*3 POPOVICH, WIEAND, Before BECK and JJ. WIEAND, Judge: Purcell tried found
Joseph by jury Patrick was was corruption of indecent assault and of a minor.1 Post- guilty denied, motions and Purcell was sentenced to trial were a term for not less than eleven and imprisonment serve (23) (IIV2) months nor more than twenty-three one-half on his for a minor. Sentence corrupting months conviction his for indecent assault. On suspended was conviction (1) the verdict was con- appeal, direct Purcell asserts evidence; (2) weight to the the trial court erred trary from letters explicit it removed sexual material love when victim; (3) improperly injected the trial court by written case; (4) prosecuting attorney guilty into the itself inappropriate remarks made prosecutorial misconduct (5) con- argument; and defense counsel was during closing (a) following for respects: ineffective stitutionally into failing improper to the admission evidence object discussed the a clinical social worker who testimony by abuse; (b) failing of child sexual general dynamics *4 applica- request jury regarding that the be instructed will discuss these issues ble statute of limitations. We seriatim. daugh- old appellant’s year seventeen May
On Purcell, ter, high Ann to a school teacher reported Barbara charge statutory demurrer 1. The trial court sustained a defense rape, guilty of and rape, found Purcell not and the incest involuntary sexual intercourse. deviate her for several abusing sexually had been that her father investigation by an following On June years. Youth and Services of Children Montgomery County Office a criminal Township Department, Police Horsham and the that, during alleging against appellant filed complaint was 17, 1986, he and May January period between course of continuing in a engagе daughter forced his had him. activity sexual with trial, for both Com appellant’s evidence in the trial defense, summarized was and
monwealth manner: following in the opinion post-trial court’s Purcell, (18) eighteen year-old trial, Barbara At the first incident recalled that the defendant daughter of her her father upon committed [had] of sexual abuse (11) years eleven approximately she was occurred when fondling her of her father This incident consisted age. years progressed, As the her bath. during breasts thir- age until by increased of abuse severity forms and in her engage forced to (14) she was (13) fourteen teen the defendant. with sexual intercourse first act of frequent. They continuous incidents were These occur would opportunity---- had
“whenever defendant] [the home, sleeping, or if she was mother wasn’t my [when] either come he sleeping, would my brother room, or he would me in my this to room and do my gome downstairs.” make (3) (4) times in a or four three happen it would Sometimes occasions, more it was lessened; other week, then it frequent. Saturday, occurred sexual abuse incident of
The last prom the high to her school had 17, 1986. She been May eight cousin, Purcell. At John her with evening before entered her morning, the defendant following o’clock down. from the waist nude bedroom, she was now where fin- he his body, placed her touching began Mr. Purcell sexual to have proceeded and then vagina, in her gers *5 incident her. It was after this intercourse with to a defendant’s conduct report decided to Barbara she informed Monday morning, On authority. person teacher, Mr. her father’s high Barsky, her school about Barsky’s testimony Mr. confirmed both conduct. this during upset displayed and the she conversation disclosure. she had not this conduct reported
Barbara testified that the sexual by she was embarrassed because previously defendant, feared her she upon perpetrated acts the disclosure temper, and knew her father’s violent hid fear and mother. Thus she her hurt her deeply would single of a confi- exception years torment with (13) (14) years or fourteen When she was thirteen dence. Keller, Michelle girlfriend, told her age, the victim and fondle night her her father enter bedroom would Keller, Michelle who body. her and and touch breasts friend, the conversation a close confirmed longer no period time when the conversation corroborated the (5) occurred, (4) prior to years four or five namely Bills of Information. filing of the her began seeing Barbara Purcell January, In had Purcell, basis. He cousin, regular on a first John friend- because of his constantly the house visiting been Barbara, not permit- who was the defendant. ship with on a began dating daily John boys, to date other ted saw each basis; years they one and one-half for almost out he escort- couple socially, went constantly. other as (2) high proms school she attended her to the two ed dances; did they everything other well as numerous conduct and Mrs. Purcell knew of this Mr. and together. during this time that relationship. It was encouraged the in love with her cousin became Purcell fell Barbara him, including intercourse. Her with sexually intimate plans her supported in court and admissions love letters him. marry case, to the defendant’s in addition The defense this First, the defendant denial, three areas. upon focused repeated claimed these incidents child could abuse simply opportunity have occurred because he lacked the other engaged to have in such sexual conduсt without *6 of it. the being members aware To this extent family his to show testimony of wife and son was introduced to if he daughter, the had no access his that defendant did, short duration. periods very this access was for
Second, allegations he these insisted the motivation for from he had Purcell emanated the fact that ordered John found his and daughter from the house when he John 18, 1986. having May sexual intercourse on Sunday, defendant, Purcell, friendly who remains with the John He of his intensity testified on his behalf. described the victim, she can- with the an which relationship intensity admitted, he confirmed that had been struck didly defendant, from his house he was the and ordered when Barbara. caught being intimate with however, in a did, He admit that letter he had received 18, 1986, prior she told him she May from Barbara to house, “goes him at her explain to to what on” wanted for it. go guidance counseling to to and that she refused 1). interesting It is further (Commonwealth’s Exhibit No. him witness, knowing loved that this the victim to note college plans, his threatened to leave college and favored if the family she didn’t withdraw support Purcell in this case. prosecution several
Defendant’s third defense centered [around] abiding, asserted he a who law reputation witnesses citizen. honest is weight of the evidence reviewing role
Our trial grant “The a new determination whether limited. against weight that is ground on the the verdict court, and discretion of the trial rests within the evidence an of discre- disturb that decision absent abuse will not we Hunter, 381 Pa.Super. tion.” (1989). “A trial court should award ground against the verdict is on the new trial is so verdict only jury’s of the evidence when weight contrary to the evidence as to shock one’s sense of justice imperative right may award of a new trial is so that given opportunity prevail.” another 232, 239, 512 A.2d 1155-1156 Whitney, (1986). сonflicting, “Where the evidence is finding the witnesses is for the and if its solely jury, record, of a motion supported by the the trial court’s denial for a new trial will not be disturbed.” Commonwealth v. Larew, appellant’s challenge weight to the of the evi-
Instantly,
dence is
premised upon
jury’s
contention that the
ver-
charges
rape,
dicts of not
on
incest and involun-
guilty
sexual intercourse
tary
finding
deviate
constituted
This,
had
he
the victim’s
not been credible.
argues,
guilty
rendered unreliable
verdicts
charges
corruption
of indecent assault and
of a minor.2 We
*7
disagree
argument
with this contention. A similar
was
rejected by
Superior Court Commonwealth v. Shaf-
18,
(1980),
279
The fault with is that ac- appellant’s “[a]n quittal interpreted specific finding cannot be as a relation to some of the evidence.” Commonwealth v. Carter, 405, 408, 375, (1971), 282 A.2d 376 quot- ing 415, 422, Parrotto, Pa.Super. Commonwealth v. 189 896, (1959). 150 A.2d 399 an acquittal When on one count in an indictment is inconsistent with a conviction on a count, upon acquittal second “the court looks as no [the] assumption more than the of a jury’s power they which exercise, had no to right they disposed but to which were Appellant post-trial further asserted in his motions that verdict *‘[t]he prove guilt beyond was insufficient to a reasonable doubt” and "[t]he error, contrary boilerplate verdict was however, to law.” Such averments of preserve appellate are insufficient an issue for review. 291, 294, 444, Pyett, Pa.Super. See: Commonwealth v. 372 539 A.2d (1988); Holmes, Pa.Super. 445 315 461 A.2d (1983) (en banc). event, any 1268 Moreover and in when the evidence light in the instant case is viewed in the Commonwealth, most favorable to the it is clear that such evidence was sufficient to sustain jurys charges corruption verdicts on the of indecent assault and a minor. 350 v. Id. Accord: Commonwealth
through
lenity.”
Strand,
(1975). Thus,
544, 547,
675, 676
Pa.
