Lead Opinion
OPINION BY
The primary issue before us is the admissibility of expert testimony proffered by the defense in order to question the trustworthiness of a defendant’s confession. The trial court granted the Commonwealth’s motion in limine to preclude the defense from presenting such evidence. In light of recent Pennsylvania Supreme Court case law, we conclude that expert testimony regarding false confessions is impermissible as it provides no pedagogical purpose and interferes with the jury’s exclusive duty to assess the credibility of witnesses. We also find Pugh’s other issues merit no relief. Accordingly, we affirm.
On January 21, 2010, Pugh’s sister, S.P., was taken to Pocono Medical Center, where she was diagnosed with a sexually transmitted disease (“STD”). S.P. was 13 years-old at the time. Because of her age and diagnosis, the hospital reported the incident to authorities.
In response, Trooper Patrick Finn of the Pennsylvania State Police interviewed S.P., at which time she stated that Pugh had drugged and raped her. Several days later, Trooper Finn contacted Pugh via telephone, and convinced Pugh to come to the police station to be interviewed. During his interview, Pugh admitted to, among other things, drugging and raping S.P. on multiple occasions. The interrogation and confession were not recorded, and Pugh was subsequently charged with several counts of rape and related offenses.
While incarcerated, Pugh soon recanted his confession, claiming that his confession had been coerced. Additionally, approximately one month after Pugh’s arrest, his step-sister, M.Z., informed authorities that she had been diagnosed with the same STD as S.P. Ultimately, medical testing determined that Pugh was not suffering from this type of STD. M.Z. stated that she believed that she had contracted the disease from her husband. When presented with these circumstances, S.P. did not initially recant her accusations against Pugh; she stated that M.Z.’s husband had also assaulted her. M.Z.’s husband subsequently pled guilty to statutory sexual assault and unlawful contact with a minor pursuant to S.P.’s allegations.
Approximately one month thereafter, S.P. wrote a letter to authorities, recanting her allegations against Pugh. Two months later, S.P. underwent a third interview with the Pennsylvania State Police. S.P. told the State Police that her mother and sister pressured her to recant her allegations against Pugh. Both women subsequently pled guilty to obstructing justice based upon their conduct towards S.P.
Pugh’s first trial commenced on March 24, 2011. After the jury was unable to
The trial court held a Frye hearing and accepted supplemental briefing on the issue. On the eve of trial, the court entered an order that in relevant part granted the Commonwealth’s motion in limine. At the conclusion of the second trial, the jury found Pugh guilty of rape of an unconscious victim-,
We begin with Pugh’s first issue raised on appeal. In evaluating the denial or grant of a motion in limine, our standard of review is the same as that utilized to analyze an evidentiary challenge. See Commonwealth v. Minich,
[t]he admission of evidence is committed to the sound discretion of the trial court, and a trial court’s ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.
Id. (citations omitted). Admissibility of expert testimony on scientific knowledge is governed by Pennsylvania Rule of Evidence 702 which states:
If scientific, technical or other specialized knowledge beyond that possessed by a layperson will - assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Pa.R.E. 702.
There has been a long-standing policy in this Commonwealth of protecting the jury’s prerogative to determine credibility from the undue influence that accompanies expert testimony on the subject of credibility of witnesses. See, e.g., Commonwealth v. Delbridge, 578 Pa. 641,
This Court has also consistently upheld the exclusion of expert evidence that intrudes upon the duty of the jury to determine credibility of witnesses. See, e.g., Commonwealth v. D.J.A.,
The Supreme Court’s recent decision, Commonwealth v. Alicia, — Pa.-,
The Supreme Court of Pennsylvania, following the lead of the United States'Court of Appeals for the Tenth Circuit in United States v. Benally,
Ultimately, the Pennsylvania Supreme Court found that “the matter of whether Appellee’s confession is false is best left to the jury’s common sense and life experience, after proper development of relevant
Instantly, there is no dispositive factual or legal basis with which to distinguish Pugh’s claim from that of the recent Supreme Court decision in Alicia. Accordingly, as we can find no distinguishable difference between the claim advanced by Pugh and the Supreme Court’s decision in Alicia, we must conclude that Pugh’s claim warrants no relief.
