Com. v. George, D.

J-A19018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID GEORGE
Appellant No. 504 WDA 2014
Appeal from the Judgment of Sentence February 11, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016817-2012
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 25, 2015
David George was charged with rape and indecent assault against a 10
year old child, N.M. In George’s first trial, the jury found him guilty of
indecent assault, but the jury deadlocked on the rape charge. In his second
trial, the jury acquitted him of rape. The trial court sentenced George to 42-
84 months’ imprisonment for indecent assault. He filed timely post-sentence
motions, which the court denied. George filed a timely direct appeal, and
both George and the trial court complied with Pa.R.A.P. 1925.
For the reasons that follow, we remand for a hearing on whether the
Commonwealth’s expert testimony on the behavior of sexual abuse victims
is admissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).
George raises two issues in this appeal:
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1. Did the lower court err in upholding the constitutionality of 42
Pa.C.S. § 5920,[1] as it clearly and plainly infringes upon the
judiciary’s exclusive rulemaking power regarding courtroom
procedure?
2. If [42 Pa.C.S. §] 5920 withstands a constitutional challenge,
did the lower court abuse its discretion by admitting expert
testimony that failed to satisfy the requirements of [Pa.R.E.]
702[2] [] and failed to satisfy a Frye analysis?
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1
42 Pa.C.S. § 5920 provides in relevant part:
(b) Qualifications and use of experts.--
(1) In a criminal proceeding [relating to sexual offenses], a
witness may be qualified by the court as an expert if the witness
has specialized knowledge beyond that possessed by the
average layperson based on the witness's experience with, or
specialized training or education in, criminal justice, behavioral
sciences or victim services issues, related to sexual violence,
that will assist the trier of fact in understanding the dynamics of
sexual violence, victim responses to sexual violence and the
impact of sexual violence on victims during and after being
assaulted.
(2) If qualified as an expert, the witness may testify to facts and
opinions regarding specific types of victim responses and victim
behaviors.
(3) The witness's opinion regarding the credibility of any other
witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under this
section may be called by the attorney for the Commonwealth or
the defendant to provide the expert testimony.
42 Pa.C.S. § 5920(b).
2
Pa.R.E. 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(Footnote Continued Next Page)
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Brief For Appellant, at 4.
For purposes of this appeal, the two crucial witnesses against George
were N.M., the alleged victim, and Jacqueline Block Goldstein, the
Commonwealth’s expert witness on sexual abuse victim behavior.3 We
summarize each witness’s testimony below.
N.M.’s trial testimony. N.M. testified that George was her mother’s
boyfriend, and George was around N.M. “too many times to count.” Trial
Transcript, at 28-29.4 One night in 2010, N.M.’s mother was not home, and
she was at home with George and her brothers. Id. at 29. She fell asleep
in her mother’s room while her brothers were in a different room watching
television. Id. at 45. She woke up later with “David George’s penis in my
vagina” but did not feel his penis enter her vagina (contradicting her
testimony during the preliminary hearing that she felt his penis enter her).
Id. at 32, 46-47. She saw George on top of her, moving back and forth,
_______________________
(Footnote Continued)
(a) the expert's scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the
relevant field.
Id.
3
George did not testify during trial.
4
The two days of trial proceedings are in one transcript.
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and her shorts and underwear were around her ankles. Id. at 32-33. She
pushed George off of her, ran into her room, shut the lights off, and closed
the door. Id. at 33. She was not bleeding. Id. at 50. George opened her
bedroom door, stuck his head in, and said: “Don’t tell nobody.” Id. at 56.
She kept her clothes on until showering the next morning, and she and her
mother had an uneventful breakfast with George. Id. at 51. Her mother
washed her clothes later. Id. at 34.
N.M. testified that the incident occurred in 2010, but she
acknowledged telling an interviewer at Children’s Hospital that it took place
in 2011. Trial Transcript, at 42. She testified that she told her cousin,
Taquayah, about the incident “a couple of weekends after,” but instructed
Taquayah not to tell anybody. Id. at 35-36. Taquayah eventually disclosed
N.M.’s report to N.M.’s mother, who contacted the police. Id. at 36-37.
N.M. did not know the date she told her mother or Taquayah about the
incident. Id. at 43. When N.M. was with her mother and Taquayah,
Taquayah asked why N.M. had not told her mother before, and N.M. told her
mother that the incident never happened. Id. at 44.
