*1 However, when defendant contends he was not there that evidence, corroborates contention with other weigh jury then called to that evidence addition to credibility. weighing evidence, defendant’s jury separately must instructed so that it will mistak- find the defendant enly guilty merely because that corrobo- rative was not accepted. evidence
In the case present appellee offered no more than his self- serving he statement was somewhere other than the crime scene. This limited uncorroborated evidence did not justify or necessitate a separate jury instruction alibi Moreover, charge. permit defendant have the jury instructed an “I on alibi because he merely says encourage unscrupulous there” will a defen- perjury: dant facing consequences serious will little have disincen- tive to perjure himself when he can have instructed on an acquittal. alternative avenue for I
Consequently, dissent.
Supreme Pennsylvania. Court of 6,May
Submitted 1991.
Decided Jan. *3 Osokow, A. Kenneth Atty., appellant. Dist. for Travis, Ronald appellee. C. Williamsport, NIX, C.J., LARSEN, Before FLAHERTY, jj. McDERMOTT, ZAPPALA, CAPPY, PAPADAKOS and THE OPINION OF COURT CAPPY, Justice.
We are called upon decide whether the trial court erred permitting expert in testimony about the behaviors exhibit- by ed children who have been sexually abused was error in case in a the appellee charged which was with sexual abuse Additionally, of minor. must we decide whether the expert properly was to explain why admitted sexually children may abused not recall certain details of assault, to explain they not why may give complete delay reporting they may details, explain why and to appel- by the issue raised address Finally, we incident. admitting concerning propriety of cross-appeal his lee occurred between of a sexual nature that incidents prior victim. and the appellee behav- testimony concerning typical
We hold that should abused children by sexually patterns exhibited ior us. We also in the case before been admissible not have why explain error to an permit that it was hold recall certain details not abused children sexually details, and assault, complete not give why they may we hold Lastly, the incident. may delay reporting why they about permitting did not err the trial court victim. appellee and the incidents between the prior AND HISTORY PROCEDURAL FACTUAL inde- Dunkle, charged rape, Neil was appellee, assault, minors, simple assault and crimi- corruption cent inter- deviate sexual attempt involuntary to commit nal trial, all Following guilty he was found course. than two rape was sentenced to less charges except on one count and a concur- nor more than four years, years than than 18 months nor more three rent sentence less which he convict- count. The acts for on another years teenage stepdaugh- his a sexual assault ed concerned ter. complaint made arose out of a charges
These April appellee appellee’s stepdaughter *4 and, showering she after her bathroom while was entered floor, her, forced her sexually the assaulted forcing her to intercourse, raped in her. oral and engage trial, Susan Slade to the the Commonwealth called During on witness. In reliance Common testify as an Baldwin, (1985), Pa.Super. 502 A.2d wealth defense, the the denied, objection and over the appeal (who is not a testify. Ms. permitted her to Slade trial court pat- behavior testified about psychologist) psychiatrist in had sexually that occurred children who been terns Additionally, why she testified about victim abused. offense, why might an a victim delay reporting would offense, times of alleged to recall exact dates and an unable omitted details of the why victims of sexual abuse story. during first told their At no time they incident when the witness relate of her testimony any her did to the child in testimony question. witness,
According complaining appellee to the had The April, report assaulted her offenses, victim did not until 1986. Addition- anyone authority April there that the victim omitted details of ally, testimony was reported the assault when she first incident was to recall dates and times. specific unable there expert testimony, In addition to the was in her concerning changes those who knew victim by alleged after the assault occurred. There was also behavior had often the victim appellee watched showering peering through she a moveable while also testified that the panel inside his closet. victim pretended had fondled her breasts while she to be appellee asleep. conviction, and the
Following appellee appealed reversed, holding expert’s that the testimo- Superior Court credibility used to of the victim ny was buttress Seese, 512 Pa. 517 A.2d violation of Commonwealth v. granted petition We Commonwealth’s to address the issue of whether the appeal allowance permitted testify. should We expert witness have been the issue of granted appellee’s cross-petition also to address prior sexual misconduct toward the appellee’s whether vic- tim, her spying fondling consisted of on her and which breasts, should have been admissible.
