Com. v. DiNicola

• Decision Date: 20 December 1985
• Docket Number: No. 1385,1385
• Citation: 348 Pa.Super. 405,502 A.2d 606
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Louis Paul DiNICOLA, Appellee. Pitts. 1984.
• Court: Pennsylvania Superior Court

Page 606

502 A.2d 606

348 Pa.Super. 405

COMMONWEALTH of Pennsylvania, Appellant, v. Louis Paul DiNICOLA, Appellee.

No. 1385 Pitts. 1984.

Superior Court of Pennsylvania.

Argued May 15, 1985.

Filed Dec. 20, 1985.

Timothy J. Lucas Asst. Dist. Atty., Erie, for Com., appellant.

Ramsey Clark, Erie, for appellee.

Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.

WIEAND, Judge:

An appeal by the Commonwealth from an order partially suppressing testimony of a hypnotically refreshed witness requires that we review and apply recent decisions to determine the admissibility of testimony from such a witness. The trial court suppressed the testimony of Deborah Sweet, a Commonwealth witness, to the extent that such testimony could not be verified by a prehypnotic statement made by the witness. We affirm.

On August 30, 1979, a fire consumed Deborah Sweet's apartment in a two-story building in Erie, killing her two young children and an upstairs neighbor. Sweet, together with Michael Jefferson and the appellee, Louis P. DiNicola, had spent the evening in Sweet's apartment, drinking beer, smoking marijuana and talking. As a result of the evening's events, DiNicola was charged with arson and three counts of murder. A jury found him guilty of arson and murder of the second degree. His conviction was affirmed by the Superior Court, Commonwealth v. DiNicola, 308 Pa.Super. 535, 454 A.2d 1027 (1983). However, the conviction was subsequently reversed by the Supreme Court because the jury had been allowed erroneously to hear evidence of an opinion by an assistant district attorney that DiNicola had set the fire. See: Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078 (1983).

Upon remand, the defendant learned for the first time that Deborah Sweet had been hypnotized prior to trial. She had originally given the Erie Police Department a tape recorded statement on September 6, 1979. A second statement had been given to the police on September 14th. On September 17th, the witness voluntarily submitted to hypnosis, and a tape recording was made of the hypnotic interview. The tape, however, was either lost or destroyed. Only a portion of a transcript made from the tape remains. Because the witness' testimony had been hypnotically refreshed, DiNicola filed a pre-trial motion to suppress her testimony. ¹ The trial court granted appellee's motion to suppress in part. The court's order, dated September 24, 1984, provided that "Ms. Sweet is precluded from testifying at the trial of this case about the circumstances surrounding the fire which consumed her apartment on August 30, 1979, except to the extent that her testimony is the same as her recollections recorded on the cassette tape of September 6, 1979." The Commonwealth has appealed from this order. ²

The standard of review is well established.

Our responsibility on review is "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." ... In making this determination, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984), quoting Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976) (citations omitted). See also: Commonwealth v. Scatena, 332 Pa.Super. 415, 433, 481 A.2d 855, 864 (1984); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984).

The record in this case discloses that a fire of incendiary origin erupted on August 30, 1979 in a downstairs apartment occupied by Deborah Sweet and her two children. Present at the time of the fire were Michael Jefferson, an acquaintance of Deborah Sweet, and Louis P. DiNicola, a companion of Jefferson who had been previously unknown to Sweet. During the course of the evening, the threesome drank beer and smoked marijuana. Sweet and Jefferson, at some point in time, retired to Sweet's bedroom where they engaged in sexual intercourse. During this period of time DiNicola was left alone. Sweet and Jefferson fell asleep. They awakened to find the apartment engulfed in flames. Sweet, Jefferson, and DiNicola escaped, but Sweet's two children and an upstairs neighbor perished.

