Com. v. Pugh, R. ( 2014 )

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2014 Pa. Super. 221
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MICHAEL PUGH
Appellant No. 343 EDA 2012
Appeal from the Judgment of Sentence December 19, 2011
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000303-2010
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J., and
OLSON, J.
OPINION BY PANELLA, J. FILED OCTOBER 07, 2014
The primary issue before us is the admissibility of expert testimony
proffered by the defense in order to question the trustworthiness of a
in limine to preclude the defense from presenting such evidence. In light of
recent Pennsylvania Supreme Court case law, we conclude that expert
testimony regarding false confessions is impermissible as it provides no
y to assess
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Accordingly, we affirm.
Center, where she was diagnosed with a sexually transmitted disease
-old at the time. Because of her age and
diagnosis, the hospital reported the incident to authorities.
In response, Trooper Patrick Finn of the Pennsylvania State Police
interviewed S.P., at which time she stated that Pugh had drugged and raped
her. Several days later, Trooper Finn contacted Pugh via telephone, and
convinced Pugh to come to the police station to be interviewed. During his
interview, Pugh admitted to, among other things, drugging and raping S.P.
on multiple occasions. The interrogation and confession were not recorded,
and Pugh was subsequently charged with several counts of rape and related
offenses.
While incarcerated, Pugh soon recanted his confession, claiming that
his confession had been coerced. Additionally, approximately one month
-sister, M.Z., informed authorities that she had
been diagnosed with the same STD as S.P. Ultimately, medical testing
determined that Pugh was not suffering from this type of STD. M.Z. stated
that she believed that she had contracted the disease from her husband.
When presented with these circumstances, S.P. did not initially recant her
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ilty to statutory sexual assault and
Approximately one month thereafter, S.P. wrote a letter to authorities,
recanting her allegations against Pugh. Two months later, S.P. underwent a
third interview with the Pennsylvania State Police. S.P. told the State Police
that her mother and sister pressured her to recant her allegations against
Pugh. Both women subsequently pled guilty to obstructing justice based
upon their conduct towards S.P.
irst trial commenced on March 24, 2011. After the jury was
unable to reach a verdict, the trial court declared a mistrial and scheduled a
new trial. Before a new trial could be held, Pugh notified the Commonwealth
that he intended to present expert testimony on the phenomenon of false
confessions. The Commonwealth responded by filing a motion in limine,
confessions. Shortly thereafter, the Commonwealth supplemented its motion
in limine seeking to exclude expert testimony regarding false confessions,
and furthermore requested a Frye1 hearing to determine the admissibility of
such testimony.
The trial court held a Frye hearing and accepted supplemental briefing
on the issue. On the eve of trial, the court entered an order that in relevant
in limine. At the conclusion of the
1
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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second trial, the jury found Pugh guilty of rape of an unconscious victim,2
rape of a substantially impaired person,3 sexual assault,4 unlawful contact
with a minor (sexual offenses),5 aggravated indecent assault without
consent,6 aggravated indecent assault (complainant is unconscious or
unaware),7 aggravated indecent assault (person impairs complainant), 8 and
incest.9 The trial court subsequently sentenced Pugh, who then appealed. In
a memorandum decision, a panel of this Court affirmed the judgment of
sentence and Pugh then applied for reargument en banc, which this Court
granted.
aised on appeal. In evaluating the
denial or grant of a motion in limine, our standard of review is the same as
that utilized to analyze an evidentiary challenge. See Commonwealth v.
Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010). Pursuant to that standard,
[t]he admission of evidence is committed to the sound discretion
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
2
18 PA.CONS.STAT.ANN. § 3121(a)(3).
3
18 PA.CONS.STAT.ANN. § 3121(a)(4).
4
18 PA.CONS.STAT.ANN. § 3124.1.
5
18 PA.CONS.STAT.ANN. § 6318(a)(1).
6
18 PA.CONS.STAT.ANN. § 3125(a)(1).
7
18 PA.CONS.STAT.ANN. § 3125(a)(4).
8
18 PA.CONS.STAT.ANN. § 3125(a)(5).
9
18 PA.CONS.STAT.ANN. § 4302.
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Id. (citations omitted). Admissibility of expert testimony on scientific
knowledge is governed by Pennsylvania Rule of Evidence 702 which states:
If scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an
opinion or otherwise.
