*1
situation,
must,
authority.
have
It
in that
a court
tempt,
to issue the order which
had jurisdiction
least have
must at
“In
contempt was based.
and on which the
violated
enters an order without
a court
those instances where
it
power-
to make such an order
legal right
authority or
Roviello, supra, 229
its enforcement.”
attempt
less
jurisdic-
772. Lack of
at
323 A.2d at
Pa.Superior Ct.
order is entered is a
any
matter in which
over the
tion
for
contempt proceeding
viola-
any subsequent
defense
Fuel
Distribut-
Leveto v. National
Gas
tion of that order.
(1976).
“The
Pa.Super.
Corp.,
ing
authority
in excess of the court’s
of an order
disregarding
parties
conduct
contemptuous
rise to
give
does not
439, 323 A.2d
Roviello,
Pa.Super.
supra,
involved.”
Miller,
Pa.Super.
v.
at 772. See Commonwealth
Au-
(1982);
Philadelphia Housing
v.
A.2d 820
Dover
(1983).
Dawn Assistant District Com., phia, appellee. HOFFMAN, CAVANAUGH,
Before OLSZEWSKIand JJ. HOFFMAN, Judge: judgment
This is an from the of sentence for appeal intercourse, involuntary deviate sexual 18 Pa.C.S.A. § (a) (1) court erred in Appellant contends that the trial expert testimony allowing present the Commonwealth (b) “rape syndrome,” excluding testimony by witness, (c) Ragno Dominic appellant’s expert allowing (d) mugshots to take two testify, permitting jury room; (2) the trial court into the deliberation appellant *6 (3) him; right to he was denied the to try jurisdiction lacked trial; (4) in his denying the court erred lower non-jury a (5) his trial counsel was ineffec- corpus; for habeas petition defense, (a) of limitations for to raise a statute failing tive (c) defense, portions to of the object (b) raise a Rule 1100 (d) for move dismissal the complainant’s testimony, the a violation of Interstate against appellant for charges Detainers, call (e) interview or two alibi on Agreement evidence; (6) his witnesses, (f) certain and present and (b) unconstitutional. We (a) excessive and was sentence and, disagree accordingly, affirm. 26, 1977, the morning
In hours November early by a man who had sexually assaulted complainant was posing police a officer. by home entrance her gained a named time, her assailant as man recognized theAt she six earlier to had her house months Gallagher who visited in her base- installing windows her an estimate give occasion, police a he had also claimed be ment. On assault, complainant was Two after officer. weeks containing picture; display appellant’s photographic shown a station, but was police appellant she also confronted instance.1 positively either identify him unable identi- 1982, however, positively complainant February, lineup. a and photographic display a appellant fied both 17, charged 1982 and February Appellant was arrested assault, exposure, involuntary indecent rape, indecent with assault, intercourse, burglary, aggravated sexual deviate public a servant. On assault, simple impersonating for a writ of habeas petition a appellant filed April probable lacked cause police corpus ground on the September denied on This petition arrest him. trial, the 9, 1983, seven-day following March On sexual deviate involuntary guilty found appellant that, appellant although resembled complainant 1. The testified different, attacker, was unable and she were his hair and moustache at 373-75. positive See N.T. March to make identification. Post-verdict motions were filed new coun- intercourse.2 sel; the lower court denied them on May 1984. On that date, appellant was sentenced to a term of same ten-to- He filed twenty years imprisonment. a motion to reconsid- er the sentence which lower court denied on June appeal 1984. This followed.
Appellant’s primary contention is that the trial court Dr. Ann allowing testify concerning erred trial, appellant At did not rape syndrome. contest assault, the occurrence of the but claimed that the him as her incorrectly had identified attacker. Thus, complainant’s identification reliability be- came the central issue at trial.
In order the explain why complainant to was able to assault, although four after the she identify appellant years it, only had been unable to do so two weeks after the Burgess’s introduced Dr. on the Commonwealth rape syndrome, psychological trauma condition observable to her creden- rape testifying victims.3 After extensive Appellant remaining charges 2. because the was not tried for the seven expired. statute of for See 42 Pa.C.S.A. § limitations each had 5552. Burgess Lynda “rape Dr. Dr. term trau- and Holmstrom coined the syndrome” phenomenon they psychological ma to identi- describe the during study rape fied a clinical victims and of conducted 1972 1974, findings Burgess publication A. 1973. Since the of their see & Holmstrom, Holmstrom, (1974); Burgess Rape: L. & Victim Crisis of (1974), Rape Syndrome, AmJ.Psychiatry theory Trauma 981 the rape syndrome widely accepted. of trauma has been See In re: Matter 15, 38-43, Pittsburgh Against Rape, Pa. Action of Massaro, (1981) (Larsen, dissenting); Experts, Psy- 138-40 J. also see chology, Rape: Rape Syndrome Credibility, and Trauma Issue and Implications Expert Testimony, Psychological Its Minn.L.Rev. for (1975) (reviewing development theory) 427-32 [hereinafter Raum, Massaro]; Rape Syndrome cited as as Trauma Circumstantial (1983) Rape, J.Psychiatry L. Evidence & 207 nn. Comment, theory); (collecting Expert Testimony medical literature on Rape Syndrome: Admissibility Use on Trauma and in Crimi- Effective Prosecution, (1984) (same). Rape nal Rape 2-4 33 Am.U.L.Rev. nn. recognized Psychiat- syndrome by trauma is also the American (APA) psychiatric the ric Association as a disorder under broader APA,Diagnostic post-traumatic classification of stress disorders. See Disorders, 236, 308.30, (3d ed. Statistical Manual Mental 309.81 1980). rape trauma symptoms described
tials, Burgess Dr. occurring phases: in two syndrome as basically are broken into two sections: The symptoms right after the which we rape, that occur symptoms symptoms very and these are related phase, call acute example, for the victim can’t symptoms; stress general very upset or and can’t think about or can’t eat is sleep are, normal diffi- like their activities have what anything work, school, care their taking going back culty been, children, pattern their normal has because whatever of the event. impact of the emotional days tend to within a few These subside symptoms weeks, get can into their person at least back so routine. usual reorganiza- we call the phase second what
Then the person must deal this is where now phase, tion specific to the We very rape. that are with symptoms symptoms and these symptoms, rape-related them the call fully months, person really years, take can that they so experience into their integrate psychological to the they prior had go their business can about event. elaborating these After at 5.76.