On September 6, 1979, while a patient at St. Vincent's Health Center, Sweet gave a statement to police officers, which was tape recorded. ³ In that statement she said that after she had put her children to bed and after the threesome had consumed beer and smoked marijuana, she received a long distance telephone call, which she took in the living room. At that time, she said, she had heard a commotion in the kitchen where the two men then were located. When she got off the phone, about 10:35 p.m., DiNicola used her bathroom to shower and clean up, and Sweet and Jefferson went to her bedroom and engaged in sexual intercourse. While in the bedroom, with the door open, Sweet observed DiNicola leave the bathroom. Sweet said that thereafter she had heard fumbling around which was going on in other portions of the apartment. She said that she had voiced her concern about this to Jefferson, who attributed it to DiNicola's drunkenness and said there was nothing to worry about. They dozed off thereafter, only to awaken to find the bedroom filled with smoke. Sweet and Jefferson ran from the bedroom, saw that the apartment was in flames, and heeded a warning from DiNicola to get out of the apartment. Police officers who interviewed Sweet on September 6th also prepared a three page typewritten police report which summarized Sweet's testimony. The information in this report was substantially, but not precisely, the same as that contained in the tape recording. In the taped interview, Sweet said that she had returned home around 8:30 p.m. on the night of the fire; the police report suggests that she said 6:30 p.m. Sweet said during her interview, as tape recorded, that the marijuana had been very strong, that it might have had something else in it; the report refers to her guess that the marijuana had been laced with angel dust. Sweet was again questioned by police on September 14th. All that remains of that interview is a five page typewritten report prepared by the police and detailing her recollections. It differs only slightly from the earlier tape recording and police report. One notable difference, however, is that on September 14, Sweet was reported to have told police that while she and Jefferson had been in her bedroom she heard DiNicola leave the apartment.

On September 17, Sweet voluntarily underwent hypnosis. The hypnotic interview was conducted by William Vorsheck, a hypnotist who regularly assisted the Erie Police Department. Although the hypnotic interview was tape recorded, only a portion of a transcript made from the tape recording remains. Under the hypnotic technique of calendar age regression, the witness made several statements pertaining to the events of September 6 which she had been unable to "recall" prior to hypnosis. She elaborated upon the noises heard while she was in her bedroom, tracing the source of the sounds and noting that appellee had been heard leaving the apartment and returning a short time later. She also was reported to have said that DiNicola had given her a "shotgun" ⁴ with a marijuana cigarette and then tried to make a pass. The pass, she said, had been rejected.

At the first trial, Sweet testified as a Commonwealth witness. Included in her testimony were facts which had been "recalled" during hypnosis. Neither the fact of hypnosis nor the variance in her recall thereafter had been disclosed to the defense prior to or during trial.

The Commonwealth argues on appeal that the trial court erred in (1) excluding the witness' posthypnotic testimony; and (2) in excluding testimony of facts recalled prior to hypnosis. We disagree.

The law regarding the use of hypnotically retrieved and refreshed testimony in this Commonwealth was recently reviewed by this Court in Commonwealth v. Romanelli, 336 Pa.Super. 261, 485 A.2d 795 (1984). The applicable law may be summarized as follows.

In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), where the witness had no recollection of the facts prior to hypnosis, the Supreme Court said that it would "not permit the introduction of hypnotically-refreshed testimony until ... presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory." Id. at 111, 436 A.2d at 178.

The Superior Court next held, in Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982), that a witness' identification testimony would be received where the witness had identified the perpetrators prior to the hypnotic session. This Court held that "with respect to the victim's ability to identify her two assailants, the hypnotic session did not, in fact, refresh her memory, and the dangers of unreliable suggestion, fantasy and confabulation are not at issue." Id. at 177, 439 A.2d at 808.

In Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982), the Superior Court held that hypnotically-induced identification of the appellant had been properly suppressed where the Commonwealth had failed to prove "that the particular hypnotic session was free from prior, contemporaneous, or post-hypnotic suggestion." Id. at 258, 449 A.2d at 677.

The issue of hypnotically induced testimony next came before the Supreme Court in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). The Court held that testimony induced by hypnosis was inadmissible. With respect to testimony verified by statements made prior to hypnosis, the Court suggested a standard for determining its admissibility as follows:

whenever a person previously hypnotized is offered as a witness, the offering party must so advise the court, and...