs had been we unless understand and prescribed but the effects of the interac- appreciate drugs’ interaction drugs tion of Dr. and alcohol. Fisch- they [a]ffected extent to which evaluation, bein also conceded that after an accurately recall, perceive might explanation he still not have an sequence articulate relevant why memory “impaired.” events. (N.T. 12/12/06, Hearing, Pre-trial at 27- *6 73). present hearing. C.U. was also at the (Trial 13, Opinion, Court filed December Nevertheless, testify only she was called to 10) added) (internal at (emphasis respect gener- with to whether she had omitted). footnotes The court denied the any incident, ated emails about the request defense past psychiatric C.U.’s denied; whether she had ever psychological treatment records as and/or outpatient inpatient been treated as an or moot. any psychiatric facility, at which she also (Id. ¶ 75-76; denied. R.R. Vol. II at 77a- 10, 2006, 13 On October the Common- 78a). Neither the court nor defense coun- reconsideration, wealth a filed motion for sel questions, asked C.U. other al- which the court denied on October though inquiry. she was available for 19, 2006, 2006. On October the Common-
¶ timely appeal wealth filed its notice of 11 Following hearing, a second motion for granted court reconsideration. On Appellee’s motion for medi- day, cal records limited to the same prescription court ordered the Com- drugs Lexapro and Darvocet. The court monwealth to a file concise statement of granted also the defense motion for an complained appeal matters of on pursuant involuntary psychiatric psychologi- Pa.R.A.P.1925(b). and/or The Commonwealth cal examination of Dr. C.U. Fischbein. 1925(b) timely filed its Rule statement on In support of its decision grant these In unprece- November 2006. a rather requests, the court stated: move, dented a Appellee “reply” filed
¶ 1925(b) the Commonwealth’s Rule While none of the facts state- upon relied isolation, by [Appellee], in establish a com- ment on November 2006.5 Nothing provides reply 5. in the rule a Appellee reply to a ord indicates filed the with 1925(b) Nothing Rule statement. in the rec- leave of court.
¶ 22, 2007, panel present credibility a fact August 14 On this issue for the find- affirmed, er. with one dissent. The Court en subsequently requested Commonwealth ¶ argues 17 The Commonwealth also order, reargument. By per bane curiam C.U., compelled psychiatric evaluation of 29, 2007, granted on October this Court incident, conducted months after the would decision, reargument, panel withdrew its question not resolve the directed the case to be listed before an en recall some of the details of the evening panel, parties banc and instructed the question. urges The Commonwealth together filed previously re-file the brief psychiatric forced examinations of adult supplemental prepare brief victims, lacking sexual assault on a record parties file a brief. Both filed substituted need, will chill further victims substituted briefs. already report reluctant to sex crimes for fear of intrusive mental health evaluations. ¶ appeal, 15 On the Commonwealth rais- The Commonwealth concludes the record following es the issue for our review: in this case not support does the trial DID THE TRIAL ERR IN COURT directing court’s order C.U. submit GRANTING MOTION [APPELLEE’S] involuntary evaluation, FOR THE INVOLUNTARY PSYCHO- this Court should reverse the order and LOGICAL EXAMINATION OF THE proceed. remand for trial to VICTIM, WHERE NO COMPELLING In response, Appellee argues NEED FOR AN EXAMINA- SUCH had difficulty during pre- “substantial” TION IS DEMONSTRATED IN THE liminary hearing recalling relevant matters RECORD? relating to the Appellee assault.
(Commonwealth’s Brief on Substituted seventy-one maintains occa- 4). Reargument at cross-examination, during sions C.U. stat- argues gen- 16 The Commonwealth ed she either did not remember or did not eral specific court-ordered examina- recall a night ques- detail of the high degree “selective, tions involve a intrusion tion. claims C.U.’s *7 that unnecessarily piecemeal invades a victim’s description of events” raises a priva- cy rights. The Commonwealth asserts the substantial and valid question of her “testi- compelling defense failed to demonstrate a competency,” monial which the trial court reason or substantial need for an involun- obligated to resolve. Appellee insists tary omissions, examination in this case. The delay Com- these testimonial C.U.’s monwealth reporting assault, maintains a need alleged and her ad- only exists unequivocally when the record mitted alcohol consumption prior to the question attack, indicates a competen- witness heightened danger create a cy. The Commonwealth claims the trial that C.U. lacks the capacity accurately essentially merged court the concepts Appellee recall the facts. argues further credibility. only The way Com- to determine the “cause for suggests inability monwealth to re- in complainant’s memory” blanks is member insignificant through small or details about a compelled psychiatric and/or evening question Thus, psychological does warrant a evaluation. evaluation, compelled psychiatric given le- concludes the record established the need gal precedent disfavoring examina- for involuntary psychiatric such an psy- and/or tions, except C.U., under the cir- chological most extreme evaluation of and this Any gaps testimony cumstances. in C.U.’s Court should affirm the trial court’s order.