347 A.2d
464
in a criminal case
in a
verdicts
consistency
jury’s
sup
there is sufficient evidence
unnecessary, provided
Common
returned,
has
the convictions
port
159,
Id.,
21-22,
also:
Prior to made by letters sought he to have seventeen love written which cousin, Purcell, into evi to her John admitted the victim that the lettеrs relevant Appellant dence. asserted were him, in that he had against demonstrate the victim’s bias first relationship between the victim and her up broken rele argued also that the letters were Appellant cousin. knowledge source of the victim’s vant to demonstrate the Commonwealth, and sexual behavior. The physiology male hand, introduction of the letters on the other contended that Law, Rape Shield 18 Pa.C.S. was barred § hearing, an in camera examined The trial court conducted letters, they and concluded that were relevant to show However, the court also concluded that some of the bias. explicit more references the letters were so sexually that should be removed from the highly prejudicial they their into evidence. prior Appellant letters introduction argues ruling unduly prevented now the trial court's establishing intensity relationship him from be prevented and her cousin and tween victim becoming knowledge of the victim’s detailed from aware resulted from this anatomy male sexual behavior which relationship. Black,
In
(1985), the
held
“insofar
Superior
Court
as
Rape
purports
prohibit
Shield Law
admission of
bias,
may logically
evidence which
demonstrate a witness’
interest or
attacks the
prejudice
properly
which
witness’
infringes
it
an accused’s
credibility,
unconstitutionally
upon
right of confrontation under the
Amendment
to the
Sixth
I,
and Article
Section 9 of the
United States Constitution
Id.,
Pa.Superior
Constitution.”
Ct. at
Pennsylvania
(footnotes omitted).
also:
While we showing witness’ to exclude relevant evidence not be used that all do not hold attacking credibility, we bias or Although necessarily admissible. material evidence the victim’s relevant, tending show evidence logically excluded if “it may be or lack of prejudice proba that its jurors minds of the so inflame the would Common unfair outweighed by prejudice.” tive value is 387, 732, Stewart, 382, 450 A.2d v. Pa.Super. 304 wealth Strube, v. 274 Pa.Su Commonwealth (1982) (quoting 734 omitted), (1979) (citations 374 418 A.2d per. L.Ed.2d 288 denied, 449 U.S. 101 S.Ct. 66 cert relevant, (“Although evi (1980)). Fed.R.Evid. 403 Cf. if value is substan probative excluded its may dence be danger prejudice----”). of unfair outweighed by tially probative between value balancing determination This made the trial court should be prejudice and unfair that outlined 18 an in camera hearing similar to court should 3104(b). hearing, At this the trial Pa.C.S. § a matter of record following as determine (1) proposed for review: whether appellate preserved or to attack to show bias or motive is relevant evidence evi- (2) probative whether value credibility; effect; (3) whether outweighs prejudicial dence its or bias motive proving alternative means there are credibility. challenge 557-558, Black, Pa.Super. at supra v. 337 Commonwealth Common omitted). also: (footnote See at 401 487 A.2d (1990); 573 A.2d Reefer, Pa.Super. wealth Simmons, Pa.Super. Coia, (1986); A.2d 1159 court explained the trial post-trial opinion, in its
Instantly, sexually explicit portions the more excluding its reasons letters as follows: of the victim’s unfair value and probative In an effort to balance individually each letter Judge Trial reviewed prejudice in the test enumerated prong the three applied and then In some instanc- the letters considered. Black Case to all prejudicial language, certain highly he merely es deleted *10 its to be of letter and tenor bulk the permitting the the In instances he deleted Jury. a few by considered or unnecessary, and repetitive letter it was entire becаuse 9, (Notes pp. March Testimony, of inflammatory. highly 33-41). at the letters introduced totality, in their
Considered na- understand the Jury graphically trial enabled the the romantic and sexual ture, of intensity and longevity Purcell. Barbara Purcell and John relationship by enjoyed refer- portions pertained specific Most deleted sexual for the parties’ to “Junior” ences ] nickname[ Purcell, language equally of or of an organ John other inflaming nature. of proving exist an alternative means
Finally there did motive, credibili- challenging prosecutrix’s or and bias First, in permitted testify trial. John Purcell was ty at particu- of as to the great detail on the defendant behalf 1986, May 18, and surrounding the sexual incident of lars removal house. He was also his from defendant’s seeing Pur- began to confirm that he Barbara permitted 1985, on a social after January cell more than basis her, her even that he loved was intimate with and had marriage. discussed the fact greater significance even Court
Of of the prosecutrix allowed extensive cross-examination in being into these This included defense counsel areas. basis, writing on a him love company daily her cousin’s discussing marriage many occa- constantly, letters sions, him, relationship an incestuous loving having (5) (1) On no fewer than five occa- year. for about one had questioned she was on whether she sions trial and she engaged intercourse with John Purcell sexual her This admitted involvement. unhesitatingly letters, D-l(f) D- Exhibits especially with her coupled her 1(a), read to made involvement jury, which were quite clear. *11 that the victim’s ing prove to his contention Moreover, eminently it is clear that by influenced bias. his contention permitted fully to establish appellant was knowledge sexual resulted from her rela thаt the victim’s any criminality her cousin rather than from tionship with circumstances, these find part appellant. the of Under we right of confrontation and no impairment appellant’s no trial part of discretion on the the court. abuse wife, appellant’s direct examination of she During for frequently up appellant testified that she had waited night called to the house at when he had been leave this judge interrupted reasons. The trial testimo business witness, the mean the middle of the ny “[y]ou and asked bed, out of get you husband would called would night, your night you o’clock at ... and sleep be a sound two for him to come To up stay wake awake back?” would I “Sometimes I would. question replied, this the witness I I said sometimes would.” Defense say always. didn’t conference,3 after which the requested counsel sidebar as follows: trial court instructed the part record is This sidebar discussion was held off the not a appeal. transcript Court on the trial which has been certified to this asked, imputed I if tone of voice question my The last So, obviously I did not intend that. skepticism, certainly that determine you’re people as I told the you previously, I not and not else. did myself, anyone did, if I happened, apolo- it believe that that’s what but to the other this court. gize people and also you unfairly prejudiced by asserts that he was Appellant questioning trial court’s of Mrs. Purcell. right duty and sometimes the of a trial always
“It is However, from questioning witnesses. judge interrogate feeling unduly should not show bias or or be bench Gibbs, protracted.” Pa.Super. v. Commonwealth (1989). 563 A.2d also: Commonwealth See 38, 44-45, Seabrook, 475 379 A.2d 567-568 Pa. (1977); Troop, Pa.Super. (1990); 571 A.2d King, 553, 556-558, Concern- court, ing the of a witness the trial questioning by Supreme Court has commented: recently interrogated should by judge only
‘Witnesses he the interest of justice requires. when conceives so bring It is counsel out permit better to the evidence un- up disputed points and clear on cross-examination court; by important aided but where an fact clarified, disputed point indefinite needs to be taking part court see that it is done in the may should refrain from extended Judges examination.... witnesses; not, they during examination should *12 trial, merits, indicate an on the a as to the opinion doubt or do to indicate a lean- credibility, anything witnesses’ other, ing side or the to the explaining to one without all matters for them.’ jury that these are 505, 508, 486, A. 278 Pa. 123 Myma, [Commonwealth (1924).] by, That does not mean that a trial must sit a judge idly technician, in mere evidential silenced the face of the absurd, Nor impossible, ambiguous or the frivolous. questions should he leave unasked or unanswered center the matter or amplify relevant question or issue. It is a false and dangerous neutrality that would allow loss of or liberty property when another question fact, further would inquiry gain the expose false or improper premise, witness, interest or bias correct insinuation unfounded in the record. It is not partisan wheel, to maintain the steering evenly, between competing and often aggressive counsel, anxious to set the course. Nor judge should a yield gavel to zealous partisans or allow counsel to impose their contentions by contumelious conduct. When others than the trial judge control the proceedings, one side has lost their day court. Roldan, 366, 369, 524 Pa. 572 A.2d (1990), quoting Commonwealth v. 278 Pa. Myma, (1924). 123 A. “A new trial is required ...
only when the trial court’s questioning is prejudicial, ‘that is when it is of such nature or substance or delivered such a manner that it may reasonably be said to deprived have ” defendant of a fair impartial trial.’ v. Troop, supra, quoting Hammer, 88, 100, Pa. 494 A.2d (1985). See also: Com monwealth v. Goosby,
Instantly, we question view court’s to Mrs. Purcell as attempt an to clarify an earlier answer which the witness had given response to defense counsel’s questioning. Although the question court’s may have been inartfully phrased, the responded court immediately to defense coun- sel’s concerns and cautioned the jury that there was no intent on the part court’s to imply skepticism of Mrs. Purcell’s testimony. Moreover, trial, at the start of court had thoroughly jurors informed the that it was their function to determine the weigh facts and witnesses. The court had also told the jury that:
You are not by any opinion bound you might think counsel or I expressed have concerning guilt or inno- cence, witnesses, credibility of weight evidence, facts
857 evidence, drawn or inferences to be from proven by those facts. myself.
