Commonwealth v. Allison ( 1997 )

OPINION

ZAPPALA, Justice.

We granted allocatur to address the issue of whether the trial court erred in allowing a lay person to testify as to the condition of a rape victim’s hymen. We find that the trial court abused its discretion in admitting such testimony. Therefore, we vacate the judgment of sentence and remand for a new trial.

Following a jury trial, Appellant, Donald R. Allison, was convicted of statutory rape, involuntary deviate sexual intercourse, and aggravated indecent assault. Appellant’s motion for a new trial and arrest of judgment was denied and he was sentenced to an aggregate imprisonment term of seven to fourteen years. Appellant appealed to the Superior Court, which affirmed the judgment of sentence.

The record reveals that the complainant, the seven-year-old daughter of Appellant’s common-law wife, lived with her aunt, Mildred Harvey, in North Carolina. In 1991, the complainant, with her two sisters and her brother, came to visit their mother in Norristown, Pennsylvania for the months of July and August. Upon returning to North Carolina, Harvey noticed blood stains on the complainant’s underwear. Harvey took the complainant to a physician, who informed the aunt that the bleeding could have been caused by a sexual assault. The complainant subsequently told her aunt that Appellant had touched her and sexually assaulted her in August, 1991.

At trial, the complainant’s examining physician did not testify. Harvey testified as to her observations of the condition of the complainant’s hymen which she made during the physician’s gynecological examination of the complainant. On direct examination, the aunt’s testimony concerning her observations during the physician’s examination of the complainant was as follows:

Q. Do you know whether the doctor performed a physical examination of [complainant]?

A. Yes, she did.

Q. Who was present for that physical examination?

A. I was and her assistant, nurse.

Q. During the time of the physical examination, were [complainant’s] pants or panties on or off?

A. They were off.

Q. Did you have a chance to observe her vaginal area?

A. Yes, I did.

Q. Do you know what a hymen is?

A. Yes, I do.

[DEFENSE COUNSEL]: Your Honor, great latitude was given during direct examination of the victim as a result of—

THE COURT: Are you objecting?

[DEFENSE COUNSEL]: Yes.

THE COURT: Don’t lead as much.

[PROSECUTOR]:

Q. Do you know what a hymen is?

A. Yes.

Q. What is it, as best you can describe?

A. It is the thin layer of skin over the opening of the vagina.

Q. What was the condition of [complainant’s] vaginal area with regard to her hymen?

A. It was split.

Q. What do you mean by it was split?

A. It showed that a penetration had been made—

[DEFENSE COUNSEL]: Your Honor, I’m objecting.

THE COURT: Sustained.

[PROSECUTOR]:

Q. What is it that you mean by split?

A. It showed that someone had forced—

[DEFENSE COUNSEL]: Your Honor, I’m objecting.

THE COURT: Yes and I’m sustaining it.

[PROSECUTOR]: I agree.

Q. Mrs. Harvey, just explain what you saw with your eyes that gave you the impression that it was split.

A. Well, it wasn’t—

Q. As best you can.

A. It was opened. It was just open, not a normal—it was a penetration that had been made.

[DEFENSE COUNSEL]: Your Honor—

THE COURT: That’s not what you observed. Sustained.

[PROSECUTOR]:

Q. I assume the last phrase.

THE COURT: The last phrase, yes.

THE WITNESS: It was a large opening.

(N.T., 1/4/93, pp. 77-79.)

At the outset, we note the applicable standard of review. The admission or exclusion of evidence is a matter for the discretion of the trial court. This court will only reverse for a clear abuse of the trial court’s discretion. Commonwealth v. Foy, 531 Pa. 322, 325, 612 A.2d 1349, 1351 (1992).

Appellant argues that the trial court erred in allowing Harvey, a lay person, to testify concerning the condition of the complainant’s hymen. Appellant contends that Harvey’s testimony was in the nature of an opinion and that to be admissible, such testimony had to be given by a medical expert.

The Commonwealth counters that Harvey’s testimony as to the condition of the complainant’s hymen was not an opinion for which an expert was required. Rather, the Commonwealth asserts that Harvey testified as a lay person regarding her personal observation of facts and that such testimony is admissible.

As a general rule, a lay person may testify as to distinct facts observed by him concerning the apparent physical condition or appearance of another. Travellers Insurance Co. v. Heppenstall Co., 360 Pa. 433, 440, 61 A.2d 809, 813 (1948) (“A lay witness may testify as to the apparent physical condition of a person; he is barred only as to matters involving the existence or nonexistence of a disease the discovery of which requires the training and experience of a medical expert.”); Commonwealth v. Green, 251 Pa.Super. 318, 323, 380 A.2d 798, 801 (1977) (“The existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, can as easily be ascertained by the lay person as by the trained physician.”); Baum v. Metropolitan Life Ins. Co., 144 Pa.Super. 37, 41, 19 A.2d 486, 487 (1941) (“Lay witness may testify as to certain matters involving health, the apparent physical condition of a person, and as to obvious symptoms, but this testimony must be confined to facts within his knowledge, and may not be extended to matters involving the existence or non-existence of a disease, which is discoverable through the training and experience of a medical expert.”).

During an in chambers conference prior to Harvey’s testimony, defense counsel objected to her testimony regarding the rupture of the hymen. The trial judge ruled that the testimony was admissible. On direct examination, the prosecutor asked Harvey to explain what she meant when she described the complainant’s hymen as being split. Harvey responded that “[i]t showed that a penetration had been made.” Defense counsel objected. The trial judge sustained the objection. The prosecutor then repeated the same question and once again Harvey responded, “[i]t showed that someone had forced--.” Defense counsel’s second objection was sustained.

We find that Harvey’s testimony regarding her observations of the condition of the complainant’s hymen. i.e., that it was split and opened, was improperly admitted into evidence. The excerpted testimony demonstrates that the testimony was introduced so that the jury would draw the inference that the complainant’s hymen had been split as a result of penetration. The Commonwealth did not introduce expert medical testimony to explain to the jury whether the condition of the complainant’s hymen was indicative of sexual assault, or could not have resulted from other causes. In the absence of such expert testimony, the jury was left without any understanding or guidance as to what inferences could fairly be drawn from the fact that Harvey observed a split in the complainant’s hymen.

Harvey did not testify that she had observed the condition of the complainant’s hymen prior to the alleged sexual assault and that the hymen was noticeably different thereafter. Nor was Harvey competent to offer an opinion as to the normalcy or abnormalcy of the hymen when the physical examination was conducted. Yet, the impact of her testimony was to suggest that Harvey had personally observed physical signs of a sexual assault, thereby reinforcing the complainant’s account of the events.

The trial judge erred in ruling initially that the testimony was admissible. Without qualified expert testimony to explain the significance of Harvey’s personal observations, the jury was permitted to engage in speculation that the condition of the complainant’s hymen was the result of sexual assault. Although the trial judge sustained defense counsel’s objections to portions of Harvey’s testimony, it was too late to avoid its devastating prejudicial impact on the jury.

For these reasons, we reverse the order of the Superior Court. The judgment of sentence is vacated and the matter is remanded for a new trial.

NIGRO, J., files a Concurring Opinion. NEWMAN, J., files a Concurring Opinion. CAPPY, J., files a Dissenting Opinion.