DISCUSSION reasoning, our we adequately explain order for us to sections; dealing into three the first opinion divide
173 patterns sexually concerning the behavior Syn- “Child Sexual Abuse children—the so-called abused opinion addresses The section of second drome.” reporting incidents delay children why about inci- prior sexual section discusses abuse. The third and the victim. appellee between the dents “CHILD THE TESTIMONY ABOUT ABUSE SYNDROME” SEXUAL patterns concerning typical behavior Testimony to as is also referred abused children sexually exhibited “the Child Abuse “Sexually Syndrome,” Abused Child Accommodation the “Child Sexual Abuse Syndrome,” and 1 Syndrome”) recognized in order for an long
This Court has matter, about testify subject a which about have established “sufficiently will must been testify field in acceptance particular in the gained general to have Nazarovitch, 496 v. belongs.” it Commonwealth which 97, 101, (1981), quoting Frye A.2d Pa. States, (D.C.1923) 46, 293 F. App.D.C. United brief, standard”). In its (the so-called Common Frye This syn refers Syndrome.” to the “Child Abuse wealth diagnostic is an to construct a or behavioral attempt drome The about abused children. existence profile sexually accepted a diagnostic as either syndrome generally such supportable. or as evidence is not Several tool relevant syn “sexual commentators note that so-called abuse children to enough sexually is not abused specific drome” accurate. specific of a principal syndrome flaw with notion it can no indicates that discriminate is that evidence and those have abused children who sexually between is Because the task of a court experienced other trauma. discriminations, In order make such this flaw fatal. ability, only must syndrome for a to have discriminant Summit, generally Sexual "The Child Abuse Accommodation 1. See Neglect Syndrome,” Abuse and of children with a certain appear regularly group it in other groups it must not experience, appear but also *6 have had that experience.2 children who not on the no one subject, to the literature there is According profile for children.3 personality classical or abused typical a set of exhibited difficulty identifying The behaviors is react in myriad children that abused children a by abused sexually from may of not be dissimilar other ways only that children, same may very but be behaviors abused who not abused. “Researchers have children exhibit are attempts in to find common reac- unsuccessful their been fact, research tions children have to sexual abuse. incredibly ways react in has that children diverse indicated notes: aptly As another commentator abuse.”4 that a child certain reliably say exhibiting cannot a [O]ne sexually of has been abused rather combination behaviors instance, abused, than, neglected, physically Although brought psychotic parents. or antisocial up by of may future identification victims support research Children, Haugaard A Reppucci, Comprehen- 2. & The Sexual Abuse of Knowledge Strategies, 177-178 sive Current and Intervention Guide to (1988). Rosenfield, See, e.g., Management Sexual The Clinical Incest and 3. of Children, (Oct.1980), impossi- 22 2 who writes: “It is Abuse Trauma of general on about the effects of sexual abuse ble to make a statement differently depending react to different situations children. Children operating at the time of the on a number of variables that also, Beezely, "Personality of Id. at 3. See Martin & occurrence.” Children," Multidisciplinary Approach Abused in The Abused Child: A (H. Kempe C. Issues Martin & eds. Developmental and Treatment Schulz, 1976); Socio-Legal Perspec- a Sex The Child as Victim: tives, (I. Victimology: Drapkin & eds. 4 A New Focus 177 E. Viano Note, 1975). Unreliability quoted Expert The These studies are Victims, Typical Abuse Testimony on the Characteristics Sexual (1985). Geo.L.J. 440-441 McCord, Exotica: A New Syndromes, and Other Mental Profiles Psychological Approach Admissibility Nontraditional Evidence to the Cases, (1986). a For detailed discus- in Criminal Or.L.Rev. conclusion, See, supporting psychological sion of research McCord, Testimony Psychological Complainants Child Expert About Foray Admissibility Novel Sexual Prosecutions: A Into the Abuse Evidence, Criminology 1 Psychological J.Crim.L. & behaviors, currently possib identification is such their le.5 testified that
In the case sub judice, a of fear of initially lot usually experiences “victim offender, alleged offender.” The anger lot of towards confused,” feel initially “the children usually very is “victim the “child The also testified that very guilty.” very relationship.” usually very confused over positive things expresses many “frequently of sexual abuse relationship.” “Child victims weren’t “chil- Additionally, low self esteem.” usually very have of sexual after the disclosure withdraw frequently dren want contact abuse, themselves will isolate they [and] as well as performing are not people.” “[T]hey with other *7 school, disassociating themselves they are did at they school, they’re common friends at the practices or common fall, inability have to frequently they will grades [an] [sic] on their school work.” concentrate typical well be patterns may of these While all behavior recog- children, would layperson abused even a sexually unique patterns necessarily behavior are nize that these to children They are common abused children. sexually abused chil- and to parents psychologically divorce6 whose dren.7 divorce, the parents whose study
In one children about children of behaviors exhibited many author described supra, Haugaard Reppucci, p. 178. & note 5. Breakup, Kelly, Surviving Children and & How
6. Wallerstein (1980). Cope with Divorce Parents children, psychologically the authors note study on maltreated In a following may be exhibited: behaviors self-esteem, unloved, inferior, negative view low feel Children: outward; world; anxiety aggressiveness turned or inade- quate social behavior. response may feelings but similar to children’s Adolescents: destructive, severe; truants, runaways, de- may become more pressed, suicidal. Gabarino, Guttmann, Seeley, Psychologically Battered Child & The Psychological Mal- Components Involved in Identification of Table treatment, remaining parent, clung parents.8 divorced “Some left____”9 parent “Regres- crying when whimpering among chil- response youngest a common sion was training and increased masturba- “Lapses dren.” toilet The also noted a activity were noted.”11 author tory aggression, and macabre guilt, rise bewilderment marked fantasy.12 children, the authors study sexually
In another abused similarly— maltreated children react remark that all type. or another whether the victims of sexual abuse from abused children differ degree sexually The which or children from chaotic and maltreated children other (Erickson Egeland, households small & may be violent Wolfe, Wolfe, LaRose, Mosk, 1983; 1987; & & Wolfe (Erickson Egeland, 1986). In the best to date & study Erickson, Pianta, 1989), 1987; 267 children Egeland, & and 60 identified prospectively, followed to 86 were were years, at ages through age maltreated different study con- including children. sexually abused [The There are similarities than more cluded]: differences children____ All have maltreated among groups of school, meeting at all seem to task demands difficulty abiding unpopular peers, all are with their anger, have an in school functioning independently and all have difficulty problems are not abuse- laboratory situations. prob- on to common go authors specific; state] [t]he [the *8 .. all all can be to the lack of nurturance lems .. tied sensitive, failed to care for provide supportive [parents] child.13 their clear foregoing, on the it is
Based uniformity by sexually about the of behaviors exhibited Kelly, Surviving Breakup, supra, note 6. 8. Wallerstein 9. Id. at 57.
