*1 Cоmte, Appellees and Chris Le BALSBAUGH Jon v. DEPARTMENT OF COMMONWEALTH SERVICES, Appellant. GENERAL Pennsylvania. Supreme Court 20, 2004. Oct. ORDER PER CURIAM. order NOW, October, 2004 the day 20th
AND hereby affirmed. Court Commonwealth
David M. McGlaughlin, Esq., Philadelphia, for PA Associa- *3 tion of Criminal Lawyers. Defense Lupas, Barletta,
David W. Esq., Frank P. Esq., Wilkes Barre, for Commonwealth of Pennsylvania. ZAPPALA, C.J., CAPPY, CASTILLE,
BEFORE: NIGRO, NEWMAN, EAKIN, SAYLOR and JJ. AFTER
OPINION REMAND Chief Justice CAPPY. 25, 2003, September
On
this court filed an opinion and
order,
jurisdiction
wherein we retained
and rеmanded this
case to
the
court for a
new
hearing. Com
641,
(2003).
monwealth v. Delbridge, 578 Pa.
This appeаl set motion Appellant’s convictions two counts each of endangering children, of the welfare 18
71 minors, 4304, corruption § of Pa.C.S.A. Pa.C.S.A. 6301(a), assault, 3125(7), § aggravated § indecent 18 Pa.C.S.A. 3136(a)(7). § Appellant’s and indecent assault. 18 Pa.C.S.A. children, from his sexual of his minor convictions arise abuse conduct, L.D. charged A.D. and At the time the children three, ages respectively. six and The Superior were Court judgment granted аffirmed the of sentence. This court allow- an appeal impression: to issue of first ance consider wheth- so, if recognize concept er should is taint a we subject properly explored during testing a hearing compe- of a child in a tency witness sexual abuse case. helpful questions
It is
to our continued discussion of these
begin by repeating
definition of taint and our
findings
to that
in our
regard
concept
opinion:
contained
earlier
underlying
core
taint
theory
The
belief
is that a
child’s
memory
peculiarly susceptible
suggestibility
so
when
may
called to
child
have difficulty
fantasy.
fact
distinguishing
Josephine
from
See
A. Bulkley,
Impact
New Child Witness Research on Sexual
Prosecutions,
Perspectives
Abuse
on Children’s Testimo-
1989).
eds,
ny,
(Stephen
Ceci et al.
J.
Taint
is the
implantation
of false memоries or the distortion of real
techniques
memories caused
interview
of law enforce-
ment,
personnel,
social
service
and other
interested
adults,
unduly suggestive
that are so
and coercive as to
memory
child,
rendering
infect
that child
See,
Jablonski,
incompetent
testify.
Julie
Assessing
Hearings,
Adv.,
Future
Taint
App.
Suff. J. Trial &
(1998).
