Commonwealth v. Garcia

OLSZEWSKI, Judge:

This is an appeal from judgment of sentence. Jose Garcia was convicted following a jury trial of involuntary deviate sexual intercourse (18 Pa.C.S.A. § 3123); corruption of minors (18 Pa.C.S.A. § 6301); rape (18 Pa.C.S.A. § 3121); and criminal attempt, rape (18 Pa.C.S.A. § 901).¹ Garcia was sentenced to a term of seven to fifteen years for these convictions.

Garcia appealed the convictions to the Superior Court, which reversed the conviction and ordered a new trial in a split panel decision. Commonwealth v. Garcia (No. 01076 Phila.1989, filed June 4,1990, Olszewski, J., dissent by Ford Elliott, J.). The Commonwealth petitioned for reargument before this Court en banc; having reviewed the record, the parties’ briefs and arguments, we vacate the judgment of sentence and remand the matter for a new trial.

Garcia alleges seven instances of error by the trial court; due to our disposition of the first issue, we need not reach the other six. Garcia argues that the trial court erred in allowing the expert testimony of Alan R. DeJong, M.D., a pediatrician, clinical associate and professor of pediatrics, and a co-director of the Pediatric Sexual Assault Follow-up Program, , who testified as to the typical behavior of child sexual assault victims. Garcia characterizes DeJong’s testimony as an inadmissible attempt by the Commonwealth to bolster the credibility of the child witness/victims who testified against him. The Commonwealth argues that De-Jong’s testimony was permissible observations of objective behavior demonstrated by other victims of child sexual abuse. We are constrained by recent opinions of our Supreme Court to agree with Garcia.

This case arose out of incidents alleged to have occurred in Garcia’s home during 1985 and 1986. The Commonwealth presented the testimony of two children, ages nine and eight, indicating that Garcia had subjected them to multiple acts of sexual abuse during the time in question. The children’s testimony contained inconsistencies and uncertainties as to the dates and number of the incidents of abuse; however, it was clear from their testimony that the children had delayed in reporting the incidents. The children also testified as to their reasons for failing to report the abuse promptly.² (See generally, N.T., vol. IV, V.)

The mother of the second victim testified that her daughter had told her of incidents of abuse. Other testimony indicated that an investigation commenced in late August 1986, and that Garcia was arrested on September 10, 1986.

At trial, Garcia relied upon the alleged victim’s delay in reporting the abuse as a central element of his defense. Accordingly, the trial court instructed the jury how the delay should enter into their deliberations. (N.T., vol. VIII, P. 124-126.)

Certain aspects of DeJong’s testimony centered on his observations of other abuse cases and the presence of delay in those cases. Specifically, DeJong testified that one-third of child sexual abuse victims who report the incident do so within 24 hours; another third of the reporting victims do so within 24-72 hours; the remainder of the victims who report the incident may take up to years do so. (N.T., vol. VII, P. 69-70.) DeJong further testified as to the reasons why children delay in reporting sexual abuse. (Id. at 69-71.)³

The trial court allowed this testimony, relying upon Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985). (Trial court opinion at 15-16.) Baldwin allows expert testimony regarding the behavior patterns of child sexual abuse victims as long as the expert does not opine as to the veracity of the child witnesses. Baldwin, supra, 348 Pa.Superior Ct. at 377, 502 A.2d at 257 (citations omitted). Baldwin, however, has been expressly overruled inasmuch as it conflicts with Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), and Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). Davis, supra, 518 Pa. at 81 n. 1, 541 A.2d at 317 n. 1. Our analysis, therefore, turns to an examination of what is left of Baldwin in light of Davis and other case law.

Baldwin permitted a social worker “to explain the dynamics of intra-family sexual abuse and the behavior patterns of the victims ... and why victims are often unable to recall exact dates or times or describe the specific incidents in detail.” Baldwin, supra, 348 Pa.Super. at 373, 502 A.2d at 255. The Baldwin Court stated that the reactions and behavior of incest victims “are not matters of common knowledge and experience.” Id., 348 Pa.Superior Ct. at 377, 502 A.2d at 257-258 (citations omitted). The Court held that the behavioral and psychological characteristics of child sexual abuse victims are proper subjects of expert testimony. Id. Also, “so long as the expert does not render an opinion on the accuracy of the victim’s recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury.” Id.; see also, Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317.