Pugh next argues that the trial court erred in precluding from questioning M.Z.’s husband, Rocky Alverio, on issues such as her sexual history and S.P.’s motive to fabricate allegations against Pugh. The trial court states that it precluded this testimony based upon, among other things, the Pennsylvania Rape Shield statute. Pursuant to Pennsylvania’s Rape Shield statute:
Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
18 Pa. Cons.Stat.Ann. § 3104(a).
Specifically, Pugh explains as follows:
The veracity of the complaining witness is the core issue in this case. Defendant wanted to call Rocky Alverio as a witness in his defense to challenge the accuser’s veracity due to the accuser’s sexual relationship with Alverio constituting the cause, by motive, interest, or bias resulting in her false accusations against Robert Pugh.
Appellant’s Brief at 41. Pugh contends that “[s]uch an inquiry will have probative value regarding veracity of the [victim] which is exculpatory to [Pugh].” Id., at 42. We disagree.
In the present case, it is uncontested that at trial, Rocky Alverio was permitted to testify that he had engaged in sexual intercourse with S.P. Consequently, the jury was presented with ample evidence establishing that, at the medical center, S.P. falsely claimed to be a virgin. We agree with the trial court that any additional details regarding the sexual encounters between Rocky Alverio and S.P. were unnecessary and would have violated the Rape Shield statute. Therefore, we find no abuse of discretion in the trial court’s limitation of Rocky Alverio’s testimony.
Pugh next contends that the trial court erred in refusing to provide the jury with his proposed instruction on unrecorded custodial interrogations. We review a trial court’s jury instruction as follows:
When evaluating jury instructions, the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.
Commonwealth v. Baker,
Here, Pugh complains that he was prejudiced by the failure to instruct the jury that the ideal evidence regarding his confession was not available, despite the ability of the Commonwealth to provide for it, and therefore that the jury should consider this fact in determining credibility. The trial court states that it refused the proposed instructions because it had adequately covered the issue in other instructions. After reviewing the jury charge as a whole, we agree.
The trial court provided multiple instructions addressing Pugh’s confession, the credibility of witnesses, and the consideration of evidence. Those instructions adequately addressed the concepts that Pugh sought to cover in the proposed instructions. We therefore,. conclude that the absence of these instructions did not prejudice Pugh. Accordingly, we find no abuse of discretion in the trial court’s rejection of the proposed jury instructions addressing the absence of a video recording of Pugh’s custodial interrogation.
In his final issue on appeal, Pugh argues that the trial court erred by failing to grant his motion for mistrial after the Commonwealth allegedly committed a Brady
Pugh asserts that the Commonwealth committed a Brady violation when the prosecution failed to turn over two pages of Pugh’s medical testing results for STDs. Specifically, Pugh challenges the Commonwealth’s failure to timely disclose all email correspondence regarding his STD testing and results. The existence of the withheld correspondence was apparently revealed during examination of one of the Commonwealth’s witnesses. That surprise revelation, according to Pugh, disrupted his defense strategy, entitling him to a mistrial.
The trial court states that it denied Pugh’s motion for a mistrial because the alleged failure to disclose did not prejudice Pugh. See Trial Court Opinion, 3/13/2012, at 10-11. Significant to the trial court’s analysis was the fact that the information set forth in the withheld documents was contained within a separate final report document that Appellant received from the Commonwealth in a timely manner. See
We find no error in the trial court’s analysis. Indeed, even assuming that the Commonwealth should have disclosed the subject documents prior to trial, and accepting that the manner in which the documents were disclosed to Pugh was inconvenient, Pugh has not established that he suffered prejudice from the untimely disclosure. Consequently, we find no abuse of discretion in the trial court’s denial of Appellant’s motion for a mistrial, and conclude that Pugh’s final issue on appeal merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
President Judge GANTMAN, President Judge Emeritus FORD ELLIOTT, President Judge Emeritus BENDER, and Judges ALLEN, LAZARUS, and MUNDY join the opinion.
Judge OLSON files a concurring opinion in which Judge DONOHUE joins.