109 reasons, by record, following agree we shown the evidence or For position. discretion is the Commonwealth’s abused. Hunt, matter, 1234, Commonwealth v. 858 A.2d prefatory 19 As a the Com (en banc), (Pa.Super.2004) 1238 appeal proper appeal is under the de-
monwealth’s
nied,
(2005)
659,
doctrine.
583 Pa.
875
collateral order
See Common
A.2d 1073
(internal
Shearer,
134,
Pa.
quotation
wealth v.
584
882 A.2d
citations and
marks
(2005)
omitted).
(holding
ap
Commonwealth’s
peal
requiring complainant
of order
Pennsylvania
Rule of Evi
examination was
submit
provides,
dence 601
in pertinent part:
doctrine);
proper under collateral order
Competency
Rule 601.
Alston,
Commonwealth v.
Williams,
557 Pa.
sumption
competency
compelled psychiatric
of
of all
a
tions of a
examina
ought
competency
court
not to order a
Indeed,
significant.
tion are
where the
investigation,
actually
unless the court has
record fails to establish that
there is a
testify
the witness
and still has
observed
question as to
competency,
the victim’s
we
competency.
doubts about the witness’
Id.
to
any
refuse
sanction
intrusion into the
victim’s existing psychological
records or
22
a
Claims
witness’
any
cross-examination as to
memory
corrupted by insanity,
has been
treatment.”
retardation,
presumption
Id. The
of wit
hypnosis,
go
taint
mental
or
competency
necessary
ness
competency
testify.
of that witness to
is
to “effectu
641,
Delbridge,
Commonwealth v.
Pa.
ate
policies underlying
578
the fundamental
643,
(2003)
I”).
27,
{“Delbridge
855 A.2d
40
right
both the constitutional
to privacy and
capacity
ability
The
to remember and the
statutory
psychiatrist-patient
privi
testify truthfully
about the matter re
Henkel,
lege.”
Thus,
supra.
a court-or
components
membered are
of testimonial
dered, involuntary psychiatric
psycho
or
II,
competency. Delbridge
supra. The
logical examination “should never be the
party
a
alleging
incompetent
witness is
starting point”
competency
for a
evalua
prove
by
must
contention
clear
Id.; Alston, supra
tion.
at 549. There
I,
convincing
evidence. Delbridge
su
fore,
ought
a court
not to order an involun
663,
pra at
HI
instability
ling
involuntary psychiatric
need for
cy
grounds
of
exam-
“(1)
use,
court listened to
drug
where
ination of victim:
the nature of the
and/or
testify
nothing
and observed
requested
witness
examination
and the intrusive-
(2)
impairment of witness’
examination”;
indicate
in
ness inherent
observe, recall,
relate
relevant to
(3)
or
events
victim’s age;
resulting physical
case).
emotional effects of the examination
and/or
(4)
victim;
of the
probative
value of
Pennsylvania
24
case law does not ex
the examination to the issue
before
in the
“compelling
define
need”
pressly
(5)
court;
remoteness
time of the
court-ordered,
involuntary
context of a
act;
examination to the
criminal
of a sexual assault
psychiatric examination
“(6)
already
the evidence
available for the
victim; however,
jurisdictions
other
con
“(7)
defendant’s use”
adding
another
“compelling need” as follows: State
strue
testimony
based on the
Blanchette,
defendant’s
Kan.App.2d
Kansas v.
35
of
denied,
686, 134
19,
(2006),
experts,
personal
named
whether or not a
cert.
P.3d
31-32
1302,
victim
127
167 L.Ed.2d
interview with the
is essential be-
549 U.S.
S.Ct.