10. Id.
11. Id.
12. Id. at 58-62. Freidrich, Sexually Psychotherapy Children and Their Abused Families, (1990) (emphasis supplied). 25
177
is not
established to have
“sufficiently
children
abused
in
it
in
field which
general acceptance
particular
gained
Nazarovitch,
97, 101,
496 Pa.
belongs.”
v.
Commonwealth
170,
(1981)
excluded.14
A.2d
172
and should have been
in the
“general acceptance
Intertwined with the notion
constitutes
understanding
field” is the
of what
particular
long
have
and therefore admissible evidence. We
relevant
particular
of a
“[a]ny analysis
admissibility
held that
as to
inquiry
must start
a threshold
of evidence
type
probative
its relevance and
value.” Commonwealth
914,
(1976).
Walzack,
210, 218, 360 A.2d
Rele-
468 Pa.
in
advances the
degree
evidence “is evidence that
some
vant
McCormick,
185 at
Id.,
Evidence
inquiry____”
quoting
§
1972). Further,
(2d
as we stated
437-38
ed.
Common-
265,
(1976),
Kichline, 468 Pa.
We not believe abuse, eating disor- drug and alcohol probative. Clearly, work are com- ders, doing and not school low self-esteem child To solely related to abuse. phenomena mon be, however, they might permit speculate probative and notion of what constitutes every violates scientifically supportable evidence. It is neither relevant list laundry possible legally supportable. nor Such speculation no more than invite and will behaviors does condoned.16 M.D., Gardner, psychiatrist practicing in a A. 15. Richard Hysteria, Witch Revisited entitled Sex Abuse Salem Trials recent book (1991), many are taken as normal behaviors often contends children, abuse, young namely bedwetting in of child "evidence" tantrums, temper Id. at 60-65. Fur- nightmares, and masturbation. thermore, many behaviors attributed to so-called abnormal "nothing do Sex Abuse.” fact have sexual abuse in victims tics, rituals, compulsive phobias, "depression, obsessive include These disorders, behavior, hyperactivity, attention deficit antisocial conduct disorder, headaches, (nausea, gastrointestinal complaints cramps, di- arrhea), complaints, etc.” Id. at musculoskeletal Children, book, Abuse Assessment her Handbook on Sexual 16. In Issues, (1988), compila- Walker includes a Lenore and Treatment sexually study showing percentage of abused children what tion of a study was funded the National This what behaviors. exhibited describe the effects of and was meant to of Mental Health Institute sexually children. sample of 369 abused abuse on a *10 is of this evidence value probative lack of Perhaps the 3.8 regression Behavioral 2.7 away/takes off Runs 4.6 arousal autonomic Excessive 18.7 Depression activity 15.2 usual or relations from Withdrawal 3.0 Sexually others victimizes 11.7 fear Generalized 1.9 attempts Suicidal 7.9 image problems Body 19.2 anger/hostility Repressed 13.8 Daydreaming 0.3 police Major with Problems 0.8 Eating disorders — episode Psychotic 13.8 please Overly compliant/too anxious to 2.2 Drug/alcohol abuse 7.9 Age-inappropriate behavior 1.4 physically Hurts self 3.3 police problems with Minor 30.1 abuse stimuli Fearful of 5.7 thoughts or actions Suicidal 10.0 Psychosomatic complaints 1.1 behavior Ritualistic affection-giving receiving 6.5 Indiscriminate 32.8 Low self-esteem dangerous 4.9 situations Places self 2.4 Violent fantasies 22.8 upset Emotional 0.8 Prostitution Obsessional, thoughts 5.4 repetitive/recurrent 2.2 Shoplifting/stealing problems 9.2 school behavior Nonacademic 20.1 Nightmares/sleep disorders relationships 8.7 Inability to form/maintain 15.4 problems Academic 14.4 Aggressive behavior (continued page) on next 7.0 relationships peer
Inappropriate/destructive (1) demonstrates, sexually children abused graphically As this chart (2) every symp- patterns; any specific behavior be fit into cannot larger number do by any percentage, an even exhibited tom that was one, symptom (3) single symptom; not exhibit Clearly, these sexually children. by majority of abused a exhibited probative evidence. percentages cannot constitute types of so “battered comparison called best understood diagnostic physicians a tool used by child syndrome,” subject is of intentional likely whether child determine syndrome, In the child injury. or accidental battered abuse following look for the characteristics: physicians is diagnosis of used in syndrome battered is young connection children and based with healing, multiple stages various finding injuries fractures, swelling or skin soft tissue primarily multiple evidence that diagnosis to the is bruising. pertinent Also undernourished, poor hygiene, generally the child injury is inconsistent type severity and that *11 of the concerning injuries the occurrence story with the caring for the or those who were by parents offered the child. Rodgers, 477, 486,
Commonwealth Pa.Super. 364 528 denied, appeal 638, 542 518 Pa. A.2d (1987), A.2d physi- Rodgers, discussed the (1988). physician the cal as to at and stated a belief findings of the child issue to been inten- appeared have injuries that child’s whether also, v. Paquette, inflicted.17 See Commonwealth tionally (1973). That 250, 255, type A.2d 451 Pa. in stark and relevant —stands probative testimony explicit, — in the case testimony admitted type to contraposition evidence is syndrome” The “battered child us. before overly and is children to abused unique physically can testimony such Thus, argued it can be general. were injuries not” that “more than likely make it intentionally inflicted. com- testimony was also by this damage created knew the child those who testimony about by
pounded the be- admitted about testimony There was question. alleged incident. As child after the by the exhibited haviors by of the introduction such, prosecution’s certain child served confirm observed those who permitted about the Superior Although Court has yet expressed Rodgers, this Court has not syndrome” in "battered subject. opinion on the an patterns expert that the suggested behavior were exhibited children. by Permitting expert abused an to testify about unsupportable profile an behavioral and then introducing that the testimony to show witness acted in conformance an profile with such a is erroneous method of obtaining reason, conviction. For this we hold that the expert should permitted not have been testify patterns about behavior generally exhibited abused children and that the error requires reversal.
