Com. v. Boich

Decision Date06 October 2009
Docket NumberDOCKET NO. A-5501-06T2
Citation2009 PA Super 195,982 A.2d 102
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Daryl J. BOICH, Appellee.
CourtPennsylvania Superior Court

Frank P. Barletta, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellant.

Albert J. Flora, Forty Fort, for appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN*, KLEIN, BENDER, BOWES, GANTMAN, and SHOGAN, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Luzerne County Court of Common Pleas, which granted the pre-trial motion of rape defendant Appellee, Daryl J. Boich, to direct the adult rape complainant ("C.U.") to submit to an involuntary psychiatric examination for purposes of deciding her competency to testify at trial. The Commonwealth asks whether the court erred when it found compelling reasons to grant Appellee's request. We hold the court erred when it ordered an involuntary psychiatric examination of C.U. on the grounds alleged. Accordingly, we reverse and remand for further proceedings.

¶ 2 The testimony of C.U. at Appellee's preliminary hearing revealed that on October 13, 2005, at approximately 10:00 p.m., C.U. and three friends went to a bar in Wilkes-Barre, Pennsylvania. At the bar, C.U. saw a co-worker who knew Appellee. They greeted Appellee, while they and others were all crowded in front of the stage where a band was preparing to perform. As the evening wore on past midnight, C.U., Appellee, and others drank, danced, and casually conversed mostly in a group setting. Upon repeated questions as to the content of her conversations with Appellee, C.U. could not recall the gist of those conversations because the bar was crowded and loud. C.U. maintained the conversations were all casual and inconsequential. At one point, C.U. accepted a dare from her co-worker to kiss another female dancer C.U. did not know. C.U. agreed and did so, but on the rebuttal dare that the co-worker would kiss Appellee, which he also did. C.U. testified that the kiss was just a prank.

¶ 3 Later, when C.U. decided she wanted to go home, she could not readily locate the friends she had arrived with, so she accepted a ride home from Appellee. On the way out of the bar, C.U. encountered her co-worker, who also offered C.U. a ride home, but not until later. As C.U. wanted to leave at that moment, she told her co-worker she was going to leave with Appellee. Appellee preceded C.U. out of the bar and into the parking lot, where he cleared off the front passenger seat of his car for C.U. C.U. admitted she was attracted to Appellee and hoped to exchange phone numbers with him.

¶ 4 Once inside Appellee's Mercedes, C.U. and Appellee began to kiss. C.U. soon became uncomfortable, because Appellee was "getting a little pushy" by grabbing C.U.'s breasts. At that point, C.U. told Appellee she just wanted to go home. Appellee agreed. Appellee instead drove to the back parking lot of the bar, stopped his vehicle, grabbed C.U.'s hair, pulled her head down into his lap, and forced C.U. to perform oral sex on him. When it became evident that C.U. would not participate. Appellee released her head. Appellee again purported to leave but instead drove the car to an even more secluded area behind the bar. Appellee and C.U. then moved outside the vehicle, where Appellee forcibly pulled down C.U.'s jeans and panties, pushed her onto the car, held her firmly, and forced her to have sexual intercourse with him on the hood of the car. C.U. told Appellee to stop, but he refused and ceased only when C.U.'s cell phone rang. C.U. advised Appellee that her friends would contact the police if she did not answer the phone, so Appellee released C.U. who was then able to push him off of her. C.U.'s phone was inside the car on the floor. C.U. answered it and had a short phone conversation. After C.U. terminated the call, Appellee told her to get out of the car, which she did. Appellee left C.U. and drove away from the area. While making her way back to the bar's main parking lot, she contacted her co-worker and told him what had happened. C.U. went to the hospital where a rape kit was performed. The incident was later reported to the police. (N.T. Preliminary Hearing, 12/12/05, at 7-121).

¶ 5 As a result of interviews with C.U. and others, the police charged Appellee with rape,1 involuntary deviate sexual intercourse,2 and two counts of sexual assault.3 On December 12, 2005, the district magistrate conducted the preliminary hearing. Based solely on C.U.'s testimony, including rigorous cross-examination of C.U. by the defense, the magistrate ruled the Commonwealth had presented a prima facie case on the charges and bound the matter over to the Court of Common Pleas for trial.