Pa.R.E. 702.
There has been a long-standing policy in this Commonwealth of
influence that accompanies expert testimony on the subject of credibility of
witnesses. See, e.g., Commonwealth v. Delbridge, 855 A.2d 27, 42 (Pa.
way to reach the issue of credibility, and thereby usurp the function of the
factfinder. Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992)
(ruling expert testimony on the ability of children to recall events of abuse
not admissible); Commonwealth v. Gallager, 547 A.2d 355 (Pa. 1988)
(holding testimony regarding Rape Trauma Syndrome was not admissible);
Commonwealth v. Rounds, 542 A.2d 997, 999 (Pa. 1988) (ruling expert
testimony that victim was not dissembling was not admissible);
Commonwealth v. Seese, 517 A.2d 920 (Pa. 1986) (finding expert
testimony that pre-pubescent children do not fabricate stories of sexual
abuse not admissible).
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This Court has also consistently upheld the exclusion of expert
evidence that intrudes upon the duty of the jury to determine credibility of
witnesses. See, e.g., Commonwealth v. D.J.A., 800 A.2d 965, 975 (Pa.
S
upon suggestive interview technique). We have also affirmed trial court
rulings that prohibited the introduction of expert testimony on the issue of
false confessions. See Commonwealth v. Harrell, 65 A.3d 420, 429-431
(Pa. Super. 2013); Commonwealth v. Szakal, 50 A.3d 210, 228 (Pa.
Super. 2012). Recently, our Supreme Court decided a case that directly
dealt with admissibility as it pertains to experts who seek to testify about the
phenomena of false confession.
Commonwealth v. Alicia, 92
A.3d 753 (Pa. 2014), held that expert testimony on the phenomenon of false
arbiter of credibility. In Alicia, the defendant was accused of murder and
other related charges. The police questioned the defendant and he
eventually confessed to the murder. Defendant later moved to use a false
confession expert, citing his own low intelligence, mental health issues, and
that his written confession contained a number of hallmarks which indicated
his confession was false. The expert proffered by the defendant claimed,
during an a hearing on the admissibility of his testimony, that he would
testify generally about police interrogation methods that can put an innocent
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The trial court held that the testimony was permissible as to the general
aspects of police interrogation techniques, but prohibited the expert from
This Court, in a divided panel, affirmed the decision.
The Supreme Court of Pennsylvania, following the lead of the United
States Court of Appeals for the Tenth Circuit in United States v. Benally,
expert
testimony such as the proposed testimony of [the defense expert] Dr. Leo
constitutes an impermissible invasion of the
arbiter of credibility. Alicia, 92 A.3d at 764. First, the Court noted that
regardless of whether an expert opined on whether the confession was true
or false, the effect would be the same: jurors would be persuaded to
disrega
See id. Second, if the expert testimony were allowed, the Commonwealth
would likely counter with its own rebuttal expert testimony, which would
lead to befuddlement rather than serve to educate the jury. See id.
the matter of
and life experience, after proper development of relevant issues related
to, among other things, the particular circumstances surrounding the
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elicitation of his confession, using the traditional and time-honored
techniques of cross- Id.
Instantly, there is no dispositive factual or legal basis with which to
Alicia. Accordingly, as we can find no distinguishable difference between
Alicia, we
warrants no relief.
Pugh next argues that the trial court erred in precluding from
Rocky Alverio, on issues such as her sexual
court states that it precluded this testimony based upon, among other
Rape Shield statute:
conduct, opinion evidence of the alleged victi
conduct, and reputation evidence of the alleged victim's past
sexual conduct shall not be admissible in prosecutions under this
conduct with the defendant where consent of the alleged victim
is at issue and such evidence is otherwise admissible pursuant to
the rules of evidence.
18 Pa.Cons.Stat.Ann. § 3104(a).
Specifically, Pugh explains as follows:
The veracity of the complaining witness is the core issue in this
case. Defendant wanted to call Rocky Alverio as a witness in his
sexual relationship with Alverio constituting the cause, by
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motive, interest, or bias resulting in her false accusations against
Robert Pugh.
probative value regarding veracity of the [victim] which is exculpatory to
Id., at 42. We disagree.
