Commonwealth v. Garcia

surprised her she impeach to once her testimony. them with in not trial court erred

Finally, appellant asserts the state- a result of the prosecution’s a mistrial as granting for the prosecutor, asking ments. He contends stand, on the Crossley was jury removal of the while personal his disbelief conveyed jury conten- no support There is evidence Crossley. had right impeach Additionally, prosecutor tion. in the discredit his witness event thereby own fol- We, prosecutor testimony. therefore find surprise and, in the circumstances procedure under proper lowed Accordingly, fact, being tainted. prevented we affirm. sentence affirmed.

Judgment of BECK, J., in the result. concurs

588 A.2d 951 Pennsylvania COMMONWEALTH GARCIA, Appellant. Jose Pennsylvania. Superior Court of Argued Dec. 1990. March

Filed granted Additionally, immu- privilege. would been she have assert nity not, therefore, incriminate herself. and could Newman, Philadel- George Henry Boutcher and Regina for phia, appellant. Philadelphia, Dist. Brumberg, Atty., R. Asst.

Harriet Com., appellee. CAVANAUGH, CIRILLO, Judge, and President

Before SOLE, POPOVICH, WIEAND, OLSZEWSKI, DEL ELLIOTT, JOHNSON, FORD JJ. HUDOCK and OLSZEWSKI, Judge: Gar- of sentence. Jose appeal judgment

This is an involuntary trial of following cia was convicted (18 3123); corruption Pa.C.S.A. sexual intercourse deviate § 3121); 6301); (18 Pa.C.S.A. (18 rape Pa.C.S.A. of minors § § 901).1 (18 Pa.C.S.A. Garcia attempt, rape criminal and § for these years a term of seven to fifteen sentenced to was convictions. Court, Superior to the convictions appealed

Garcia trial a and ordered new the conviction which reversed (No. v. Garcia decision. Commonwealth split panel Olszewski, J., Ford 4,1990, by dissent Phila.1989, filed June petitioned reargument Elliott, J.). The Commonwealth record, banc; having reviewed en this Court before arguments, judgment we vacate briefs and parties’ trial. matter for a new and remand the sentence court; by of error the trial instances alleges seven Garcia issue, need not reach of the first we disposition our due to erred in that the trial court argues other six. Garcia M.D., a DeJong, of Alan R. testimony allowing pediatrics, professor and clinical associate pediatrician, Follow-up Assault Pediatric Sexual and a co-director , of child behavior typical as to the who testified Program, however, jointly; Garcia Pat were tried Garcia and Pat Garcia 1. Jose appeal. part of this is not testi- DeJong’s sexual assault victims. Garcia characterizes attempt by as an inadmissible the Commonwealth mony of the child witness/victims who bolster argues him. The that De- against testified Jong’s permissible objective observations of testimony demonstrated other victims child sexual behavior of our Su- opinions abuse. We are constrained recent preme agree Court to with Garcia. alleged case out of incidents to have occurred

This arose during home 1985 and 1986. The Common- Garcia’s children, nine presented ages wealth of two them to eight, indicating subjected that Garcia had question. the time in multiple during acts of sexual abuse contained inconsistencies and un- The children’s certainties as to the dates and number of the incidents of abuse; however, it was clear from their that the chil- delayed reporting children had the incidents. The failing report also testified as to their reasons for dren (See N.T., IV, V.) generally, the abuse vol. promptly.2 daugh- that her mother of the second victim testified ter had told her of incidents of abuse. Other testimony investigation August indicated that an commenced late arrested on September that Garcia was trial, alleged upon delay At Garcia relied victim’s of his defense. reporting the abuse as central element the trial court instructed the how the Accordingly, (N.T., VIII, delay should enter into their deliberations. vol. 124-126.) P. DeJong’s testimony centered aspects

Certain presence and the of other abuse cases his observations allegedly frightened 2. The first victim testified that she was a threat Garcia, sexually previously had been abused made Pat also that she (N.T., through proceeding. go court vol. and did not wish to another 55, IV, 57.) explained reported that she had P. The second victim mother, get help told Pat Garcia to for first incident to her who then home, Garcia; the Garcia as the second victim continued to visit Jose baby-sitters. they The second victim also testified that were hеr reported continuing abuse. to kill her if she Garcia threatened V, 19-28.) (N.T., vol. P. 284 in those

delay Specifically, DeJong cases. testified of child report one-third sexual abuse victims who hours; so 24 another report incident do within third of the hours; do so of the ing victims within 24-72 the remainder do so. report may up years victims who the incident take (N.T., VII, 69-70.) DeJong vol. P. further testified as to the (Id. reporting children why delay reasons abuse. 69-71.)3 at Com testimony, upon

The trial court this relying allowed Baldwin, v. 368, A.2d 253 monwealth Pa.Super. 348 502 15-16.) Baldwin allows (1985). (Trial court at opinion child the behavior regarding patterns long opine as the does not sexual abuse victims as Baldwin, supra, 348 veracity to the the child witnesses. omitted). 377, (citations at 257 Ct. at 502 A.2d Pa.Superior Baldwin, however, expressly has inasmuch been overruled Seese, 439, 512 Pa. as it conflicts with Davis, 518 Pa. and (1986), 517 A.2d 920 (1988). Davis, 1, supra, 77, 81 n. 541 A.2d 315 518 Pa. at therefore, n. to an analysis, 541 A.2d at 317 1. turns Our examination of what is left of Baldwin of Davis light other case law. dy-

Baldwin permitted explain a social worker “to pat- sexual abuse and the behavior intra-family namics victims often unable why terns of victims ... and are incidents specific recall еxact dates or times or describe the Baldwin, 373, A.2d supra, Pa.Super. at detail.” The stated reactions and Baldwin at 255. Court presence physical DeJong also testified as to the and absence in child sexual abuse cases and usual time frame trauma VII, (N.T., 64-69). of such vol. P. resolution trauma. typical DeJong’s abuser The remainder of discussed the tracks; percentage profile; methods use to cover their abusers members, family family, are of the abusers who friends (Id. problem. strangers; enormity child and the sexual abuse 70-74.) holding today of this While our renders our consideration at DeJong’s testimony unnecessary, passing we note in that it portion of proven any Common not relevant issue to be in the case. 517, 520-24, McNeely, Pa.Super. 534 A.2d 780-781 wealth v. denied, (1988). (1987), prejudicial 549 A.2d 915 alloc. 520 Pa. value, any; outweighed testimony clearly probative its if impact of this was, therefore, inadmissible.