I of question some the witnesses may part opinion my reflect about questions any will not will purpose My only about this case. evidence I feel that counsel may about matters which inquire fully explored. not have given cautionary instruction specific
When
with the
viewed
general explanation
jury's
court
by the trial
questioning
function,
are satisfied that
court’s
we
to the defense.4
prejudicial
Mrs. Purcell was not
“
the district
attorney
settled that comments
‘It is well
do
reversible error unless the unavoidable
not constitute
[jurors],
prejudice
comments would be to
effect of such
fixed
toward the
hostility
in their minds
bias
forming
weigh
objec
could not
the evidence
they
defendant so
”
v.
Commonwealth
tively and render a true verdict.’
Chew,
472, 484,
1379,
(1985),
A.2d
1385
487
Pa.Super.
338
Tabron, 502 Pa.
154, 160,
v.
465
quoting Commonwealth
Commonwealth
637,
(1983).
also:
v.
A.2d
639-640
See
454,
479,
(1989),
cert.
445,
Pa.
A.2d
483
Strong,
522
563
—
1536,
denied,
—,
110
The Supreme Court of Pennsylvania has established the following guidelines additional for evaluating prosecutor’s a closing argument: prosecutor, as just a defense attorney, must have
[A]
latitude in presenting
reasonable
a case to the jury and
must
present
be free to
his or her arguments
“logi
with
Smith,
cal force and vigor.”
Commonwealth v.
490 Pa.
380, 387,
(1980),
359 guilt, of defendant’s falsity as to truth evidence v. a witness. Commonwealth including (where Kuebler, (1979) defen- A.2d lie”); ABA “big dant’s version of events was branded Justice, Relating to Standards for Criminal Standards Draft, 5.8(b) (Approved Prosecution Function Section 1971). 471, 489-490, 526 'Amato, D Pa.
Commonwealth Bullock, See also: (1987). A.2d 278-279, (1989); Pa.Super. 539-540 Yabor, 370-371, 546 Furthermore, prosecution may, “the closing address, attempt pleas argu- meet the its in his summation.” Com ments made defense counsel *15 6, 70, Brown, 285, n. monwealth v. 489 Pa. 802 414 A.2d v. Cliff, (1980). n. also: Commonwealth Van 78-79 6 See denied, cert. 1173, (1979), A.2d 483 Pa. 397 1177 2412, (1979); Com 964, 441 L.Ed.2d 1070 U.S. 99 S.Ct. Perkins, 116, 132-136, 1076, monwealth 373 A.2d Pa. Thus, (1977). prosecutor’s concerning 1084-1086 “a remark the of a witness does constitute reversible credibility by, error where it is ‘motivated and was commensurate with prior upon defense [by attacks counsel] Commonwealth’s witnesses.” Commonwealth (1982), Gwaltney, 497 Pa. 513, 442 A.2d 462 Pa. v.Stoltzfus, quoting Barren, (1975). also: See At clos- prosecuting attorney’s the conclusion argument, defense counsel to references which ing objected hearing to the to the preliminary had been made and trial to suggestion spectators certain at the had tried that attorney. and prosecuting intimidate the victim have been were as follows: improper remarks to alleged say never we and our eyes Can turn our backs one of fabricates the happens? Every these victims they’re unhappy with home thing whole because their go through this trauma of two- person lives? Would a This cross-examination? hours of arduous and-a-half hearing, preliminary There isn’t the first time. hours of cross- Two-and-a-half gentlemen. ladies and I man, Why? she flinch? and did by examination truth, has telling she to she was you submit because to hide. nothing I’m took you sure gentlemen jury,
Ladies and Little in the courtroom. sitting people notice to all the throughout out been shouted may comments have for one are there you people I those trial. submit Purcell, at her to stare reason, to intimidate Barbara testifying. she is while the courtroom. hearing; packed preliminary is a
There trial; packed the courtroom. There is a This isn’t during questioning. laughed The people out, To heckling. Why? things shout People joke. me or to intimidate they I think wanted intimidate me. there, gentlemen ladies and they’re That’s why Barbara. jury. com- to these objection defense counsel’s response In fol- court delivered the the trial prosecutor, ments jury: to the lowing instruction mo- a few gentlemen, THE COURT: Ladies far as in this case as the law going give you I’m ments concerned, I’m to take a going but charge is the final *16 first. recess I that that, are several comments
But, I do there before argument, they relate to the because you to make want given presented. just arguments that were any from mind all, your I to strike you want First that argument their by statement the Commonwealth preliminary to the as it related felt —of the evidence they hearing at preliminary mention of a There was hearing. or cross- either on direct it was point one believe —I McAllister, the items specifically, Mr. but by examination your strike from ordering you to wishing I’m that —I’m to the fact that the preliminary mind is the reference hearing packed. was Whether not the preliminary hearing packed was never introduced into evidence therefore, and, proper consideration this case it for the jury. that you
Do believe can follow instruction? Is you there cannot? anyone they who believes
(No response.) right, THE All I see no hand. COURT: Also, fact prosecu- there was a reference to the there in this courtroom that people tor that were were witnesses, here to intimidate her and/or the especially Purcell. Barbara
It’s true that this courtroom is There’s packed. never any testimony particular people been as who these are associated with. right
You as make jurors any have observations sitting made here in court as a you’ve juror. while However, intimidation, the reference of or at least the intimidated, prosecutor’s concept fact that she felt victim, victim, or the were here to intimidate the they must also be stricken from memories and not your by you any considered context.
If there’s here cannot that in- any juror who follow can’t, And if I you you your struction? want to raise hand.
(No response.) right,
THE COURT: All I see no hands. Finally, laughter there were comments about and cer- things tain that occurred during courtroom. The jury sat here. There were times when comments made that in a obviously jocular were were manner. was, however, There one I outburst where did clear two courtroom, I people quite from the and think I properly. associated, do not if people know with whom those were anyone. They might spectators. have been mere
So, therefore, indication any might have emanated lips from the of the prosecutor people that those could be *17 or attorney attributed the Defendant to his are totally and, if imрroper again, you cannot strike that from your ordering mind—I’m to strike you your that from mind it, if anyone and not consider and there’s here cannot who that, hand, do I to raise you your would want and I’m asking you, obviously, totally candid with the Court in .these areas it’s a because serious matter. Is there cannot anyone who follow instruction?
(No response.) All right. THE COURT: carefully considering After the comments of the prosecut- ing agree we with the trial court that the com- attorney, prejudicial they impaired appellant’s ments were not so a trial. The trial court’s right receive fair extensive adequate any curative instruction was to remove prejudice might prosecuting which otherwise have resulted from the Therefore, in attorney’s reference to matters not evidence. we conclude that the trial court did not err it refused when prosecuting to award a new trial because of the attorney’s remarks.
Appellant alleges prosecutorial also misconduct because (1) of remarks prosecuting attorney: regarding an incest; episode Oprah Winfrey Show which dealt with (2) investigating police that the detective believed the vic- events; (3) dispar- tim’s version of and which were unfairly arguments, of defense character witnesses. These aging however, review, preserved for appellate have been “ ‘It is objections there were no trial. fundamental that parties obligated a trial are to inform the court of alleged procedure, violations of evidence law or trial by timely specific that failure to so inform the court motion, exception, request, or offer of will objection, proof ” Common- ground constitute a of that for relief.’ waiver Schneider, wealth v. (1989), Poulin, Evidence, Pennsylvania Packel & quoting I, issue, failure to raise an p.