(2007) (stating
opinion
factors to consider
fore the
can form an
115
six
if
deciding
compelling
degree
psychological
psy-
there is
need
reasonable
of
involuntary psychological
certainty,
evaluation of
chiatric
that the victim’s behav-
“(1) whether
the victim iors are consistent with the behaviors of
victim Include:
(2)
abuse”).7 See,
instability”;
e.g.,
mental
other victims of sexual
demonstrates
Camejo,
(Fla.App.
a lack of
641
109
whether the victim demonstrates
State
So.2d
(3)
1994),
veracity;
charges by
approved by,
whether similar
decision
660 So.2d
(1995) (explaining
psycho-
are
to be
court-ordered
against
proven
the victim
others
false;
logical
motion
examination of victim is improper
whether the defendant’s
of
victim
defense
alternative
psychological
for a
evaluation
where
has various
fishing
veracity);
means to attack victim’s
State v.
appeared
expedition;
to be
(stat-
Redd,
anything
following
(Del.Super.1993)
whether
unusual results
characterized
be
symptoms that
occupational functioning
impeachment purposes.
or
introduced for
expected
Certainly,
are in excess of a normal
evidence that
the victim in-
event”);
v.
gested drugs
evening
question,
reaction’ to a stressful
Gale
on the
State,
attack,
(Wyo.1990) (reiterating
prior
H5 Guy, light long-standing Pennsylva- 34 In surrounding attack. See strongly disfavoring nia public policy invol- supra. untary psychiatric examinations absent a twenty-four Additionally, C.U. need, we conclude record at the when she testified years old support this case does not court’s or- *13 Nothing in the rec- hearing. preliminary granting Appellee’s der request. See Al- mental C.U. suffers from a ord indicates ston, supra. simply agree We cannot Moreover, agree we cannot condition. Appellee met his burden clear and con- contention there were Appellee’s with Thus, vincing evidence. we hold the trial gaps pre- “material” C.U.’s seventy-one misapplied court the law when it ordered testimony, would liminary hearing involuntary an psychiatric examination of for an involun- present compelling a need C.U., compelling absent a need. See psychological eval- tary psychiatric and/or Hunt, supra. thorough review of the uation. After ¶ foregoing, upon 35 Based we hold transcript, we observe defense relevant it an the court erred when ordered invol- “I say invited repeatedly counsel C.U. untary psychiatric examination of C.U. on a detail. know” she could not recall don’t grounds alleged. Accordingly, we re- Further, many of “I don’t know” proceedings. verse and remand for further to the same response answers were ¶ reversed; 36 Order case remanded multiple asked times and related questions proceedings. further Jurisdiction is relin- evening might to minor details quished. trial, such as not even be relevant at in a the beer she drank came whether KLEIN A 37 JUDGE FILES bottle, whether she conversed at glass or a DISSENTING OPINION. they said length Appellee and what throughout evening, the entire whether KLEIN, OPINION BY DISSENTING car Appellee’s passenger side door was J.: opened or unlocked when C.U. first locked majority experi- 1 The claims that the it, on seat belt when put whether she her judge, enced trial the Honorable Peter vehicle, Appellee’s entered whether Olszewski, Jr., Paul abused his discretion belt, wearing wheth-
Appellee was
his seat
when he believed based
uncontradicted
anything
said
to C.U. when he
Appellee
er
that neither the doctor
medical
pushed
hair and
her head
grabbed her
information to ascer-
nor he had sufficient
any-
penis,
Appellee
onto his
whether
said
tain whether or not the
victim
thing
Appellee grabbed
her
C.U.
case, C.U.,
testify.
competent
was
this
body
on the hood of the
and forced C.U.
he
disagree,
I
and do not believe
abused
car,
Appellee
anything
whether
said
by finding that he had a
his discretion
phone ring,
C.U. when she heard her
psychiatric
compelling need to order
purse
unzipped
zipped
her
was
whether
to make this determination.
evaluation
get
phone, or wheth-
when she went to
her
that there was
expert
When the
concluded
anything
er
said
more
C.U.
unable to
good
chance that C.U. was
get
out of his car.
In
after he told her
hap-
recount what
perceive, remember and
short,
times
said
the mere number of
that determina-
could not make
pened and
examination,
“I
“I don’t know” or
don’t remember” does
an
it is under-
tion without
judge
agree
would
involuntary psychiatric
not merit an
standable that the trial
and/or
those rare occasions
and find this one of
psychological evaluation.
when a
examination should be
some doubt. The expert said that
ordered.
drugs taken could well
have
effect on
perceive,
of C.U. to
remember
¶ 2 It
that Judge
is clear
Olszewski
happened
and relate what
may
and there
right
knew the restrictions on the
a trial
have been
underlying
some
medical and
judge
to order a
evaluation of a
psychological conditions that could have an
complaining
case,
in a
witness
sexual abuse
effect. This medical judgment
sup-
and understood that the defense must es-
ported by the fact that
the witness was
tablish a
reason for the evalua-
unable to
many
remember
of the details of
Judge
tion.