TESTIMONY CONCERNING DELAYS IN REPORTING
AND OMISSIONS IN REPORTING The remainder of expert witness’s testimony (1) concerned explanations for why a sexually abused child delay reporting would members; (2) incident to family abused children why incident; omit details of (3) why a sexually abused child an inability have to recall dates or times of the incident.
In addition
testimony meeting the tests of
relevancy and the Frye standard of admissibility, expert
testimony is admitted only when the subject matter
beyond the
knowledge
experience
average
layman.
When the issue is one of common knowledge,
testi-
mony is
O’Searo,
inadmissible. Commonwealth v.
It is understood why sexually abused children not do always come forward after the abuse: immediately They embarrassed; are afraid or are convinced they by abuser not to tell anyone; they attempt to tell someone who listen; does not want or they to do not even enough know to tell someone has happened. what In the case sub judice, testified that a “[mjajor reason would be any Also, threats that made to the she were child.” stated that “[t]hey embarrassment, also could not disclose for fear of for damaged fear they way, are some are not a they perfect person.” “[TJhey do not disclose out of fear of loss home, they may have to leave the that someone within them____” the home to All may have leave of these rea- 182 by require understood and do not easily lay people
sons are analysis. Snoke, 525 Pa. 295, In Commonwealth v. A.2d 295 (1990) are from recognized we that children different adults the need to may appreciate not come forward: is to physical accomplish
Where no
force
used
assault, a child
no reason
reprehensible
victim would have
wrong-doing, particularly
of the
promptly complain
position
in a
of confidence.
person
where the
involved is
a
a
an encounter
is of
nature that minor
Where such
not
the offensive nature
appreciate
victim
conduct,
complaint
necessarily
the lack of a
would not
an inference of
fabrication.
justify
303,
recognized,
at
The real
matters
of the child occa-
immaturity
is whether
plainants
In
design
to a
deceive.
delay
opposed
sioned the
the insinc-
or not the
reflects
determining
delay
whether
an addi-
complainant,
maturity merely
erity
deciding
by
considered
tional factor to be
question.
398-99,
reaching
at
521 Pa. conclusion, delay may the reasons for the noted that be we innocent, innocent, may include but they may guilty acting out blaming protect parent, another dislike. revenge prompted by the reasonable suggest these decisions also Yet are do not come forward well why children explanations that are experience; reasons range within the common jury.18 understood in the elic- our have allowed more latitude
18. We note that
courts
e.g.,
Com-
children than from adults. See
from
itation
Pankraz,
(1989), appeal
Pa.Super.
A.2d 974
monwealth v.
denied,
(1989)
year old
(permitting four
A.2d 887
*13
grand-
sitting
testify
her
on
sexual abuse to
while
victim
father’s
analysis,
the final
the reason for the delay must be
ascertained
the
on
by
jury and
based
of the
credibility
child and the attendant
circumstance
of each case. We
presented through
believe that
the evidence
the fact wit-
nesses,
an instruction
coupled with
to the
that
jury
they
should consider
the reasons
why
child did not come
forward,
including
age
and circumstances of the child in
case,
are sufficient
to provide the
jury
enough
guidance to make a
importance
determination
need
prompt complaint
each case.19 Not
is there no
only
about
may
reasons children
not come
forward,
permitting
but
it would infringe upon
jury’s
Seese,
credibility. Commonwealth v.
right
to determine
Davis,
439,
Commonwealth v.
(1986);
512 Pa.
A.2d 920
Commonwealth v. Galla-
77,
(1988);
518 Pa.
We are also convinced that sexually
abused children
sometimes omit the horrid details of the incident
for the
same reasons that
do not
they
always promptly report
abuse;
fear,
abusing
embarrassment
and coercion
by
adult.
it is
Additionally,
often clear that children do not
always comprehend what has occurred and the need for
complete
description
the events. Children often omit
discretion);
lap
mother’s
did not constitute an abuse of
Common-
Willis,
555,
(1988)
Pa.Super.
(plurality
wealth v.
Dress,
414,
(1946).
354 Pa.
47 A.2d
We are convinced
judges
fully capable
ensuring
that our trial
are
that relevant and
probative testimony concerning
reporting
a child’s
of sexual incidents
properly
will be
elicited without the aid of
witnesses.