N.T. March believed that testified she Dr. symptoms, syndrome, suffering from complainant symptoms exhibited and enumerated *8 how explained She also her to that conclusion. that had led could rape syndrome trauma with phobias associated immediately her ability identify attacker a victim’s affect that but, integration assault, period after a after to make be able finally the victim would might years, last state a Burgess At time did Dr. no an identification. truth. telling the complainant was that the personal opinion it when involves testimony admissible Expert train ordinary inferences not within and explanations jury. of the experience and ing, knowledge, intelligence 594, 604, Co., 421 Pa. Philadelphia Transport v. Auerbach Pa.Superior Ct. Russ, 287 163, (1966); Kubit v. 221 A.2d 171
435 (1981). 703, course, 706 28, 35, A.2d Of such testimony 429 is, relevant, that it tend must to make a fact at must also be less see Martin probable, more or v. Soblotney, issue 1022, (1983), 418, 422, and 466 A.2d it should not Pa. confuse, mislead, or prejudice jury. See Lewis v. Mel- 509, 515, 941, (1978). lon, Ct. 393 A.2d Pa.Superior notes, expert testimony the admission of is a As the dissent court, discretion of the trial and matter the sound its within a decision will not be reversed absent clear abuse of 487, 491, 433 Pa. 252 A.2d Haigh, discretion. Laubach (1969); Russ, supra Pa.Superior Kubit v. Ct. at 706. at
Here, Burgess’s that Dr. was testimony we believe and, if to the central issue of identification believed relevant explain useful to jury, psychological phenome was knowledge experience average non beyond We also find no evidence that this con juror. testimony fused, misled, or therefore con prejudiced jury. We in clude that the lower court did not abuse its discretion Dr. admitting Burgess’s testimony.4 dissent, Dr. conceding Burgess’s while testimo- identification, dissenting relevant to the issue of see ny was finds it It would op. nevertheless inadmissible. base finding Dr. upon grounds: two was qualified present expert testimony that the from and that Dr. Bur- syndrome suffered argues Burgess’s testimony Appellant should have been also that Dr. (2) (1) discovery her name was not disclosed in excluded because based, testimony part, upon police report and the notes hearing. preliminary found of that, from the The lower court failing had to disclose Dr. even if the Commonwealth erred trial, Burgess’s appellant prejudiced was not name in advance countervailing preparation defense and did avail himself of of his and, agree expert testimony. Opinion See Lower Court at 12-13. We therefore, testimony. allowing abuse of discretion in find no any Appellant’s argument is waived as it was not raised in second Cargo, post-verdict his See Commonwealth v. 498 Pa. 8-9 motions. 7, 16, (1982) (issue where & n. 640-41 & n. waived A.2d motions; post-verdict inclusion of issue in brief sub- not raised in support post-verdict permissible substi- mitted in motions is not a motion). raising by post-verdict tute for the issue *9 436 complain- of the credibility bolstered
gess’s testimony invading province to determine ant, thereby agree grounds. with either of these credibility. We cannot that, Burgess’s find first Dr. dissent would while The testify phenomenon her to about the expertise qualified qualified testify she not to syndrome, was as rape trauma from suffering that the was her conclusion is properly do not believe that issue We syndrome. Although objected to appellant arguably our Court. before trial, 4, see N.T. March Burgess’s at qualifications Dr. 5.75,5 preserve appellate this issue for review he failed at motions, 15, filed March it in his by raising post-verdict 11, motions, filed October 1983; post-verdict his amended motions, filed March his amended 1983; post-verdict further motions 1984; post-verdict in of the numerous 1, any or Commonwealth v. Sea by appellant. se See pro filed (issues (1978) not christ, 387 A.2d 478 Pa. on He appeal). in are waived motions post-verdict raised questions in his statement of to raise the issue also failed Court, Pa.R.A.P. in to this see his brief involved contained not set considered which is (ordinarily point no will be involved), or of questions statement forth brief, v. of that see Commonwealth argument section (1984) 71, 76, Ct. Balch, Pa.Superior waived). would, therefore, I (issues argued not brief are Wiegand Wiegand, See also find this issue waived. Superior 482, 485, (1975) (ordinarily, A.2d Pa. sponte). not raise issue sua may Court waived, however, we if issue Even were testify. qualified that Dr. conclude Burgess concern- of Dr. cross-examination the conclusion his At said, object,” appellant's "I would ing qualifications, counsel her objection. 1983 at stating any N.T. March reason for his without court, appellant’s with the prior side bar conference 5.75. In a being testimony Burgess’s objected of Dr. to the whole counsel had object jury. invading province did not He irrelevant and appellant's told The trial court qualifications. See id. 5.62. objections preserved, informed him but would be counsel that those any grounds must be objections other brought Id. at 5.64. attention. to the court’s *10 dissent find that would Dr. Burgess was not qualified to testify because she holds a doctorate in nursing rather than a degree. medical dissenting See slip op. at 9-10. This has previously held, however, Court expert that an need not have a medical in degree order to testify diagnosis of psychological condition. Glover, Kravinsky Pa.Superior Ct. (1979), A.2d 1349 and Simmons v. Mullen, 231 Pa.Superior Ct. (1974), A.2d 892 we held that psychologists, who hold doctoral rather than medi- cal degrees, were qualified to testify as to their diagnoses of emotional disturbances.