Ch. 103 at § “[T]he argument timely during manner trial objection, alleged post-trial forecloses further of an error review *18 v. Commonwealth level.” appellate motions or at Johnson, 435, 511, (1987). 427, 534 A.2d 515 Pa.Super. 368 Clair, 418, See also: Commonwealth v. 326 A.2d 458 Pa. Gordon, 521, Commonwealth v. (1974); Pa.Super. 364 272 534-537, 631, (1987). 528 A.2d 638-639 Gainer, Commonwealth v. Pa.Super. 397
Recently,
Court,
348,
(1990),
sitting
en
Superior
Id.,
“[bjefore that, in of all the alternatives light must be determined counsel, actually employed strategy available lawyer would competent that no so unreasonable Miller, Pa. chosen it.” have counsel (1981). inquire whether A.2d 233 We decision choice, at the time the informed which made an could been considered reasonably have was made See Com interests. defendant’s protect advance Hill, A.2d 587 monwealth constitutionally is deemed Thus, counsel’s assistance the particular to conclude once are able effective we some reasonable basis counsel had course chosen *19 The test his client’s interests. to effectuate [designed] reasonable, more were not other alternatives whether of the record. Com hindsight evaluation employing 427 Pa. Maroney, v. Washington ex rel. monwealth (1967). 349 599, 604, 235 A.2d Dunbar, A.2d v. Pa. 470 503 Commonwealth Akers, 392 also: Commonwealth (1983). 77 See (1990); A.2d 755-756 572 Pa.Super. [189-190], Harner, 229, 243-244, Pa.Super. Commonwealth (1988). 1241, 1247-1248 546 A.2d Id., 580 A.2d Ct. at Pa.Superior constitutionally trial counsel was contends that Appellant expert testimony failing challenge to ineffective irrelevant testimony her was Steiker because Sandra to bolster solely by offered Commonwealth was Steiker, a clinical social Ms. of the victim.5 credibility concerning the worker, testified for Commonwealth Prior to and incest. of child sexual abuse dynamics general the victim and had had not examined the witness testifying, of this case. Her testi- of the facts knowledge specific no identified therefore, nature. She general was of a mony, said, which, traits she and behavioral factors psychological of child sexual abuse victims commonly by exhibited were testimony offered at trial was only objection Steiker’s to Ms. 5. The testify expert. qualified to as an was not the witness and incest. She testified also that it was common for child report victims of sexual abuse not to the abuse for a years difficulty remembering number of and to have certain specific surrounding details the incidents of abuse. The argues testimony that Ms. Steiker’s in help explain delay reporting relevant the victim’s abuse, sexual and that such did not comment testimony the victim’s of child upon upon credibility general. sexual in abuse victims in expert first case consider use of testimony Baldwin, child abuse cases was (1985). Pa.Super. panel There a of the Superior expert testimony Court held that was relevant and proper explain psychological to a and behavioral Subsequently, characteristics of child victims. abuse Baldwin holding panel was limited another of the which held that: Superior Court Baldwin does carte provide admissibility blanche this child sexual expert testimony every nature Rather, case. is admitted on the abuse before of child sexual abuse and the psychological dynamics victims, the trial patterns associated behavioral case, it is rele- must determine whether judge, every to the facts in issue. vant McNeely, 517, 521, 534 McNeely therefore, held, expert *20 discussing general the of child sexual
testimony
dynamics
general
had
grounds
abuse was inadmissible
it
admissible,
testimony
informational
To
such
had
value.
position
to further
its
on a
proponent’s
to “be offered
Id.,
at 523-524
specific
Pa.Superior
issue at trial.”
Ct.
3,
n.
More
decisions
both
largely rejected
principles underlying
rior Courts have
McNeely,
Baldwin
little,
if
remains of
anything,
expert
is clear
that an
holdings.
Today,
their
the law
of a
opinion
not offer an
on the issue
witness’
may
witness
O’Searo,
credibility. 228-
(1976).
Seese,
In
(1986),
Pa.
A.2d 920
Court deter
Supreme
witness,
expert
mined
of an
who had said
testimony
that the
young
that it
unusual for
children
lie about
very
was
abused,
usurped being sexually
improperly
jury’s
had
determining
Subsequently,
function.
in Com
Davis,
(1988),
Pa.
upon her own they of abuse do stories sexual because fabricate re- supply details knowledge sufficient to have sexual Thus, the con- encounters. garding sexual of the class opinion veracity as to the expert sisted of mem- of the victim was a potential witnesses which ber. veracity a particular noted that the witness
Id. We answered in reliance on must be question which life, knowledge common experiences ordinary nature, of human and observations natural tendencies *21 the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of assess, jurors to the question of a witness’s credibility is reserved exclusively quoted for the The testi- jury.... in mony was Seese condemned as “an invitation for the of trier fact to abdicate its responsibility to ascertain the relying upon questionable facts the premise that the expert position is a better to judgment,” make such a O’Searo, quoting Seese, 443-44, 512 Pa. supra. A.2d at 922. We concluded: evidence, testimony,
Such admitted as encourage would jurors to shift their focus from determining the credibil- ity particular trial, witness who testified at allowing them instead to to the “expert” defer so-called assessment of the people truthfulness of the class of the particular which witness is a member.
Id.
There is question prohibition no that of Seese applies given to the squarely testimony by the Common- “ It, too, expert wealth this case. was ‘expert’ an people assessment of truthfulness of the class of indeed, which the is particular member”; witness [the expert’s] was testimony virtually identical to that of the expert. Seese
Id.,
81-83,
In Commonwealth v. Gallagher, (1988), expert witness had not directly commented upon or upon general victim that of the Instead, class of victims. the testimony pertained had to rape syndrome trauma and its effect upon victim’s memo- The ry. expert opined that the victim had suffered from rape syndrome explained trauma the manner in which might affect her identification the defendant. Supreme testimony improper Court held that the as an attempt credibility. bolster victim’s The Court said: appears The crux of the identify appellant victim’s failure two weeks after unremarkable, rape phase as she was the acute *22 performing even difficulty of RTS in a victim has which functions, identification five normal and the in-court credible, it from particularly is as results years later It flashback, computer. mind like a is operating with the expert testimony of the was to purpose clear that the only of credibility enhance the the victim. Seese, supra:
We stated
particular
witness is testi-
question
The
of whether
is one
must
answer-
in a truthful manner
that
fying
from
ordinary
inferences
the
upon
ed
reliance
drawn
knowledge
of life and
as
the
experiences
common
nature,
upon
as well as
tendencies of human
natural
of the
of the demeanor and character
observations
witness____
credibility
of a witness’
question
[T]he
for the
exclusively
jury.
routinely
has
been reserved
443,
(citations omitted; empha-
Pa.
Instantly, victim’s failure to make alleged for the explanation an her upon her the abuse inflicted complaint prompt the evidence was argues father. purpose this and that it not unfairly relevant compare to the defendant because it did not prejudicial with a known class of victims of similar victim’s behavior such, contends, As the testimo- abuse.6 prosecuting attorney, This left who made the follow- task was closing argument: ing comparison in her Steiker, The Commonwealth’s next witness was Sandra who has worker, geez, forget, eight, years, I even nine been a clinical social factors, psychological you symptoms, behavioral indi- who told cators of incest and child sexual abuse. goods. Damaged Guilt. You saw Barbara. Powerlessness. Put- ting up long. frightened for so She was of her father. She was *23 suicidal. Poor social skills. Repressed anger. you Did tell that she had a lot of friends? she ability gentlemen jury, you Impaired of the to trust. Ladies and Now, you expert put two saw her and heard what the said. the together. They’re similar. said, Steiker, she Sandra that all cases like this are Because similar, I submit oftentimes that incest victims mirror each other. they how mirror each other. Each of the It’s unbelievable much unbelievable, present, beings. factors that are it’s but it’s human similarly things We all react so to horrible in our lives. bribery the Sandra Steiker said comes with incest? What about you right bought daughter his cars. I That man told there he two begged years got bribery submit I and never a car. That’s the talking you got about. Barbara sat there and told that she she everything Everything. bribery she wanted. Isn’t that the Miss talking Steiker was about? telling the Defendant Barbara that it would kill her What about your mother if she knows? Don’t tell mother. To a small child incest, growing up, pattern a situation such as these little comments child, threatening prove threatening young oftentimes to a so patients seeing right two of Sandra Steiker’s that are her subjected now have to, they anyone never told about the incest were never anyone. told many physical Mr. McAllister made comments about where’s the abuse, expert evidence. I’m not an in child sexual but Sandra you Steiker is. This Court said she was. What did she tell about say, percent physical did I evidence? What she ten the cases? forget. your percent, maybe? memories. Five She said five Use seen, percent physical gonorrhea, of the cases she’s there was or — disease, pregnancy. had some kind of venereal or That Defendant vasectomy; pregnancy is out. psychological you all eleven factors to Barbara showed almost subject yesterday. Does a Does a child fake those emotions? child you Why I has sexual—child sexual herself to this? submit to not. we, why expertise? it become an Because as a non- has abuse— perpetrating society, disbelief look at it in shock and and horror. daughter? probably own You’re How can a man do this to his the deter- expert usurp jury’s did not ny psy- mining merely explained function and behavioral child abuse which were chological characteristics of victims The decided cases generally by lay persons. known held otherwise. have Gibbons, 383 Pa.Super.
