Commonwealth v. McGinnis, R., Aplt. ( 2023 )

[J-21-2023] [OISA: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 26 WAP 2022
Appellee Appeal from the Order of the Superior
Court entered June 28, 2021, at No.
16 WDA 2020, affirming the Judgment
V. of Sentence of the Court of Common
Pleas of Allegheny County entered
December 4, 2019, at No. CP-02-CR-
RICKEY MCGINNIS, 0011014-2018
Appellant : ARGUED: April 19, 2023
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE BROBSON DECIDED: DECEMBER 1, 2023
1concur in the result of the Opinion in Support of Affirmance (OISA) authored by
Justice Mundy. Iagree with Justice Mundy's OISA insofar as it concludes that expert
testimony regarding taint by the implantation of false memories or distortion of actual
memories through improper and suggestive interview techniques does not fall under the
purview of Section 5920(b) of the Judicial Code, 42 Pa.C.S. § 5920(b). Irespectfully
disagree, however, that a party can present allegations of taint to a jury as a matter of
reliability or credibility. Instead, Ibelieve that allegations of taint constitute achallenge to
the competency of a witness, which is a question properly addressed to the trial court.
While Irecognize that Appellant "state[d] on appeal that he did not proffer Dr. Chambers'[]
testimony at the competency hearing as it was intended to challenge the credibility, not
the competency, of the child's testimony," Ido not find this reframing of the issue
persuasive. Commonwealth v. McGinnis (
Pa. Super., No. 16 WDA 2020, filed
June 28, 2021), slip op. at 5 ( Bowes, J., concurring).
In my view, this Court has already addressed and decided the issue presented by
Appellant in Commonwealth v. Delbridge, 855 A.2d 27 ( Pa. 2003) (
Delbridge l), in which
we held that "[a]n allegation that the witness's memory of [an] event has been tainted
raises a red flag regarding competency, not credibility." Delbridge 1, 855 A.2d at 40.
Issues of competency, in turn, " ha[ve] often been declared to be a question for the trial
court." Commonwealth v. Kosh, 157 A. 479, 482 ( Pa. 1931) (collecting cases). Isee no
compelling reason to alter this precedent.
While addressing Delbridge 1, Justice Mundy's OISA states that this Court held that
"the question of whether a child witness's memory of an event has been tainted may be
examined during a pretrial competency determination." (OISA at 9 n.6 ( Mundy, J.)
(emphasis added).) Ibelieve this is a mischaracterization of this Court's holding in
Delbridge 1. Instead, this Court in Delbridge /held that " Pennsylvania law charges the
trial court with the responsibility to investigate the legitimacy of ... an allegation [of taint]"
and "that such an investigation should occur within acompetency hearing." Delbridge 1,
855 A.2d at 40 (emphasis added); see also Commonwealth v. Delbridge, 859 A.2d 1254,
1256 ( Pa. 2004) (
Delbridge ll) ("The capacity to remember and the ability to testify
truthfully about that memory are components of competency.... Therefore[,] we held
that taint was best explored in acompetency hearing. ").
In reaching our conclusion in Delbridge 1, this Court considered the law of other
jurisdictions, which
found the issue capable of examination within the context of existing legal
procedures such as, a hearing probing the competency of the child witness
or, within the context of a suppression hearing examining whether the
evidence was obtained by improper techniques, and, finally, during the
course of the trial itself.
[J-21-2023] [OISA: Mundy, J.] - 2
De/bridge /, 855 A.2d at 39. Ultimately, however, this Court " h[e]ld that a competency
hearing is the appropriate venue to explore allegations of taint. "' Id. at 40 (emphasis
added).
In the present matter, Appellant now asks this Court to, essentially, reconsider the
arguments forwarded in Delbridge Iand Delbridge // and reach a contrary conclusion. I
would deny this request. The Court has already considered whether "taint is alegitimate
question for examination" and "whether a competency hearing is the appropriate venue
to explore possible taint of a child witness," and we answered both inquiries in the
affirmative. Id. at 39-40.
The record in this matter reveals that the trial court addressed Appellant's
allegations of taint at the competency hearing—i.e., in the appropriate venue—and found
that Appellant failed to prove taint. Appellant chose not to proffer expert testimony at the
competency hearing. McGinnis, slip op. at 5 (
Bowes, J., concurring). The trial court,
proceeding in normal course, " reviewed the mental health records in this case" and "did
not find evidence of taint." ( R.R. at 109.) The trial court explained that it was " aware that
the child was forensically interviewed initially" but found that "nothing in the record at [that]
point indicate[d] that his better ability to communicate what happened to him when he
was five is the result of coaching of any sort as opposed to a result of natural maturity of
'Justice Nigro filed alone dissent in Delbridge /, explaining his view that taint is amatter
of credibility and, therefore, not an issue of competency or "a proper subject of expert
testimony." Delbridge /, 855 A.2d at 47 ( Nigro, J., dissenting). Justice Eakin filed a
concurring and dissenting opinion in Delbridge 1, " disagree[ing] that ``taint' always goes to
competency," and "tak[ing] issue on the use of expert witnesses on what is really a
credibility issue." Id. at 49 (
Eakin, J., concurring and dissenting).
Both Justice Nigro and Justice Eakin repeated their positions in their respective
minority opinions in Delbridge II. See Delbridge ll, 859 A.2d at 1261 ( Nigro, J., concurring)
("[T]aint is amatter of credibility, not competency, and is therefore not the proper subject
of either expert testimony or a competency hearing."); id. ( Eakin, J., concurring) ("[T]his
is amatter of credibility, not competence, and should have been dealt with accordingly. ").
[J-21-2023] [OISA: Mundy, J.] - 3
achild from age [five] to [twelve]." (/d. at 110.) Accordingly, the trial court concluded that,
"without further evidence," it "would not be able to find the child is incompetent for any
reason specifically for taint.... [T]he defense has not met that burden." (
Id. at 110-11.)
"[A]s with all questions of competency, the resolution of a taint challenge to the
competency of a child witness is a matter addressed to the discretion of the trial court."
Delbridge /, 855 A.2d at 41. Appellant does not presently argue, nor can he argue for the
first time on appeal, that the trial court abused its discretion. 2 Thus, based upon this
record, Icannot conclude that Appellant should be permitted another opportunity to
challenge the competency of J.M. where Appellant failed to establish taint at the
appropriate stage of litigation. Appellant's attempts to reframe the issue of taint as a
matter of reliability are, to me, unavailing. Iwould, therefore, affirm the order of the
Superior Court on alternative grounds and hold that Appellant could not present to the
jury expert testimony regarding taint because it is a matter of competency properly
addressed to the trial court.
2 An objection to the competency of awitness is subject to waiver. See Commonwealth
v. Harris, 424 A.2d 1245, 1249 n.3 ( Pa. 1981) ("[W]e are of the view that.. . [the] appellant
was obliged at trial to put the competency of [the witness] in issue and, [the] appellant not
having done so, the issue is not preserved for appellate review."); see also Kosh, 157 A.
at 482 (" If aparty knows before trial that awitness is incompetent ... , he must make his
objection before the witness has given any testimony, and, if the incompetency appears
on the trial, an objection must be interposed as soon as the incompetency becomes
apparent. ").
[J-21-2023] [OISA: Mundy, J.] - 4