For the purpose of comparison, we note that in Kravin- sky Court concluded that a psychologist with the fol- lowing credentials qualified to testify about his diagno- sis of psychological condition: a Ph.D. in psychology; a one-year in internship clinical psychology; one year post- doctoral in training therapy; behavior three years of teach- ing undergraduate psychology at the State University York, Buffalo; New years private five practice; treat- ment of twenty twenty-five patients for the psychological issue; condition at and publication of several articles on Here, that condition. Burgess’s Dr. were as credentials relevant and supportive of her ability diagnose rape trauma syndrome as those of the in psychologist Kravinsky diagnose psychological condition at issue in that case. Burgess Dr. received a degree master’s in psychiatric nurs- ing and a Ph.D. in nursing science and is a certified special- ist in mental health nursing. She received three years clinical training at the Massachusetts Mental Health Center and did a clinical internship the Massachusetts Treatment taught Center. She has courses psychiatric nursing and research at Boston College since 1966and at Boston Univer- sity since 1968 and has been a full professor at both institutions. Chairperson She was of the Graduate Pro- gram Nursing at Boston College and both Director of Nursing Research and Interim Dean at Boston University School of Nursing. She has had a private clinical practice since specializing in the treatment of persons experi- did In 1972 and Dr.
encing life crises. rape victims that resulted involving research clinical rape theory syndrome. trauma development of time, has three books and over she written Since syndrome, has lectured twenty articles on Advisory chaired the National Board and has subject, reports to the directly Center which Rape the National Department of Health and States Secretary United 5.30-.36, N.T. March 1983 at Services. See Human 5.66-75. *11 credentials, her and particularly practice clinical
These
victims, gave Dr.
rape
Burgess
work and research with
her
complainant
that
opinion
adequate
an
basis
rape
of
trauma
id.
symptoms
syndrome. See
exhibited
that must be accorded
5.82,
light
of the discretion
5.89.
qualified
that Dr.
finding
the trial court’s
facts, formalis
did,
under these
testify
rejecting,
as she
and
a
psychologist,
a
and
psychiatrist,
between a
tic distinctions
training, expertise,
nurse,
Burgess’s
that Dr.
we conclude
on both
qualified
testify
her to
experience
and clinical
and her conclusions
rape
syndrome
of
trauma
general topic
v.
complainant.
Commonwealth
regard to the
with
Cf.
368,
(1985)
6. The dissent also that states “Dr. did not to be an 460, dissenting op. identify,” and expert ability at a to victim’s growing admitting expert testimony refers to the trend towards on the eyewitness reliability of identifications. See id. at 460 n. 5. While it expert general is purport true that Dr. did not to be an on the Dr. ground rejecting Burgess’s The dissent’s second allegedly complainant’s it bolsters testimony is that province the exclusive of the invading credibility, thereby credibility of witnesses. See dissent jury to determine theory excluding testimo expert behind op. at 753. ing may is that it encour credibility witness’s that bolsters a ny expert’s of rely upon to evaluation age jury Com See making its own.7 rather than veracity witness’s O’Searo, 224, 229, 352 v. 466 Pa. A.2d monwealth (1976).8 identifications, training, reliability eyewitness
subject research, of the testify symptoms qualify expertise her to on how did ability syndrome to could affect the a victim rape trauma identify her attacker. however, Baldwin, supra, Court noted v. 7. In Commonwealth province jury” testimony unless the expert "invade the cannot binding upon expert’s opinion is it. 348 jury instructed that the Massaro, (citing supra at 257 note Pa.Superior Ct. at 443). points out that the traditional also at The Massaro article testimony expert jurors unduly to deferential assumption that will be Massaro, supra empirical note See evidence. has been belied 444. testimony Burgess's was inad- support of its conclusion that Dr. In credibility, complainant’s the dissent because it bolstered the missible Battle, case, O’Searo, analogous Commonwealth and an cites O’Searo, Supreme (1981). In our A.2d 496 Pa.Superior Ct. testimony by psychologist who expert a upheld Court the exclusion charged had not with murder testify to that a defendant intended accidently. discharged gun his the victim but had intended harm testimony purpose was to buttress of such that the sole The Court held thereby province credibility it invaded the defendant’s credibility. A.2d 466 Pa. at Id. determine a witness’s at 32. testimony to bolster is inadmissible holding psychological however, distinguished expert testimo- credibility, the Court witness’s given stimulus. person’s under ny designed explain a behavior expert testimo- applies to the also We believe that this distinction Id. correctly argues ny presented While the dissent in the instant case. merely to bolster testimony is not admissible expert psychological Burgess’s Dr. credibility, do believe that we a witness’s Instead, explain that object. it was offered with that was offered after the identify appellant two weeks complainant’s failure *13 We given sexual assault. stimulus: the reaction to a attack was case, Battle, O’Searo, analogous do not and the therefore find that testimony. preclude Burgess’s Dr.
441 contention that rape syndrome The trauma evidence the credibility complainant of a has bolsters been raised in every instance where almost such evidence has been intro However, most jurisdictions duced. rejected have that con tention and found that expert on testimony rape trauma is syndrome admissible certain circumstances because it aids the a understanding subject beyond the knowl edge experience average of an lay person. Because the imparted by expert testimony information such is beyond average juror’s knowledge, its admission will not invade province. the jury’s dispute among the states that have considered the
admissibility
testimony
on
expert
rape trauma syndrome
has
upon
centered
its
or
reliability
proving
corroborating
rape
that a
or
occurred
the victim did not consent
rather than the likelihood that
it will
credibility.
bolster
Five states have ruled that expert testimony on
trau-
rape
ma syndrome
prove
is admissible to
lack of
or
consent
testimony
rape
corroborate
that a
occurred. See State v.
(1985)
145 Ariz.
1290
Huey,
(rape
P.2d
trauma
syndrome evidence on the
issue
consent held admissible
questions
occurred);
but
its
a
prove
rape
court
use to
Marks,
(court
(1982)
State v.
231 Kan.
P.2d
holds rape
syndrome
trauma
on the
testimony
issue
detectable,
consent
provides
admissible
finds that
it
Liddell,
assault);
reliable evidence of forceable
State v.
(Mont.1984)
P.2d 918
(rape trauma
on
syndrome evidence
admissible);
the issue
held
consent
State v.
Stafford,
N.C.App.
