Commonwealth v. Mehmeti , 347 Pa. Super. 278 ( 1985 )

BROSKY, Judge:

This appeal is from the pre-trial suppression of certain statements. Appellant, the Commonwealth, contends that the fact that the witnesses were put under hypnosis should not render inadmissible their pre-hypnotic statements. We agree and, subject to the strictures hereinafter detailed, reverse the suppression and remand for trial.

An auxiliary issue is the method to be applied by the courts in determining whether a suppression order substantially handicaps or terminates the prosecution and is, therefore, interlocutorily appealable. See Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983). The Pennsylvania Supreme Court has, since Lapia, made suppression orders appealable on the bare allegation of the District Attorney that the prosecution is substantially handicapped. Thus, that auxiliary issue is no longer before us.¹

Having established that the instant suppression order is appealable, the next question is whether the testimony of the hypnotized witnesses was properly suppressed.

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The facts and procedural history of this case are as follows:

On September 22, 1981, appellee, Darlene Alice Mehmeti, was bound for court on charges of Criminal Homicide², Crimes Committed With Firearms³,Aggravated Assault⁴ and Recklessly Endangering Another Person⁵. Pursuant to appellee’s supplemental omnibus pre-trial motion to suppress, inter alia, the complete testimony of four prosecution witnesses whose memories were hypnotically-refreshed, the Court of Common Pleas of Monroe County conducted a pre-trial hearing on December 21, 1981. Following the testimony of two investigating officers and the hypnotist, the lower court, in two separate Orders of Court, dated January 26, 1982 and February 4, 1982, deemed the complete testimony of prosecution witnesses, Rosemary Kessler, Scott James Kessler, Linda Landis, and Stephen J. Landis, inadmissible for trial due to their earlier submission to hypnosis. Appellant/Commonwealth filed this appeal from the aforementioned Orders.⁶

The relevant facts surfaced at the preliminary hearing conducted on September 22, 1981. Stephen J. Landis and his wife, Linda, of Telford, Pennsylvania, were driving northerly on Route 209 on August 6, 1981. As they passed Dutchman’s Gas Station in East Stroudsburg, Monroe County, between 9:00 p.m. and 10:00 p.m., Mr. Landis heard three firecracker-type disturbances originating at the gas station pumps; Landis turned his head quickly to the pumps and observed the attendant fall to the ground. He identified no one; however, he detected a “mid-60’s”, dull-blue Chevrolet Impala parked parallel to both the pumps and highway. Mrs. Landis observed nothing.

Suspecting the mere romp of adolescents, Mr. and Mrs. Landis continued their journey to Dingman’s Falls. The next morning, they first learned of the death of George Coco, the Dutchman’s gas station attendant.

Prosecution witness, Scott James Kessler, and his wife, Rosemary, resided in East Stroudsburg, some 200 yards from Dutchman’s Gas Station, at the time of George Coco’s death. At approximately 9:40 p.m. on August 6, 1981, Mr. and Mrs. Kessler purchased gasoline at Dutchman’s, chatted briefly with the victim and drove home. A few minutes after arriving home, while lifting barbells on his front porch, Mr. Kessler heard several, firecracker-type sounds emanating from Dutchman’s. From a better vantage point at his bedroom window, Kessler perceived a cloud of white smoke hovering above and between the two gas pump islands. He also observed a white Ford pick-up truck driving southbound on Route 209. Although he immediately called the gas station and received no answer, Kessler was not alarmed; he suspected that the victim was playing with firecrackers and was away from the phone while servicing customers. A few moments later, however, he observed the flashing lights of police vehicles and proceeded quickly to the station. Upon arriving at the station a few minutes before 10:00 p.m., Kessler learned that Coco was the victim of multiple gunshot wounds. Following a pathological examination, gunshot wounds to the right hand, neck and back were recorded, and manner of death was labeled homicide.

Officer Thomas Mastrusso, of the Pennsylvania State Police, interviewed the Landises and Kesslers and acquired the information hitherto discussed. These interviews were recorded neither mechanically nor electronically; Officer Mastrusso simply took handwritten notes. In an attempt to freshen their memories and thereby produce additional evidence, investigating officials persuaded the four witnesses to submit to a hypnotic interview.