285 behavior of incest victims “are not matters of common knowledge experience.” Id., 348 Pa.Superior atCt. 377, (citations 502 omitted). A.2d at 257-258 The Court held the behavioral and of psyсhological characteristics child sexual abuse victims are of proper subjects testimony. Also, “so long Id. as the expert does render an on of the opinion accuracy victim’s recitation facts, of her general his or on dynamics of sexual Id.; also, abuse does not prejudice jury.” see Davis, 81-82, supra, 518 Pa. at 541 A.2d at 317. Seese,

In it testified that was very unusual a prepubertal abuse, child to about lie sexual because they do not have knowledge sufficient sexual to know how describe such abuse unless have they experienced it. Id. 512 442, Pa. at 517 A.2d at 921. Supreme Our Court stated that the an testimony was essentially inadmissible “expert opinion as to the of the veracity potential class witnesses of which the victim was a member.” Id. prohibited only

Baldwin testimony regarding direct veracity of or Baldwin, the witness complainant. supra 376-79, 257-258; 348 at Pa.Super. 502 at Davis, A.2d su- 81-82, 518 pra, Pa. at 541 A.2d expanded at 317. Seese prohibition to include expert testimony which commented veracity potential ‍​​​​‌‌‌‌​‌​‌‌​‌‌​​​‌​‌‌‌​​​​​‌‌​‌‌‌‌​​​‌‌​‌​​​​​‍class of witnesses of which Seese, victim was a member. 443-44, 512 supra Pa. at 517 A.2d at 922. The tеstimony in in many Davis was similar respects to that Essentially, Seese. children do not experiences. fantasize Davis, about sexual supra 518 Pa. 79-81, Hence, at 541 A.2d at 316. there was testimo- ny concerning veracity class individuals of which particular witness awas member.4 Davis, In both our Supreme Seese Court’s ratio decidendi was the proposition well-known of law that the also, Ferguson, 4. See Pa.Super. 377 546 A.2d (1988), denied, (1989) 1249 alloc. Pa. (expert’s 557 A.2d 721 complainant’s closely statement behavior and were aligned province with that of a child abuse victim invaded since it was assessment truthfulness of the child witness). of a is reserved veracity witness determination Davis, 81-82, at supra, Pa. exclusively jury. for the omitted); Seese, supra 512 Pa. at (citations 541 at A.2d 317 omitted). (citations The was 443-44, 517 at 922 Court A.2d expert testimony that such possibility the concerned with responsibil- to the trier of fact abdicate its encourage would Ibid. to an deferring “expert.” the facts ity to ascertain Seese, imbue the testimony In stated “such would the Court of appearance of with an unwarranted opinions ‘experts’ is the veracity, beyond reliability upon subject, which Seese, supra 512 ordinary juror of the assess.” facility 443-44, A.2d Pa. 517 at 922. at Davis, of Baldwin has authority the been Seese Since v. Gallagher, Commonwealth In 519 continually eroded. (1988), an testified that the 291, expert Pa. 547 A.2d 355 and that the syndrome” trauma “rape victim suffered her attacker two weeks after identify failure to victim’s unremarkable, and an identification was rape in one-on-one Our later was credible. years in-court identification five testimony rape Supreme Court held that the Galla- have admitted. should not been syndrome trauma 297-99, The Court at 547 A.2d at 359. gher, supra 519 Pa. testimony en- only purpose that the stated Id., 295-97, of 519 Pa. at the victim. hance the dissenting opin- Gallagher sparked at two 547 A.2d 358.5 first, dissent was that The thrust of ions. explain appar- have been admitted to

testimony should as: conduct of victim inconsistent ently beyond ordinary training, this information was ... experience ordinary knowledge, intelligence and assessing testimony jury juror assisted the victim ...

Id., (Larsen, dissenting). 301, 547 A.2d at 360 J. Pa. at 519 that the should argued dissent second of the class prоfile as a the behavior allowed have been 208, also, Pa.Super. Zamarripa, 549 A.2d 379 See (1988) (introduction rape syn- opinion trauma evidence 980 improper because lack of lack of consent to establish drome decide). jury to is issue for consent

287 of which the help victim was a member to under- Id., 302-03, stand the victim’s actions. 519 Pa. at 547 A.2d (citations omitted) at 361 (Papadakos, dissenting).6 J. The erosion of Baldwin continued Commonwealth v. Emge, Pa.Super. (1988), 553 A.2d 74 where an alleged post-attack testified that victim’s behavior was consistent with behavior of victims of child sexual abuse. The stated Emge pro Court that Seese and Davis express regarding alleged hibited victim’s ability verbally communicate the truth. It concluded that testimony equally behavioral invaded the exclusive prov ince of the fact finder. Emge, supra Pa.Super. at (emphasis A.2d at 76 in original). The Court concluded which matches the behavior of known vic tims of child sexual abuse with alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, (citations and is prohibited. omitted). so Id. therefore, Emge, treated indirect comment on the veracity of an alleged child sexual abuse witness/victim via testimo as to the ny behavior of typical victims as an invasion of the province of the jury. also, See Commonwealth v. Higby, 619, 384 Pa.Super. (1989) 559 denied, A.2d 939 alloc. 525 978, (1990). Pa. 575 A.2d 109 In Gibbons, 297, 383 Pa.Super. 556 915, A.2d denied, 647, 523 (1989), alloc. Pa. 567 A.2d 651 an concerning testified the patterns behavior of child sexual abuse general victims and the dynamics of child sexual abuse. The did not attempt to compare alleged victim’s behavior to that of known victims of child 300, abuse. Id. 383 Pa.Super. at 556 A.2d at 916. Nevertheless, Court, relying the on Emge, concluded that prejudicial the value expert’s of the testimony clearly out- Gallagher majority’s rejection profile 6. We note that the of the evi- theory Papadakos’ dence appears reject advanced Justice dissent to approaches admissibility the third and fourth for the of this evidence argued the outlining dissent. Dissent at If 958-959. evidence inadmissible, piofiles rape the behavior victims we fail to why profiles understand behаvior of child sexual abuse victims should be admissible. 288 Gibbons, effect, Id. pro- in its value.