(1985)
exhibits characteristics consistent with those from reaction, so as the rape, long traumatic stress such term syndrome” is not used and no “rape opinion
442 complainant’s concerning veracity. the See State
expressed (Mo.1984); Shaw, v. 694 S.W.2d 235 State 663 Taylor, v. Four other states have exclud- (Mo.App.1985). S.W.2d syndrome ground on that it trauma the rape ed evidence These rape or lack of consent. reliably prove does not theory rape development focus on the cases therapeutic tool rather than a fact- aas syndrome trauma to similarity post-trau- other apparent and its finding device Bledsoe, v. 36 Cal.3d People stress disorders. See matic (1984) (expert P.2d 291 testimo- Cal.Rptr. that a prove to syndrome inadmissible rape on trauma ny State, Md.App. occurred); rape Allewalt v. to inadmissible (1985) evidence (rape syndrome trauma Pullins, 145 consent); v. People or lack of rape
prove
(1985)
syn-
trauma
(rape
378 N.W.2d
Mich.App.
v.
rape);
to
State
Salda-
prove
inadmissible
drome evidence
(Minn.1982) (rape
syndrome
trauma
na, 324 N.W.2d
consent).
lack of
prove
to
inadmissible
evidence
admissibility of
the
yet
has considered
No other state
syndrome
explain
rape
trauma
expert testimony
It
identify
assailant.
inability
initial
complainant’s
however,
states,
explain
in other
has
admitted
been
may
that
be
behavior
complainant’s
of a
similar elements
278, 415
120 N.H.
Staples,
In
v.
jury.
to a
State
confusing
unable to remember
(1980),
was
the
A.2d 320
vividly recalled
rape,
the
but
preceding
clearly the events
that the vic-
contended
The defendant
assault.
the actual
events
she
because
preceding
the
could not remember
tim
rape.
In order
charge
drunk and had fabricated
was
the com-
drinking had caused
allegation
to rebut the
expert
presented
prosecution
loss,, the
memory
plainant’s
among
loss
unusual
memory
was
that such
testimony
testimony
that this
objected
The defendant
rape victims.
credi-
complainant’s
it
bolstered
improper because
was
testimony
aided
the court found
but
bility,
memory loss
partial
understanding
complainant’s
given as
opinion was
expert
as no
long
so
was admissible
Reid, 123 Misc.2d
veracity.
People
complainant’s
1084,
Similarly,
appellant
in
instant
based his claim
that he was not the
had
complainant
man who
attacked the
upon
inability
her
to
identify him
weeks after
positively
two
the attack. The
presented
Burgess’s
Dr.
Commonwealth
testimony
rape
syndrome
that
symptoms
trauma
might
prevent
rape
rapist
victim from identifying the
for
an extended
of time in order to
period
appellant’s
rebut
Pennsylvania
9. We
generally
note that
and several other
have
states
accepted expert testimony
explain
to
the conduct of children who are
Baldwin, supra
victims of
abuse.
sexual
See Commonwealth v.
348
374-375,
cases);
Pa.Superior
(collecting
at
Ct. at
502 A.2d
256
see also
State,
People
(Colo.App.1984);
Ashley,
v.
had testified In already revenge. about desire Id. response appellant’s this ruling, counsel decided not to present Dr. any testimony by Accordingly, Berman. we do not find that the trial court abused discretion in limiting its Dr. Berman’s testimony. supra See v. Haigh, Laubach (admission of expert testimony sound within discretion court). trial training, experience their the education and as well as the reasons opinions and the facts on which based. their are testimony. you accept You don’t have their You test it like do any testimony. object other witness’ Your is to determine the truth. presented you truth-finding Those witnesses are an aid in the process. S.44-.45,
N.T. March 1983 at 5.49-.51. Fisher, (1980), People aff’d, A.D.2d N.Y.S.2d Cf. (1981). Fisher, 53 N.Y.2d 440 N.Y.S.2d N.E.2d *17 identify immediately person not woman did who killed fiance. Only police passed after able some time had was she to tell the that boyfriend. prosecution the killer was her introduced former The expert testimony identify immediately that the woman's failure to psychological phenomenon boyfriend former was consistent with the “repression” "blockage” emotionally painful or of an event. The testimony helpful jury court this it found to the and held that did not usurp jury’s determining credibility function of of the woman’s conclusion, testimony. reaching this court also noted that the expert he had not testified that believed woman. court in trial erred contends next Appellant argues He first that testify. allowing Ragno Dominic excluded been because should have Ragno’s testimony pretrial his name in dis- did not disclose Commonwealth counsel did not appellant’s is This issue waived covery. basis, on this N.T. March Ragno’s testimony see object Ewiak, v. 335 Pa. also Ebner at 4.102-.03. See (1984) (issue not 372, 376, 484 A.2d Superior Ct. for ground when different review appellate preserved trial). presented was objection Ragno’s should argues also Appellant an illegally it was the fruit of excluded because have been alleges He that the Commonwealth statement. obtained made to appellant police from a statement Ragno learned inadmissible 1982 arrest that was February his after Dav rule. v. See Commonwealth Davenport under (1977)(where accused is A.2d 301 471 Pa. enport, arrest, any statement six hours of arraigned within not is inadmissi arraignment arrest and before after obtained flawed, however, factually ble). argument Appellant’s Ragno in he referred which because the statement December, 1977 17, 1982, but February made on find We therefore interview. during a non-custodial meritless. contention trial court erred next that the contends
Appellant jury into the of him mugshots two allowing the to take jury had pictures been deliberating. The room it was while N.T. March See objection. without evidence admitted into in the consider jury may that a 7,1983 at 5.30. exhibits discretion, Pa.R. see the trial court’s are within room jury discretion no of that can find abuse and we Crim.P. Pa. Kingsley, See Commonwealth the instant case. (1978)(no error to allow 560, 578, A.2d received it was where during deliberations evidence have objection). without lacked that the court below next contends
Appellant he filed before trial alleges He him. try jurisdiction *18 appeal thereby an to this Court divesting the lower court of 1701(a) jurisdiction. See Pa.R.A.P. (“Except as otherwise rules, prescribed by ..., these after an appeal is taken may longer trial court ... no proceed further in mat- ter.”). We searched the have record and conclude that no notice of filed appeal was before appellant’s trial com- menced.13 This contention is therefore meritless.