On an unspecified date, N.M. and her mother went to Allegheny
General Hospital, and then Children’s Hospital, where a doctor examined
N.M. Trial Transcript, at 37-38. N.M. returned to Children’s Hospital at a
later date for another physical and verbal examination, and she later told a
detective about the events. Id. at 39.
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Goldstein’s pretrial testimony. Prior to trial, George filed a motion
in limine to preclude Goldstein’s testimony. During a hearing on the motion
in limine, Goldstein testified that she is the Associate Director and Child
Forensic Interview Specialist at the Philadelphia Children’s Alliance, which
provides forensic interviewing, victim support services, and on-sight health
services for children who allege sexual abuse. N.T., 6/24/13, at 5. She has
received a Bachelor of Arts in psychology and a Masters degree in Social
Work. Id. at 6. Not only has she conducted as many as 1,500 forensic
interviews, but she trains school officials about dynamics of sexual abuse
cases and has been called many times as a guest lecturer at universities.
Id. at 9, 12-13. She has co-authored a chapter currently in publication
through Pittsburgh Oxford University Press on the dynamics of child sexual
abuse, particularly the Child Sexual Abuse Accommodation Syndrome
(“CSAAS”). Id. at 15. She is a member of multiple professional
organizations on child abuse. Id. at 17-18. Though she has come into
contact with around 6,000 cases in her career, she testified “there’s no one
typical pattern of behavior.” Id. at 23.
On cross-examination, Goldstein admitted having no clinical,
psychiatric or sociology-type degree. N.T., 6/24/13, at 31. She was aware
of the work of Roland Summit, who developed CSAAS in 1983, and she
agreed that CSAAS has come under heavy criticism in the last 30 years on
the ground that it lacked any statistical or numerical component to support
Summit’s conclusions. Id. at 31-33. She testified: “There are concerns
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about that; and, again, the misuse of the term ‘syndrome’ with it, that it was
misused in terms of diagnosing children that have been abused.” Id. at 33.
Goldstein was familiar with a paper written by Summit stating that CSAAS
was never meant as a diagnostic tool. She was asked if Summit stated:
“Had I known the legal consequences of the word ‘syndrome at the time, I
might have chosen a better name, like Child Sexual Abuse Accommodation
Pattern to avoid any pathological or diagnostic implications.” Goldstein
answered: “Yes, absolutely.” Id. at 33-34.
Goldstein was not familiar with Dr. William O’Donahue, Chair of the
Psychology Department at University of Nevada, and one of the leading
critics of CSAAS. N.T., 6/24/13, at 34-35. Dr. O’Donahue contends that the
entire pattern Summit attempted to utilize was based on myth rather than
observation. Id. Goldstein was not familiar with Dr. O’Donahue’s assertions
in a 2012 Scientific Review of Mental Health article that CSAAS has not
undergone any scientific testing in the quarter century since its conception,
and that no published peer-review articles support its accuracy. Id. at 35.
Goldstein’s report in this case stated that “most children who have
experienced child sexual abuse never disclose their experiences.” N.T.,
6/24/13, at 36. Defense counsel asked Goldstein what constitutes “most,”
and she responded: “It’s a good question. There’s no specific number as I
read recently.” Id. Her report also said that “many do not disclose right
away.” Id. When asked what constituted “many,” Goldstein testified that
she “[did not] know of one specific number that’s been reached through all
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of those studies.” Id. at 37. Goldstein knew that the Governor’s task force
concluded that of the 24,378 reports of suspected abuse within Pennsylvania
since 2011, only 14% of these accusations were deemed “substantiated,”
while 20,970 — 86% of all accusations — were unfounded. Id. at 37-38.
According to Goldstein, of the 1,500 forensic interviews she
performed, “it’s rare that they would disclose immediately.” N.T., 6/24/13,
at 40. Asked to defined “rare” with statistics, she responded, “I can’t define
with a hard statistic.” Id. On the other hand, she testified that a University
of Southern California study indicated that 75% of those surveyed in the
United States did not tell anyone about abuse in their childhood. Id. at 42.
She then answered “yes,” or “correct” to the questions: “Some are
consistent throughout?” “Some are constantly inconsistent?” “Some offer a
story and then recant, right?” “Some don’t recant?” Id. at 44.
Counsel for George argued that Goldstein’s testimony is inadmissible
under Frye. The trial court answered that 42 Pa.C.S. § 5920 supersedes
both Frye and Pa.R.E. 702, rendering Frye inapplicable. Counsel for George
replied that Pa.R.E. 702 augments section 5920 and requires the
Commonwealth to
not only establish [that the evidence] is beyond what the
average layperson fully understands and comprehends, but that
the methodology used, must also be generally accepted in the
particular field … I don’t think the Legislature by its very nature
can simply ignore Rule 702 and say, if the Court feels her
qualifications are, otherwise, acceptable, that then the
Commonwealth need not then satisfy that it’s generally
acceptable.