In Seese, the expert testified that it was very unusual for a prepubertal child to lie about sexual abuse, because they do not have sufficient sexual knowledge to know how to describe such abuse unless they have experienced it. Id. 512 Pa. at 442, 517 A.2d at 921. Our Supreme Court stated that the testimony was essentially an inadmissible “expert opinion as to the veracity of the class of potential witnesses of which the victim was a member.” Id.

Baldwin prohibited only direct testimony regarding the veracity of the witness or complainant. Baldwin, supra 348 Pa.Super. at 376-79, 502 A.2d at 257-258; Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317. Seese expanded this prohibition to include expert testimony which commented on the veracity of a class of potential witnesses of which the victim was a member. Seese, supra 512 Pa. at 443-44, 517 A.2d at 922. The testimony in Davis was similar in many respects to that in Seese. Essentially, children do not fantasize about sexual experiences. Davis, supra 518 Pa. at 79-81, 541 A.2d at 316. Hence, there was expert testimony concerning the veracity of a class of individuals of which the particular witness was a member.⁴

In both Seese and Davis, our Supreme Court’s ratio decidendi was the well-known proposition of law that the determination of the veracity of a witness is reserved exclusively for the jury. Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317 (citations omitted); Seese, supra 512 Pa. at 443-44, 517 A.2d at 922 (citations omitted). The Court was concerned with the possibility that such expert testimony would encourage the trier of fact to abdicate its responsibility to ascertain the facts by deferring to an “expert.” Ibid. In Seese, the Court stated “such testimony would imbue the opinions of ‘experts’ with an unwarranted appearance of reliability upon a subject, veracity, which is not beyond the facility of the ordinary juror to assess.” Seese, supra 512 Pa. at 443-44, 517 A.2d at 922.

Since Seese and Davis, the authority of Baldwin has been continually eroded. In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), an expert testified that the victim suffered from “rape trauma syndrome” and that the victim’s failure to identify her attacker two weeks after rape in one-on-one identification was unremarkable, and an in-court identification five years later was credible. Our Supreme Court held that the expert testimony on rape trauma syndrome should not have been admitted. Gallagher, supra 519 Pa. at 297-99, 547 A.2d at 359. The Court stated that the only purpose of the testimony was to enhance the credibility of the victim. Id., 519 Pa. at 295-97, 547 A.2d at 358.⁵ Gallagher sparked two dissenting opinions. The thrust of the first, dissent was that the expert testimony should have been admitted to explain the apparently inconsistent conduct of the victim as:

... this information was beyond the ordinary training, knowledge, intelligence and experience of the ordinary juror and assisted the jury in assessing the testimony of the victim ...

Id., 519 Pa. at 301, 547 A.2d at 360 (Larsen, J. dissenting). The second dissent argued that the expert testimony should have been allowed as a profile of the behavior of the class of which the victim was a member to help the jury understand the victim’s actions. Id., 519 Pa. at 302-03, 547 A.2d at 361 (citations omitted) (Papadakos, J. dissenting).⁶

The erosion of Baldwin continued in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988), where an expert testified that alleged victim’s post-attack behavior was consistent with behavior of victims of child sexual abuse. The Emge Court stated that Seese and Davis prohibited express testimony regarding the alleged victim’s ability to verbally communicate the truth. It concluded that behavioral testimony equally invaded the exclusive province of the fact finder. Emge, supra 381 Pa.Super. at 145, 553 A.2d at 76 (emphasis in original). The Court concluded that testimony which matches the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and so is prohibited. Id. (citations omitted). Emge, therefore, treated indirect comment on the veracity of an alleged child sexual abuse witness/victim via testimony as to the behavior of typical victims as an invasion of the province of the jury. See also, Commonwealth v. Higby, 384 Pa.Super. 619, 559 A.2d 939 (1989) alloc. denied, 525 Pa. 978, 575 A.2d 109 (1990).

In Commonwealth v. Gibbons, 383 Pa.Super. 297, 556 A.2d 915, alloc. denied, 523 Pa. 647, 567 A.2d 651 (1989), an expert testified concerning the behavior patterns of child sexual abuse victims and the general dynamics of child sexual abuse. The expert did not attempt to compare alleged victim’s behavior to that of known victims of child sexual abuse. Id. 383 Pa.Super. at 300, 556 A.2d at 916. Nevertheless, the Court, relying on Emge, concluded that the prejudicial value of the expert’s testimony clearly outweighed its probative value. Id. Gibbons, in effect, prohibits any expert testimony on the typical behavior of child sexual abuse victims because of its prejudicial impact.