In the present case, it is uncontested that at trial, Rocky Alverio was
permitted to testify that he had engaged in sexual intercourse with S.P.
Consequently, the jury was presented with ample evidence establishing that,
at the medical center, S.P. falsely claimed to be a virgin. We agree with the
trial court that any additional details regarding the sexual encounters
between Rocky Alverio and S.P. were unnecessary and would have violated
the Rape Shield statute. Therefore, we find no abuse of discretion in the
testimony.
Pugh next contends that the trial court erred in refusing to provide the
jury with his proposed instruction on unrecorded custodial interrogations.
ry instruction as follows:
When evaluating jury instructions, the charge must be read as a
whole to determine whether it was fair or prejudicial. The trial
court has broad discretion in phrasing its instructions, and may
choose its own wording so long as the law is clearly, adequately,
and accurately presented to the jury for its consideration.
Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation
omitted), 78 A.3d
charge as a whole is inadequate, unclear, or has a tendency to mislead or
Commonwealth v.
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Pope, 14 A.3d 139 (Pa. Super. 2011) (citation omitted), appeal denied, 32
the issues are not made clear to the jury or the jury was palpably misled by
Id.
Here, Pugh complains that he was prejudiced by the failure to instruct
the jury that the ideal evidence regarding his confession was not available,
despite the ability of the Commonwealth to provide for it, and therefore that
the jury should consider this fact in determining credibility. The trial court
states that it refused the proposed instructions because it had adequately
covered the issue in other instructions. After reviewing the jury charge as a
whole, we agree.
confession, the credibility of witnesses, and the consideration of evidence.
Those instructions adequately addressed the concepts that Pugh sought to
cover in the proposed instructions. We therefore conclude that the absence
of these instructions did not prejudice Pugh. Accordingly, we find no abuse
interrogation.10
10
Furthermore, we note that Pugh cites to no legal authority requiring
instructions on the absence of recorded interrogations. Indeed, while
acknowledging that recording such interrogations is not mandatory in
Pennsylvania, Appellant invites us to create such a rule. Creation of such
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In his final issue on appeal, Pugh argues that the trial court erred by
failing to grant his motion for mistrial after the Commonwealth allegedly
committed a Brady11 violation. In Brady, the United States Supreme Court
withholds favorable, material evidence from the defense. To prove a Brady
prosecutor has suppressed evidence; (2) the evidence, whether exculpatory
or impeaching, is helpful to the defendant, and (3) the suppression
Commonwealth v. Koehler, 36 A.3d 121, 133
(Pa. 2012) (citation omitted). Therefore, even if the first two prongs have
been established, a defendant must establish that he was prejudiced by the
failure to disclose. See Commonwealth v. Appel, 689 A.2d 891 (Pa.
reasonable probability that, had the evidence been disclosed to the defense,
Id. (citation
omitted).
Pugh asserts that the Commonwealth committed a Brady violation
to timely disclose all email correspondence regarding his STD testing and
rules and regulations, however, is a role reserved for the General Assembly,
not the
11
Brady v. Maryland, 373 U.S. 83 (1963).
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results. The existence of the withheld correspondence was apparently
surprise revelation, according to Pugh, disrupted his defense strategy,
entitling him to a mistrial.
because the alleged failure to disclose did not prejudice Pugh. See Trial
Court Opinion, 3/13/2012, at 10- analysis
was the fact that the information set forth in the withheld documents was
contained within a separate final report document that Appellant received
from the Commonwealth in a timely manner. See id., at 10. Therefore, the
trial court reasoned that Appellant was not prejudiced by the missing
documents, as he had the relevant information all along. See id.
that the Commonwealth should have disclosed the subject documents prior
to trial, and accepting that the manner in which the documents were
disclosed to Pugh was inconvenient, Pugh has not established that he
suffered prejudice from the untimely disclosure. Consequently, we find no
Judgment of sentence affirmed. Jurisdiction relinquished.
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President Judge Gantman, President Judge Emeritus Ford Elliott,
President Judge Emeritus Bender, and Judges Allen, Lazarus, and Mundy join
the opinion.
Judge Olson files a concurring opinion in which Judge Donohue joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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