Notes
. Frye v. United States,
. 18 Pa.Cons.Stat.Ann. § 3121(a)(3).
. 18 Pa.Cons.Stat.Ann. § 3121(a)(4).
. 18 Pa.Cons.Stat.Ann. § 3124.1.
. 18 Pa.Cons.Stat.Ann. § 6318(a)(1).
. 18 Pa.Cons.Stat.Ann. § 3125(a)(1).
. 18 Pa Cons.Stat.Ann. § 3125(a)(4).
. .18 Pa.Cons.Stat.Ann. § 3125(a)(5).
. 18 Pa.Cons.Stat.Ann § 4302.
. Furthermore, we note that Pugh cites to no legal authority requiring instructions on the absence of recorded interrogations. Indeed, while acknowledging that recording such interrogations is not mandatory in Pennsylvania, Appellant invites us to create such a rule. Creation of such rules and regulations, however, is a role reserved for the General Assembly, not the courts. Consequently, we decline Appellant’s invitation.
. Brady v. Maryland,
Concurrence Opinion
CONCURRING OPINION BY
I agree with the learned majority that we must affirm Appellant’s judgment of sentence. However, I do not agree with the majority’s analysis with respect to Appellant’s second and third issues raised on appeal. Therefore, I write separately.
In his second issue on appeal, Appellant contends that the trial court erred by limiting his examination of Raziel Alverio (“Alverio”).
The Rape Shield Law provides that:
Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
18 Pa.C.S.A. § 3104(a). Our Supreme “Court [has] held that the statutory word conduct does not include prior sexual assaults and that evidence of prior sexual assaults is admissible as long as such evidence is relevant and material under the traditional rules of evidence.” Commonwealth v. Fink,
Although the trial court’s reliance on the Rape Shield Law was misplaced, its ultimate conclusion to bar further examination of Alverio regarding S.P.’s prior sexual history was correct. As noted above, Appellant only sought to further examine Al-verio to prove that S.P.’s statement at the medical center that she was a virgin was medically false. See Appellant’s Brief at 42. The trial court permitted Alverio to be examined regarding the fact that he had sexual intercourse with S.P. See N.T., 9/15/11, at 17. Thus, the jury was made aware of the fact that Appellant was attempting to elicit. Any further inquiry would have had no probative value and would have been highly prejudicial. Thus, the evidence was properly excluded. See Pa.R.Evid. 403 (“[R]elevant[ ] evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice[.]”);
In his third issue on appeal, Appellant argues that the trial court erred by denying his requested jury instruction relating to the officer’s credibility regarding the voluntariness of Appellant’s confession given that it was not recorded. The learned majority concludes that the trial court “had adequately covered the issue in other instructions.” Majority Opinion, ante at 825. My review of the jury charge reveals that, although the jury instructions discussed Appellant’s confession, the credibility of witnesses and the consideration of evidence, the failure to record Appellant’s custodial interrogation was not addressed. See N.T., 9/19/11, at 96-126. However, I ultimately agree that the trial court did not abuse its discretion in declining to charge the jury regarding the failure to record Appellant’s custodial interrogation.
Appellant implicitly argues that the failure to record his custodial interrogation violated his right to due process. In Commonwealth v. Harrell, a panel of this Court held that the due process clause of the Pennsylvania Constitution does not require that custodial interrogations be recorded.
There is no authority for the proposition that recording is required by the Fourteenth Amendment. The Alaska Supreme Court is the only court to have held that failure to record a custodial interrogation violates a defendant’s right to due-process; however, it did so based upon the Alaska Constitution’s due process clause, and not the Fourteenth Amendment. Stephan v. Alaska,
In Harrell, this Court restated the law as it stood when Craft was decided, ie., only two states required custodial interrogations to be recorded.
Although beginning next year, a majority of jurisdictions in the United States will require custodial interrogations to be recorded in certain circumstances, that does not alter my analysis of the discrete issue of whether the Fourteenth Amendment requires the recording of custodial interrogations. On that issue, states are unanimous that it does not.