Appellant contends next that he was denied his a right jury waive trial. findWe this contention friv olous there is no right absolute to a non-jury trial. See 1101; Pa.R.Crim.P. see also Merrick, Commonwealth v. Pa.Superior 495, 499, (“the Ct. A.2d 3 (1985) decision to a grant waiver trial is one committed the sound court”). discretion of trial In the instant case, the trial court appellant’s found that request for a trial gambit bench “was a designed to have the case trans court,” ferred to another see Opinion Lower Court at judge because trial would been compelled have to recuse having himself after heard damaging evidence against ap pellant the pre-trial motions. We that find the lower court’s desire to avoid “judge-shopping” ploy was an adequate reason for appellant’s denying request for a non- and, jury trial hold that accordingly, there was no abuse discretion.
Appellant also contends that the lower court erred in denying his petition corpus. for habeas In that petition, alleged he the police lacked probable cause to arrest him because the complainant’s identification of him was invalid. is This contention illegal meritless because an arrest, conviction, after will not furnish grounds for dis- Quartersessions 13. did copies file contain two of a notice appeal, but appeal actually we must conclude that no was with filed copies stamped i Court because the were not as received and the appeal lower court never was notified that an had been taken. See May Furthermore, N.T. copies 21. indicated appeal being taken from order the lower dated court February Id. at 21-23. No lower court order was entered taken, day appeal, quashed. so the if would have been See 301(a) (no appealable Pa.R.A.P. lower order of court shall be it until docket). entered corpus. ex charge on a habeas See Commonwealth writ 483, 487, 422 Pa. Loveday Myers, rel. Burke, 378 Pa. ex rel. Garrison v.
(1966); Commonwealth *19 587, (1954); 344, 349, A.2d 589 see also Commonwealth 106 Banmiller, 198, 19 D. v. & C.2d 200 Romano ex rel. (“The of habeas a County) corpus writ is not (Ct.C.P.Phila. or appeal for a new trial an or for a for motion substitute 606, (1959). 156 error.”), 397 Pa. A.2d 825 aff'd, writ contends that his counsel was next Appellant a claim of examining for several reasons. ineffective ineffectiveness, inquire must first whether appellant’s we underlying merit. if the claim arguable Only has claim ineffectiveness has merit allegation arguable appellant’s of our test for inef components address other will we by chosen counsel had strategy whether the fectiveness: designed appellant’s to effectuate reasonable basis some appel prejudiced and whether counsel’s actions so interests him a trial. v. deny lant as to fair See Commonwealth 324, 327-331, Pierce, 498 A.2d Pa.Superior Ct. 345 (en banc), The burden of (1985) granted. allocatur 425-26 upon rests appellant. ineffectiveness proving counsel’s Pa.Superior Ct. v. Murray, Commonwealth (1985). is that argument first ineffectiveness Appellant’s a statute of limitations his trial counsel should have raised inter involuntary to the deviate sexual charge defense argument upon this the statute Appellant course. bases 211, which, alleges, he contained 19 P.S. limitations § for his offense.14 statute of limitations two-year contained a part, provides, pertinent P.S. follows: 14. 19 § brought exhibited for which shall hereafter be or All indictments misdemeanor, manslaughter voluntary any or murder and crime brought and limita- excepted, or exhibited within the time shall be after; say, expressed, all indict- and not tion hereafter treason, arson, sodomy, buggery, prosecutions rob- for ments and uttering counterfeiting, forgery,, publish- bery, burglary, perjury, or note, draft, any knowing ing the same to be counter- or bank check years brought forged, within five next or be or exhibited feited shall committed; and all indictments have been after offense shall excepted hereto- prosecutions named or for other felonies not statute, however, was repealed by implication That in 1973 Code, 108. See Crimes Pa.C.S.A. § § Milano, Commonwealth 300 Pa.Superior Ct. Thus, (1982).
A.2d 325 statute of limitations in effect crime, 26, 1977, on the date of the November provided a period bring prosecution in which to five-year for involun tary 108(b)(1).15 sexual intercourse. deviate Pa.C.S.A. § Accordingly, we find counsel was not ineffective for raise defense.16 failing to argues
Appellant next that his counsel was ineffec failing tive for to raise claim that trial his was barred under Pa.R.Crim.P. 1100. He concedes that the Rule 1100 run-date his case was February 1983 and that pre-trial date, see Brief for motions were heard *20 Appellant alleges at but that Rule 1100 was violated trial because actual did not begin until the following day. The comment to Rule 1100 states:
For purpose rule, of this a trial commences when the trial judge determines that the parties present are and directs them to proceed hearing to the ... of motions any which had been reserved for time of trial.... Kluska,
See also Commonwealth v. Pa. (1979) of (hearing motions for reserved time of trial constitutes commencement of trial for purposes Rule section, misdemeanors, fore in this perjury excepted, for all brought shall years be or exhibited within two next after such committed____ felony or misdemeanor shall been have Appellant argues involuntary that because the crime deviate sexual among having intercourse is five-year not crimes listed as a statute limitations, only two-year period. it had a limitations Further- more, noted, sodomy as the lower court the crime have did a limitations,
five-year statute of involuntary and “[t]he crime of deviate by sexual sodomy intercourse is but the crime of another name.” Opinion Lower Court at 5. 15. repealed presently Section 108 has been is at codified § Pa.C.S.A. 5552. 16. We further challenge charges note that counsel did all of the against appellant on the basis of the statutes of limitations. See N.T. 23-24; March April N.T. 1984 at 5. violation, no Rule 1100 we will
1100). was Because there failing for to raise this claim.17 ineffective find counsel his counsel ineffec argues also was Appellant the complainant’s emotional object failing for tive While counsel testimony.18 appellant’s her during outbursts the complainant’s testimony, to some of objected have could he he did not because “felt he testified [her eyes her look less in the make credible would outbursts] 27, 1984 at 35. We find that this N.T. March jury.” reasonably appellant’s to effectuate designed was strategy and, accordingly, will not hold counsel ineffective interests ground. on counsel ineffec argues next that his
Appellant charges against for dismissal of the failing to move tive on Detain Agreement of the Interstate him for a violation He cor- (the 42 Pa.C.S.A. 9101-9108. Agreement), ers §§ right speedy separate that his to a trial was Appellant claim raises years four after the crime had been he was tried over violated because appellant it because failed include This issue is waived committed. 2116(a). Even questions See Pa.R.A.P. statement of involved. in his waived, amend- it meritless because the sixth issue were not if the implicated a crime is right speedy when to a trial is not ment committed, liberty is restrained a formal when citizen’s but Arnold, information, indictment, See Commonwealth v. or arrest. 345, 360, (1984). A.2d Pa.Superior Ct. during composure several occasions her 18. lost object- testimony. argues should have Appellant that his counsel following: ed statements such any testifying]. get [from don’t want time out I want to him now. I get I him. want to was There he caught, Tony Gallagher. getting caught. *21 is, he's [******] the one. He wanted * He wanted to * * * get to caught. get * caught. * And there He knew he he is, cops him. I sneaky, The weren’t on to too devious. He was too him, they know him— knew didn’t N.T. March know him. But me, lying, and I am not [I]t He just that is the one. He knows sets me cops he got away didn’t know it because crazy [******] lying. to see him with he is the one. it, 375, because walking, 389. they he is to know that he don’t know him the And I know he’s the one. devious, sneaky and did way I to Agreement states rectly requires the dismissal of outstanding charges against a prisoner prisoner when the removed from a state institution for prosecution of those charges state and another returned to the institution having without been tried on those charges. See 42 Pa.C. IV(e).19 however, Agreement, S.A. art. governs § transfers of only prisoners between Pennsylvania and other states, the federal government, its posses- territories and sions, Rico, Puerto and the District of id., Columbia. See 11(a). Here, appellant art. only was transferred from one Pennsylvania facility another.20 Accordingly, we find argument that this is meritless and counsel was not ineffec- failing tive for to raise it.