In the similar (1989), expert the testimony A.2d 915 There, psychologist in the case. had that offered instant child sexual concerning dynamics of general testified of its victims. The patterns and the behavioral abuse to the likelihood of non-disclosure also referred testimony their details inability remember by victims acts. The trial court Gibbons in had concluded that abusive the jury was relevant testimony psychologist’s gaps and inconsistencies infer therefrom that could from trau- psychological had resulted victim’s than with rather from fabrication ma associated incest that the appeal, Superior Court determined On fantasy. credibility. victim’s testimony improperly bolstered as Court reasoned follows: Dr. Antho- Emge, psychologist, the Commonwealth’s
In
Mannarino,
“[wjhether
changes
testified as to
ny
with,
in this case were ‘consistent
child’s behavior
abuse____’”
*24
of child
sexual
generally speaking,
victim
143,
panel
553
76. The
Id., 381
Pa.Superior
A.2d at
Ct.
up
“which matches
the behavior
testimony
concluded
of an
abuse
of child sexual
with
of known victims
to bolster
purpose
can
no
other than
serve
alleged victim
victim,
purpose
this
alleged
Id., citing,
v.
Commonwealth
prohibited.”
patently
997, 999, n. 4
Rounds,
542 A.2d
Pa.
n.
518
Davis,
77, 541
518 Pa.
A.2d
(1988);
Seese,
Pa.
(1988); gentlemen
happen?
saying
sitting
could this
Ladies
there
how
Unfortunately, happens more
jury,
you it does.
I submit
aware
we are
of.
than
The Commonwealth argues
that Dr.
strenuously
Kane’s
testimony was necessary because
[appellant’s] en-
“[t]he
tire
alleged
case rested on
inconsistencies with the vic-
tim’s
words,
behavior and
and without
the expert testimo-
ny proffered
Kane,
by Dr.
the jury would have had no
idea whether
these were truly inconsistencies
indicating
the victim was a liar or whether
...
the victim’s actions
and words
representative
were
of a mechanism of cop-
ing....”
Appellee’s Brief at 8. We note that
in the
case,
instant
as opposed to what
Common-
occurred
wealth v. Emge,
psychologist
did not testify that
accusing child’s behavior matched the behavior of known
victims of child sexual
Nevertheless,
abuse.
we can only
conclude
probative
that the
value of Dr. Kane’s testimony
is clearly outweighed by the prejudicial
impact of admit-
ting it.
“A defendant would find little solace in the
knowledge that
conviction resulted from the jury’s
[his]
belief that
the accuser acted in a way that child sexual
abuse victims are
act,
as a class.” Common
believed
wealth
Emge,
381 Pa.Superior
Ct. at
553 A.2d at
In
case,
this
as in Commonwealth v. Emge, supra,
the jury had the opportunity
see, hear,
and evaluate
the child accuser’s testimony, as well as that of the other
prosecution witnesses,
in light of the appellant’s own
testimony and that of the defense witnesses.
“Our faith
lies
jurors’
ability to
rely
the ordinary experi
life,
ence of
their common knowledge of the natural
tendencies of human
including those of a child—
nature —
and their observations of the character and demeanor of
the opposing witnesses.” Commonwealth v.
Emge,
Pa.Superior
Ct. at
Commonwealth v.
supra, 383 Pa.Superior Ct. at
300-301,
Finally,
385 allocatur granted, (1989),
victim’s impermissible, to ly. holding expert testimony In such the Court reasoned: Superior credibility is reserved exclu- question of witness’s Davis, 518 for the Pa.
sively
jury. Commonwealth
(1988);
Gallagher,
Commonwealth v.
A.2d
such,
(1988). As
expert testimony
Pa.
purpose
de-
Seese,
Supreme
the
Court
Pennsylvania
In
supra,
testimony
question
that
consisted
expert
termined
In
veracity of the victim.
opinion regarding
of
expert
had testified that:
part,
expert
that a child would lie about sexual
very
It is
unusual
do
lie
usually
children
[Pjrepubertal
...
abuse
sexual
no matter how chaotic
matters of
abuse
about
home situation it
...
uncomfortable their
441-442,
Such determining focus from credibil- to shift their jurors trial, witness who testified particular of the ity “expert” to the so-called them instead defer allowing of people class of the truthfulness assessment witness is a member. particular which 443-44, such, As A.2d at 922. Seese, 512 Pa. at regard type to this concern with primary upon province has the invade pоtential that it as to the their decision influence incorrectly of a witness. record, apparent it is upon review the Instantly, reporting the incident questionably delayed the victim *26 recall certain of the incident. As and failed to details such, shaky. the of the victim was somewhat credibility expert In offered the testi- response, the Commonwealth (1) explain: of Ms. Shade to a victim’s mony delay offense; (2) to recall reporting inability an a victim’s times; (3) and the as exact dates and victim’s behavior In offering testimony, the result of the offense. this hoped legitimize to the victim’s clearly Commonwealth the incident and her failure to lengthy delay reporting incident, allowing of the thereby recall certain details essence, her of the facts. In this jury accept version Since, only credibility serves to bolster the the victim. however, utilized expert’s testimony may solely an witness, of a find that the trial veracity to enhance the we admitting expert testimony court erred in of Susan Shade.
Id. 324-325,
The decisions of the and Courts instruct, therefore, expert testimony dynamics on the of child sexual abuse not be used may by Common alleged wealth to bolster the of an of child credibility victim had not Instantly, reported appellant’s abuse. victim alleged acts of sexual until six approximately abuse one-half after years the first incident. She said that she fearful, reported had not the abuse because she was embar defense, rassed and did not to hurt her want mother. The hand, on the other maintained that the victim’s failure to report the same evidenced that her promptly testimony was fabrication, offered for revenge appellant’s breaking as up relationship daughter between his and her cousin. circumstances, these it for jury Under was to evaluate and to credibility appellant victim determine underlying the true reasons the victim’s failure to make The introduction of prompt complaint. expert testimony class, victims, prompt that child as a often do not make abuse, of sexual allowed the Commonwealth to reports establishing the victim’s that she acted by bolster with other known victims of child sexual abuse. consistently This, holds, expert impermissible the case law is an use Dunkle, v. Com supra; See: Commonwealth testimony. Gibbons, supra; Emge, monwealth v. Commonwealth supra; v. Gallagher, Commonwealth also: supra. See Seese, Davis, supra; conclude, therefore, supra. claim appellant’s We for to the failing object counsel ineffective assistance .7 has merit psychological arguable expert, arguable appellant’s assertion that There is also merit constitutionally failing trial counsel ineffective regarding statute of limita- request instruction *27 corrup- to of indecent and charges assault applicable tions com- charged minor. criminal Appellant by tion of a was 30, engaging in of sexual on June 1986 with a course plaint 1, 1979 began January his daughter conduct with which 17, 1986. of limita- continued until The statute May and corrupt- to of indecent applicable charges assault tions 1985, In years. 5552. ing a minor two See: Pa.C.S. § a to toll however, legislature designed enacted statute such The statute of limitations cases as this. the statute in pertinent part: provides Tolling 5554. of statute
§ 5553(e) (relating dispo- to provided by as section Except of years), period two proceedings sition of within during any does not run time when: limitation the crime (3) years age, child is where unde* caused person to the the child injuries involves violence, оr act, or wrongful neglect, or unlawful respon- or parents by person of the child’s negligence welfare, residing any individual for the child’s sible subse- Although previously cited decided several of the cases were 7. trial, trial at the time of quent appellant’s it was established law to bolstering testimony impermissible purpose for expert was that the Seese, supra; v. of a See: Commonwealth witness. Therefore, O’Searo, to supra. failure v. counsel’s explained as a mere failure object Ms. Steiker’s cannot developments in the law. predict future child, of the paramour home or a the same as parent. child’s 5554(3).