weighed probative of child behavior testimony typical any expert hibits impact. of its prejudicial because sexual abuse victims Dunkle, Pa.Super. 385 stated We A.2d 524 Pa. 574 granted, alloc. (1989), 561 A.2d 5 purpose must determine the (1990), review we upon offered; if question was testimony for which the solely sustain was offered testimony not have been admitted. victim, should testimony of the (citations 323-26, A.2d at 8-9 Id. Pa.Super. at Dunkle, here, report delayed the victim omitted). In as times, offense, recall exact dates could not ing the Id. Expert testimony to other details. inconsistent as in the case at bar was offered similar to that remarkably victim’s to bolster serving only as inadmissible held Id. credibility. the al compare

Here, attempt did not DeJong sexual abuse victims with known in this case leged victims and Gib per Emge Nonetheless, he had interviewed. in a class bons, alleged victim place need not inadmissible and to be testimony for his known victims have We jury. infringement upon province an his conclude that and we Dеlong’s reviewed and the reasons delay, concerning presence incidents, attempt by was an delay reporting why victims report delay the victims’ legitimize the Commonwealth province invaded This the incidents. ing jury adopt to have the and, effect, attempted normal occurrence two- delay was expert’s opinion cases, eviscerating the thus child sexual abuse thirds of all imper The Commonwealth’s instruction. complaint prompt credibility of therefore, to bolster the was purpose, missible the victims.7 testimony’s effect was to enhance admits that The dissent no testimony. We see Dissent at 961-962. credibility the victim’s apparently wishes to the dissent which to the distinction substance profile, testimony outlining but not a victim draw. To admit profile, would qualifying as a member of diagnosing victim as Gallagher majority opinion. made Gallagher The fly in the face of the

289 by an unduly impressed be may human and Jurors are “even credentials, opinion, his ultimately his expert, in the realize that reflection, they would though, upon as much at home are they discussion field under particular Dillon, v. Pa.Super. 386 expert.” as 595, 524 Pa. 568 alloc. granted, 885, 889, 236, 245, 562 A.2d omitted)8. Court (citations Supreme Our (1989) A.2d 1245 courts. Pennsylvania not occur in will decided that this has Seese, Davis, supra. See, Gallagher, the above-cited despite argues The Commonwealth opine as directly does not testimony which authority, expert The Common- permissible. of a witness veracity to the testimony which distinguish between attempts wealth of the victim processes psychological on the centers of vic- patterns centering on the behavior to that opposed As noted latter.9 we tims, us to allow the encouraging as profiling characterized above, argument, whether attempt to or as an of a class victims behavior typical experience the ordinary is beyond behavior that explain credibility enhancing which purpose of victim it was the it clear that 297, Gallagher, A.2d at 358 impermissible. supra 519 Pa. at 547 added). (emphasis Dissent by of this statement. puzzled the dissent’s criticism 8. We are abuse; the treatises cited Rape child sexual is as abhorrent as аt 957. rape just victims is the behavior of would indicate that the dissent abuse; by victims of child sexual exhibited as unusual as the behavior credibility rape victims Supreme decided that the yet our Court had Gallagher, supra juror facility to assess." of the normal is “within the omitted). 297, (footnote A.2d at 358 Pa. at 547 519 Pearsall, 368 Pa.Su relies on 9. The Commonwealth 596, denied, 327, (1987), A.2d 1246 524 Pa. 568 per. 106 alloc. 534 A.2d psychologi general (1989) opinion regarding the behavior and (expert permitted providing victims is of child sexual abuse cal characteristics veracity); directly opine Common as to the victim’s does not (1988) Thek, (only expert Pa.Super. 546 A.2d 83 wealth v. testimony regarding prohibited); should be the victim’s (1990) Pa.Super. A.2d 247 Cepull, and Commonwealth ). Syndrome Rape in dicta allowing as to Trauma (generally today1 reading of s these cases are inconsistent To the ‍​​​​‌‌‌‌​‌​‌‌​‌‌​​​‌​‌‌‌​​​​​‌‌​‌‌‌‌​​​‌‌​‌​​​​​‍extent that they Supreme precedents, are overruled. Court relevant from our sister decisions Commonwealth also cites numerous We, here. type at issue allow the states which however, precedent. Pennsylvania relevаnt are bound Gallagh jurors, was dissenting advanced opinions Gallagher, supra, 297-305, 519 Pa. at 547 A.2d at er.10 (Larsen, 359-362 J. dissenting Papadakos, J. dissent ing). The Gallagher majority implicitly such rejected dis tinctions its decision. are disregard We not free to their command.11 primary

Our concern in these cases is to do justice. so, To do we must maintain a difficult balance between interest society’s prosecuting criminals and a defendant’s constitutional right by jury. trial Our Supreme Court has struck this by prohibiting expert balance which Seese, passes or enhances the victim’s credibility. Davis, and Gallagher, supra. We are constrained to hold testimony regarding the patterns behavior the victims of child sexual abuse is inadmissible when offered to explain the conduct of the witness/victim in a case, as it tends to bolster the victim’s testimony and so withdraw the issue of witness jury. Further, agree we cannot with the Commonwealth’s character- DeJong's testimony. DeJong ization of why testified as to the reasons delay reporting child sexual abuse victims the abuse. Such testimo- ny did, why they involves an examination of the victims acted as just they attempts thought how acted. This to address the victims’ processes and is inadmissible. Supreme 11. The Commonwealth also cites to a recent Court decision. Stonehouse, (1989), 521 Pa. 555 A.2d 772 which purportedly admissibility type stands for of this patterns beyond because the behavior of battered women are ordinary experience jurors. plurality opinion We note that the Stonehouse overturns the conviction due to a failure of trial counsel to request requiring an instruction to consider the cumulative long-term assessing effects of abuse when the reasonableness of a Id., 57-58, person’s battered claim of self-defense. 521 Pa. at 555 A.2d reasoning, at 781. It was this and not the discussion of the admissibil- ity expert testimony concerning syndrome, battered women's which 66-67, See, Id., majority commanded a of the court. 521 Pa. at such, (Zappala, concurring). A.2d at 785 J. As we cannot consider proper authority allowing Stonehouse us to deviate from the com- Gallagher, supra. mand of vacated, and trial court of sentence Judgment is trial. Jurisdiction a new granted is Garda appellant relinquished. in which ELLIOTT, J., Dissenting Opinion files

