Commonwealth v. Dunkle

CAVANAUGH, KELLY, Before OLSZEWSKI and JJ. OLSZEWSKI, Judge: appeal

This is direct from the judgment sentence assault, following appellant’s conviction for corrup- indecent minors, tion of attempt involuntary and criminal to commit below, deviate sexual intercourse. For the reasons stated remand for new we trial.

In April charged inde- rape, assault, minors, cent corruption and criminal attempt commit A involuntary deviate sexual intercourse. trial jury 23, 1987, on commenced March and concluded March 1987. Appellant was found of all of the guilty charges except rape. Post-trial motions were filed and denied. Thereafter, appellant was sentenced to not less than two not than years years attempt and more four on the criminal involuntary to commit charge, deviate sexual intercourse a concurrent sentence of not than eighteen less months not more and than three on the years corruption minors charge. appellant Sentence was reduced to judgment, and timely filed a notice of to on appeal Superior Court December 1987. charges against leveled arose out an appellant

investigation police following state a report by appellant’s stepdaughter April appellant that taking a shower the victim was entered the bathroom while her, floor, and, sexually assaulted forcing her to after intercourse, her. raped and in oral engage forced her following Court, raises the appellant to this appeal On prior (1) of defendant’s whether evidence seven issues: trial; (2) expert whether at misconduct was admissible at was admissible on child abuse characteristics of a cal- trial; (3) discovery whether non-disclosure precluded its use by the Commonwealth endar/diary trial;1 (4) counsel was entitled review whether defense (5) victim; questioning records of the whether psychiatric of cross-examination was scope which exceeded on re-direct (6) should have defense counsel been whether permissible; a similar incident involv- to introduce evidence of permitted victim; bled evidence that victim ing the whether admissi- subsequent act of intercourse was during sexual ble.2 the admis- allegation first of error concerns

Appellant’s concerning sexual appellant’s prior sion at trial evidence con- Specifically, appellant towards the victim. misconduct testimony that permitting tends the trial court erred in that victim, engaged the appellant to the assault on the prior one prior took showers and on voyeurism while attempted had to fondle her breasts while occasion Appellant new is warranted because the trial 1. contends trial permitted use a document which it had court the Commonwealth to prior divulged knowledge had of several months to trial but not Inspection. Discovery defense. See Pa.R.Crim.P. Pretrial kept by question sister of the The document was calender objec- significant Upon his victim which she used record events. tion, given opportunity counsel was to review the doc- defense in its ument at trial before the Commonwealth used it examination already As we have that this case must be the witness. determined trial, appellant’s unnecessary for a new it is to resolve remanded discovery a re-trial. claim that a violation of occurred warrants Appellant sought evidence to the victim’s 2. introduce this refute establishing appellant her claim that had sexual intercourse with alleged virgin point rape. victim was a at a in time after the that the acquitted charge rape, fail to under- As we stand, indicated, why argument appellant has was raised We, therefore, appeal. decline to discuss this issue.