Olszewski
page
said on
9 of
the event.
If
the medical
has seri-
1925(a) opinion:
his
questions
ous
competence,
as to
*14
and the
Initially,
following
we make the
obser-
judge had no other means to make that
(15)
vation. For fifteen
years the un-
determination,
acquiescing
expert’s
dersigned has served both
prosecu-
as a
opinion
that a
evaluation was
tor and member of the bench. From
necessary
possibly
to
light
shed some
this
I
perspective
acquired
have
consid-
the situation is not an abuse of discretion.
experience
erable
justice
the criminal
system.
¶
A
request
defense
for an invol-
4
aWhen
trial court addresses the
untary psychiatric examination of an al-
competency of a
testify,
witness to
it must
leged victim of sexual assault is infre-
determine
the witness has
ability
to:
quent, if not rare. A
grant
(1)
court’s
perceive an event with a substantial
such request
extraordinary.
is
The rec-
(2)
degree
it;
of accuracy;
remember
ord in the instant
suggests
matter
this is
communicate about it intelligibly; and
case,
an extraordinary
as the Defense
be
duty
mindful of the
to tell the truth
has demonstrated a compelling need for
under
Goldblum,
oath. Commonwealth v.
the examination.
455, 465,
234,
(1982).
498 Pa.
447 A.2d
239
The core of the competency test
is the
question
3 The
person’s
of a
competen
ability
give
to
a correct account of the
cy to be a witness is vested in the sound
matters
that
the witness has seen or
discretion of the trial court. Common
Ware,
353,
heard.
H7 implicates constituent responsibility per- trial court with substances al- investigate legitimacy of such an perceive son’s and recall. legation. cannot make a factual We determina- tion on the ultimate issue of testimoni- Delbridge, Pa. Commonwealth al competency unless we understand I”) (“Delbridge A.2d appreciate drugs’ interaction (citations omitted). and the extent to which they effected pre-trial filed omnibus recall, the ability accurately [«c] requesting motion examina- perceive and articulate [sic] the rele- was not grounds tion of C.U. on sequence vant events. her mental competent to because record sufficiently The before us dem- the oc- capacity observe remember alleged inability onstrates the victim’s substantially impaired currences were remember or relevant recall information ingestion prescribed of alcohol and/or near the time of the as- drugs. Essentially, the claim was Indeed, excerpts sault. [from prob- because a combination mental preliminary hearing] [Ap- referenced in lems, consumption, and alcohol drug *15 pellee’s] inability Exhibit 1 indicate her perceive hap- to what had C.U. unable to recall information and immedi- events and re- pened therefore recollect to, ately prior during shortly after it. count alleged the sexual assault. The prelimi- ¶ The called an witness. 6 defense hearing nary testimony coupled with Dr. Fischbein, competen- Dr. to discuss C.U.’s testimony implicate Fischbein’s al- the he there cy explain why and to believed leged competency. victim’s testimonial was a need for a examination beyond argument, It is indeed the Com- make testified that determination. C.U. otherwise, suggest monwealth does not prescription drugs that she taken the had pharmacological the combination of Protonix, Zelnorm, and Ortho-Tricyclen, substance[s] referenced this record Lexapro. Lexapro Dr. Fishbein labeled as impairment produce central consid- —the anti-depressant. an He also indicated is to eration what extent. Darvocet, he reportedly C.U. took which alleged The issue testi- of victim’s as painkiller. labeled sufficiently competency monial has been ¶ Judge the testi- Olszewski evaluated hearing raised and the [October 2006] mony as follows: has indeed the existence of a revealed While none of factors relied testi- competency Expert valid concern. isolation, by upon [Appellee], estab- mony would assist greatly this Court lish a need examina- for an assessing competency. of question tion; clearly together one is considered examination, narrowly tailored and This lacks simply This Court warranted. by specific focused on the issues outlined expertise sufficient understand Fischbein, presence in the Dr. affects physical/psychiatric evaluate the Attorney, police Assistant District ingestion of these sub- effects relative, if de- prosecutor and a close alleged stances victim. This victim, by alleged sired warranted. and determination becomes evaluation 12/13/06, court at 10-11 opinion, Trial given more difficult victim’s (footnote omitted). consumption. acknowledged alcohol matter, present In the we have more Dr. Fischbein’s establishes ingestion these the bare con- combination of than assertions cerning questions to answer Again, C.U. s failure I can’t remember what our could not suggest that she describe conversation was. <y accurately relating