Although
concerning credibility
the standard
instructions
do
considering
age,
an
contain
instruction about
the child’s
we have
Snoke,
295,
approved
charge
of such a
in Commonwealth v.
case,
judge's
However, is clear need any do not believe that there we understanding to This expert explain jury. an to this a for Additional- knowledge jurors. is the common well within such from the is to elicit information ly, prosecutor able such, for expert As the need testimony. child during apparent. is not testimony in this area however, there prompt complaint, As the issue of details; namely, omit other reasons children may why be imagined. is relating fabricated or story they are child be mea- event, may well credibility either omitting details. As they relate sured the reasons such, to buttress permit expert testimony to we believe that inter- to impermissibly of the child would be testimony It must credibility. to judge with the function jury’s fere evaluating is the child as jury not be remembered that the own under- adult, in terms of their an but they would Thus, an jury may judge a standing of children. while incident, disturbing of a who omits details harshly adult sensitive to the a will not is no reason to think be there specific as relating may a the event fact that jurors confident that are well We are the adult would be. need of of children without credibility to equipped judge advice. expert is is whether
The final issue we address
inability
an
to
may
a child
have
why
explain
to
appropriate
universally
It
of the incident.
is
or times
'recall dates
children,
children,
may not
young
especially
understood that
to
things occurred
specificity when
to recall with
be able
the child
too,
delayed,
is
when disclosure
them. So
simply
or times due
due
dates
specific
to remember
be able
however,
expert simply
an
Again,
of time.
to the passage
jury.
this to a
necessary
explain
is not
for the
is another factor
of the event
A child’s recollection
and we believe
weighing credibility
when
jury to determine
their determina-
infringe upon the
impermissibly
it would
such,
point.
this
As
we
testimony on
permit
tion to
expert’s
to admit an
find
it was error for the trial court
omission of
reporting,
on the
subject
delay
times.
details,
to recall dates and
inability
plague
our
We
all aware that child abuse
are
growing up
aspects
and one of the saddest
society
Nevertheless,
it
do not think
befits
today’s America.
we
disregard long-standing principles con-
simply
Court
and the
admis-
proper
of innocence
cerning
presumption
greater
number of
gain
in order
sion of evidence
*15
through the
A
obtained
conviction must be
convictions.
in order to main-
lawful admission of evidence
proper and
of
that is the bedrock
our
integrity
tain
and fairness
the
that erode this
permissible
No shortcuts are
jurisprudence.
For these
purpose.
noble the
no matter how
concept,
Superior
the
reasons,
affirm much of
decision of
we
so
the
of the
held that the
Commonwealth’s
Court which
excluded.
expert should have been
PRIOR
MISCONDUCT
ADMISSIBILITY OF
SEXUAL
AND THE
THE APPELLEE
VICTIM
BETWEEN
had
Superior
appellee
held that
the
The
Court
prior
by
sexual misconduct
the
the issue of whether
waived
In an
improperly
toward the
was
admitted.
appellee
victim
fashion,
when on to address the
that Court then
advisory
to the
guidance
issue in order to
trial
provide
substantive
disagree
the Superi-
court
retrial.
Insofar we
with
upon
evidence,
we
admissibility
concerning
or Court
of the issue and
to address the substance
are constrained
was
address
the issue
waived.
need not
whether
statements
consisted of
testimony complained about
The
secret,
from
movea-
appellee
watched
victim
showered and
panel in his closet while she
ble
pretended
while she
fondled the victim’s breasts
appellee
asleep.
testimony should be
held that such
Superior
Court
retrial, stating:
inadmissible
Despite
morally repugnant
alleged
nature of these
appellant
acts and the crimes for which
has been convict-
ed,
regarding
we are constrained to find that acts
improperly
these
admitted for the reason that
prior
the isolated occurrence of
misconduct testified
the victim
do not constitute “a
simply
series
acts
indicating continuousness of sexual intercourse.”
Superior
page
at
Opinion
quoting
Court
Common-
Bell,
dissent,
wealth v.
A. 123
In
Judge Kelly
challenged
stated that
evidence taken
“[t]he
together,
charges presented
the context of the
case,
plainly gave rise
a reasonable inference that appel-
engaged
lant was
in a continuous and
escalat-
gradually
course
ing
sexually exploitive and abusive conduct
(Emphasis
original).
agree
toward
victim.”
We
the position
by Judge Kelly.
articulated
Bell,
held
of illicit
Supreme Court
that evidence
parties,
relations
the statute of
beyond
between
even
limitations,
“if
one
was admissible
it is
series of acts
indicating continuousness of sexual intercourse.” 166 Pa.
412, 31
124. The
on
Superior
at
A. at
Court
numerous
testimony concerning prior
occasions has admitted
misconduct of a defendant toward a victim. See
Com-
e.g.
*16
317,
Pa.Super.
v.
271
LARSEN, J., dissenting opinion which files a PAPADAKOS, J., joins. dissenting.
McDERMOTT, Justice, concurring and in its notes, opinion, the majority, As Mr. Justice Larsen to reach the conclusion that Com- upon experts relies provide regarding cannot experts monwealth’s and, experts agree; cannot there- subject upon which other based, I gather, fore, should be inadmissible such If latter is the proof. on its as scientific unreliability issue, I agree on the first majority’s holding basis However, I agree do not with it for the nonce. will never come a time implication that there majority’s sufficiently can reliable of this become type when evidence it be admitted. issue, I ma- second believe the Regarding majority’s sophistica- ascribing average juror to the incredible jority workings on the abuse the effect regarding tion does, Moreover, say, majority mind. young (i.e. delaying reasons these reasons that “[a]ll abuse) lay people understood easily such are report of *17 understanding require expert analysis,” and do not “[t]his details) omit is well (i.e. referring victims sometimes why to pp. Maj. op. 1. 181-182. knowledge common jurors,”2
within the “[i]t children, chil- young that universally especially understood dren, specificity things recall when be able to with them,”3 an entire field of basically occurred to trivializes everybody already that knows psychology by implying they apples facts as as know that fall down. surely these majority concerns me that the would Finally, greatly it must, no defense counsel permit, they continue to as doubt of the child-victim on all of these credibility to attack the parry no means to afford the Commonwealth grounds, yet tactics; this, the fact that on this despite these defense unanimity to conclude there is sufficient point is reliable.4 such evidence
Therefore, holding on the second majority’s as to the that did issue, expert testimony I dissent and would allow in the trial at hand. refer to victim specifically Dunkle, agree of Mr. I appeal the cross Finally, regarding disposition. the majority’s LARSEN, Justice, dissenting. case remand of this majority’s
I to the vigorously dissent out the completely rules Today, majority retrial. understanding to aid a expert testimony use and shame and about myth is shrouded which subject To nothing. knows little or average citizen/juror which holding atop its supports injury, majority add insult writings of various consisting cards fragile house of as carry only and opinions studies “authorities” whose can authority other untested who weight any legal much opposition in direct that are espouse opinions be found fact, anomalous, in that the It is cited. the “authorities” of its community legal experts uses to convince majority yet ignorance legal community’s to the due position p. Maj. op. 184. 2. Maj. op. p. 184.