322 pretended asleep.3 be of

Evidence other criminal conduct of accused is generally except inadmissible trial in certain limited Banks, Commonwealth v. 318, circumstances. 513 Pa. 521 denied, Pennsylvania, cert. Banks v. 1, 873, 484 U.S. 211, (1987); Commonwealth v. 108 S.Ct. 98 L.Ed.2d 162 Travaglia, 502 Pa. Common 474, 467 A.2d 288 Fuller, wealth 353, (1978). 479 Pa. 388 A.2d 693 One for incest. Com prosecution such limited circumstance is a Bell, monwealth v. 405, The Bell (1895). 166 Pa. 31 A. 123 Court held a prior that evidence of illicit relationship be “it is one a series tween the if parties is admissible of acts indicating continuousness sexual intercourse.” 412, Bell added). 166 Pa. at 31 at 123 (emphasis A. set precedent to which our Court has steadfastly adhered. See e.g., McClucas, Commonwealth v. Pa.Super. 449, 357 516 (trial (1986) A.2d 68 court did not err in admitting evidence daughter defendant’s sexual over five-year Commonwealth v. Rodriguez, period); 486, Pa.Super. (trial (1985) 495 A.2d 569 court did not err in admitting defendant, uncle, testimony that the victim’s had admitted that he perform “used to” the illicit sexual act upon victim when the victim was younger); Commonwealth v. Ritchie, case re 557, Pa.Super. (1984), A.2d 220 manded, cert. granted, Pennsyl 357, 148, 509 Pa. 502 A.2d Ritchie, vania v. 476 U.S. 106 S.Ct. 90 L.Ed.2d in part part, rev’d in 480 U.S. 107 S.Ct. aff'd appellant’s attempts 3. The Commonwealth contends that to obtain testimony grounds review of the trial court’s admission of this on the prior misconduct was too remote in did time and part constitute a continuous course of conduct are improper because these contentions were not made at trial or in and, post-verdict accordingly, motions are waived. Commonwealth v. Gordon, We have determined that this case for improper must remanded a new trial because of expert testimony. admission of issue admission of misconduct, however, regarding prior defendant’s will be reviewed in judicial waived, economy. the interest of As this issue is it cannot provide a for basis remand. Our decision as to the merits of this however, claim, provide guidance proper conducting will of a new trial. (trial permitting did not err court L.Ed.2d molesting had been testify that he to daughter defendant’s of period years); a four times a week three or four her 431, 422 A.2d Niemetz, Pa.Super. v. Commonwealth by admitting testimony (trial did not err court of pattern long of a and sordid stepdaughter defendant’s stepfa- submit to abuse; forced to victim was sexual a she was third from the time when sexual advances ther’s left and she grade in tenth she was to the time grader Buser, 451, 419 v. Pa.Super. home); Commonwealth admitting evi- (1980) (trial court did err A.2d 1233 begin- daughter of his sexual of defendant’s dence continu- age of eight years or nine when she was ning 271 Pa. Leppard, Commonwealth thirteen); ing age not err (1979) (trial court did Super. as- continuing of sexual evidence defendant’s admitting four-year period). a daughter on his over saults ap suspected that she Instantly, the victim testified in the shower on her while she was spying pellant was during his routinely he retired to bedroom because she, her along with she showered. She testified that times a in the bedroom sister, removing panel discovered that closet, she related Finally one could see into bathroom. his appellant on her mother discovered an incident where showering. the victim was knees in the bedroom closet while other incident of misconduct which only attempted appellant testified to was the occasion where repugnant nature Despite morally fondle her breasts. has the crimes for alleged these acts and of convicted, to find that we are constrained been rea for the improperly these acts was admitted regarding prior misconduct testi occurrences son that the isolated “a series of not constitute simply fied to the victim do Bell, indicating of sexual intercourse.” continuousness acts pertain of evidence restricting admissibility supra. By above, apparent it is prior misconduct to ing against admission evidence Bell guarding Court was See, Rodriguez, n. supra isolated acts. also, 4. See Commonwealth v. Campbell, 342 Pa.Super. (1985), wherein our Court stated: sedulous review of the law in jurisdiction, [O]ur dealing incest, statutory assault, rape indecent has failed unearth one condoning decision the admis single, sion prior accounting (so a sexual assault bar) distant in time as the one at to buttress a prosecu trix’s complaint subsequent sexual assault charged against the same assailant where there no evidence of a continuous course of conduct linking the incidents of molestation.

Campbell, 493 A.2d at 105 (emphasis added). was, therefore, It for the improper trial court permit testimony appellant’s prior of misconduct.

Appellant’s next of allegation error is that the trial court improperly admitted expert Shade, the of testimony Susan Child Protective supervisor Service Department the of Children and Youth. Ms. testimony Shade’s concerned the dynamics of interfamily sexual abuse and behavior patterns of the child-victim. Pursuant law, current case we are constrained to agree.4 question a of witness’s credibility is reserved Davis,

exclusively for Commonwealth jury. the 518 Pa. 77, 541 Commonwealth Gallagher, A.2d 315 Pa. (1988). such, 547 A.2d 355 expert As testimony which serves to bolster the of veracity a child sexual abuse victim impermissibly infringes upon province the of the Seese, Commonwealth v. jury. 512 Pa. 517 A.2d 920 (1986). Accordingly, this Court must ascertain the purpose for which Ms. Shades’ testimony was offered.

In Seese, supra, the Pennsylvania Supreme Court deter- mined that the expert testimony question consisted of expert opinion regarding the veracity of the victim. In part, the expert had testified that: Changes litigation 4. during general- decisional law which occur will ly applied Aletto, pending appeal. cases Aletto v. lie sexual that a child would about very It is unusual usually do not lie about children [P]repubertal ... no how chaotic or uncom- matter matters sexual abuse situation is ... fortable their home 441-442, 517 at 921. Seese, 512 Pa. at was offered determining testimony Upon victim, the Court determined credibility sustain so, In stated that: doing Court that it was inadmissible. evidence, encourage as would testimony, Such admitted determining the credibility focus from shift their jurors trial, allowing particular who testified of the witness “expert” assess- to defer to the so-called them instead people class of of which ment the truthfulness is a particular witness member. 443-44, such, As Seese, 512 517 A.2d at 922. Pa. at is regard type to this primary concern with upon province has of the potential that it invade as to influence their decision the credi- incorrectly jury of a witness. bility record, it apparent upon review of the