FORD JJ., HUDOCK, join. DEL and SOLE dissenting: ELLIOTT, Judge, FORD has opinion majority’s dissent. respectfully I must in cases from the courtroom driven the effectively This result was of children. involving sexual abuse majori- stems from the instead but by precedent, mandated holdings of our of the misapplication and misreading ty’s court. supreme expressly has never court supreme

Significantly, v. Commonwealth in court of this opinion overruled assessment, Baldwin, majority’s to the Contrary supra. Baldwin to overrule opportunity court had that Davis, instead the supra, v. and deciding that Baldwin was disapproved footnote, court, stated in a Davis Seese and with as it conflicted insofar only find that Baldwin is still Therefore, I would decisions. psy- that behavioral proposition for the authority valid are sexual abuse victims of child characteristics chological are rele- when such testimony for proper subjects does opinion the expert’s in the case and to an issue vant the particular or evaluate not assess reliance the trial court’s I, therefore, affirm would victim. the admission on Baldwin issue and complaint was at prompt case, finding that relevant on highly expert’s veracity expert opinion an did not offer issue and the victim. EXPERT TESTIMONY

THE CASE FOR of expert for the admission Pennsylvania The standard Com Flaherty by Mr. Justice enunciated testimony as that, testimony is Seese, “[ejxpert supra, monwealth cases, alike, admissible all civil and criminal when it not within the explanations involves and inferences range of ordinary training, knowledge, intelligence and experi- ence.” 512 Pa. at 517 A.2d at (emphasis sup- (citations omitted). plied)

The use of in child sexual abuse cases meets this criteria. The is simple. reason The immediate effects, long term impact psychological trauma of sexu- not, al on children gratefully, abuse are matters within knowledge, common information or understanding pos- ordinary sessed Not juror. parent, even a who might recognize that a child is readily young exhibiting behavior, strange or unusual would associate such behavior something as abhorrent as sexual abuse. How can we assume jurors are vested with this understanding by Therefore, virtue оf their oath. I take particular exception to the majority’s conclusion that:

[jjurors are human and be may unduly impressed by an expert, credentials, his ultimately opinion, and his even reflection, though, upon they would realize that particular field under discussion are they as much at home as the expert. (citation

Majority opinion omitted). at 289 Expert testimony, which addresses the specifically psy- chological of sexual dynamics abuse of children and their victims, patterns behavioral is vital in many cases. As Baldwin, by Judge discussed Beck [tjhe foregoing support decisions our conclusion that ex- pert such as that offered testimony by Battinieri does not prerogative. invade the As improperly jury’s one com- mentator has noted: that such argument psychological is because it on the

prejudicial bears of a witness, and the province thus invades jury, expert testimony 1. This standard on the of introduction is different permits from the federal standard which if it "will assist the trier of fact to understand the evidence issue.” F.R.E. 702. toor determine a fact in cannot “invade the wrong. simply Expert unless the is instructed that province jury” agree expert’s it with the assessment. must A.2d at at 257. Baldwin, Pa.Super. supra, scientific data to growing body There is a reliable children support fact that the sexual abuse of embodies general- components that are psychological and societal understanding experience lay within the common ly this abuse is often subject The nature of observers. might compre- a stereotypes. juror easily While myths child impact hend abuse can have an a that sexual expert analy- some psychologically, juror type without sis, understand the behavioral and would not be able to of this As one com- psychological impact. manifestations noted, mentator concerning defendant’s

[ejxpert psychological testimony expressed psychological esoterically is often sanity experience is far from the common jargon that removed contrast, types most of non- juror. ordinary By are much closer to the com- traditional sciеntific evidence fall understanding yet, may mon the ordinary juror, of jurors. common Nontraditional beyond experience the. evidence often deals with circumstances psychological peculiar psychologi- involve jurors probably suspect consequences everyday cal not associated with existence. any Yet information to are without sufficient have jurors peculiar consequences into great insight what those might be. Exotica;

McCord, and Other Mental Syndromes, Profiles Admissibility A New to the Nontraditional Approach 66 Or.L.Rev. Evidence in Criminal Cases. Psychological (1987). 30-31 most of the aspect majority’s troublesome Perhaps or regard purpose without to the content decision is that offered, any expert is it finds expert testimony which the or psychological dynamics on the behavioral it “bolsters child abuse inadmissible because victim,” province thereby of the invades credibility However, of the jury. can it be denied that the use of expert testimony case any will either bolster or impeach the testimony of other Baldwin, witnеsses. As stated in fact if it jury, believes the expert’s

[t]he testimony, may draw inferences which would tend to bolster the victim’s does not make the evidence inadmissible. It is a fact commonplace that the testimony of one may witness tend to corroborate another. Far being improper, this is normal good and is trial (Much strategy. expert testimony will tend to show that another witness either is or is not telling the truth.... This, itself, inadmissible). will not render evidence Baldwin, supra, 376-77, Pa.Super. at 502 A.2d at 257 Middleton, State v. citing (1983). Or. 657 P.2d 1215 An of the application reasoning employed by the majority could result in the exclusion of expert testimony many cases on the bolster, basis that its effect is to support or enhance the credibility of one or witness another. The following types (1) are prime examples: who testifies in drug possession regarding case the validity “drug courier profile” utilized arresting officer; (2) a medical expert who testifies that vaginal lacerations and adhesions are consistent awith complainant’s rape; (3) version of a the psychiatrist who testifies in a rape case thаt a mentally retarded adult victim incapable consent; (4) of forming the ballistics expert who testifies that an injury inflicted a victim is inconsist- ent with the defendant’s story defense; (5) of self testifies in who a child abuse case that the injuries upon inflicted the victim could not be result of an accident; (6) the expert who testifies regarding the effects or drugs person alcohol on a fitting the defendant’s weight supporting and size as the arresting officer’s obser- vations; and, (7) who regarding testifies dimin- capacity. ished mental Seese Davis decisions,