Appellant also argues that his counsel was ineffec failing tive for or interview call two alibi witnesses. We
have
reviewed
record below and find that the lower
court correctly concluded that appellant
prove
failed to
given
he had
counsel the names or addresses of the two
27-28;
witnesses. See Lower Court Opinion at
March
N.T.
trial,
1984 at 56-62. At
of appellant’s
the start
counsel
placed on the record the names and addresses of all the
appellant
witnesses
had identified for him. Appellant then
given
supplement
opportunity
that list and failed
to add the names of the two witnesses whose absence he
now attributes
counsel’s ineffectiveness. See N.T.
March
circumstances,
1983 at 147-49. Under these
we
cannot find counsel ineffective. See Commonwealth v.
Ford,
586, 592,
1040, 1043(1980)(failure
491 Pa.
IV(e)
Agreement provides
19. Article
as follows:
indictment,
any
If trial is
complaint
not had on
information or
contemplated hereby prior
prisoner’s being
to the
returned to the
hereof,
original
indictment,
V(e)
place
imprisonment pursuant
to Article
such
complaint
any
information or
shall
be of
further
effect,
force
dismissing
or
and the court shall enter an order
prejudice.
same with
Appellant
upon
(3d
Thompson,
relies
United States v.
Appellant also these records. He claims that telephone company troduced complainant’s testimo contradicted records would have his failed to meet burden appellant hold that has ny. We ground on this because he ineffectiveness counsel’s proving the documents would have contradicted alleged has not how at Appellant Brief for testimony, see complainant’s N.T. March them into evidence.21 See or introduced 1984 at 17. next that his sentence was contends
Appellant background.22 personal of his When light excessive limits, the court has com- statutory sentence is within telephone concerning records produce several letters Appellant did 21. motions, 29,May during argument 52, post-verdict his see N.T. 1984 at introduced, letters, they if testimony. had been did not these even but complainant’s contradict the Court, appellant that the sentence was brief this claims his only prior misdemeanor conviction. because he had one excessive true, may appellant Appellant be See for at 31. While claim Brief convictions, including prior felony a conviction also at four had least 5.135-37; May 1984 at rape. See N.T. N.T. March 70-71. *23 Code, plied Sentencing with the 9701-9781, Pa.C.S.A. §§ sentencing we will not reverse the court’s decision absent a manifest Brown, abuse discretion. Commonwealth v. 311, 323, (1983). 460 A.2d Pa.Superior Ct. Here, appellant’s sentence within statutory limits, was the and, record, reviewing after the we find that the lower court did appellant’s personal background. consider See May N.T. 1984 at 61-71. We therefore hold that its sentence did not a constitute manifest abuse of discretion.
Appellant contends that his also sentence was unconstitu- pursuant tional because he was not sentenced to the sen- tencing guidelines, 303.1-.9, 204 Pa.Code reprinted §§ fol- lowing argument Pa.C.S.A. 9721. This is waived § appellant failed to include it in because his statement of questions 2116(a) involved. See Pa.R.A.P. no (“ordinarily point will be considered which is not set forth in the involved”).23 statement questions Having appellant’s found all of contentions to be without merit, affirm judgment we of sentence.
Affirmed.