Instantly, inci reporting the questionably delayed that the victim As recall certain details incident. dent failed to In such, shaky. of the victim somewhat credibility expert testimony offered response, (1) a delay reporting Ms. victim’s explain: Shade to offense; (2) exact and to recall dates inability a victim’s the times; as the result of the victim’s behavior In this the Commonwealth offering testimony, offense. in hoped legitimize lengthy delay to the victim’s clearly to certain incident and her failure recall reporting the incident, jury accept the to thereby allowing of the details essence, In only facts. this serves to her version of the Since, however, the of the credibility bolster victim. to solely not be enhance expert’s testimony may utilized witness, in of a we find the trial court erred veracity that testimony of Shade. admitting expert Susan han- assignment next of error concerns the Appellant’s to the victim dling by pertaining the trial court records she undergoing counselling while was at a private psychiat- trial, appellant ric center.5 Prior to filed pre-tri- an omnibus al motion requesting the court order the release of records from Youth Lycoming County Children and pertaining Services to the incidents at in case. issue motion, After consideration of this the trial court ordered Commonwealth, in possession was which these the records for an in camera records, produce for review material that any properly was After such discoverable. review, the trial provided court appellant with various state- ments made the victim and if instructed that appellant he believed the records contained other discoverable materi- presented al and a it argument colorable existed discoverable, the trial court would release the informa- tion.

The trial ruling handling court’s of this matter was Ritchie, Pennsylvania on based the case U.S. Ritchie, In 107 S.Ct. L.Ed.2d 40 respon- dent, charged involuntary with rape, deviate sexual inter- course, minor, incest and corruption sought of a access files he alleged CYS which contained exculpatory evidence. The trial judge refused order CYS disclose the files.6 definitely transcript 5. is not It indicated in the whether records private contention are CYS files records or institution. In his motion, files; pre-trial parties’ omnibus refers to CYS in the briefs, however, reference made to of the records victim's assume, private psychological counselling treatment at a although We center. party, it is not stated either that CYS was involved in expert treatment at the victim’s this case center. We note that the witness point worked CYSand had examined the victim one rate, following any parties’ arguments the incidents. At are based will, therefore, upon confidentiality pro- afforded CYSfiles. We ceed that basis. pertinent 6. dispute statute involved in this is 11 Pa.Stat.Ann. provides part: § (a) provided Except reports pursuant as in section 14 made to this including report act and written but not limited to summaries of child abuse ... obtained, reports any well as other ... as information reports photographs x-rays concerning alleged written or or taken possession instances child department, county youth agency protec- children and social service or a child only tive service shall be confidential and shall be made available to: Ritchie Court, claimed that Superior to the appeal On the Confrontation to disclose the records violated failure Superior Amendment. The Court of the Sixth Clause proceedings the case for further agreed remanded however, the the trial to examine directing, judge that in camera only and release the verba confidential material counselor, made the to the CYS by tim statements to Ritchie’s argue materiality could label who then If that the lack of judge the trial determined lawyer. Ritchie would be entitled prejudicial, information was Ritchie, Commonwealth trial. new (1984). 472 A.2d 220 agreed appeal, Supreme the state’s our Court that

On should be vacated and case remanded conviction granted. a new trial should be determine whether Court, however, ordered that defense counsel was Supreme useful any entitled review the entire file evidence. Ritchie, Pa. Court, Upon by Supreme review the United States by Supreme rendered Court was Pennsylvania decision affirmed to extent that it ordered remand for further Supreme The United Court stated: proceedings. States Ritchie entitled to have the CYS file reviewed it information trial court to determine whether contains changed outcome of his that would have probably does, If If given it he must be a new trial. trial. information, no records maintained CYS contain such if the a reasonable beyond or nondisclosure was harmless doubt, prior lower court will be free reinstate the conviction.

Ritchie, at 94 L.Ed.2d at 58. 480 U.S. S.Ct.