We stated in Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), alloc. granted, 524 Pa. 625, 574 A.2d 67 (1990), that upon review we must determine the purpose for which the expert testimony in question was offered; if that testimony was offered solely to sustain the credibility of the victim, the testimony should not have been admitted. Id. 385 Pa.Super. at 323-26, 561 A.2d at 8-9 (citations omitted). In Dunkle, as here, the victim delayed in reporting the offense, could not recall exact dates and times, and was inconsistent as to other details. Id. Expert testimony remarkably similar to that offered in the case at bar was held inadmissible as serving only to bolster the victim’s credibility. Id.

Here, DeJong did not attempt to compare the alleged victims in this case with known sexual abuse victims he had interviewed. Nonetheless, as per Emge and Gibbons, the expert need not place the alleged victim in a class of known victims for his testimony to be inadmissible and an infringement upon the province of the jury. We have reviewed Delong’s testimony and we conclude that his testimony concerning the presence of delay, and the reasons why victims delay reporting incidents, was an attempt by the Commonwealth to legitimize the victims’ delay in reporting the incidents. This testimony invaded the province of the jury and, in effect, attempted to have the jury adopt an expert’s opinion that delay was a normal occurrence in two-thirds of all child sexual abuse cases, thus eviscerating the prompt complaint instruction. The Commonwealth’s impermissible purpose, therefore, was to bolster the credibility of the victims.⁷

Jurors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, “even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.” Commonwealth v. Dillon, 386 Pa.Super. 236, 245, 562 A.2d 885, 889, alloc. granted, 524 Pa. 595, 568 A.2d 1245 (1989) (citations omitted)⁸. Our Supreme Court has decided that this will not occur in Pennsylvania courts. See, Seese, Davis, and Gallagher, supra.

The Commonwealth argues that despite the above-cited authority, expert testimony which does not directly opine as to the veracity of a witness is permissible. The Commonwealth attempts to distinguish between testimony which centers on the psychological processes of the victim as opposed to that centering on the behavior patterns of victims, encouraging us to allow the latter.⁹ As we noted above, this argument, whether characterized as profiling the typical behavior of a class of victims or as an attempt to explain behavior that is beyond the ordinary experience of jurors, was advanced in the dissenting opinions in Gallagher.¹⁰ Gallagher, supra, 519 Pa. at 297-305, 547 A.2d at 359-362 (Larsen, J. dissenting and Papadakos, J. dissenting). The Gallagher majority implicitly rejected such distinctions by its decision. We are not free to disregard their command.¹¹

Our primary concern in these cases is to do justice. To do so, we must maintain a difficult balance between society’s interest in prosecuting criminals and a defendant’s constitutional right to trial by jury. Our Supreme Court has struck this balance by prohibiting expert testimony which passes on or enhances the victim’s credibility. Seese, Davis, and Gallagher, supra. We are constrained to hold that expert testimony regarding the behavior patterns of the victims of child sexual abuse is inadmissible when offered to explain the conduct of the witness/victim in a case, as it tends to bolster the victim’s testimony and so withdraw the issue of witness credibility from the jury.

Judgment of sentence of the trial court is vacated, and appellant Garda is granted a new trial. Jurisdiction is relinquished.

FORD ELLIOTT, J., files Dissenting Opinion in which DEL SOLE and HUDOCK, JJ., join.

1 . Jose Garcia and Pat Garcia were tried jointly; however, Pat Garcia is not part of this appeal.

2 . The first victim testified that she was frightened by a threat allegedly made by Pat Garcia, also that she had been previously sexually abused and did not wish to go through another court proceeding. (N.T., vol. IV, P. 55, 57.) The second victim explained that she had reported the first incident to her mother, who then told Pat Garcia to get help for Jose Garcia; the second victim continued to visit the Garcia home, as they were her baby-sitters. The second victim also testified that Garcia threatened to kill her if she reported the continuing abuse. (N.T., vol. V, P. 19-28.)

3 . DeJong also testified as to the presence and absence of physical trauma in child sexual abuse cases and the usual time frame for resolution of such trauma. (N.T., vol. VII, P. 64-69).