CAVANAUGH,J., dissenting opinion. files a CAVANAUGH,Judge, dissenting: I dissent respectfully grant and would a new trial. The evidence presented at trial evinced the following facts. At 2:20 approximately A.M. on November 1977 a man gained entrance to the house of the by posing victim as a Philadelphia police inside, officer. imposter Once grabbed the complainant and threw her against the wall. proceeded He to choke her and said “shut I kill up or will you.” The assailant pushed the victim into the dining room and ordered her to disrobe. He then forced her to kneel left, and oral commit sex. Before he gathered assailant clothing victim’s and told her that he taking was them waived, 23. sentencing Even if this issue were not it is meritless. The 22, 1982, guidelines apply only July to crimes committed after see 60, 66, Royer, Pa.Superior Commonwealth (1984), and the crime in this case was committed willing participant, that she was a police to the prove The victim was caught. subsequently that he was event gave police Hospital detailed at Jefferson treated criminal, his including name.1 description 10, 1977, appellant voluntarily went December On Detective Division where the to the Northeast police with identification. positive to make a Years failed appellant and identified later, happened upon victim appellant her attacker. police him 17, 1982, February charges on arrested subsequently assault, exposure, involuntary devi- indecent rape, indecent assault, intercourse, simple burglary, aggravated ate sexual March public servant.2 On assault, impersonating *24 of deviate guilty involuntary found appellant 1983 the by verdict motions were filed new intercourse.3 Post sexual on and, hearing, May a were denied following counsel imprison- to a term of was then sentenced Appellant 1984. years any to run consecutive twenty ment for ten to serving. he then sentence was allowing in the trial court erred Appellant asserts that Burgess. Dr. Ann of present prosecution witness, an trial, expert called as At Commonwealth training that her has Burgess Ann stated Burgess. W. She nursing. in registered psychiatric as a nurse been nursing degree and a Degree psychiatric holds a Masters not medical Nursing The is Doctor of Science. witness of Dr. then, Burgess and, psychiatrist. of course not a doctor police posing as a officer. himself while 1. The assailant had identified Also, person recognized as who came to her had him the the victim fixing May, give her windows. her an estimate house in charge involuntary only deviate sexual Appellant tried on the of had run on the other the statute of limitations intercourse because seven offenses. year for limitations the crimes provided a five statute of 3. Section crimes, sodomy while establish- specifically enumerated and other specifically ing year period all felonies not other a two limitations involuntary Appellant deviate sexual intercourse contends that listed. However, aptly category. as the trial court latter falls within the noted, involuntary is but the deviate sexual intercourse crime "[t]he (1973) by Compare sodomy § 18 P.S. crime of another name." (1983). § with 18 Pa.C.S.A. 3101 as the concerning phenomenon “rape known testified rape syndrome described trauma She syndrome.” trauma colleague, that she and her symptoms as a set or cluster Holmstrohm, rape (Burgess victims. and observed Linda study, Rape Syn- Trauma Holmstrohm co-authored (1974) Psychiatry 981 which accredited drome, 131 Am. J. resulting to describe the crises being study the first with “rape trauma Dr. syndrome”). from a sexual attack research, teaching, lectur- as to extensive testified experience dealing with the writing psy- forensic ing, of rape. in victims She stated that found chological results published Ameri- Diagnostic Disorders the Manual of recognizes rape syn- Association Psychiatric can stress re- post-traumatic under its classification drome it done since 1972. The and that has so sponse disorders (RTS) are stated be rape symptoms trauma syndrome right occur after the those which present phases: two (the generally and which subside within phase) acute (the phase reorganization few second days weeks until the years for months or phase), may which subsist her psychologi- into integrate can fully symptoms victim life as fully daily cal so as to resume before experience told about features the stress rape. jury was intru- including “significant magnitude”, stress of disorder other phobias, hyperaltertness and imagery, numbing, sive *25 desription of the wit- Following this RTS symptomology. had examined the victim in this case ness stated that she the preliminary week and had reviewed previously about a relating the testimony police reports notes of and hearing that it was her conclu- case. Over stated objection, rape syn- from trauma suffering the sion that victim was phenomenon of this aspects drome and related how certain history. upon post-rape bore the victim’s hearing the the outside initially The court heard witness At that time much testimony. of her jury prior the qualifications to her of the to the witness related inquiry made concerning was explanation Inquiry and an of RTS. made Objection the was identifying victims’ assailant. 456 preju- of the witness was irrelevant and testimony the to create for the sympathy it tend in that would
dicial was objected testimony it was further victim: the identification upon proce- as it bore insofar improper dures. if to focus on the to see
Indeed,
necessary
it is
and,
so,
if
it
in the case
whether
issue
any
relevant to
it was
of the inherent reliabili-
Regardless
admitted.
properly
was
is in fact not
evidence,
argued that it
it can be
ty of
had
no issue that the victim
been
Here, there was
relevant.
that he
simply
defendant was
contention
raped—the
defense,
of his
defend-
support
perpetrator.
not the
case, that the victim had failed
in his
able to show
ant was
in
shown to the victim
among photographs
him
identify
detectives. On
1977
two
her home on December
to a one-on-one confrontation
date,
agreed
Gallagher
same
no
again
there was
at a
station
police
the victim
with
rape
after the
two weeks
just
This was
identification.
Appellant persisted
on November
which occurred
1982
February
finally
attacker and
of her
pursuit
photos presented by
group
from a
an identification
made
Thus
identification.
lineup
made a
and later
police
in the case—the victim’s
issue
emerged
basic
clearly
rapist.
Gallagher
identification
the admissibili-
have dealt with
jurisdictions
A
number
commonly,
Most
testimony.
syndrome
ty
on the
prosecution
support
is offered to
the evidence
(If
symptomology
exhibits
of consent.
the victim
issue
was,
there
raped
in fact
that she was
likely
of RTS it is
on this
are divided
therefore,
consent). The jurisdictions
no
v.
held admissible
State
has been
issue.
evidence
(1984) and
v.
State
McQuillen,
Kan.
689 P.2d
However,
weight of
(Mont.1984).
Liddell,
Q. what about that to us? explain describe and ing you the face? Could the assail- to see right. opportunity She had an A. The— mind, will, so, if in her face, and, imprinted, you ant’s coming back. keeps That and that is a flashback. assault, how this she described fact, right after the someone, she saw thinking suddenly where happen, would had, feeling that also reaction that she a common again new, still so assault was because the he is everywhere, fresh. still so phobia? integrated, that
Q. How is that advances, time as their integrated A. That becomes functioning cognative, some perspective, some [sic] *27 some, if over, you there can be will—that’s can come words, consoring, other concede the many —some facial characteristics and “That say, some person—see something There is different” kind of doesn’t match. and, so, phenomena comes in so that that whole thing, everybody from is the assailant to they over time move characteristic, a certain that have maybe only people into focus of what the they get person then it subsides is. process. a gradual
It’s period telling period time time for Q. five-year Is a integration process? this gradual four to six study years A. of our victims showed Our twenty-five percent very later had still that were still we others, course, who had recov- We had symptomatic. ered, very still have a certain areas years you but five —in area, in the be- specific symptoms phobic can have you phobia. or less the definitions of a It cause that’s more area of particular symptoms. wards off into a And, account for her flood of emotions Q. would that still the material? day about in the research we have happen A. Yes. What seems to is traumatic events are what is called looking been mind, certain, if you in the and when a actively stored i.e., someone, whatever, will, or seeing is pressed: button flooding come everything just all emotion and can of that back, of a flashback out of the phenomenon and that’s past. back, there has been some
An event comes because in, person and it triggering in the environment that kind of it all just brings back. back,
Q. bring phase it all does it also By bringing thing that the kind of original back of the assailant? Is right your eyes? before would flash back Oh, A. yes. (March 1983). regarding The
N.T. at 5.85-5.86 evidence to the issue of was, therefore, relevant facially RTS at least fact, however, inquiry does not end the This identification. admissibility. its as to credentials of Dr. impressive Burgess, heard jury she had done some of the basic the fact that
including
studies
which formed
and had conducted
research
syn-
recognition
principles
basis
lay persons
of confidence which
the aura
drome. Given
unrealistic not to
expertise, it would be
naturally attach to
upon
Burgess’
seize
Dr.