Instantly, contends trial court’s review the records in camera and release rele decision error for the following vant discoverable information was (1) Ritchie reasons: dealt with a situation where neither the

****** competent jurisdiction pursuant A or to a court court order.

328 file, nor prosecutor the defense had access to the whereas prosecutor in the instant had case the access to the full victim; record the and psychiatric the victim has waived records confidentiality releasing to Com- alleged error, monwealth. As a result the trial court’s or, is appellant contends he entitled to a in new trial alternative, a may remand so that he the file in review its argue that certain entirety nondisclosed information lack at was material thereof trial prejudiced him. any We find no merit to of appellant’s arguments with respect to this issue.

We deal first appellant’s argument prosecu- that the tor’s access to the file in the distinguishes instant case Ritchie. Initially, simply note that we because Com- is in possession monwealth of a file does not require that it. complete defense have access to A to inspection defendant is entitled a court Com- investigatory only monwealth’s files when there exists at inspection least some reason to believe the lead would to to discovery helpful evidence the defense. Gartner, Commonwealth v. 512, Pa. 475 Furthermore, Penn- following we feel that the passage sylvania Ritchie speaks this issue: A defendant’s right exculpatory to discover evidence does not include the unsupervised authority through to search the Commonwealth’s files. See United States v. Bagley, U.S. ^[667] at L.Ed.2d S.Ct. [3375 at (1985)]. Although eye of advocate may be in helpful information, a defendant out Den ferreting States, nis v. United 855, 875, 16 U.S. L.Ed.2d S.Ct. 1840 ^[1851] (1966), this Court has never held—even in the absence of restricting a statute disclosure —that a defendant alone make may the determination as to materiality of the information.

Ritchie, U.S. at 107 S.Ct. at 94 L.Ed.2d 58-59. has the victim argument next

Appellant’s to the Com releasing the records confidentiality by waived undeni in the face of the state’s flagrantly flies monwealth We are sur confidentiality. interest ably paramount further and argument this appellant did take prised that right confidentiality any waived contend that counselling by reporting or seeking psychological merely Appellant appears believe police. the crime to the state brought seeing her abuser has no interest that the victim regard argument His unsubstantiated justice. to the disregard insensitivity its obvious offensive difficulty and the encountered of child sexual abuse victims detecting prosecuting in by the Commonwealth v. Ritchie offers a Pennsylvania again, Once offender. on this issue: perspective in this type counsel

To allow full disclosure to defense unnecessarily sacrifice Commonwealth’s case would informa- in its child abuse protecting interest compelling If records were made available tion. the CYS defen- dants, counsel, seriously it could have a through even efforts to uncover Pennsylvania’s effect on adverse treat abuse. 1003, 94 L.Ed.2d at 59

Ritchie, 480 U.S. at at S.Ct. added). (emphasis remaining conten appellant’s we must deal with

Finally, Ritchie, Court, construing upheld in the statu that our tion discovery privilege vis-a-vis defense tory psychologist-client for that decision records and used as a basis those access to the confi did not have prosecution fact that v. Kyle, file. dential denied, 617, 541 A.2d appeal (1987), 518 Pa. 533 A.2d misstates our discussion Appellant’s argument Kyle. Kyle in In our Court discussed and determination Ritchie, it to a defen supra, pertained as Pennsylvania of the Sixth the Confrontation Clause rights dant’s under Due the relation of the Amendment. We also discussed Amendment to a defen Process Clause of the Fourteenth information. At issue inability pretrial dant’s to obtain Kyle psychologist-client privilege was the protected by Ritchie, 5944. Pa.C.S.A. After a discussion of our Court § concluded that a determination made must be as whether compelling public supported psychologist- interest privilege. client Our Court lengthy then on a embarked analysis policies of the public underlying the privilege, addition the relevant cases in this other jurisdictions, protected and concluded that the interests privilege Weighing are substantial. against these interests the inter- file, est a defendant in disclosure of a victim’s we found the scale tilted psychologist-client favor privilege. of our decision in Kyle. linchpin This was the merely We by noting buttressed that decision defense would placed Commonwealth, not be disadvantage as the likewise, did not contend, have access the file. To as appellant here, does that our Court construing somehow in Ritchie found that a basis for upholding psychologist- privilege client was the fact that neither the prosecution nor file, the defense had access is a severe misinterpreta- of the Kyle opinion. misrepresentation tion and Furthermore, it forgotten must that in the instant case was not deprived the benefit infor- provided mation a CYS file him. may Upon have review court, file trial the information deemed to be appellant’s material to provided defense was to him. Fur- thermore, appellant had specific been aware of information file, in the he was free to it request argue its materiali- ty. Additionally, the trial court duty was under a to dis- close information initially may which have imma- appeared terial but became important proceedings progressed. as note judge We that trial informed defense counsel that (N.T. 256.) he would do exactly p. that the instant case. The trial appellant court’s actions this case afforded all he Pennsylvania v. Ritchie. that was entitled to under There no court, was error committed by the trial Ritchie lack merit. appellant’s attempts distinguish Appellant’s allegation next is error trial court erred in permitting the Commonwealth to intro- Fortins of witness redirect examination in the duce evidence of cross-examination. scope beyond went which Witness, Ms. following context. in the error arose alleged on direct examination Fortins, questioned not was Jean his arrest following regarding a conversation The wit- the offenses. he committed concerning whether regard- on cross-examination questioned ness also was however, matter, regarding this Testimony this matter. ing Defense counsel examination. during redirect elicited and was overruled. at trial objected Pa. Maree, 498 v. relies Catina Appellant is a witness that one who calls (1982),for the rule A.2d 228 all that is wished on direct examination to elicit required general may be witness. While proved by that is admitted rule, the order in which note that we court, decision will trial whose within the discretion Common- of discretion. absent not be reversed (1982); 476, 442 Smallwood, Pa. A.2d v. wealth Johnson, Pa.Super. v. Commonwealth Furthermore, discretion omitted). (1986)(citations A is wide. proof order of vary judge of the trial redirect examination bring out on permitted party may be failed to inadvertently party relevant evidence Brown, 462 Pa. bring out on direct. Commonwealth Grove, 363 A.2d 84 denied, 517 Pa. (1987), appeal 526 A.2d 369 v. Maree is Finally, Catina brought on in that the matters instant case contrary to the could matters which Catina were redirect examination examination, specifically direct testified to on not have been reasons, For these testimony. and hearsay evidence opinion making not err above judge trial did find that the we decision. in not the trial court erred contends that next