3. word, unanimity Indeed, majority is such at its there takes the if one knowledge. accepted common become it has *18 matter common such information is a of concludes that knowledge average juror. to the in to appeal its by
The issue the Commonwealth raised expert testimony the admission of this Court is whether of of the victims characteristics regarding behavioral of to province jury abuse the exclusive sexual invaded witnesses, of did credibility where determine the of sexual victims testify credibility as to the abuse a did that the victim this case was general, testify abuse, testify of and did not that the victim victim sexual Neil cross-appellant, The issue raised was credible. Dunkle, objection his to the Dunkle waived F. whether of his misconduct with prior admission of evidence to trial on of object during to it the basis by failing victim did prior that the misconduct remoteness and on basis I of conduct.1 shall not constitute a continuous course issues seriatim. address these indecent charged rape, on June Dunkle was 30,1986, to com- assault, attempt minors and criminal corruption of charges deviate sexual intercourse. involuntary mit 1983, involving of occurring April of incident arose out an step- year his fourteen old sexual assault Dunkle’s taking Following shower. daughter she was County, Lycoming in the of Pleas of trial Common Court assault, of of corruption indecent guilty Dunkle was found attempt involuntary commit deviate minors and criminal to charge of of He was acquitted intercourse. motions post-verdict denied Dunkle’s The trial court rape. trial. and for a new Dunkle in arrest judgment totalling imprisonment to sentences of sentenced concurrent four years. two to Court which reversed Superior appeal
Dunkle filed an a new trial. divided and remanded for Common- panel aby Dunkle, 561 A.2d Pa.Super. wealth ruled, economy, judicial Superior in the interest Court Superi- Dunkle’s retrial. Because not be admissible at evidence would the case on the basis that it could not remand or Court determined waiver, it Dunkle raises the issue is evident that this issue due to of caution. this Court in an exercise Superior Court determined that the admission of the that, although constituted reversible error Dunkle had his to the objection prior waived evidence of on in his involving ground acts the victim asserted appeal, would inadmissible at Dunkle’s evidence retrial. Both the Commonwealth and Dunkle filed petitions granted We appeal allowance of this Court. both Superior and I would reverse the order petitions, *19 Court.
The
to
exclude
is
decision whether
admit or
evidence
to
of
to
judge,
entrusted
the discretion
the trial
who is not
an
be reversed unless
abuse of that discretion is shown.
Boyle,
Commonwealth v.
An abuse discretion is more than error of of an a and, appeal, on trial court will found to judgment be discretion the record have abused its unless discloses unreasonable, is or judgment manifestly “the exercised result partiality, the of ill-will.” prejudice, bias Lane, 544, 549, 492 424 Commonwealth v. Pa. A.2d omitted). (1981)(citations has allega- As there been no on the of the part of bias or ill-will partiality, prejudice, tion herein, court must determine whether the admis- trial we in case was testimony manifestly expert sion unreasonable. case, a Child Protective Service
During prosecution’s the in of Children and Youth Supervisor Department for the as permitted testify expert was to an Lycoming County witness, the char- objection, over Dunkle’s about behavioral The testi- expert of child sexual abuse victims.2 acteristics expert a majority points out that witness herein was not 2. The the op. psychologist. Maj. at 171. Her lack of a psychiatrist aor absolutely bearing upon qualification professional degree has no her Commonwealth, expert a liberal In this there is as an witness. witness, i.e., “if a witness qualification for of an standard knowledge subject pretension specialized any to may on has reasonable weight given investigation testify he and to matter under Gonzalez, Commonwealth v. [fact to his evidence is for finder]." 116, 128, (1988) (plurality opinion). That A.2d Pa. upon background, knowledge may pretension specialized be based to fied, personal approximately her observations based victims, may delay that child sexual abuse victims 500 such any family member incidents abuse reporting against threats made reasons. These include several consequence split up will be child, family fear that incident, embarrassment, fear that the child an reporting to recant. believed, pressure by family not be will inference response presented This was delay year the victim’s three by Dunkle that raised or fabrica- insincerity a result of reporting the assault was tion. for child it common also testified times, dates, to recall victims to be unable
sexual abuse incidents, either because details of the other factual long the incidents occurred before frequent, were incidents repressed painful has reported, or the child they were This thoughts memory. from conscious impeach the attempt to Dunkle’s response presented date to recall the exact credibility by inability her victim’s her failure assault occurred and on the sexual which she of the assault when *20 the circumstances describe all it. initially reported of behavior expert types further testified about the
The
i.e.,
victims,
they can
abuse
that
by child sexual
exhibited
of
confusion,
and lack
self-es-
depression,
anger,
exhibit
and
disrespectful
teem,
they may
promiscuous,
that
become
The
drugs
alcohol.
