Com. v. McGinnis, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKEY MCGINNIS :
:
Appellant : No. 16 WDA 2020
Appeal from the Judgment of Sentence Entered December 4, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011014-2018
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED: JUNE 28, 2021
I concur in the Majority’s disposition but write separately to clarify my
position. The expert report provided by Bruce Chambers Ph.D. did not state
the substance of the opinions and conclusions that he would render as an
expert. It merely listed the topics he would cover, which ranged from the role
of interviewer bias to creating false memories. The expert report was
inadequate to apprise the trial court and the Commonwealth of the substance
and nature of the opinion testimony that he would give at trial.1 It lacked the
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* Retired Senior Judge assigned to the Superior Court.
1 The Dissent characterizes Dr. Chambers’s proffered testimony as “generic
expert testimony that, as a result of repeated forensic interviews and
psychotherapy sessions, some children mistakenly come to believe that they
are victims of sexual abuse.” Dissenting Memorandum at 2-3. In my view,
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specificity necessary to enable the trial court to determine whether or how it
related to the dynamics of sexual violence, victims’ responses to sexual
violence, or the impact of sexual violence on victims, for purposes of the
admissibility of Dr. Chambers’s testimony under 42 Pa.C.S. § 5920. Finally,
there was no demonstration as to how the expert’s testimony would have
rebutted the testimony of the Commonwealth’s expert, Jamie Mesar. On the
record before us, I agree with the Majority that the trial court did not abuse
its discretion in excluding the testimony of Dr. Chambers at trial.2
Nonetheless, the Majority appears to go further. It “reject[s] Appellant’s
assertion that expert testimony about false memories is admissible under
Section 5920(b)(4).” Majority Memorandum, at 16. To the extent that the
Majority’s words may be construed as a blanket prohibition against the
admission of false memories testimony under § 5920, I depart from the
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that is not clear from his expert report or the record. As late as the September
4, 2019 pretrial motion/conference, defense counsel was struggling to express
what Dr. Chambers would say. See N.T. Pretrial Motion/Conference, 9/4/19,
at 4 (representing that Dr. Chambers’s testimony “would be in the form of
placing a cognitive therapy that the child did undergo several years into a
proper context to indicate, not necessarily that the disclosure could be false
but that certain criteria in terms of what should be done with cognitive therapy
should be followed”).
2 Appellant was asked to provide the trial court with certain information:
whether there had ever been a hearing pursuant to Frye v. United States,
293 F. 1013 (D.C. App. 1923), conducted on the phenomenon of false
memories; whether Dr. Chambers had ever been qualified to testify as an
expert on false memories; and any Pennsylvania legal authority on the
subject. Appellant did not provide that information to the trial court.
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Majority. I am unwilling to foreclose the possibility that an expert may proffer
testimony about interview techniques or therapy that would implicate victims’
responses to sexual violence or its impact within the meaning of § 5920,
without opining about the credibility of the witnesses. See 42 Pa.C.S.
§ 5920(b)(3) (providing “[t]he witness’s opinion regarding the credibility of
any other witness, including the victim, shall not be admissible”).
It bears mentioning that there is precedent in this Commonwealth for
the admission of expert testimony regarding suggestive interview techniques
and implanted false memories, albeit at a competency hearing prior to trial
rather than at trial. See Commonwealth v. Delbridge, 855 A.2d 27 (Pa.
2003) (finding that taint is a proper subject for inquiry at a competency
hearing). See also Commonwealth v. R.P.S., 737 A.2d 747, 754 (Pa.Super.
1999), and Commonwealth v. Garcia, 387 A.2d 46, 55 (Pa. 1978) (holding
that expert testimony may be permitted as to the competency of a witness,
but an expert is not permitted to render an opinion as to the credibility of a
witness). This suggests to me that such testimony is not the type of novel
scientific evidence contemplated in Frye v. United States, 293 F. 1013, 1014
(D.C. App. 1923), adopted in Pennsylvania in Commonwealth v. Topa, 369
A.2d 1277 (Pa. 1977), and incorporated in Pa.R.E. 702, that is not generally
accepted within its scientific community.