Appellant concern- cross-examine the victim the defense to permitting came into another individual incident where ing alleged an The defense showering. was victim the bathroom while sought point to introduce that testimony show appellant victim had confused the another with individual. scope and manner of are cross-examination judge, within the sound discretion the trial deci whose sions not be will overturned absent abuse of discretion. Jackson, Commonwealth v. 486 A.2d (1984). cross-examination, In determining the extent judge the trial may consider whether matter is collateral and is or testimony likely whether confuse mislead the Hammond, jury. 308 Pa.Super. Brinton, Commonwealth v. 275 Pa.Su per. A.2d 734 Appellant’s argument alleg victim confused him with another individual who entered the edly showering bathroom while she was trial, speculative. At defense counsel cross-examined the concerning the accuracy of her This memory. sufficient to test her credibility on this issue. Speculative contentions, sought introduced, such as to have only would jury absorbing have served distract from determining substance the victim’s her credibility. Appellant’s contention is therefore meritless. above,

For the reasons stated vacate con- appellant’s we viction and remand for a Order new trial. vacated. Juris- relinquished. diction

KELLY, dissenting: Judge, I respectfully dissent. I Although agree with the majori- ty’s fourth, fifth, resolution of appellant’s sixth seventh contentions, I disagree with its resolution first, second, and third I no appeal, contentions. find merit in the affirm judgment would sentence. Issues Agreement

I. I agree that defendant was not entitled to privi- review leged psychiatric records of the victim. The dictates of Richie, Pennsylvania U.S. S.Ct. (1987), regarding L.Ed.2d access to defense such materi- als complied fully. I wholeheartedly were with agree majority’s rejection appellant’s attempt to construe Commonwealth v. Kyle, Pa.Super. appeal denied 518 Pa.

(1987), (1988), 541 A.2d 744 as limiting privilege against the disclosure cases the to when Commonwealth, defendant, well as as the has been denied full access to the file. I note that in such the cases the relationship Commonwealth stands a to victim suffi- analogous attorney/client relationship the ciently war- the patient/client privilege rant continuation of after disclo- by sure information that privilege covered the Com- Moreover, prosecuting attorney. monwealth’s disclosure such to the attorney information Commonwealth may both necessary appropriate questions opening avoid the door to regarding privileged cross-examination matters at trial.

In the past, some defense counsel a practice made smearing sexual assault victims with irrelevant innuendo and character privileged assassination. Unlimited access to or psychiatric counseling only records would not be invasive itself, but also provide would ammunition a renewal of such Today, fortunately, enlightened assaults. a more approach prevails, defense counsel is only provided with in camera court, such information when the upon trial inspection, legitimate deems material relevant issues All remains, be, trial. other information as it should privileged and confidential.