Delbridge,
After reviewing the developing among caselaw our states, sister we held that аn of taint allegation a raises legitimate question of witness competency cases involving of complaints by sexual abuse children. young Id. at 34. Because taint implicates ability the of a child to distinguish real memories of an from falsely implanted suggestions, event we found that taint could infect the capacity mental the child witness to independently recall the event and truthfully ability to to and thе
testify. capacity remember components competency. that truthfully memory about are (1959). McCoy, Rosche v. Pa. in a competen- explored we held that taint was best Therefore a In the contours of cy hearing. Delbridge, discussing 40. issue, is at that it is hearing where taint we held competency first, question to raising present the burden of the the party question of that will exploration of taint before some evidence considered, second, presumption and to overcome the be by convincing and Id. clear evidence.' competency Further, had Appellant our that court found of the justify exploration some that would presented evidence wit competency of taint of the minor regarding issue the nesses, L.D., a necessitating A.D. and a remand for new hearing. obligation Id. at 41.1 Within its a directed that the preside competency hearing, over new we admissibility necessity court the and consider addition, In as subject Appellant of taint. the made chil challenged hearsay by also certain statements the if third of the parties, arguing dren to the memories taint, that by were taint would also affect corrupted children statements, hearsay the trustworthiness the we withheld hеaring pending that issue outcome disposition remand. at the com- considering testimony presented new
Upon Appellant the trial court failed petency hearing, concluded proving his burden of children were tainted meet convincing Accordingly, by clear evidence. addition, In again found that the were competent. children presented 1. conclusion that had some evidence sufficient Our exploration of fact of children's to warrant taint was based on the assaults), (they ages age were six and at the time of the three that, opportunity, given if had been he Appellant’s assertions he extensive, subjected repetitive establish that the children were could authority figures, present conducted various evidence interviews interviews, possible Appellant by persons conducting vilification of subject were influence and demonstrate that the children to abnormal paranoia her mother because the mother suffered from over their child, as a occurred own sexual victimization because assaults during period Appellant and mother. of marital discord between Id. at
73 to admit necessity no there was court found the trial further, that the of taint question on the expert satisfy not did by Appellant testimony proffered con- trial court Finally, the admissibility. for requirements reliability of the that, was no as there cluded attack subject to not the children were hearsay by statements on that basis. to review the required
At we are present, competency question on remand ruling court’s after hearsay state reliability of the as to the ruling related ruling a trial court This court’s standard review ments. Rosche, A.2d 156 of discretion. is for an abuse competency on for also standard review is at 309. Abuse discretion v. evidentiary rulings. Commonwealth trial court decisions (1989). of our Wallace, 297, scope The Pa. 561 A.2d entire record may review the as this plenary review Jones, Pa. Township v. its decision. See making Buffalo (2002). 664 n. 4 competency challenged Appellant Early and the L.D., ages of their question raising of A.D. and forth their bringing on them placed influences outside Appellant abuse. acts of sexual regarding actual recollections A.D. and L.D. proceedings these throughout maintained authority various by interviews subjected repetitive were workers, officers, social psychologists, police such as figures, were and that the interviewers attorneys, doctors and medical creating the infer- Appellant, towards in their attitude biased pro- the interview through information gained that the ence gathering process information was compromised. cess of the influences because by Appellant also attacked It was Appel- mother. by and L.D. their upon A.D. placed the memories Delbridge influenced lant’s that Mrs. position as a child own experiences L.D. of her A.D. and because abuse. by victimized sexual trial court conducted opinion, our earlier
As directed full opportuni- allow hearing a new of taint. At the his claim supporting ty present evidence it was hearing, Appellant’s burden to overcome the presump- tion of competency and establish and convincing clear evidence that A.D. and L.D. not competent were witnesses as their proffered testimony *6 irreparably was compromised by taint. at Delbridge, 855 A.2d 27, 2004, trial January began hearing
On court testimo ny of taint. question hearing began The with the stand, calling Commonwealth A.D. and L.D. to the establish for ing the record that the children met the threshold for Rosche, testimonial competency. A.2d at 310. Each child communicate, ability demonstrated the basic to to understand questions, and provide appropriate responses, to observe and event, an to reality recall differentiate between and make- believe, and to consequences understand the a telling lie. 27, 2004, (Evidentiary Hearing Transcript January pp. 11- “H.T.1”)2. 37-44, pp. Appellant hereinafter then cross- A.D. examined and L.D. as to their investiga memories tion that preceded testimony their at trial of Appel charges lant on Appellant given sexual abuse. great latitude in his of A.D. questioning and L.D. regarding the memories of each child as to process, the interview their interviewers, interactions with various any influence their mother during investigation. exercised over them any failed to elicit from testimony the children supporting allegations his that A.D. and L.D. had been sub jected to repetitive, suggestive, or coercive interview tech bias, niques, to interviewer or to inappropriate influence from (H.T.l. 11-50). pp. their mother. No other witnesses were called regarding investigative the circumstances of the inter involving views A.D. and L.D.3 3, 2004; evidentiary hearing February 2. The continued on references to transcript proceedings day designated by will be "H.T.2.” court, opinion, 3. The trial in its noted the absence of witnesses involved original investigation, Delbridge, in the such as: Mrs. the mother of L.D.; Bates, County A.D. and Rhonda a Berks Children and Youth (hereinafter “CYS”) Services caseworker who had interviewed Mrs. 1994; Christenson, M.D., Delbridge performed in A.D. Dr. who a physical request County examination of A.D. at the of Berks CYS in 1994; 1997; Mary Trivlepiece, kindergarten A.D.’s teacher in Linda court its assessment the record presented the new competency hearing concluded that Appellant failed presence thus, demonstrate the of taint and necessarily failed meet his of establishing by burden clear and convinc- ing evidence that of A.D. and L.D. was compromised by taint. with agree We that conclusion. Ap- pellant to develop failed supporting record his assertions as to the existence of taint that prompted this this first place order the remand for a new competency hearing. evidence; Allegations are not the proponent of taint carries of persuasion, burden that burden was not inmet instance.