In the supreme court specifically disapproved, jurisdiction, the use of ex- pert presumes which to pass directly on the prohib- Specifically, Seese witness.

veracity particular of a victim, of the evaluating credibility from expert ited evaluating the veraci- prohibited and Davis belonged. purportedly the victim of the class to which ty exceptions out decisions carve and Davis Seese in the is admissible expert testimony principle general adhere to the They child sexual abuse cases. prosecution evaluate the may that an rule long established for so to do would credibility, as testimony witnesses testi- fact. direct of the trier of Such province invade the function. Justice jury’s credibility supplants mony holding of the the limited nature characterized Flaherty Seese, he stated: when permitted on the is not to be

[although opinion evidence remain, course, all there credibility, issue of a witness’ ‍​​​​‌‌‌‌​‌​‌‌​‌‌​​​‌​‌‌‌​​​​​‌‌​‌‌‌‌​​​‌‌​‌​​​​​‍attacking or a developing, the traditional methods credibility. witness’ at 922.

Seese, 512 Pa. 517 A.2d at supra excep- to the court, however, adhering than This rather instead, court, has supreme out tions carved drawn strokes, the fine lines obliterated broad relevant, effect, materi- court, rendered inadmissible merely al, of an probative and scientific I alleged of an victim. supports credibility it because the context of contrary to the that within suggest would case, impede it the function may child sexual abuse provide To further testimony. not to admit such area, of the role of the in this an examination perspective prosecutions is instructive. in child sexual abuse THE THE OF EXPERT ROLE caselaw, gleaned has five In one author analyzing testifying assume when expert may roles which the basic sexual abuse case. testify permits psychologist jurisdiction One regarding the the child’s to the of the offender. identity misuse and the occurrence of the witness, expert, to be a likely Because the child is effect, is to employed to as the testify witness, expert assuming another the the role of adviser to weight they upon the the that should the place them. testimony before Commentators have identified view, the this role as liberal and one that has been adopted. widely regard- approach permits expert testify

Another the to ing psychological the results of a evaluation of the child to whether the status of the psychological and determine child is consistent to having subjected with been sexual an The by may misuse adult. evaluation itself include a patterns to whether the child’s behavior determination as diagnosis. are or a This syndrome consistent with a role is to directly analogous approach by the taken most regard courts with to the admission of aby treating physician. expert symptoms The will identify patterns will the psychological report and behavior injury Further, observed the examination of the child. during present professional opinion the will a as to wheth- expert er are of a or diagnosis these observations indicative are particular with the occurrence of a event. The consistent expert or the thereby indirectly supports impeaches ve- of other racity witnesses. approach upon expert present

A third calls the to the patterns psychological symptoms behavior associated misuse, having with sexual without evaluated the victim. may to expert respond hypothetical question The specific facts of the case. This role for incorporates cases psychological experts child misuse is many jurisdictions take approach variation regard to traditional medical expert testimony. facts, gatherer than as a the second Rather serve above, applies scientific knowl- expert role discussed edge presented to either the facts or hypothetical facts admitted into evidence.

The fourth is similar to third that the approach scheme, child. expert does not evaluate the Under is restricted a discussion of expert’s general leaving princi- of these principles, application ples to the trier fact. This approach essentially model, in educational which the edu- expert’s testimony cated the trier of fact. approach

The fifth and final allows the present elicited testimony, the child’s which was reasonably pre- under controlled conditions and may interpreta- served. The assist the court tion of its preserved testimony meaning when is not self-evident. thus assumes the role of pre- that has perishable testimony server role been —a experts accepted by assumed the courts sub necessary subcomponent silentio. This is a second role identified above. clinical must elicit the child’s verbal and nonverbal behavior in order to evaluate the child. meaningful, For this evaluation to be the methods and conditions reasonably must be controlled. conducted, however, As presently testimony most fashion, often in a preserved haphazard subject to the need of the the evaluation. support evaluator Note, The Admissibility Psychological Testimony in of Child, Cases Sexual Involving the Misuse U.Miami (1988). also, Note, L.Rev. 1040-1042 Expert See Testimony in Sexual A Spec- Child Abuse Prosecutions: Uses, (1988). trum 68 B.XJ.L.Rev. 155 These represent examples roles of the varied content and purpose for which be offered in testimony might the case, trial of a sexual they help abuse and also to illustrate the limited the nature of and holdings. Seese Davis Our supreme court in these cases prohibited has the use of an expert, no may assume, matter what role that expert from assessing a ability witness’ to tell the truth.

THIS AND COURT’S EXTENSION OF SEESE DAVIS

Recognizing that Seese and dealt with express Davis the testimony regarding alleged ability victim’s verbally truth, superior gone communicate the the has court further and held expеrt testimony dynamics that on the behavioral equally province invades the of the fact- abuse

finder. witnesses,

In lay perhaps parent cases where or teach- er, testify the stand and to the permitted were take following alleged child’s incident of change behavior abuse, pulling together the was the prohibited and lay giving witnesses the behavioral questioned some correlation or assessment of the be- jury Emge, v. supra; Commonwealth havior. Higby, supra. Gibbons, In supra, Commonwealth v. agreed this court the “rele- expert's testimony trial court that was infer probative gaps vant that could that inconsistencies stemmed from the victim’s of incest than from psychological dynamics rather fabrica- Id. fantasy.” Pa.Super. tion or at 556 A.2d at 916. that, unlike in Emge, supra, point This on to out court went did not psychologist testify accusing child’s behavior matched behavior known victims of sexual Nevertheless, citing Emge, court abuse. concluded was probative expert’s clearly value outweighed impact admitting it. No prejudicial for this explanation given further cоnclusion. Dunkle, supra, In a case similar very case, that, to the this court held where the child instant incident failed to certain delayed reporting recall abuse, alleged of her must stand alone details she though may explain even be able to jury, before any attempt her The determined that behavior. court testimony, introduce which dealt with fact children, abused, reporting the sexually delay sometimes to recall exact dates and incident and sometimes are unable event, is in of the associated with the times because trauma of the Seese and Davis To such holdings. admit violation reasoned, thereby court testimony, behavioral would of the victim’s the facts. jury accept allow version Dunkle, 325-26, supra, Pa.Super. at 561 A.2d at 9.