I agree also that did trial court not abuse its discre- tion in permitting Commonwealth to redirect Ms. Jean Fortins regarding conversation had witness appellant, despite the fact that redirect examination was outside the scope of the cross-examination of that witness. Such matters within are the sound of the discretion trial When, here, court. as bad nor prejudice neither faith order presentation indicated the variance evidence, the action of trial upheld. court will be Johnson, See Commonwealth 123, 139-44, 355 Pa.Super. accord 512 A.2d 1251-52 King, I did not its

Finally, that trial court agree regard- in limiting appellant’s discretion cross-examination another entered the ing person allegedly an incident when shower, refusing the victim was in the or bathroom when support panties appellant’s to admit blood stained he raped claim that could have victim because virgin the time that she still after panties established was are raped. she to have Such matters alleged been Com- See to the discretion of the trial court. left sound Grove, 369, monwealth v. 328, 346, Pa.Super. 363 526 A.2d all, if at (1987). vaguely, supported The here evidence urged by appellant presented and a substan- the inferences and collateral wholly risk of confusion distraction tial Hence, no of discretion in the decision I find abuse issues. exclude the evidence. ends the my agreement majority. Here with Disagreement Issues of

II. First, I the respect discovery note that with violation address, it I unnecessary the finds would majority which in that court did not abuse its discretion find trial Appellant has failed the evidence be used. permitting arising discovery from the prejudice demonstrate actual any compelled said to reasonably which could have violation any Nor is their the trial court to exclude the evidence. from conduct on that the violation arose bad faith evidence See of part the Commonwealth. Pickford, 444, 1348, 1350-51 448-51, 536 Pa.Super. A.2d (1987). of evidence of other

I cannot that admission agree in this acts was an abuse discretion by appellant criminal in the together, evidence taken challenged case. case, gave in charges presented plainly context engaged was to a inference that rise reasonable sexu- escalating course gradually a continuous and the victim. exploitive and abusive conduct toward ally inci- regarding I find that the evidence Specifically, must be finds to be inadmissible majority dents which appel- with assertion that together considered victim’s to his lant retired bedroom when she was regularly shower, panel that there allowed removable him to view the from voyeuristically his bedroom closet, caught and that he was in the act of voyeuristically her from that closet on one Rather than viewing occasion. individual, being part isolated incidents formed recognizable pattern, an all too common to intrafamilial Indeed, I sexual cases. would have considered the abuse exclusion such evidence an discretion. See Thek, 390, 9, Pa.Super. Commonwealth v. 402 n. (1988); Allem, A.2d 89 n. 9 Commonwealth v. n. 849 n. 3 see Myers, also Evidence Child Uncharged Misconduct -— Sexual Abuse Utah 479-568 Litigation, L.Rev. disagree Judge suggestion I also Olzewski’s that expert this case was impermissibly general. presented Evidence trial was a established there incident, delay in lengthy reporting the victim omitted it, various details of reported the incident when she there various changes were observable behavioral following In date incident occurred. its proffer respect the expert testimony, the Common- wealth specifically indicated that present- the evidence ed in determining was intended to assist jury of give relevance and weight those facts in their delibera- not, tions. The fact expert herself, that the did link her general expert testimony to the arose presented, evidence express from the trial court’s admonition to her that she not do so. The reason for the trial court’s admonition was its solicitousness for appellant’s having interest or jury expert confused In- testimony. overawed stead, link expert’s between the facts presented and explanation relevant of various normative and responses in child abuse psycho-social dynamics sexual cases was left arguments to the of counsel and the of the deliberations jury.

336 Supreme Court has

Concededly, past, in the recent our regarding potential expert for over- expressed concern function, as well as jury’s reaching usurpation misunderstanding testimony, in cases involv- expert of juror concerning recognized “syn- various ing testimony expert 1 recent Supreme opinion, most how- dromes.” Our Court’s ques- willingness to reconsider ever, apparent indicated v. Commonwealth See “syndrome” testimony. tion of Stonehouse, 41, (plurality). 521 Pa. 555 A.2d 772 concerning research growing body is a wide and of