Failing to develop evidentiary support for his allegations taint, Appellant presented nevertheless furtherance of his argument that the children incompe- were tent witnesses because their memory events at issue had *7 compromised been by taint. The trial court admitted the expert testimony in order to a develop full record for this court’s consideration of all the claims. Dr. Arnold T. Shien- vold, Ph.D., BCFE, testified as an expert witness for Appel- lant. The trial court then responsive entertained the testimo- ny Brown, Ph.D., of Dr. Daniel as an expert witness for the Commonwealth.
Dr. Shienvold a psychologist licensed practicе whose involves the forensic evaluation of children regarding their allegations that they have been the victims of sexual abuse. Dr. Shienvold testified as to proper the protocol for interview- ing children when the child raises an allegation of sexual abuse, to factors that indicate and to impact the of taint (H.T.l 62-87). the of competency the child. pp. As a psychologist, licensed he informed the of the various regarding studies the susceptibility of children to suggestion Keck, 1998; psychologist the who treated A.D. in Troopers State Salerno, Zellner and who investigation were involved in the criminal of charges; the current Snopek, County Wilma a Luzerne CYS caseworker 1998; who interviewed A.D. and in Delgaudio, L.D. Lisa an intake CYS; M.D., County worker for Luzerne Caggiano, Dr. James who performed 1998; physical Brunо, examination of A.D. in and Dr. M.D., who conducted a medical examination of A.D. in 1998. lead the child to believe susceptibility
and how that can through implanting occurred simply fictional the events (H.T.l 118-126). by repetitive pp. interviews. false memories his trial reading prior Dr. after the opinion, Shienvold offered L.D., testimony reports of A.D. and the official the inter- children, at the children the observing views the in present thаt taint the trial evidentiary hearing, there was compe- A.D. and L.D. that their testimony of testimonial (H.T.l 181-137). taint. tency pp. was affected Brown, testimony of Dr. an The Commonwealth offered psychology clinical Harvard Universi- professor assistant memory in and trauma. Dr. Brown testified ty, specializing schools regarding thought psychology the two (H.T.l 250-270). It memory. pp. was his fallibility human majority memory found human that view be belief minority that accurate view subscribed to the 'belief while Dr. Brown memory human is inaccurate. offered even view, minority many psychologists believed within time, recalling faded over and the inaccuracies events view, only In Dr. accurate remained. Brown’s memories misleading supplied to false and information exposure techniques could create a suggestive witness interview In his reports for taint. reviеw of the same potential Shienvold, upon by Dr. he found no evidence relied impact taint of A.D. and L.D. that would (H.T.2 115). p. great the trial court both
Although granted parties witnesses, it leeway presenting their was respective opinion expert testimony court’s unneces *8 sary competency, in this case on the issue of because there as with that proof agree was a of to taint. We alsо failure cases, involving In this of group allega conclusion. narrow years, children upon tions of sexual abuse inflicted of tender question taint is a to determining the of threshold existence An to assist the factfinder in competency. expert may in taint evaluating present. those cases where is demonstrated, Here, as no of taint expert testimony was proof unnecessary. Delbridge 855 A.2d 43.