to the the events sexual asking you I’m not to remember assault. record of significant We have a every your piece of conversation— alcohol, ingestion drugs and of both <¡ Right. well to perceive. could affect the In <y you’re claiming you —but were addition, transcript pre- we have a Now, in raped. the course of that liminary hearing documenting C.U.’s re- bar, night in you are telling me sponses inquiry to the defense’s into her you can’t remember if there was attendant recollection of events to the any conversation related to sex- charges filed. Contrast Commonwealth v. ual overtones? Counterman, 370, 393, 553 Pa. 719 A.2d I honestly cannot remember our (“Counterman’s bare asser- conversation at the time. concerning tions Mrs. Counterman’s intel- ¿o Relating anything sexual? ligence and her in responding slowness questions suggest that did not !> Relating anything. could accurately describe [sic] events Sexual? <© leading up Consequently, to the fire. !> Anything. properly court exercised its discretion Anything? <© in denying request Counterman’s for a ¡> Yes. wife.”). examination his Okay. than you So other saying hel- <© preliminary hearing, 9 At [Appellee] lo to that night in the *16 gave surrounding an account bar, you can’t remember anything assault, sexual upon which reflects her your further in terms of conversa- competency to recall the events surround- tion with him? ing the case. It is true that in and of No, I cannot. Inside the bar. n > itself, forgetting some details would not be Inside the bar we’re talking about? justify sufficient to psychi- court-ordered <© Í» Correct. However, atric examination. this is com- bined drug with the and alcohol ingestion,
which why is said he needed a
psychiatric before reaching examination <y you And any did have conversation opinion on competency. with him up pants to his being un- buttoned? ¶ 10 There a number of were matters ¡> I any. can’t recall that C.U. stated she either did not remem- ber or did not related hap- recall to what <p You can’t anything? recall pened on of evening October 13th and ]> I can’t remember anything that was early morning of hours October 14th. said, anything he had said. For example: sudden, And all of a the next thing <© [Appellee’s counsel:] you pants see is his were unbut- toned?
Q. During the course that evening, was there sexual talk between I saw them unbuttoned. > you you when [Appellee] were time, At that point up to that <© at the bar? time, point you don’t remember [Complainant:] him threatening you in anyway? Competency I mean alcohol. N.T. anything. Hearing, remember A. I can’t 10/5/06, end, don’t, at 89-40. Toward Dr. I I can’t remember. knowledge
Fischbein stated that [*] [*] ijs [*] dosage C.U. was taking why she was these being given drugs imperative were So, you Q. you zipper see his down diagnose compe- their influence on her out; that correct? penis see his tency to recall post-ingestion. events N.T. Yes. A. 10/5/06, Thus, Competency Hearing, at 7. this; what, if you see Q. And Fischbein, Dr. there was a proffered need you him? anything, say did examination assess I can’t words ex- Again, remember A. competency, predicated which was changed. upon expert’s complaint; review Q. anything You can’t remember probable affidavit of attached cause said? was police complaint; criminal Wilkes- A. No. department police report; Barre offense anything he Q. You don’t remember police department supple- Wilkes-Barre you even said either? reports; Pennsylvania mental State Police A. No. serology Valley report; Wyoming Health- records; emergency care room interview 12/12/05, Preliminary Hearing, at 48- N.T. witnesses; C.U.; pre- interview of six 50, 85-86. liminary hearing transcript; Appel- Furthermore, did not remem- C.U. pre-trial omnibus motion. Id. at lee’s 29. drank draft or bottled ber whether she Murray’s got Bar or how she out beer at Despite expert’s possession vehicle oral Appellee’s performing after data, he still was of the aforementioned sex, body she state where on her nor could that a examination of opinion up on the picked place her her necessary; to-wit: Id. at 92- hood of his vehicle have sex. Attorney:] District [Assistant Yet, OS, drinking she did admit 96. knowledge Q. [ And with that —evi- *17 whiskey “intoxicat- enough beer to be you’re in transcript ], dence — ed,” drugs, taking prescription recall did you telling still that feel this Court “passionately” in his ve- did kiss a for [sic there is substantial need ] hicle, claims he oral sex perform did psychiatric this ex- you conduct her will. against sexual intercourse on amination [C.U.]? 