expla-
would
conclude that
issue of identification which
to solve the critical
nations
*28
or not
then is whether
the court
question
faced it. The
testimony
from Dr.
as
permitting expert
in
erred
I
on the issue of identification.
conclude
an aid to the jury
admitted on this issue and
improperly
the
was
case,
in
any
not relevant to
other issue
the
it
since it was
I
conclude for
have been excluded.
so
several
should
First,
remembered that the witness
reasons.
it must be
nursing,
is a doctor of
not medicine.4
qualified,
however
Yet,
to
her
that
permitted
give
diagnosis
the
was
witness
suffering
syndrome
from the
the victim was
including
phobia relating
the crucial
and its characteristics
The fact that the wit-
recognition
perpetrator.
of the
in
acceptance
some
the medical
ness’ studies have found
is
expert
does not mean that the
on an individ-
community,
medical,
fact,
in
psychiatric
to render a
qualified
ual basis
Thus,
undoubtedly qualified
while the witness was
opinion.
expertise encompassed
develop
area of
in
4. The record did not
Hence,
nursing.
earning
degree
I am unable to conclude
a doctoral
training
equiva-
Burgess’
would render her an
unequivocally
Dr.
that
evidentiary purposes.
doctor for
lent of a medical
have considered the
in those cases which
It should be noted that
evidence,
physician.
expert
witness was a
admissibility
RTS
161,
McQuillen,
(1984) (psychiatrist);
P.2d
236 Kan.
689
822
See State of
State,
503,
(1985) (psychia
Md.App.
to discuss area, nothing there is in this and work experience one who could expert, a medical her as qualify record of an individual the mental state diagnose examine proper was the jury issue before relevant patient. rape. On perpetrator appellant identification seemingly faced with victim’s issue the simply witness is and the identifications inconsistent in this area. opinion give expert qualified one who offers an Pennsylvania, recognize I pretension if there is a reasonable testify may expert investigation. under knowledge subject specialized (1965). Loose, F.2d 959 Arnold v. an testimony by allowance recognize
I further the sound discretion a matter within expert witness Bowl, Inc., Pa. court, Houston v. Canon trial Hutchinson, Pa.Super. (1971); Reed A.2d the testimo- decision to admit (1984),and the A.2d 1096 clearly court unless the trial reversed not be ny should Dept., Fire v. East End discretion. Junk abused (1978). A.2d 1269 Pa.Super. *29 not to be an however, purport did
Here, Dr. the identify.5 Similarly, to ability on a victim’s expert permit as would qualifications to such testify did not expert diag- and the phenomena psychological about testify her to 8, Glover, Pa.Super. 263 Kravinsky v. nosis thereof. Cf. Mullin, Pa.Super. 231 v. (1979); A.2d 1349 Simmons 396 (1974). 199, A.2d 892 331 testimo- that the RTS I do not believe importantly,
More
identification,
issue of
on the central
as it does
ny, bearing
rejected rape
had
Supreme Court which
Recently,
the California
Bledsoe, supra.) approved the
(People
syndrome
v.
evidence
may
psychological factors which
testimony
to the
usage
expert
of
testimony by
expert
specific
with
eyewitness
an
identification
affect
of
phenomenon and characteristics
respect
qualifications
to
with
by
approved
Similarly,
testimony.
such evidence
eyewitness
interpreting the Federal Rules
Appeals
Court of
Third Circuit
Cir.1985).
(3d
Downing,
F.2d 1224
753
Evidence. U.S. v.
Viewed practically, the evidence in
properly
is
admissible.
nothing more than an
presented
attempt
bolster
this case
by expert
victim
In
opinion.
a similar
credibility
vein,
recently
court
dealt with a claim of error
supreme
our
testimony of a clinical psychologist
in
who
rejection
to the defendant’s state of mind and
testify as
would
affirming
trial court’s exclusion of the
intentions.
(now
Justice) Nix
Chief
stated:
testimony, Justice
recognized
only
Traditionally,
jury’s ability
we
credibility of the witnesses
also we
determine the
but
province.
this determination within their sole
placed
have
462 Pa.
Hampton,
v.
A.2d
Commonwealth
(1975);
v.
460 Pa.
334 A.2d
Murray,
Commonwealth
Oates,
(1975);
448 Pa.
v.
Commonwealth
(1972);
Garvin,
Commonwealth v.
448 Pa.
A.2d
(1972).
permit
To
psychological testimony
Commonwealth v.
Battle,
(1976).
See also Commonwealth
(1981). I
find
He’s devious, This he sneaky. is what is all about. He’s you that the man have identi- Q. you positive are Now sexually the man fied in this courtroom is today 1977? you assault November I very positive. A. am it, I
He know it. knows it, over, know everyone you this is will Before I know it. way know it everyone you will n sit right know he can I his whole—I how now know it’s nothing, like he and I know there look at me did and he it’s playacting. and knows playacting, courtroom, couple I saw And, in the the first times even courtroom, time he in. every him I cried came in the here, lineup I cried. I cried at the first he came in time him, this not to be I learned week just when I saw him. afraid of him to I want
And, suddenly, stage I am at where it, any I am afraid more. get 391, 392, 393, 2, 3, 417 and N.T. 1983 at March I a new trial. grant would