disobedient,
and
abuse
they
that
following
more withdrawn
in this case had become
victim
attire, she
in her
assault,
more modest
she became
in her room
spent more time
hostile and she
more
became
over the curtains.
blankets
kept
putting
she
dark by
which
Moreover,
qualification of an
Id.
training,
experience.
and
of the trial
within the sound
expert
a matter
witness
discretion
Bennett,
419,
The trial court (1985) that (expert testimony 502 A.2d Pa.Super. of the victims characteristics goes general to the behavioral admissible), its deter- support sexual abuse held to be of did admissible and expert testimony that the was mination function of the determining jury. usurp credibility issue of the times considered the This has several Court in child sexual abuse admissibility Seese, 512 Pa. 439, 441, 517 v. Commonwealth In cases. (1986), pediatrician’s held that a A.2d we “do not lie” about sexual abuse children pre-pubertal jurors’ encroached it inadmissible because was credibility determining by passing upon role credibility in the case a witness was of victims which of a class member. Davis, 77, 80, 541 A.2d Commonwealth testi- psychologist’s that a clinical (1988), held we in sexual not been involved “children who have
mony that experi- do not fantasize about typically experiences reason, i.e., for the same ences,” inadmissible capacity jurors is within lying phenomenon *21 encourage jurors would assess, testimony expert and such of the truthfulness of expert the assessment to defer to In was a member. the witness people class of of which Baldwin, v. Davis, disapproved Commonwealth this Court v. conflicts” with Commonwealth “insofar as it supra, 193 Davis, 518 Pa. Seese, and Davis. Commonwealth supra, in Baldwin, 1. In as the case 1, 541 317 n. at 81 n. A.2d at Court, expert testimony the before the went presently behavioral of incest the dynamics psychological the in did not expert incest Baldwin of victims. The patterns of abuse or the of the victims sexual testify veracity about case, in nor did the veracity complaining the witness a victim testify complaining that the witness was expert the did not overrule Baldwin. of sexual abuse. In Davis we in specifically The in expert testimony Davis Seese sexual propensity involved statements about of abuse in not to tell the The court did have victims truth. Baldwin Thus, is no state- expert before it such there testimony. testimony. ment in the such precludes Baldwin case which express The limitation noted is that the only complaining of opinion regarding credibility an Davis, recognized This in that Baldwin witness. Court of expert might permit type could and be construed to Davis; hence, presented that was in Seese and testimony disapproval limited our Baldwin. 4, Rounds, Pa. 207 n. Commonwealth v. in (1988), n. 4 noted dictum that a
A.2d we in case was not that the victim the pediatrician’s testimony “patently inadmissible.” lying about sexual abuse Court, Gallagher, recently, Most Commonwealth v. (1988), held that the A.2d suffering in the nurse that the victim case was psychiatric such, and, have identi- from trauma as could rape syndrome spite having fied after the attack perpetrator years attack, immediately so after the was inadmissi- failed to do encroaching credibility determining function ble experts cases It is in all of these clear jury. express “expert” assessment of making were a direct and thereby usurping credibility, impermissibly witness of the jury. function case, in the how- disputed instant
ever, commonly appear traits that involved observed victims, a matter of but that would abuse *22 194 expert The wit- average knowledge juror.3 to the
common stamp the gave lie detector who not act as a human ness did factual the truth of the victim’s to legitimacy of scientific Dunkle did not testify witness expert The testimony. or that place at a time or specific the victim abused sexually of the testimony claim. The the victim’s expert the believed the could background against jury which a expert provided respect, In this of the victim. the behavior assess of other the actual behavior testimony regarding assisting help jury to victims was sexual abuse reactions.4 possibly unfamiliar them to understand Lane, v. 390, 397-98, 555 A.2d In Commonwealth Pa. 521 (1989), stated: 1246, 1250 this Court subject when the matter Expert testimony to aid a is admitted science, occupation beyond the skill or is related to of the knowledge average layperson. v. Commonwealth experience of the average juror, who has Duffey, A.2d 1178 The 548 victims, knows little if observing child sexual abuse experience had no dynamics psychological of intrafamilial anything about child sexual abuse victims. characteristics of abuse and the behavioral relating general challenges to the majority herein 4. abuse on the of child sexual of the victims behavioral characteristics " standard, Frye United first set forth in v. "Frye which was basis of the States, (D.C.Cir.1923). Maj. op. standard has at 832. This 293 F. States v. suffering flaws” in United rejected from "serious been (3d Cir.1985), particularly as it relates Downing, 753 F.2d standard from admissibility evidence. The of novel scientific to the standard, Downing Downing as the now known States v. United generating methodology the evidence used on the scientific focuses by if the accepted the court even be as reliable if it can determine acceptance widespread in the relevant has not received evidence Corp., community. Chemical 125 N.J. See Rubanick v. Witco scientific 421, Garcia, (1991); see also Commonwealth A.2d 733 Elliott, J., (1991) (Ford 280, 307-08, 964-65 Pa.Super. 588 A.2d Sole, J., Hudock, JJ.) (urging by case dissenting, joined Del prohibitions of blanket on the establishment review rather than case courtroom”). child in the “abandon the so as not to such evidence methodology employed in judice, Clearly, sub the scientific in the case of the characteristics about the behavioral gathering information beyond reproach as the sexual abuse victims of child personally ob- she had behavioral characteristics witness testified “laundry Although list” the so-called victims. in over 500 such served sufficiently specific to the victims of characteristics herein, disputed majority one has satisfy no sexual abuse observed in and have been characteristics do exist fact that these such victims. factor which is a prompt complaint Unquestionably, evidence pertinent of the other must be assessed with all of the com- credibility of the bearing upon question of the question cases the witness. such plaining if it is raised is established that complaint sincerity present factors was either under all delay *23 Therefore, inference of unexplained. or the unreasonable the facts of the case fail is where insincerity only justified challenged explanation for the disclose a reasonable complaint. the prior time lapse omitted). expert’s testimo- (citations In the absence of the not have known that in the instant case would jury the ny, is not the for the explanation delay insincerity only possible in a sexual assault. reporting child sexual abuse victim credibility in- on witness jury instructions standard following judging the factors when the to consider jury vite credibility: see, things hear or know the