60-61, 74, 90,100. attempt- Id. at by Fischbein:] memory [Dr. minimize her loss attrib- ed to having been uting it to the trauma of Yes, negate A. because that would sexually Id. at 49- Appellee. assaulted why explanations other she can’t 50. simple remember. It could be as as ¶ Fischbein, hand, It could 12 Dr. other alcohol intoxication. be on the that, periodically, under severe opined memory loss was suf- such selective stress, a dissociative may a examina- she have ficient to warrant blank, goes where for a analyze the root-cause for such state she tion to term, event, goes nega- better a circuit breaker episodic especially given off; per- that can in certain (memory happen black- impact tive loss and/or outs) sonality perhaps have after anti-depressant drugs makeups, could in perceived happen ] she [sic in tandem what person ingested a upon car, she had a reaction depressogenic. severe hol is can your It make posttraumatic a depression your anxiety.... and had stress dis- worse or Lex- pe- apro order and then blanked with alcohol can increase the intoxi cation.”). Pennsylvania riod of time. As Supreme in Court said Commonwealth v. Delbridge So, many, many explanations. there’s 641, 668, (Delbridge), 578 Pa. 855 A.2d Darvocet, If any she didn’t take it (2003): possi- doesn’t negate the other just possibility. bilities. It’s competency hearing, In a the trial judge must determine the facts and reach a Q. I your testimony believe that legal conclusion. It is thus the trial regard type to the need for this judge expert who must decide testimo- examination is ny a ques- will advance resolution of the have, history you more can of competency case-by-case tion on a your more it is to maximize helpful Accordingly, basis. we will it leave being chance of able to to a come jurist, subject each individual appro- issue; conclusion this cor- review, priate the decision of whether in rect? any particular case ... testimony A. why On the issue of can’t re- would assist the court understanding certain member events of that eve- the evidence or determining a fact in ning, yes, that’s true. during competency issue hearing.” sjj j¡t % (Citation omitted) Q. Doctor, you your profes- feel in do I do Judge not believe Olszewski opinion sional that there is no other his abused discretion when he concluded: way go about finding out cause for the blanks memory [C.U.’s] issue of The victim’s testimo- forcing other than undergo her to nial has sufficiently been an involuntary psychiatric exam? raised and the has hearing indeed re- vealed existence of a valid know, competen- A. no, Based on what I I can’t. cy Expert concern. I would can’t. greatly assist in assessing this Court 10/5/06, NT. Competency Hearing, at 56- question competency. 57, 61. 12/13/06, Trial Opinion, Court at 11. To whole, 14 When viewed as a the events just this reverse decision is not taking over (documented loss) memory selective asso- the role of the trial judge initially mak- ciated with consumption of alcohol and ing determination, this taking but also is prescription drugs present coalesce to *18 over physician by the role of the discount- a psychiatric reason warrant ing his medical testimony. uncontradicted examination. N.T. Competency See Hear- (Dr. ing, 10/5/06, at above, 39-40 “al- Fischbein: 16 Based on I believe that cohol in large quantity, depending on how the trial court did not abuse its discretion had, much was can cause an black- in crediting alcohol the expert witness when the out or trouble remembering events while expert said he could not make a determi- you’re Mixing intoxicated. Darvocet nation to competency as a psychi- without alcohol ... can cause sedation.... You atric examination of under par- then add Lexapro picture ... alco- ticular facts of this case.1 As Judge nation, 1. We note trial court preparation expert's directed of the written completion after the findings opinion exami- are be submitted for said, simply “This lacks Court Olszewski to understand expertise
sufficient affects physical/psychiatric
evaluate sub- ingestion of these effects 10. Id. at by the victim.”
stances expertise
I we also lack the believe judgments, should medical
to make asking judge fault the help making this medical deci-
further
sion. am Accordingly, I affirm and would to dissent.
compelled Pennsylvania,
COMMONWEALTH
Appellee BASINGER, Alexander
Matthew
Appellant. Pennsylvania.
Superior Court
Argued Aug. 2009.
Filed Oct. 2009. II"). meet bridge If fails to his timely within a After con- its review fashion. *19 findings opinion competent sidering proof fact and that C.U. is burden evidence, expert, then defense’s the trial court must testify by convincing clear Appellee’s to over- determine whether burden competent court must find that she is presumption has come attendant to at trial about the events convincing evi- established clear and been II, charges Delbridge filed. Delbridge, Pa. Commonwealth v. dence. at 1257. A.2d (2004) ("Del- A.2d 1257-58