This line of decisions has tacitly, eliminated the use of abuse cases no matter in what form or for what it purpose is offered. It has lumped all of types such testimony into one category, leaving prosecution, counsel, defense and the trial court any guidelines without determining I admissibility. would agree be inclined to my colleagues on the inadmissibility of such testimony if the objections grounded were more soundly relevancy of, particular for, or on the use or necessity such testimony at trial or on qualifications or even the of validity the research data. such objections, Absent how- ever, is entitled to the evidence.

Moreover, the introduction of such testimony of- fered child sexual abuse cases is always subject to cross examination, impeachment, and cautionary instructions.2 These are the protections afforded to a defendant to insure that the proper weight given to any expert testimony by the jury.

THE IMPACT OF GALLAGHER The majority argue would that the supreme court’s deci- sion in has Gallagher, supra, extended that court’s holdings Seese and Davis prohibit now to all expert psychological syndrome testimony including testimo- ny regarding the behavioral patterns of sexual abuse vic- tims on the basis that such testimony bolsters the credibility of the victim.

I admit to some difficulty denying that the supreme court’s treatment of the rape-crisis syndrome in Gallaghеr might have application to other types syndrome testimo- ny including the child sexual abuse syn- accommodation Miller, Expert Dispelling 2. See Cross-Examination Witnesses: 1073, (1988); Goldstein, Reliability, Aura 42 U.Miami Psychi- L.Rev. Discrediting by Impeachment atrists on the Hot Seat: Doctors Their (1988); Note, Credibility, Bull.Am.Acd.Psych.L. 225-34 Unreliability Expert Testimony Typical on the Characteristics Victims, 429, (1985). Sexual Abuse 74 Geo.L.J. 300 As Tamilia in his dissent by Judge

drome.3 discussed Smith, 389 A.2d 1080 Pa.Super. 567 (1989), is a the manifes- syndrome symptoms, a collection to case. A may vary syndrome tation of which from case diagnosis and therefore its use as represent does not particular of the occurrence of a event substantive evidence scrutiny.4 to always subject is Gallagher, In that she examined the the testified rape and the victim as diagnosed suffering victim syndrome. She further testified she believed trauma to the ability identify the victim’s syndrome the affected court that this testimo- supreme assailant. The determined credibility in eyes enhanced the victim’s ny improperly See Commonwealth impermissible. which was is on Cepull, supra, Gallagher distinguished wherein Howevеr, court, to specifically declined this basis. rape syn- reach the issue of whether evidence trauma sufficiently generally. drome was reliable to be admissible Considering of an were again once roles which do no Gallagher earlier, holding appears to reviewed syndrome more than assail the use offer effect, diagnosis. ap- as In the second clinical testimo- permitted to the role of an proach which the results of ny expert regarding psychological of whether psychologi- evaluation and the determination having with cal status of the victim consistent been rape disapproved trauma has now been subjected expert may The issue of whether an jurisdiction. testify generally patterns psychological behavior syndrome trauma symptoms rape associated when by Gallagher. not decided purpose offered another supreme out court’s I consider this conclusion borne Summit, Syndrome"; Sexual 3. See "The Child Abuse Accommodation (1983) syndrome Neglect out five Child and 177 wherein the sets (1) sеxually commonly characteristics observed in abused children: accommodation; (2) (3) (4) secrecy; entrapment helplessness; disclosure; and, (5) delayed, unconvincing retraction. conflicted and McCord, Expert Psychological Testimony, supra; supra. also 4. See See Boreski, Testimony Syndrome Abuse Wave Child Prosecutions: The Future, (1989). St.Louis U.Pub.L.Rev. 207 treatment of psychological profile another bat- type —the Stonehouse, tered woman syndrome in (1989). 521 Pa. 555 A.2d 772 I agree While the of majority that result in Stonehouse was grant the the trial on new based assistance of in ineffective counsel failing to an request instruction, adequate jury there is little question that opinion Larsen, the lead authored by Justice joined by Papadakos Justice and former Justice Stout, would failing have found for counsel ineffective to present expert testimony on the battered syndrome. woman Zappala Justice in his concurrence joined by Justice McDermott, choosing while not to reach that issue stated following: the

[although amici, the issue was by aрpel- addressed the lant has made clear appellant’s position it self- the defense issue is to be mischaracterized as a failure to the issue. While I syndrome’ raise ‘battered woman recognize issue, import the I believe its resolution is best left to a time when the issue is squarely before us. Stonehouse, supra, 785. 66-67, 521 Pa. at 555 A.2d at nothing There is or concurring the majority opinion which would have precluded defense counsel on remand from offering expert testimony on the battered woman syndrome case, defense of the and in fact three members of the court already prior had found counsel ineffective for not so.5 In doing justice the interests of economy, and judicial if Gallagher so the clearly forbade introduction of psycho- logical profile all testimony under circumstances then sure- supreme one of the ly justices our court would so have thus, indicated. stated if an Having adult defendant has right to a psychological explained the have condition to the by expert, deprives what victim this logic child opportunity story same have her heard. The injustice by holding worked the is further majority’s today highlight- by might ed notion that a defendant now offer very expert testimony, preclude prosecution same which we remand, acquitted noteWe that on defendant Stonehouse was fol- lowing a bench trial. that his actions were the introducing, establish experience his having result of own been victimized as a child. abuse THE TESTIMONY DR. DEJONG OF to the role in the instant case and Turning purpose the nature of his and the examining offered, DeJong’s testimony I find Dr. it was would which examples of use of represent purest proper one of the IAnd readily in an abuse case.6 would expert testimony to enhance the admit effect of majority, victim. As discussed alleged reporting victim’s upon delay relied Garcia of his defense. as a central element Counsel the abuse of the victim to in extensive cross-examination engaged closing in the the defense jury this fact and its to highlight argued delay Prompt complaint ‍​​​​‌‌‌‌​‌​‌‌​‌‌​​​‌​‌‌‌​​​​​‌‌​‌‌‌‌​​​‌‌​‌​​​​​‍the issue. was vigorously assessing weighing in jury issue for the to consider an Thus, victim. the trial testimony judge of the child the instructed the jury: cases what of sexual assault concerns aspect