At the competency hearing in Commonwealth v. D.J.A., 800 A.2d 965(Pa.Super. 2002) (en banc), the defense introduced expert psychological
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testimony on biased and improper interview techniques and explained how
such techniques can contaminate a child’s memory so that he or she no longer
retains a memory of events, instead believing the events occurred as they
emerged during the interviews. In that case, however, the expert went far
beyond generic testimony and analyzed the interview techniques used in that
case, ultimately opining that he was “quite confident that this child had been
tainted.” Id. at 970. The trial court recognized that this latter opinion was
prohibited as it went to the credibility of the witness, and this Court agreed.
This Court acknowledged in D.J.A. that there is a fine line between
determining whether a child has the capacity to both observe and remember
the occurrence, and whether the memory is reliable. See Pa.R.E. 601(b)(1)
(requiring court to determine whether child “is or was, at any relevant time,
incapable of perceiving accurately”). We recognized therein the conflicting
policies in play when making competency determinations:
One is that a party should not be denied justice because reliance
necessarily must be placed upon the testimony of a child of tender
years. But, on the other hand, experience has informed us that
children are peculiarly susceptible to the world of make-believe
and of suggestions. Care must be exercised to keep the balance
true as between these conflicting claims.
D.J.A., supra at 970 (citing Commonwealth v. McMaster, 666 A.2d 724,
727 (Pa.Super. 1995)).
Appellant filed an omnibus pretrial motion in this case contending that
the young complainant was incompetent to testify and asking that his
testimony be precluded. Appellant argued that the child’s testimony was
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tainted due to his mother’s influence, biased forensic interviews, and
suggestive therapy techniques that tended to engender false memories.
Although Appellant did not request a competency hearing to present proof of
these allegations, the court held one on August 27, 2019. There is no
transcript of that proceeding in the certified record, however, I found no
indication that Appellant proffered Dr. Chambers’s testimony at that time to
discredit the interview methods used by law enforcement and medical
personnel herein for purposes of proving taint and undermining the
complainant’s competency. Ultimately, the trial court concluded that the
complainant herein was competent to testify, i.e., that he had the requisite
ability to perceive accurately both at the time of the competency hearing and
during the time when the relevant events occurred. See Pa.R.E. 601(b)(1).
Appellant states on appeal that he did not proffer Dr. Chambers’s
testimony at the competency hearing as it was intended to challenge the
credibility, not the competency, of the child’s testimony. I submit that expert
testimony as to the credibility of witnesses is inadmissible at either a
competency hearing or at trial. See 42 Pa.C.S. § 5920(b)(3) (providing that
an expert’s “opinion regarding the credibility of any other witness, including
the victim, shall not be admissible” at trial). See also Commonwealth v.
Jones, 240 A.3d 881, 897 (Pa. 2020) (reaffirming validity of Commonwealth
v. Dunkle, 602 A.2d 830 (Pa. 1992), insofar as it precludes expert testimony
concerning victim responses and behaviors that touch upon witness credibility,
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but declining to find that Dunkle categorically precludes expert testimony
concerning victim behavior in response to sexual abuse); Commonwealth v.
Maconeghy, 171 A.3d 707, 709-10 (Pa. 2017) (holding medical expert’s
opinion that child had been sexually abused based on her statements to that
effect to be an improper intrusion into the jury’s function to assess the
credibility of witnesses).
For the foregoing reasons, I agree with the Majority that the trial court
did not abuse its discretion in excluding the testimony of Dr. Chambers at
trial. However, I would not rule out the possibility that, with an adequate
proffer, a defense expert may be qualified under § 5920 to render generic
testimony at trial regarding responses of alleged sexual abuse victims to
suggestive interview techniques or therapy. Certainly, such testimony is
admissible at a competency hearing. For these reasons, I concur.
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