There misconceptions enter- myths the existence of various victims, offenders, judges, and personnel, medical tained for expert testimony on the need jurors, directly which bear Likewise, there is a wide and in sexual abuse cases.2 normative and growing body regarding of research various responses sexual psycho-social individualistic regard- emperical expert form the basis 291, (1988); Gallagher, v. 547 A.2d 355 1. See Commonwealth 519 Pa. Rounds, 204, (1988); Com- A.2d v. Pa. 542 997 Commonwealth Davis, 77, (1988); v. monwealth 518 Pa. 541 A.2d 315 Seese, 439, (1986); see also Commonwealth 512 Pa. 980, 208, Zamarripa, 2. See survey Perception Whiteside, e.g. Issues A Jurors & Corder of of 37, (1988); Abuse, Am.J.For.Psych. 37-43 Related to Child Sexual Saunders, Study Toward Child Sexual Comparative A Attitudes Professionals, Among System Social Work and Judicial Child Abuse Attributing 83, (1988); Ringwalt Earp, Neglect & 83-90 Abuse & Incest, Neglect Daughter & 12 Child Abuse Responsibility in Father — Rape, 24 J.Sex. 273, (1988); Long, Attitudes toward Larsen & 273-81 299, Common (1988); Borgida, Juror Frazier & 299-304 Research Syndrome Understanding Admissibility Rape Evi- Trauma and the Court, (1988); Cleary, dence in 101-22 12 Law Hum.Behav. Attitudes, Am.J.For.Psych. Perceptions Victim Rape Offenders’ ai, Goodman, et a Child Takes the Stand: Juror's (1988); When 57-65 Testimony, Eyewitness Perceptions Children's 11 Law & Hum.Behav. Health Dewey, Attitudes (1987); Eisenberg, Owens & 27-40 Incest, & Child Sexual Abuse and 11 Child Abuse Professionals Mosher, Imagery Rape: Guided Bond & Neglect 109-16 Willing Myth, Reality, Victim Fantasy, and the J.Sex.Research Molesting: Foss-Goodman, Child Varia- (1986); Waterman & 162-83 Victims, Offenders, and Relating Non- Fault to Attribution bles of 329, Parents, see also (1984); Participating 20 329-49 J.Sex.Research Crewdson, By Warsaw, (1988); Rape, passim Silence I Called It Never (1988); Neglect, and passim Child Abuse Kempe, Betrayed, & Heifer passim

337 ing regarding sexual as generally, well as various “syndromes.”3 there is undoubtedly potential While for usurpation jury’s function and/or misunderstand- ing of “syndrome” testimony, growing body wide and of legal provided scholarship has framework analytical use of such appropriate determining permitting and testi- mony.4 With to the risk regard jurors would misappre- Murnen, e.g. Byrne, Coping 3. See With Unwanted Sexual & Perot Determinants, Activity: Responses, Normative Situational and Individ- Differences, al., 85, ual (1989); 26 J.Sex.Research Seigel, et 85-106 Happens, Resistence to Sexual Assault: Who Resists and What 27, French, Young (1989); J.Am.Pub. Health Childrens’ Re- 27-31 Questions: sponse Directionality, “When” Issues Develop- 60 Child of 225, (1989); Cling, Syndrome: Rape ment Trauma Medical 225-36 Nonconsent, 154, Evidence (1988); Med.Tr.Tech.Q. Rynd, 154-81 of Victims, Psychometric Symptoms Incidence Rape 24 J.Sex.Re- of 155, (1988); R[?]msza, Locke, Berg search Sexual Abuse: 155-61 & Reactions, Somatic and 201, Emotional Neglect 12 Child Abuse & (1988); Mannarino, Psychological Symptoms in Sexu- 201-08 Cohen & Girls, ally 571, Abused Neglect (1988); 12 Child Abuse and 572-77 Going Experience King, to Court: The Runyan, Hunter & Child of Abuse, Politics, Victims Sexual Policy 13 J.Health and of Intrafamilial 705, Cook, (1988); Self-Reports Men’s Law 705-21 Muehlenhard & of 58, (1988); Activity, Unwanted Sexual 24 J.Sex.Research 58-72 Jam- Weber, pole & Sexually An Assessment the Behavior Abused and Non-Sexuatly Dolls, Anatomically Abused Children With Correct al, 187, (1987); Personality et Neglect Tong, Child Abuse and 187-92 Abuse, Development Following 371, Sexual Neglect 11 Child Abuse and Cantwell, Update Vaginal (1987); Inspection on as it Relates to 371-83 Thirteen, Child Abuse in Girls Neglect Under Child Abuse 545, 171, (updating, Neglect 545-46 7 Child Abuse and 171-76 (1983)); Schnell, to Sex Children's Reactions Abuse Investi- Tedesco & gation 267, Litigation, (1987); Child Neglect Abuse and 267-72 al, Bard, Molesters, Descriptive Study Rapists et A and Child 203, Nelson, (1987); Self-Report Behav.Sci. & L. Incest: Find- 203-20 ings 463, Sample, a Non-Clinical 22 J.Sex.Research 463-77 from (1987); Lizotte, Uniqueness Rape: Reporting Assaultive Vio- Police, 169, lence to the Delinquency (1985); 31 Crime & 169-90 Wilmot, Drinking Drift, Drug (1981); Sexual see J. Issues 1-16 Warsaw, Crewdson, supra; supra; Kempe, supra. also Heifer & Serrato, Expert Testimony See 4. in Child Sexual Abuse Prosecutions: A Uses, Spectrum McCord, (1988); Syn- B.U.L.R. 155-92 dromes, Profiles, Approach and Other Mental Exotica: New A Admissibility Psychological Nontraditional Evidence in Criminal Cases, (1987); Roe, Expert Testimony Ore.L.Rev. 19-108 Cases, Child Sexual Abuse 40 U.Miami L.Rev. see 97-113 Donahue, Rape Syndrome, also Another Door Close: Trauma 23 Gonz. Note, (1987-88); Expert Testimony Rape L.Rev. 1-35 Trauma Syndrome: Argument Admissibility, An For Limited 63 Wash.L.Rev. 338 least weight testimony, to such at two give