77
find
testimony
that
would
expert
In
event
this court
.the
trial
on to
the scientific
necessary,
the
court went
evaluate
in
found that
psychology
of taint
arena of
acceptance
the
in
commu
accepted
of taint was
concept
generally
not
the
First,
thus,
Frye
we
not admissible under the
test.4
nity
in
this court
opinion
out that
initial
this case
point
must
our
Delbridge
of
Following having completed our consideration of all aspects judgment we affirm the of sentence.7 Jurisdiction relinquished. scientific, specialized knowledge beyond If technical or other possessed by layperson will assist the trier of fact to understand the issue, qualified evidence or to a fact in determine a witness as an skill, expert by knowledge, experience, training may or education opinion thereto in the form of an or otherwise.
Pa.R.E. 702. § provides part: 6. 42 Pa.C.S.A. 5985.1 relevant (a) by General rule.-An out-of-court statement made a child victim or witness, years age who at the time the statеment was made 12was or abuse, younger, describing physical any indecent contact or offenses) (relating offenses enumerated in 18 Pa.C.S. Ch. 31 to sexual another, performed with or on the child not otherwise admissible evidence, any statute or rule of is admissible in evidence in criminal proceeding if: (1) finds, hearing, the court in an in camera that the evidence is time, relevant and that the content and circumstances of the state- provide reliability; ment sufficient indicia of (2) ... the child (i) proceeding____ testifies at the Appellant's Application requesting argument for Relief oral and addi- briefing tional is denied. did participate Former ZAPPALA not Chief Justice of this case. decision concurring opinion.
Justice files a NIGRO *10 concurring opinion. EAKIN files a Justice dissenting opinion. files a Justice SAYLOR NIGRO, concurring. Justice believe,
I fully my as explained continue more dissent- ing opinion in the first Commonwealth v. 578 Pa. Delbridge, (2003) ”), I a (“Delbridge 27 taint is matter not credibility, competency, proper and therefore not the subject or a competency hearing. either basis, disagreed I decision in majority’s On with I Delbridge competen- to remand the instant matter for a new cy hearing explore Appellant’s allegations of taint. Howеv- er, held, as such a has now hearing been consis- majority Court, tent with the mandate of a of this I certainly agree with majority Appellant here that has failed to meet his burden of and proving convincing clear evidence that were, fact, the children tainted. EAKIN,
Justice concurring. In original consideration of I expressed the belief that a showing without threshold more than a defendant’s such say-so, аllegations should not result in a Now, hearing competence. having there nothing been “taint,” more than victims young cry defendant’s these time, children have testified one more still and we are wres- with tling which years matters have for handled with been traditional jurisprudential Nigro As concepts. ably Justice *11 Pennsylvania.
Supreme Court of Sept. Re-Submitted 21, 2004. Decided Oct. notes again, credibility, this is matter of not competenсe, should dealt with accordingly. have been SAYLOR, Justice dissenting. I no Although take issue with the majority’s substantive analysis, fundamental fairness would seem to to me dictate should opportunity be afforded some to be concerning opinion the trial court’s in an appellate heard any majority deprives Appellant on remand. Since 7,n. see Majority Opinion at 78 regard, in this opportunity 7,1 disposition. its join opinion n. am or A.2d unable A.2d 1261 PUBLISHING COMPANY TRIBUNE-REVIEW WPXI, Appellant, v. AND DEPARTMENT OF ECONOMIC COMMUNITY DEVELOPMENT, Appellee.