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N.T., 6/24/13, at 26-27. The trial court declined to apply Frye, denied
George’s motion in limine and permitted Goldstein to testify as an expert at
trial.
Goldstein’s trial testimony. Goldstein testified for the
Commonwealth as an expert in “victim behavior”. She testified that the
vast majority of people who have experienced child sexual abuse
never disclose, particularly to authorities. So when they look at
the studies of adults with confirmed abuse ... over 90 percent of
them state that as kids they never said anything ... [a]nd those
that do say that something happened often don’t tell right away.
Trial Transcript, at 90. She stated that children who initially deny abuse
often claim abuse later: “We see it all the time. They’re just not
psychologically ready to talk about what has happened.” Id. at 91.
Children are able to recall child abuse by “recall[ing] the specific … act. The
sexual act. Or they’ll encode something that was particularly worrisome or
scary to them because that’s what was important in the moment. Peripheral
details that they weren’t really focused on don’t get encoded in their
memory.” Id. at 93. Children abused by someone close to them “are
correlated with less disclosures, so they don’t disclose as much. When they
do disclose, they delay the disclosure longer.” Id. at 94.
Goldstein based her opinion on the “combination of experience and
research, synthesis of literature.” Trial Transcript, at 86. She admitted
never having been the leader in any research or having conducted any
independent research. Id. at 86-87. She has never formulated a
hypothesis and subjected it to testing, or written a study or opinion
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regarding this material subject to peer review. Id. at 87. Nor could she
state to a degree of certainty the specific number of children that waited to
disclose. She claimed she could “approximate a percentage” but
acknowledged she does not “currently track the number that delay.” Id. at
100. She could only say that some children wait to tell, and some children
do not. Id. at 103. She added that it was “absolutely true” that delayed
disclosure is not limited to truthful accusations. Id. at 101. There “certainly”
were reasons somebody might fabricate abuse, most commonly when a
preteen or teenager makes allegations to deflect attention from their own
misconduct. Id. at 102-03. Some children are consistent about the core
aspects of their allegations, while some are inconsistent. Id. at 103-04.
George’s first argument on appeal is that 42 Pa.C.S. § 5920 is
unconstitutional under Article V, § 10(c) of the Pennsylvania Constitution.
This claim fails because we recently held in Commonwealth v. Carter, 111
A.3d 1221 (Pa.Super.2015), that section 5920 is constitutional under Article
V, § 10(c). Carter reasoned:
Section 5920 is really a rule regarding the admissibility of
evidence, not a procedural rule. Furthermore, it is not in direct
conflict with any existing rule of the Pennsylvania Supreme
Court. Appellant claims it conflicts with Pa.R.E. 702, in that the
reasons why a child may not promptly report a sexual assault is
not beyond the ken of the average layperson. Appellant also
cites to Commonwealth v. Dunkle, [] 602 A.2d 830, 837
(1992) (“Not only is there no need for testimony about the
reasons children may not come forward, but permitting it would
infringe upon the jury’s right to determine credibility.”)
(emphasis in original) (citations omitted). Dunkle held that it is
error to allow expert testimony on the issue of prompt
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complaint, which impermissibly interferes with the jury’s function
to judge credibility. Id. at 837–838. See also, e.g.,
Commonwealth v. Alicia, [] 92 A.3d 753 (2014) (holding that
expert testimony on the phenomenon of false confessions would
impermissibly invade the jury’s exclusive role as the sole arbiter
of credibility).
Appellant argues that our [S]upreme [C]ourt has ruled on
precisely this issue, in an area specifically consigned to its
authority ... However, Dunkle predates Section 5920 and was
not based on constitutional grounds but on existing case law and
rules of evidence. As such, we determine that Section 5920 does
not violate separation of powers.
Id. at 1223-24.5
George’s second argument on appeal is that the trial court abused its
discretion by failing to hold a Frye hearing before permitting Goldstein to
present expert testimony on victim behavior. We conclude that the trial
court abused its discretion by failing to apply Frye.
Under Frye, “novel scientific evidence is admissible if the methodology
that underlies the evidence has general acceptance in the relevant scientific
community.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa.2003).