Hypnotist David Miller, assisted by Officer Mastrusso, hypnotically interviewed Mr. and Mrs. Kessler on August 19, 1981. David Miller, a designer with Patterson-Kelley Company and mayor of East Stroudsburg, was neither a psychiatrist nor psychologist; he simply received informal hypnotic training from Dr. Bernard Gorton, a Philadelphia neurologist. Mr. Miller had placed 30,000 people under hypnosis prior to this incident.

Prior to the session, Officer Mastrusso gave Mr. Miller a synopsis of the Coco slaying and the hypnotic subjects’ earlier statements. Once again, only the Officer’s handwritten notes were taken of the Kesslers’ statements under hypnosis. Mr. and Mrs. Kessler did not add to, delete or revise any portion of their pre-hypnotic statements during the hypnotic session with Miller. In fact, there was some indication that attempts to hypnotize Mr. Kessler were unsuccessful.

On August 21, 1981, Mr. and Mrs. Landis were hypnotized by Mr. Miller under the identical conditions provided at the Kesslers’ interview. Mrs. Landis did not change or expand her earlier statement; Mr. Landis, however, altered his pre-hypnotic statement to the nominal extent of adding his observance of a bar behind the taillight lens of the blue Chevrolet Impala.

In Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304, 1306 (1984), the Pennsylvania Supreme Court ruled on the admissibility of testimony. “Hence, again, we hold that testimony adduced by hypnotism is inadmissible.”

In the instant case, the testimony of Stephen Landis with regard to the identification of the vehicle — specifically that there was a bar running behind the taillight lens of the vehicle which he had earlier described — is not admissible. It was adduced by hypnosis.

However, the test enunciated by the Supreme Court of Pennsylvania does not invalidate the admission into evidence of all testimony derived from a witness who has undergone hypnosis. The testimony which was not hypnotically adduced is admissible at trial, but under the following guidelines outlined in Smoyer, 505 Pa. at 89-90, 476 A.2d at 1308: “[W]henever a person previously hypnotized is offered as a witness, the offering party must so advise the court and show that the testimony to be presented was established and existed previous to any hypnotic process; that the person conducting the hypnotic session must be trained in the process and is neutral of any connection with the issue or the parties; and, the trial judge shall instruct the jury that the testimony of a witness previously hypnotized should be carefully scrutinized and received with caution.”

In the instant case, the only guideline that posed any threat to the admission of the testimony of Scott and Rosemary Kessler and Linda Landis, and to the portion of Stephen Landis’ testimony that did not deal with the bar running behind the taillight lens, is the guideline which requires that the hypnotist be neutral of any connection with the issues or parties. However, after careful review of the facts in this case, it is clear that David Miller was neutral as required. The only connection he had with the parties occurred when Officer Mastrusso gave Miller a synopsis of the Coco slaying and the hypnotic subjects’ earlier statements. This minimal connection is necessary in order to give the hypnotist a basis for his hypnotic session. It does not serve to make the testimony inadmissible.

Orders reversed in part.⁷ They are affirmed only to the extent of prohibiting Stephen Landis from testifying concerning the bar behind the taillight lens.

BECK, J., files a concurring opinion. SPAETH, President Judge, files a concurring and dissenting opinion.

1 . In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), it was stated: "That we directed, in the clearest fashion, that the Superior Court is required to hear a Commonwealth appeal from a suppression hearing, and gave definitive reasons why, cannot be doubted.”

2 . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 2501.

3 . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 6103.

4 . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 2702.

5 . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 2705.

6 . The Orders of January 26, 1982 and February 4, 1982 denied suppression of a 1966 blue Chevrolet and hand-written Bill of Sale. They further denied appellee’s motion to quash the complaint. They did, however, suppress an undated letter written by appellee to her husband. These portions of the Orders are not at issue here.

7 . We think it advisable to emphasize that the defendant will be entitled, pursuant to Smoyer, to an instruction that the testimony of the previously hypnotized witnesses should be carefully scrutinized and received with caution.