The fact that the Fourteenth Amendment does not require the recording of custodial interrogations is not dispositive of whether the trial court abused its discretion in rejecting a jury instruction regarding the credibility to be accorded Appellant’s unrecorded confession. No appellate court in this Commonwealth has addressed the issue of whether a trial court is required to give such an instruction when so requested by the defendant.
At least two states require a jury instruction upon request when an interrogation is not recorded. Massachusetts v. DiGiambattista,
The proposed instruction submitted by Appellant instructs the jury that the failure to record an interrogation can be considered when determining the credibility of the police officer’s testimony that the confession was voluntary. A criminal defendant is not entitled to a jury instruction regarding every single factor that may be considered when evaluating a witness’ credibility. See Commonwealth v. Stoltzfus,
I also believe that one of the learned majority’s footnotes may lead to confusion. The learned majority states that:
Furthermore, we note that [Appellant] cites to no legal authority requiring instructions on the absence of recorded interrogations. Indeed, while acknowledging that recording such interrogations is not mandatory in Pennsylvania, Appellant invites us to create such a rule. Creation of such a rules and regulations, however, is a role reserved for the General Assembly, not the courts. Consequently, we decline Appellant’s invitation.
Majority Opinion, ante at 825 n. 10. I do not interpret this footnote as prohibiting a trial court from giving an instruction similar to that requested by Appellant in this case. Instead, the learned majority merely holds that there is no requirement that such an instruction be given. Accordingly, I believe that there is no legal prohibition to giving such an instruction if a trial court, in the exercise of its discretion, believes such an instruction is appropriate under the facts and circumstances of the case before it.
Furthermore, I must respectfully disagree with the learned majority’s statement that only the General Assembly may create a rule requiring that custodial interrogations be recorded. As noted above, although a majority of states that have adopted such a rule have done so through the legislative process, one court of last resort has done so under its supervisory authority and three jurisdictions have done so through rulemaking authority. Thus, such a rule can be promulgated by either our Supreme Court or our General Assembly, and not just our General Assembly.' See Harrell,
In sum, I believe that the Rape Shield Law is not applicable in this case; however, further examination of Alverio was properly excluded pursuant to Pennsylvania Rule of Evidence 403. I also believe that the jury charge did not address the failure to record Appellant’s custodial interrogation; however, the trial court did not abuse its discretion in declining to give Appellant’s suggested charge. Therefore, I concur in the result reached by the learned majority and agree that Appellant’s judgment of sentence must be affirmed.
Judge DONOHUE joins this Concurring Opinion.
. At times, Alverio is identified as Rocky Al-verio; however, his name is Raziel Alverio. See N.T., 9/15/11, at 3.
. Alverio pled guilty to statutory sexual assault for the sexual contact between himself and S.P. See Commonwealth v. Alverio, CP-45-CR0000995-2010.
. The quoted text is that of the former Rule 403, which was in place at the time of Appellant’s trial. Effective March 18, 2013, former Rule 403 was rescinded and replaced with current Rule 403. See 43 Pa.B. 620 (Feb. 2, 2013).
. The same due process requirements that apply to the states through the Fourteenth Amendment apply to the federal government through the Fifth Amendment. Raditch v. United States,
. In addition to Alaska, the Minnesota Supreme Court required (and still requires) recording pursuant to its supervisory authority. Minnesota v. Scales,
. See Thomas P. Sullivan’s Compendium: Electronic Recording of Custodial Interrogations (July 11, 2014), available at http://www. nacdl.org/WorkArea/DownloadAsset.aspx? id=33287&libID=33256 (last accessed Sept. 15, 2014).
.Each state differs with respect to the scope of its recording requirement. In some states, all custodial interrogations must be recorded. Other states only require that a custodial interrogation be recorded if police are investigating certain enumerated offenses. Furthermore, some states have certain exceptions to the recording requirement. For example, some states do not require a custodial interrogation be recorded if the person being interrogated requests that the interrogation not be recorded. As the exact nature of each state’s recording requirements is immaterial to my analysis, I do not enumerate the nuances of each state's requirements.
. Appellant argues that Iowa, New Hampshire, and Massachusetts also mandate recording of custodial interrogations. Those three jurisdictions, however, have not implemented mandatory recording. See Iowa v. Hajtic,