In applying Frye,
we have required and continue to require that the proponent of
the evidence prove that the methodology an expert used is
generally accepted by scientists in the relevant field as a method
____________________________________________
5
Our Supreme Court is presently reviewing the constitutionality of section
5920 in Commonwealth v. Olivo, 127 MAP 2014. Because Olivo remains
undecided as of this date, our decision in Carter remains binding precedent.
See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000)
(decision of Superior Court remains precedential until it has been overturned
by Supreme Court).
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for arriving at the conclusion the expert will testify to at trial.
This does not mean, however, that the proponent must prove
that the scientific community has also generally accepted the
expert’s conclusion. We have never required and do not require
such a showing. This, in our view, is the sensible approach, for it
imposes appropriate restrictions on the admission of scientific
evidence, without stifling creativity and innovative thought.
Under Pa.R.E. 702, the Frye requirement is one of several
criteria. By its terms, the Rule also mandates, inter alia, that
scientific testimony be given by ‘a witness who is qualified as an
expert by knowledge, skill, experience, training or education....’
Pa.R.E. 702. Whether a witness is qualified to render opinions
and whether his testimony passes the Frye test are two distinct
inquiries that must be raised and developed separately by the
parties, and ruled upon separately by the trial courts.
As to the standard of appellate review that applies to the Frye
issue, we have stated that the admission of expert scientific
testimony is an evidentiary matter for the trial court’s discretion
and should not be disturbed on appeal unless the trial court
abuses its discretion.
Grady, 839 A.2d at 1045-46.
In this court, unlike in the trial court, the Commonwealth concedes
that expert testimony on victim behavior is inadmissible unless the
Commonwealth proves in the trial court that such testimony satisfies Frye.
Brief For Appellee, at 32-33 (acknowledging that satisfying section 5920 is
not enough, absent precedential ruling by an appellate court that science is
now sufficiently established and has gained general acceptance by relevant
scientific community, or full evidentiary hearing at which Commonwealth
meets its burden of proof under Frye). The Commonwealth further asserts,
however, that the trial court’s Pa.R.A.P. 1925 opinion demonstrates that
Goldstein’s testimony was admissible under Frye standards used in other
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states, and therefore the court’s decision to admit Goldstein’s testimony
must be correct under Pennsylvania’s application of Frye. Alternatively, the
Commonwealth contends, we should only remand this case for a Frye
hearing instead of a new trial.
We agree with both parties that it is necessary for the Commonwealth
to satisfy Frye, and we further hold that the trial court abused its discretion
by failing to apply Frye to Goldstein’s testimony. But because of the
importance of Goldstein’s testimony in this case, we decline the
Commonwealth’s invitation to resolve the Frye issue simply by reviewing the
decisions in the trial court opinion. Instead, we direct the trial court to hold
a new evidentiary hearing in which both parties have the opportunity to
present testimony on whether expert testimony on victim behavior is
admissible under Frye. The Commonwealth will bear the burden of
demonstrating that such testimony is admissible under Frye. See Grady,
839 A.2d at 1045. If the trial court determines that the Commonwealth has
failed to meet its burden, it should vacate George’s judgment of sentence,
order a new trial and exclude expert testimony on victim behavior from
evidence. If the court determines that the Commonwealth has met its
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burden, the court should deny a new trial and leave George’s judgment of
sentence intact without prejudice to the appellate rights of both parties.6
Remanded for further proceedings in accordance with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
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6
Commonwealth v. Arenella, 452 A.2d 243 (Pa.Super.1982), provides
considerable guidance in fashioning this remedy. The defendants in
Arenella appealed their convictions for possession with intent to deliver
marijuana, alleging that the trial court improperly denied their request to
have independent expert examination of the substances in question to
determine whether they were in fact marijuana. The defendants also alleged
ineffectiveness assistance of counsel (because this appeal took place before
our Supreme Court ruled that ineffectiveness claims must await PCRA
proceedings). The Aranella court held:
In sum, we would remand these cases for two purposes: (1)
expert examination by both appellants of the alleged controlled
substances, and (2) an evidentiary hearing to dispose of
appellants' ineffectiveness claims as discussed in this opinion. If,
following the examination and the evidentiary hearing, it is
determined that the substances are not marijuana or that
counsel's failure to object was, in either instance, unreasonable,
a new trial must be granted. Alternatively, in the event that the
results of the examination and the evidentiary hearing obviate
the need for a new trial, the present adjudication is without
prejudice to the appellate rights of both parties following the
lower court's disposition on remand.
Id. at 248. We have adapted Aranella’s roadmap for use in the present
case.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2015
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