(a) able to Was the witness he testified? about which and describe
(b) could the witness remember How well about which he testified? things see, hear, know, ability Was the the witness [(c) by or things youth affected or describe those remember deficien- mental or intellectual age by any physical, old or cy?] convincing manner? in a
(d) testify Did the witness Was look, speak testifying? act while (How did he confused, uncertain, self-contradictory or testimony his evasive?) in the outcome of
(e) any Did interest the witness have case, bias, might other motive that affect prejudice or testimony? his square of the witness
(f) How well does case, including the testimo- in the the other evidence (Was supported it or contradicted of other witnesses? ny Does it make and evidence? other sense?) Suggested Jury Standard Criminal Instruc-
Pennsylvania 4.17(l)(a)-(f) (material in optional). tions is brackets § extent complaining may To the that a witness recall assault, give complete details of a sexual certain incident, may delay reporting details about incident, will, on the jury basis standard regarding credibility, instruction be inclined to disbelieve in complaining testimony, any witness’s the absence of explained. evidence that such can be behavior The expert testimony presented, although bearing did not complaining credibility, improperly witness’s it did not credibility directly enhance this witness’s her credibility credibility address sexual abuse As general. cogently by Superior victims observed Court Pearsall, 1, 331 n. Pa.Super. Commonwealth v. (1987), denied, n. 1 534 A.2d 108-09 allocatur (1989): A.2d distinction [Tjhere fundamental between testi- *24 mony the of a inferen- supports credibility which witness establishing that a is tially by testimony witness’ consist- responses the acts and evidenced in ent with known cases, expert testimony presumes abuse and which to witness, pass directly upon veracity particular the of a in (emphasis original). jury The herein had to decide wheth- changes, inability er this victim’s behavioral to recall dates times, prompt complaint and failure to make a and omission of details resulted from sexual abuse or were due to other The expert’s testimony jury reasons. would assist the its (the same as truth-seeking jury function the aforementioned function), truth-seeking instructions assist the in its “pass directly upon veracity” but inasmuch as it did not the victim, I of the believe that the trial court’s decision to unreasonable,” testimony “manifestly admit this was did constitute an of discretion. and abuse Dunkle, i.e., the raised regard by With to issue whether Dunkle consideration of the trial court’s admission waived victim, regarding prior involving misconduct the evidence objection prior the victim testified over Dunkle’s that to into his bedroom November, always go Dunkle would closet, and, in his moving panel by she took showers when experiment An set her she showered. peek at while would in the victim’s her mother resulted the and up by victim closet at the kneeling Dunkle the observing mother watching victim as she showered. and the panel movable in Novem- on one occasion testified that further victim night at came into her bedroom Dunkle ber of Dun- asleep. to her while she pretended fondled breasts 1) testimo- ground testimony kle to this on objected involving and defendant prior sexual acts a victim ny about 2) alleged; prior is acts where incest permissible only which Dun- substantially different from the acts with were of the 3) probative value charged; kle had been to Dun- outweighed by the clearly prejudice evidence 1987). 24-27, (Mar. at 46-47 Testimony kle. Notes of on the testimony objected was not disputed This in time too remote prior that the misconduct was grounds on of conduct not constitute continuous course and did however, Court, ad Superior cross-appellant. part testimony about admissibility the issue of the dressed acts, finding that it had been waived spite of prior sexual appeal, in Dunkle’s and ruled that grounds alleged on the at Dunkle’s retrial would not be admissible prior occurrences of miscon on the basis that “the isolated ‘a do not constitute by simply duct testified victim continuousness of sexual inter indicating series acts ” 823, 561 at 8. Dunkle Pa.Super. at A.2d course.’ at trial was argues objection his and the trial court apprise sufficient to Commonwealth Commonwealth v. objection. of the issues raised *25 150, (1968), cert. 194, 202, Raymond, 194 A.2d (1964), denied, 999, 84 12 L.Ed.2d 377 U.S. S.Ct. upon “if which an ground objec stated that Court stated, all other specifically based is testimony tion to As did not are waived.” Dunkle reasons exclusion grounds prior on the challenge and did not constitute a too remote time misconduct was continuous part Dunkle, course of conduct on the I would find that this issue was waived. if issue,
Even Dunkle had not waived the I agree with the majority regarding prior misconduct is admissible retrial. I
Accordingly, would reverse the order of Superior reversing Court the judgment of sentence and remanding trial, for a new and I would reinstate the order of the Court of Common Pleas Lycoming County entering the judg- ment of sentence.
This dissenting opinion is joined by PAPADAKOS, J.
Carolyn McMILLEN, Carolyn Shemo, Appellee. F. now F.
Supreme Pennsylvania. Court of
Argued Sept. 1991.
Decided Jan.