42 Pa.C.S. §
tolling
as
the statute
limita-
interpreted
This has been
for which
was not
respect
prosecution
tions with
to offenses
of the statute. Common-
time
on the effective date
barred
573,
Bell,
The law is committed period.” the limitations outside posed upon acts 390, 400, Thek, 546 A.2d Pa.Super. v. 376 Commonwealth 173, Allem, Pa.Super. 83, (1988); v. 367 89 Commonwealth (1987). 3, 845, 849 n. 3 See: Common 182 n. 532 A.2d 162, 171, 563, Bethlehem, 570 A.2d Pa.Super. 391 wealth v. law, (1989)(“Under the Commonwealth Pennsylvania 568 criminal offense every as element of prove to an required prosecu not of limitations did bar an statute applicable Fanelli, v. 377 Pa.Su tion.”). also: See Commonwealth J., 1201, (1988) (Beck, concur 555, 566, 1207 547 A.2d per. However, a conviction although 103. ring); 18 Pa.C.S. § the limita acts committed outside upon not may be based continuing course involving a prosecutions period, tions 376 “ ‘introduce evi abuse, may the Commonwealth
of sexual
parties although
prior
of
illicit relations between
dence
of like
other indictable offenses
such
disclosed
evidence
”
of
the statute
limitations.’
by
nature
were barred
which
Niemetz,
444,
431,
422
v.
Pa.Super.
282
Commonwealth
Lep
1369,
(1980), quoting
319,
424,
(1979),
413 A.2d
pard,
Pa.Super.
Bell, 405, 412,
31 A.
quoting Commonwealth
Thek, supra
(1895).
also:
See
9;n.
9,
377 not find instructed that it could should been jury have a minor corrupting of indecent assault appellant guilty to prior had committed of acts which been basis “ of fact is question a involved ‘Where September begun prosecution was say for the to whether jury it is v. Commonwealth of limitations....’” period within (1988), Groff, 353, 371, A.2d 1246 548 Pa.Super. 378 23A C.J.S. Criminal Law (1961). Inasmuch 1132 quoting § statute applicable not instructed on the jury as the included acts committed limitations and the trial evidence appellant’s it is convictions period, possible outside that period. limitations conduct outside the upon based were Therefore, appellant’s merit in this conten- arguable there is him represented with ineffectively tion that trial counsel to the statute of limitations. respect assistance averments of ineffective Although appellant’s merit, opportuni- trial has not had an arguable counsel have is, therefore, necessary It his conduct. ty explain to hearing. an evidentiary remand this case for we assistance of coun- arguable claim of ineffective When an made, no evidentiary and there has been sel has been to the defendant hearing permit in the [trial court] claim, support on the record to develop evidenсe to rebut opportunity an provide the Commonwealth hearing. claim, remand for such a See: this will Court Spotts, v. 31, 33, Commonwealth A.2d Pa.Super. 341 491 (1985). Petras, 372, 377, Pa.Super. McBride, (1987). also: See Common (1990); 113, 121, 570 A.2d Pa.Super. Copeland, 54, 61 wealth trial remand, it must determined whether be Upon for not objecting basis had a reasonable counsel witness and expert of the Commonwealth’s limita on the statute of instruction requesting handling for his no reasonable basis If counsel had tions. If, trial. matters, granted must a new appellant of these reasonable counsel had a however, is determined that it *30 actions, judgment may for his then the sentence be basis reimposed. vacated, at for the judgment of sentence is least time hearing remanded for an
being, evidentiary and the case is claims of ineffective assistance of trial coun- appellant’s and sel. If counsel is found to have been ineffective must a new trial be appellant prejudiced thereby, If acted reasonably, counsel is determined have granted. meantime, however, In the may reimposed. sentence be is not retained. jurisdiction
POPOVICH, J., concurring dissenting opinion. files a and J., BECK, dissenting opinion. files a POPOVICH, Judge, concurring dissenting: and Donald E. Wieand’s Judge I dissent from respectfully against I the verdict was because am convinced opinion the trial court abused its discre- of the evidence and weight However, I awarding appellant. in a new trial to tion respects. other Judge Wieand all concur with Wieand, “The determination by Judge stated correctly As ground on the that the verdict grant a new trial whether of the rests within weight is evidence against court, not disturb that trial and we will discretion of the of discretion.” decision an abuse absent Hunter, 606, 617, ground trial on the “A should award a new trial cоurt weight only of the evidence when against is verdict to the as to shock contrary is so evidence verdict jury’s trial is the award of a new sense of justice one’s another right may given opportunity imperative so that Whitney, prevail.” (1986).” Opinion, p. Majority 1155-1156 220 of 589 A.2d. Pa.Super., p. of 403 record, I am convinced thorough After a review to shock to the evidence as contrary is so that the verdict rape, acquitted Mr. Purcell was justice. one’s sense of sexual intercourse involuntary deviate statutory rape, the evidence was determined that Clearly, jury incest. intercourse with Mr. Purcell had sexual insufficient to find of Bar- Thus, found the daughter. jury his regard impor- to her most lacked Purcell bara how could the question I must then allegation. tant testimony, espe- Purcell’s any of Barbara thereafter believe evidence.1 of the defense’s cially light corrup- assault and convicted of indecent Mr. Purcell was hopelessly dead- which had been by jury of a minor tion However, any evidence which the record void locked.2 *31 of exception the sole story with corroborates victim’s victim, Keller, of the who of Michelle testimony friend six before that, years approximately on one occasion stated teacher, to her the abuse reported Purcell Barbara “fondled” her. At the that Mr. Purcell victim told Michelle 9 to conversation, approximately Michelle was time of this years approximately years 11 to 13 old and Barbara was N.T., 235. p. old. against testimony, and Michelle’s
Juxtapose Barbara’s Although in Mr. favor. Purcell’s the wealth of evidence her over a sexually father had abused alleged her Barbara to only she was able years, of six and one-half period alleged of episodе first and the last outline two events—the mother The victim’s degree specificity. any abuse—with any- witnessed that had never they brother testified that Mr. suspected have lead them to thing which would daughter. his abusing or sexually Purcell was physically alleged Mr. Pur- considering the victim This is remarkable years eleven old and her since she was sexually cell abused age from per four times week of three or average on an N.T., 74, 101. pp. and one-half. age seventeen fifteen any which corroborates Instantly, is void of evidence 1. the record Keller, testimony exception of Michelle story of the victim’s with the that, victim, approximately on one occasion who stated friend teacher, reported abuse to her years Purcell six before Barbara her. Mr. Purcell fondled Michelle that victim told Honor, judge, following “Your jury note to the trial sent the 2. The The to reach a decision. we are unable extensive deliberations after tendency change their shown no evenly divided and has began respective we our deliberations.” views since allegation denied the Also, vehemently the accused abuse. con- and John Purcell Purcell Barbara enlightening. Over a is also relationship their
cerning
romanti-
were
John and Barbara
years,
of almost two
period
an
time,
wrote John
that
Barbara
During
cally involved.
N.T.,
pp.
a week.