hend or undue cross-examina- articles have demonstrated effective recent dangers.5 to minimize such techniques tion and limits which precise bounds may be Whatever a defen testimony protect put “syndrome” must on interests, error or of I find no legitimate dant’s expert testimony provided of the discretion in the admission record, especially of the Upon in case. careful review this case, in I find expert well-qualified of the testimony rather helpful, was both relevant testimony v. Commonwealth See prejudicial. than irrelevant Pearsall, v. 87; Thek, Commonwealth supra, 546 A.2d (1987); 106, 108-09 n. 1 327, 1,n. 534 A.2d 331 Pa.Super. 368 146-149, 139, Emge, Commonwealth dissenting; citing Pear 74, (1988) (Brosky, J. 77-79 sall ). state- single specific identify has failed to majority

The erroneous, inflammatory, was by expert ment confusing. Assuming, arguendo, that some misleading, or irrelevant, it has not still expert testimony of the or all prejudiced of trial time arguable waste shown how been func- determining the truth compromised the defendant or may have been testimony of the trial. That irrelevant tion itself, not, grounds trial, certainly admitted at I testimony, Likewise, expert of the after review reversal. Lorenzen, Psychological 1063, (1988); Admissibility The 1063-86 of Child, 42 U.Miami Involving Misuse Testimony the Sexual in Cases Testimony 1033, (1988); Feeny, Psychological Expert L.Rev. 1033-72 Cacciola, 121, (1987); Issues, The 121-77 Credibility Mil.L.Rev. on Intrafamily Abuse Testimony Child Sexual Admissibility Expert Massaro, 175, (1986); Experts, Psychol- Cases, UCLA L.Rev. 175-205 395, (1985); Wal- Credibility, Rape, Minn.L.Rev. 395-470 ogy, lace, 1035-58 Syndrome, U.Fla.L.Rev. Syndrome The Winkelreid, Testimony, N.C.E.R. 1-27 Expert Bases I cf. expert analysis syllogistic structure of (1988) (discussing Note, admissibility). The Unreliabil- determining But see testimony Sexual Abuse Typical Characteristics Expert Testimony on the ity (1985). Victims, 74 Geo.L.J. 429-56 Miller, Dispelling the Expert Witnesses: 5. See Cross-Examination (1988); Gold- 1073-99 Reliability, 42 U.Miami L.Rev. Aura of Impeach- stein, Discrediting Doctors Psychiatrists Hot Seat: on the Bull.Am.Acd.Psych.L. 225-34 Credibility, 16 Their ment of did single presumed pass not find a statement which credibility veracity puta- victim’s or as a individually or tive a class of I member of victims. find that corrobora- expert tive effects of the did this case any finding or way usurped determining fact credibility Thek, jury. functions of the supra; See Commonwealth v. Pearsall, supra; Commonwealth v. J., (Brosky, dissenting). Emge, supra

Conclusion foregoing, Based on the I dissent.

561 A.2d Pennsylvania, Appellee, COMMONWEALTH of LASKARIS, Appellant. John P.

Superior Pennsylvania. Court of

Argued Jan. 1989. Filed 1989. June

Case Details

Case Name: Commonwealth v. Dunkle

Court Name: Supreme Court of Pennsylvania

Date Published: Jun 13, 1989

Citation: 561 A.2d 5

Docket Number: 15

Court Abbreviation: Pa.