[a]nother prompt complaint. in as is known the trade reasonings philosophies there used to be Again a particular heinous nature ago that because a years immediately is the of incident that type sexual assault alleged the outcry person an from the who was demanded Hence, development theory called victim. prompt complaint. N.T., Obviously, 123-124. 10/16/87 at Testimony,

Notes of in confront- to information is entitled all available therefore, judge, properly permit- The trial ing this issue. DeJong to of Dr. be considered the statistical ted following aid his instruc- in order to them jurors complaint make are prompt or to “delay that failure tions upon believability bearing factors [‘the witnesses’] of all the by you light considered and must be testimony might subject of or be the either third of this 6. The form approach discussed. fourth

3oe Id. agree evidence in the case.” at I cannot with the majority DeJong’s testimony that Dr. was same Davis or Galla prohibited supreme Seese, court in gher.

Following the pedia- victim’s Dr. testimony, DeJong, abuse, trician expertise possi- testified ble reasons the lack of trauma to physical the victims. This was one of the issues the jury had to confront. He (cid:127)further testified as to the statistics he compiled as Director Pediatric Assault Follow-Up Sexual Program at Jefferson Hospital. These statistics showed varying delays alleged between the time that sexual abuses occurred and the reported. time when were they Some children reported alleged sexual abuse immediately, delayed. others not, however, He did an opinion offer as to the or accuracy validity complaints he recorded.

The majority holds that this improp- iner it that was attempt by an the Commonwealth have adopt the jury expert’s opinion delay was a normal percent occurrence of child sixty-six sexual abuse cases. quite This is DeJong accurate. Dr. did not render an opinion as what was normal or abnormal sexual abuse cases. He testified thаt two-thirds of the children who reported alleged incidents of did at sexual abuse so least twenty-four alleged hours after those incidents occurred. He did to attempt interpret those for the jury statistics any significance nor attach to them.

Additionally, such testimony being was not offered to establish the occurrence of a of consequence, fact but rather to weighing assist trier of fact in the probative of value a circumstantial fact. One commentator has ex- plained, an purpose expert’s respect of with to testimony

[t]he provide scientific information is to information that is common of beyond experience the trier of fact and in that will assist it the determination the probative of be assigned value to to circumstantial fact that bears upon consequence. example a fact of An is a child’s 304 period of the sexual misuse for a of

postponing disclosure upon months A is years. juror likely or to be incredulous hearing prosecution’s elicit from attorney a defense witness, misuse, chiеf the child victim child for an of time delayed period reporting extended before experience Common teaches us that anyone. abuse an injury when a child suffers an child will tell adult Therefore, in testimony delay almost immediately. an serve as an indirect reporting abusive event would veracity. may prosecutor of the child’s The impeachment this The will perception. call an to address in reporting an incident of sexual testify delay that a among occurrence misuse is common victims defendant, through his elicitation testi- assault. reporting in the of the incident of mony regarding delay the door to the admission of the opened sexual misuse placed The defendant in prosecution’s expert testimony. circumstan- interpretation issue the elicited proper stronger tial Whether there exists a correlation fact: than delay reporting between fabrication between telling the truth. The role delay reporting expert’s opinion, provide upon in such a case is to based both experience clinical statistical studies and their own victim, other than the as to which correla- patients with tion has more merit. supra at 1055-1056. Testimony,

Expert Psychological manner has been The use jurisdictions.7 suggested other As in numerous approved Smith, supra, Dissenting Opinion by catalogued are 7. The cases 4, Tamilia J. at Note as follows: See, Davis, (Minn.Ct.App.1988) e.g., 422 296 v. N.W.2d State (court running away inform approves adolescents); sexually abused State v. from home common 212, 651, (1988) (expert N.C.App. 655 could Bailey, 365 S.E.2d 89 abuser); cooperate People v. why continue to state child would Bowker, (1988) (child Cal.App.3d Cal.Rptr. syndrome to ex- admitted sexual abuse accommodation (Colo.1987) (adult Hampton, plain delay); People 746 P.2d 947 victim; explain delay); syndrome rape rape admitted trauma Matlock, (Del.1987); State, People v. 269 153 v. 527 A.2d Wheat

305 writer, one by such has important an and rele- place in vant the courtroom: high- defense in child sexual often abuse cases [t]he lights some aspects unusual the victim’s behavior. aspects typically These include dеlays reporting, incon- disclosures, sistent partial and The recantations. defense raises generally these issues during cross-exami- victim, nation of the or perhaps during cross-examination of other state witnesses such as or child police officers protective service workers. This type cross-examina- tion is if very prosecutor often effective does not take steps to rehabilitate these witnesses. Jurors often not do understand the dynamics sexually abusive relation- ship. They do not understand that children usually do not report sexual abuse In immediately. addition, any partial disclosure or recantation mentioned the defense view, gives credence held many prospective jurors, that children fabricate stories of sexual abuse.