“love letters”
average of five
running the
subjects
discussed
Therein,
intimately
Barbara
to her sexual
life,
from school
ranging
her
gamut
entire
fact,
In
Bar-
problems.
marital
parents’
to her
experience
in the letters: "...
experience
her first sexual
outlined
bara
mess
it
such a
because
first time and was
so
It hurt
bad
I
I
never
night
that
swore would
After
pretty
I
bad.
bled
guy
Shortly
me.
after
touch
guy
let anothеr
though
first I
I
At
me and felt horrible.
broke-up with
I
think that
began
then I
wrong and
something
I did
N.T.,
In her
p. 185.
for him----”
enough
good
wasn’t
relation-
sexual
her and John’s
letters,
discussed
she also
to take a while
going
it’s
imagine
I
writing: “...
ship,
have
well,
rather
you
I
Oh
would
tight
am.
of how
because
one disaster
only
there was
knowing that
way
me this
how
differently
me
wonder
you
me or would
want
I prefer
In my opinion,
through.
I
that went
many guys
*32
first____”
testified
John
N.T.,
Significantly,
187.
p.
her father was
hinted that
once even
never
that Barbara
that
jurist
to this
It is incredible
abusing her.
sexually
one consid-
John, especially
when
never confided
Barbara
him
herself, loved
about
everything
told John
that she
ers
him.
marry
planned
and
passionately
surrounding the weekend
the events
considers
one
When
becomes
verdict
jury’s
injustice
May
her Sen-
Barbara attended
and
John
abundantly apparent.
a.m.,
6:00
approximately
home at
Prom and returned
ior
family
Purcell
17,1986. The entire
morning, May
Saturday
Barbara, her mother
after which
together
had breakfast
Purcell
at the
remained
John
went
bed.
her brother
and
alleges
a.m. Barbara
8:00
approximately
until
residence
a.m.,
father
her
and 8:45
8:00 a.m.
sometime between
in sexual
engage
and forced her to
entered her room
were to-
Later that
John and Barbara
day,
intercourse.3
not inform him of the abuse.
gether,
she did
yet
visited Great Adven-
John and Barbara
May
On
for
ture,
bought present
park,
an amusement
and Barbara
and
sexual
evening,
her father. Later that
John
Barbara’s
interrupted
unexpectedly
relations in the Purcell home were
daughter
of his
Reacting
intimacy
Mr. Purcell.
to the
John,
him of
cousin,
threw
out
punched
and her
Mr. Purcell
him
to return. Mr. Purcell
the house and ordered
never
daughter
his
ensued and
argument
testified that an
with
return,
him if
not allowed to
that Barbara told
John was
they’ll
“I’ll
do
think
you raped
you
tell ’em
me. Who
N.T.,
believe,
morning,
598. The next
you
p.
or me?”
told
at school that her father was sexual-
Barbara
a teacher
abusing her.
it can not be mere coincidence
ly
Certainly,
immediately
occurred
after Mr.
that the accusation
abuse
seeing
from
one another.
Purcell forbid John
Barbara
is true
alone is sufficient to
It
that Barbara’s
McIlvaine, 385
sustain the verdict. Commonwealth v.
(1989). However,
BECK, dissenting: Judge, first four resolution of the
I agree majority’s with remand However, I would not majority unlike the issues. I conclude counsel’s ineffectiveness. to determine trial to the admis- failing object in to not ineffective counsel was to common vic- on characteristics expert testimony sion of not ineffec- and that counsel was of child sexual abuse tims statute instruction on the request failing tive for sen- judgment I affirm the would of limitations. Since tence, I dissent. failing object not ineffective
I find counsel was on the characteristics expert the admission of the state of child sexual abuse. Given to victims common (March 1987), trial appellant’s time of of the case law at the and, in the more restrictive not have foreseen counsel could this issue dealing cases with view, turn that unfortunate my Therefore, cannot be counsel years. taken in recent have failing objec- to make an ineffectiveness charged with raised, likely which, might it have been at the time tion law. prevailing to fail under thorough review of makes clear its majority
As the
testi-
admissibility
expert
of the law on
development
prosecutions,
of child sexual abuse
in the context
mony
governed by two
trial the law was
appellant’s
the time of
Baldwin,
cases,
relevant
Seese, and (1985)
In the instant clinical social worker Sandra Steiker’s the substance of was introduced because testimony testimony as well Baldwin, case, In similar to the instant defense counsel complainant based credibility sought impeach lack of years, for six report on her failure to abuse seemingly in her accounts and her detail definition and relationship with her father. conflicted Baldwin, reason defense counsel would have Based assuming was admissible testimony assume that Sfeiker’s assuming the matters she qualified and properly she was time, other only At that issues trial. addressed were Seese, which, although the issue was case which addressed In this expert testimony limits of proper it delineated the have context, and could not did not undermine Baldwin this question admissibility defense counsel alerted pedi- of a Seese Involved testimony. witness’ child alleged hundred treated about one atrician who had years. four previous the course of the abuse victims over the witness stated testimony, of her During course for children to Meabout sexual abuse. “very it is unusual” of ehil- category further and said that the even went She dren in complainant children) which the fell (prepubertal “do lie.” She stated a presumably scientifically based opinion that these children “don’t know how to lie.” The Supreme Court condemned the introduction of the testimo- ny expert and found that the had directly commented on the veracity of the one witness the case whose Baldwin, most at issue. The court never cited nor did it Seese directly indirectly indicate that its resolution eroded Baldwin. principles announced *35 case,
In expert, Steiker, the instant Sandra never victim, intimated an opinion regarding credibility of the Purcell, Barbara nor she general did comment on the truth- fulness of of her “class.” appellant’s members When case tried, applicable law was as follows:
The fact that the
if
jury,
expert’s
it believes the
testimo-
ny, may draw inferences which would tend to
bolster
victim’s
does not make the evidence inadmissi-
It is a commonplace
ble.
fact that the
one
testimony of
witness may tend to corroborate another.
from
Far
being improper,
good
this is normal and is
trial strate-
words,
In
gy____
long
other
so
as the expert does not
opinion
render an
on the
of the
accuracy
victim’s recita-
facts,
tion
general
his or her
on the
testimony
dynam-
ics of
prejudice
sexual abuse does not
the jury.
Baldwin,
376-377,
Pa.Super.
(cita-
348
Sandra Steiker’s
fell
testimony
directly
permis
within the
sible bounds of then current case law. Counsel cannot be
failing
ineffective for
in
the law. Com
predict changes
White,
monwealth v.
348,
(1987);
385 has trial, court been this appellant’s the time of Since Seese in numerous the reach interpret upon called in direction outlined the amply has majority The cases. and Seese since Baldwin gone has seemingly the law which case law history repeat I will not decided. were cases course these challenge the I instead to here. write testimony expert use of to the respect taken with have in advocat with others join and to cases child sexual abuse expert testimony use appropriate allow ing the need to Garcia, No. 1076 Phila v. Commonwealth See area. this reargu en banc Elliott, dissenting), 1989, (Ford J. delphia Dunkle, 385 v. 8/16/90; granted ment 5, (1989) (Kelly, J. 332, 12-16 317, 561 A.2d Pa.Super. Emge, 139, dissenting); dissenting); Com 74, (1988) J. (Brosky, 77-79 Pearsall, n. monwealth Pa.Super also Commonwealth See 106, 108-109 n. A.2d (Papada 361-362 Gallagher, Pa. dissent). Nix, kos, joining C.J. dissenting; J. disallow will be to majority’s view consequence As a cases.
any intrafamily abuse expert left un- will be approach, juries regrettable of this result *36 irreconcila- seemingly and mystifying on the often informed characteristic of victims known to be patterns ble behavior unwarranted and This restrictive child sexual abuse. of inhibit the testimony will relevant admittedly limitation on the deprive trial. It will of the determining process truth scientific evi- body from a of knowledge derived of jury is the experts beyond of which experience dence and the in his Papadakos predicted of Justice knowledge laypeople. supra, in Gallagher, kinds of decisions these dissent psychological where all to a situation inevitably lead “would Id. trend particular- I find this barred.” would be evidence nature probative the in of the fact that distressing light ly in this field has of expertise the underlying validity and in of its deci- any courts appellate the questioned by been testimony in the concern with principal Rather sions. that it invades appears be other similar cases this and influences its assess- impermissibly of the and jury province ment of the credibility of the complainant. It should be apparent that this class expert testimony when properly limited does not province invade the of the jury any more than any other expert testimony. Expert is testimony designed to support one side of a controversy. Expert testimony practically always supports position of the party who called the expert. Expert knowledge in all fields is based on the expert’s experience and a body scientific evidence. Expert testimony on interfamily abuse is no different. I see no reason to single out this kind of expert testimony for exclusion.