The remainder of DeJong’s testimony discussed the typical abuser profile; the methods abusers use to cover their tracks; the percentage of abusers who are family members, friends of the family, and strangers; and the enormity of the child sexual abuse problem. (Id. at 70-74.) While our holding today renders our consideration of this portion of DeJong’s testimony unnecessary, we note in passing that it was not relevant to any issue to be proven in the case. Commonwealth v. McNeely, 368 Pa.Super. 517, 520-24, 534 A.2d 778, 780-781 (1987), alloc. denied, 520 Pa. 582, 549 A.2d 915 (1988). The prejudicial impact of this testimony clearly outweighed its probative value, if any; this testimony was, therefore, inadmissible.

4 . See also, Commonwealth v. Ferguson, 377 Pa.Super. 246, 546 A.2d 1249 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989) (expert’s statement that complainant’s behavior and testimony were closely aligned with that of a child sexual abuse victim invaded province of jury since it was an expert assessment of the truthfulness of the child witness).

5 . See also, Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980 (1988) (introduction of opinion evidence of rape trauma syndrome to establish lack of consent is improper because lack of consent is issue for jury to decide).

6 . We note that the Gallagher majority’s rejection of the profile evidence theory advanced by Justice Papadakos’ dissent appears to reject the third and fourth approaches for the admissibility of this evidence argued for by the dissent. Dissent at 958-959. If evidence outlining the behavior piofiles of rape victims is inadmissible, we fail to understand why behavior profiles of child sexual abuse victims should be admissible.

7 . The dissent admits that the testimony’s effect was to enhance the credibility of the victim’s testimony. Dissent at 961-962. We see no substance to the distinction which the dissent apparently wishes to draw. To admit expert testimony outlining a victim profile, but not diagnosing the victim as qualifying as a member of the profile, would fly in the face of the Gallagher opinion. The Gallagher majority made it clear that it was the purpose of enhancing victim credibility which was impermissible. Gallagher, supra 519 Pa. at 297, 547 A.2d at 358 (emphasis added).

8 . We are puzzled by the dissent’s criticism of this statement. Dissent at 957. Rape is as abhorrent as child sexual abuse; the treatises cited by the dissent would indicate that the behavior of rape victims is just as unusual as the behavior exhibited by victims of child sexual abuse; yet our Supreme Court had decided that the credibility of rape victims is “within the facility of the normal juror to assess." Gallagher, supra 519 Pa. at 297, 547 A.2d at 358 (footnote omitted).

9 . The Commonwealth relies on Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), alloc. denied, 524 Pa. 596, 568 A.2d 1246 (1989) (expert opinion regarding the general behavior and psychological characteristics of child sexual abuse victims is permitted providing expert does not directly opine as to the victim’s veracity); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988) (only expert testimony regarding the victim’s credibility should be prohibited); and Commonwealth v. Cepull, 390 Pa.Super. 167, 568 A.2d 247 (1990) (generally allowing testimony as to Rape Trauma Syndrome in dicta ). To the extent that these cases are inconsistent with today1 s reading of the relevant Supreme Court precedents, they are overruled.

The Commonwealth also cites numerous decisions from our sister states which allow the type of expert testimony at issue here. We, however, are bound by relevant Pennsylvania precedent.

10 . Further, we cannot agree with the Commonwealth’s characterization of DeJong's testimony. DeJong testified as to the reasons why child sexual abuse victims delay in reporting the abuse. Such testimony involves an examination of why the victims acted as they did, not just how they acted. This attempts to address the victims’ thought processes and is inadmissible.

11 . The Commonwealth also cites to a recent Supreme Court decision. Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989), which purportedly stands for the admissibility of this type of testimony because the behavior patterns of battered women are beyond the ordinary experience of jurors. We note that the plurality opinion in Stonehouse overturns the conviction due to a failure of trial counsel to request an instruction requiring the jury to consider the cumulative effects of long-term abuse when assessing the reasonableness of a battered person’s claim of self-defense. Id., 521 Pa. at 57-58, 555 A.2d at 781. It was this reasoning, and not the discussion of the admissibility of expert testimony concerning battered women's syndrome, which commanded a majority of the court. See, Id., 521 Pa. at 66-67, 555 A.2d at 785 (Zappala, J. concurring). As such, we cannot consider Stonehouse proper authority allowing us to deviate from the command of Gallagher, supra.