When defense, faced with this type prosecutor using should consider expert testimony either the case chief, inor rebuttal. This form testimony is funda- mentally different from the diagnosis child sexual abuse syndrome referred to earlier in this article. of an more gener- context is al, designed to provide is an analytical framework within which to evaluate the child victim’s essence, In testimony. being offered behavior, show victim’s appearing while to be inconsistent, may in fact be consistent with sexual abuse. However, the this case is being asked for an opinion specific about whether the child in this case is abused child. 171, 274, (1986); Mich.App. Sandberg, 395 N.W.2d 277 State v. 406 506, State, 570, (Minn.1987); N.W.2d 326, 511 Smith v. 100 Nev. 688 P.2d R., (1984); 663, People Benjamin 326-27 v. 103 A.D.2d 481 827, Hicks, (1984); 459, N.Y.S.2d 831-32 State v. 148 Vt. 535 A.2d 776, Petrich, (1987); 173, v. State Wash.2d 683 P.2d State, (1984); (Wyo.1987). 179-80 Scadden 732 P.2d also, State, (Tex.Cr.App.1990).

See Duckett v. 797 S.W.2d 906 306 testimony from successfully have admitted

Prosecutors incomplete of experts subject delayed on the disclo in v. Cal. example, People sure. For Dunnahoo [152 1984), 796 App.3d 561], Cal.Rptr. (Cal.Ct.App.2d 199 victims did not immedi pointed defense out that the two ately police the acts committed on them tell the about then used prosecution police the defendant. The two officers, experts in the field of child molesta qualified as tion, find it sexually testified that molested children who appellate sexual The difficult to talk about abuse. quite expert admitted appropriately court held that this was in R. testimony. People Benjamin, v. Similarly, [103 (1984), approved 827 the court 663], A.D.2d 481 N.Y.S.2d concerning why a the admission of of abuse is often reluctant reveal the victim sexual crime, setting. in The family if it occurred particularly the fact that the defense raised issue pointed court of the reporting during of cross-examination delayed Moreover, noted that the victim. court not to an general nature and did amount specific in this child was a victim opinion that fact 427], Or. 657 In v. Middleton molestation. State [294 admitted (Ore.1983), prosecutors successfully P.2d 1215 often recant sexual abuse victims expert testimony that original their disclosure. in ground offering should on firm prosecutor

The be in is admissible most states. testimony, it prior to prosecutor counselled expert should be specific child is a victim opine trial re- delays Testimony experts molestation. are not disclosures, and recantations porting, incomplete with an provide should inconsistent with abuse child dynamics knowledge appropriate noted, prosecution’s has As one commentator abuse. with the way keeping in this use of Roe, facts. See R. witness rules and theory Cases,’ from Child Sexual Abuse Testimony in ‘Expert Legal Re- Policy National Conference Papers from a Cases, forms Child Sexual American Abuse Bar Associ- ation, (1985). Gardner, Prosecutors Should Think Using Twice—Before Cases,

Experts Child Abuse (1988). 8 CrimJust.

CONCLUSION the views Admittedly, expressed this dissent are not Rather, expressed new. have been they previously by other great clarity members this court and eloquence. Purcell, See Pa.Super. 342, 589 A.2d (1991), Common Beck, J.); (Dissenting Opinion by v. Cepull, supra, wealth Com Tamilia, (Opinion J.); Dunkle, monwealth v. supra, Com (Kelly, dissenting); J. Thek, monwealth 376 Pa.Super. (1988) v. 546 A.2d 83 Smith, supra, J.); (Opinion by Kelly, Commonwealth v. (Dissenting Tamilia, J.); Opinion by Pearsall, 368 Pa.Super. (1987), 534 A.2d 106 (Opinion and, Commonwealth v. Emge, supra, J.); by Kelly, (Dis J.). senting Opinion by Brosky, of non-traditional admissibility psychological evidence is a new and in evidentiary uncharted area many jurisdic- Hence, tions. strong advocacy by several members of proceed this court that we at more a measured and calculat- in pace defining ed admissibility standards for such evi- dence.8 such Certainly, an effort would benefit far more basis, than, a review on a case by case rather at this date, early of establishment blanket This prohibitions.9 is particularly supreme so since our on rulings court’s of admissibility such evidence have not as sweeping. been question, expert Without testimony pat- on the behavior psychological terns and of dynamics sexual abuse victims While, very grave can be prejudicial. responsibil- we have a States, Frye (D.C.Cir.1923), defining See v. United F. 1013 admis- sibility types standards for "new” scientific data United States (3rd Downing, Cir.1985) establishing prong v. 753 F.2d 1224 a three admissibility reliability testimony test for the on the eyewitness identification. McNeely, expert testimony supra, 9. Commonwealth in which panel found inadmissible as not relevant that the was unable to purpose testimony discern the which was offered. regarding concerns legitimate address the ity many area, not we also must use of determining its to the truth ignore tremendous benefits all more critical This process. responsibility becomes offered to aid the trier when such is victims, involving most vulnerable society’s fact cases evidentiary determine on sound our children. If we can reliable, relevant, is materi- grounds, that expert it in a keep jury from the probative, al and can we afford inquiry Should ‍​​​​‌‌‌‌​‌​‌‌​‌‌​​​‌​‌‌‌​​​​​‌‌​‌‌‌‌​​​‌‌​‌​​​​​‍our be case of child sexual abuse. of such weighing probative value focused more given case. impact any its testimony against prejudicial primary that our concern is majority I agree with of that mandate involves necessary But justice. part do a it evidence to allow possible the best providing is Undeniably, presently there correctly. to decide a case possibili- which makes the society our hysteria climate There- grave concern. of false accusation a matter ty child, fore, of both the accused protection for the its discre- required to exercise must be to prosecute whether deciding caution when great tion with However, prosecute decision to once the such cases. the child in the courtroom. made, we must not abandon JJ., HUDOCK, join. DEL SOLE and A.2d Pennsylvania, Appellee, COMMONWEALTH HARMON, Appellant. Edgar C. Pennsylvania. Superior Court of 9, 1991. Jan. Submitted April Filed

Case Details

Case Name: Commonwealth v. Garcia

Court Name: Superior Court of Pennsylvania

Date Published: Mar 28, 1991

Citation: 588 A.2d 951

Docket Number: 1076 Philadelphia 1989

Court Abbreviation: Pa. Super. Ct.