Many
converge
factors
in
nature, i.e.,
cases of this
intra
abuse,
sexual
family
which make these cases particularly
appropriate for the proper
expert
First,
use of
testimony.
appears
there
to be an undisputed body of knowledge
regarding
patterns
particular
behavior
to victims of
familial sexual abuse and their families. See Common
Dunkle,
wealth v.
supra, 385 Pa.Superior Ct. at 336-338 n.
4,
The instant case demonstrates the urgency expert the truth determining process incest and Here, child sexual victim, abuse cases. Barbara Pur- *37 cell, kept silent about the abuse for over six years. During period time, of she maintained a superficially “normal” father, her relationship with even seeking out his company approval. and The incestuous relationship continued under they, her family yet the same roof as the rest of mother, unaware of it. particularly ostensibly the remained was, times, on imprecise child's details and testimony a context in expert’s testimony provided time-frame. The could, assess the any hope accuracy, which the with of jury Fairness alone dictate the credibility of the child. would counsel, Defense admissibility expert’s testimony. of the victim, through sought of the to con- his cross-examination report did not jury complainant vince the that since this permit earlier it did not occur. It is unfair to abuse go recognized when there is a suggestion unrebutted among which can ex- phenomenon qualified professionals free to Obviously, jury remains plain behavior.1 is thus ex- complainant’s decide whether this behavior in fact did not occur. Con- plained whether abuse to the conclusion of the and those cases trary majority relies, it I that the jury required expert which believe properly complainant. in order to evaluate the testimony it, its knowledge lacks the to exercise Without collective judgment.
I agree Supreme with Justiсe Roberts Court Oregon reasoned: who capable personalizing be the emo- jurors may
While physical generally, tions of victims of assault assessing credibility accordingly, unique witness tensions abused experienced by sexually to the trauma child family largely member have remained unknown to expert’s As the demonstrates the rou- public. tine indicia of witness reliability consistency, willingness — prosecution, straightforward to aid the rendition of the reason, for good lacking. As a result may, facts— impose standards of on child jurors may normalcy vic- consistently respond distinctly tim/witnesses who ab- normal fashion. Middleton, 657 P.2d at see also 1222; supra,
State State, (Del.Supr.1987) (“Expos- Wheat v. McCord, Testimony Expert Psychological Child 1. See About Complain- Foray Admissibility ants in Sexual Abuse Prosecutions: A into Evidence, Criminology 77 J.Crim.L. & Psychological Novel *38 ing jurors to the unique interpersonal dynamics involved prosecutions for intrafamily child sexual provide abuse can jurors possible with explanations for complainant actions are, and statements that average laypeople, ‘superficially bizarre’.”).
The in the reasoning flaw of the cases which disallow this here, kind of expert testimony is that unlike in more conven- cases, tional depend we cannot on only the jury’s “ordinary experience life, their common knowledge of the natural tendencies of human nature.”2 This is so because the behavioral and psychological workings of these unique vic- tims are outside “ordinary experience” of most jurors. Acknowledging this does not in any way denigrate the judgment of juries. Nor does the admission of helpful, relevant expertise rob the of its ultimate function. On the contrary, it enhances and assists that function.
Furthermore,
the fact
expert’s
if
testimony,
accepted
jury, tends to corroborate the Common-
wealth’s theory of the case and the credibility
victim,
does not mandate its exclusion. That is not the principle
upon
admissibility
expert
which
testimony is assessed.
purpose
expert
is to
aid the fact finder in
matters
complex
which are so
go beyond
which
common
understanding or knowledge, that a jury requires special-
knowledge
ized
in order to make its ultimate determination.
Rounds,
Commonwealth v.
2. Pa.Superior Ct. at at 77. expert testimony that all has never decided This court patterns characteristic and behavioral psychological children is inadmis- abused sexually and other incest victims rule. Common- fact, In declined to so See we have sible. 146, A.2d Ct. at Pa.Superior supra, v. Emge, wealth case exemplifies In the instant opinion, my Sandra testimony. expert psychological use of proper which The traits about expert. well-qualified was a Steiker *39 i.e., issue, secrecy the and directly testified she were rela- crime, seemingly normal the surrounding silence the incomplete- and and parent, a tionship between a victim concerning offense. memory of a ness victim’s man- in measured straightforward, Ms. Steiker testified motivations and emotional the common traits regarding ner never interviewed She had by shared incest victims. to match attempt and did not in this case she complainant that to of a known portrait psychological her behavior or opinion an express did not class of victims. She she Purcell nor did intimate credibility of Barbara offered the simply never lie. She incest victims knowledge of stud- experience and expertise, of her benefit understanding possible in incest to assist them ies about The jury child’s conduct. interpretations alternative expert derived from the testimony free to reject was subject was part. The witness witness whole her as- during which many intensive cross-examination challenged defense sumptions explanations were counsel. testimony reveals her as an
A careful of Steiker’s review presented jury with testimony whose expert unbiased of other witness- consider the context which within expert testimony wholly permissible I find es. use of proper illustrates the value limits. This case cases. in intrafamilial abuse expert testimony Furthermore, counsel ineffective I not find trial would to a limitations as a bar failing to the statute of raise occurring to 1983. The abuse prior for offenses conviction repeatedly and continuously, case occurred in the instant frequently throughout the victim’s adolescence. The victim testified that the first incident of sexual touching occured around the time she was eleven old. years She further testified that regular sexual intercourse became and fre- quent the time she about was thirteen or fourteen years old. She any date, did not refer to one incident by except the final act of intercourse place which took on the wеekend of 17-18, 1986, May a date clearly within the peri- limitations od. prosecution here not upon isolated, was based identifiable, indeed even discrete acts abuse by appellant. Instead, it appellant’s was based on continuous course of conduct. Appellant did not defend himself in the instant case by arguing that certain acts of he which was accused occurred outside the limitations period. The factual issue in here, dispute and the one which the jury charged resolve, occurred, was whether the incidents of abuse Appellant’s when. defense was that he never touched his all, daughter at he indeed that was never alone with her long enough for the sexual abuse to happened. have Con- trary to the conclusion that majority’s “possible it is appellant’s convictions upon were based conduct outside the *40 period,” limitations I such believe a conclusion is impossible in the context of this case. The majority’s conclusion flies logic ignores the face of the nature of the evidence in this I case. believe it would have been irrational for de- fense counsel to have a interposed statute of limitations defense thereby raising to the an jury issue which was not a of his part defense.
This court’s decision in Commonwealth v.
Groff,
(1988)
It can this court counsel unless of ineffectiveness of claim that, but probability reasonable there conclude would proceeding result of errors, alleged counsel’s Pierce, have been different. circum (1987). Under the 153, 161-62, A.2d 976-77 case, evidence and nature of the of stances this I all beyond am convinced doubt dispute, matters had a statute no different verdict would have been jury’s it. been before question limitations sentence. judgment I would affirm Accordingly, COMPANY, Forepaugh and Robert TIOGA COAL CORPORATION. SUPERMARKETS GENERAL Appeal COAL TIOGA COMPANY. COMPANY, Forepaugh, and Robert COAL
TIOGA CORPORATION, Appellant. GENERAL SUPERMARKETS Superior Pennsylvania. Court
Argued Jan. 1991. Filed March *41 April Reargument Denied Notes generally, with John Purcell See Trial, additional Testimony, pp. Anything 185-187. would purpose inflaming biasing have been for the only for the truth. jury, searching rather than Black, In applying procedure recommended portions trial court concluded that of the victim’s letters unnecessary prejudice. should be excluded in order to avoid discretionary nature are with the trial Decisions of this court and reversed the absence of an abuse of will Dollman, 86, Pa. discretion. See: Commonwealth (1988); Boyle, 541 A.2d 321-322 (1982); 199, 216-217, 418 A.2d Strube, (1979), denied, 66 L.Ed.2d cert. 449 U.S. S.Ct. Here we can discern no abuse discretion. latitude in permitted appellant attempt The trial court wide