¶ 6 Thereafter, Appellee filed a request for a bill of particulars on July 20, 2006, several discovery requests on July 20, 2006, August 8, 2006, and August 14, 2006, as well as an omnibus pre-trial motion for a competency hearing, an involuntary psychiatric or psychological examination of C.U. by a defense expert, and disclosure of C.U.'s medical, psychiatric and psychological treatment records on August 14, 2006.

¶ 7 In his omnibus pre-trial motion, Appellee averred C.U. had demonstrated at the preliminary hearing "an inability to remember specific facts about the alleged incident." (See Omnibus Pretrial Motion of Appellee, filed 8/14/06, at 2-4). Relying on the transcript from the preliminary hearing, Appellee specifically asserted (1) C.U. had responded "I don't recall" no less that thirty-five (35) times during questioning at the preliminary hearing; (2) she admitted she was intoxicated on the night of the alleged incident; (3) she admitted taking "a number of medications" on the day of the alleged incident; (4) she "demonstrated a substantial inability to either remember or accurately remember material facts regarding the occurrences during her direct and cross-examination"; and (5) C.U. "has a history of exaggerating intimate physical contacts with prior boyfriends resulting in false allegations of physical abuse, is hot tempered and appears emotionally unstable during periods of intimacy."4 (See id.) On these grounds. Appellee concluded C.U. was not legally competent to testify at trial.

¶ 8 On October 3, 2006, Appellee filed a document called "Supplemental Reasons Supporting Need for Involuntary Psychiatric Examination of Complainant" in which Appellee repeated that C.U.'s "mental instability" at the time of the incident was admissible to impeach her credibility. Appellee further averred C.U/s admitted intoxication, use of narcotic drugs, inability to "remember material facts" and her "mental instability" affected her credibility. (See Appellee's Supplemental Reasons, filed 10/3/06, at 1). On these grounds, Appellee again requested, inter alia, the court to compel an involuntary psychiatric and/or psychological evaluation of C.U. by Appellee's defense expert. Id.

¶ 9 On October 5, 2006, the Court of Common Pleas trial court held a pretrial hearing. Appellee presented testimony of the defense forensic psychiatry expert, Richard Fischbein, M.D. Over the Commonwealth's objection, Dr. Fischbein was permitted to say he would want to perform a psychiatric interview of C.U. to find out why C.U. was on a prescription medication for stomach problems, when that medication is typically used to treat depression or an anxiety disorder. Dr. Fischbein said without an examination, he could not tell why C.U. failed to remember all the details of the incident of October 5, 2005, that an examination "would be helpful" in figuring out why C.U. had difficulty remembering the event. He also opined that the prescription medications C.U. admitted taking were not compatible with alcohol intake. In other words, a person on her medications should limit drinking alcoholic beverages. Dr. Fischbein also stated he suspected C.U. was also being treated for depression rather than just stomach problems, because the medication she took on the morning of October 5, 2005 was a "commitment" drug not usually prescribed for short term disorders. Dr. Fischbein wanted to know why the medications had been prescribed. Coupled with significant other testing, Dr. Fischbein wanted to discover if C.U. had any "personality issues" consistent with post-traumatic stress disorder.

¶ 10 On cross-examination, Dr. Fischbein conceded that C.U. had remembered many details about the incident. He also agreed the details C.U. failed to remember were minor things, such as whether the beer she drank was draft or in a bottle. Although Dr. Fischbein insisted the issue for him was more than just intoxication, he also conceded the real issue was not necessarily why the prescription drugs had been prescribed but the effects of the interaction of the drugs and alcohol. Dr. Fischbein also conceded that after an evaluation, he might still not have an explanation for why C.U.'s memory was "impaired." (N.T. Pre-trial Hearing, 12/12/06, at 27-73). C.U. was also present at the hearing. Nevertheless, she was called to testify only with respect to (1) whether she had generated any emails about the incident, which she denied; and (2) whether she had ever been treated as an outpatient or inpatient at any psychiatric facility, which she also denied. (Id. at 75-76; R.R. Vol. II at 77a-78a). Neither the court nor defense counsel asked C.U. any other questions, although she was available for inquiry.

¶ 11 Following the hearing, the trial court granted Appellee's motion for medical records limited to the prescription drugs Lexapro and Darvocet. The court also granted the defense motion for an involuntary psychiatric and/or psychological examination of C.U. by Dr. Fischbein. In support of its decision to grant these requests, the court stated:

¶ 12 While none of the facts relied upon by [Appellee], in isolation, establish a compelling need...

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