Com. v. Davis

Decision Date20 May 1988
Citation541 A.2d 315,518 Pa. 77
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Kenneth Richard DAVIS, Appellant.
CourtPennsylvania Supreme Court

Lester G. Nauhaus, Public Defender, John H. Corbett, Jr., Chief-Appellate Div., Mitchell A. Kaufman, Appellate Counsel, Robert W. Beckwith, Office of the Public Defender, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal from an order of the Superior Court affirming the judgment of sentence entered in the Court of Common Pleas of Allegheny County on July 12, 1985, following the conviction of appellant, Kenneth Richard Davis, for numerous sex offenses allegedly committed against an eleven-year-old boy. The appellant claims his trial counsel was ineffective for failing to object to expert testimony presented by the Commonwealth regarding the credibility of sexually abused children. We agree, reverse the order of Superior Court, and remand for a new trial.

During a period of four or five months in late 1983 and ending on January 29, 1984, the appellant entertained the eleven-year-old son of a friend on approximately six occasions. Following the last visit, the boy told Linda Kelley, a mutual friend of his mother and the appellant, that the appellant had asked him to sleep with him. Ms. Kelley informed the boy's mother and police officials. Based on the boy's detailed account of the appellant's actions, he was charged with involuntary deviate sexual intercourse, corruption of a minor, indecent assault, criminal attempt, and simple assault.

The boy, twelve years old at the time of the trial, testified that on six visits, the appellant engaged in conduct which would constitute the offenses charged. The Commonwealth bolstered his testimony with that of Anthony Mannarino, a clinical child psychologist who was an expert in the treatment of child sexual abuse. He had never examined the victim, but testified that "children who have not been involved in sexual experiences typically do not fantasize about sexual experiences." On cross-examination, he elaborated: "My experience with children who have had some type of sexual experiences when they report about it, typically it is based upon some event that actually occurred and not some fantasized or fabricated experience." The jury found the appellant guilty of all charges.

Immediately after the trial, the appellant qualified to proceed in forma pauperis, and his privately-retained trial counsel was succeeded by present counsel, the Public Defender of Allegheny County. The public defender filed timely post-verdict motions, alleging, inter alia, that trial counsel was ineffective for failing to object to the testimony of the Commonwealth's expert, Anthony Mannarino. See Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n. 6, 372 A.2d 687, 695 n. 6 (1977). Following a hearing and the denial of post-verdict motions, the appellant was sentenced on July 12, 1985. Due to the youth of the victim, the appellant received a mandatory five to ten year sentence for involuntary deviate sexual intercourse pursuant to 42 Pa. C.S. § 9718, with concurrent or suspended sentences for the remaining convictions.

On appeal, the Superior Court affirmed the appellant's judgment of sentence, rejecting his allegations of ineffective assistance of trial counsel, 359 Pa.Super. 626, 515 A.2d 617. The court relied primarily on its decision in Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985). 1 Baldwin permitted a CYS social worker "to explain the dynamics of intra-family sexual abuse and the behavior patterns of the victims." Id. at 373, 502 A.2d at 255. Although Baldwin argued that the expert "effectively testified that the victim was a credible witness, thereby usurping the jury's credibility-determining function ... ," id., the court held that "the testimony of a properly qualified expert concerning the psychological dynamics of incest and the behavioral patterns of incest victims is admissible...." Id. at 373, 502 A.2d at 255-56. The Baldwin court based its holding on the fact that the expert did not "expressly comment on the victim's credibility," and the finding that "the reactions and behavior of a victim of incest are not matters of common knowledge and experience." Id. at 376-77, 502 A.2d at 257-58. Superior Court therefore reasoned that Anthony Mannarino's testimony was admissible in this case.

Subsequent to the Baldwin decision, this Court decided Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). The Seese decision unequivocally prohibited testimony such as that rendered by Mannarino in this case. The expert in Seese testified as follows:

It is very unusual that a child would lie about sexual abuse.... [P]repubertal children usually do not lie about matters of sexual abuse no matter how chaotic or uncomfortable their home situation is, one, because they don't know how to lie about it. They don't know what to say. It's not part of the life experience, so everything they say is something they have seen or experienced. It would be very unusual for them to lie.

Id. at 441-42, 517 A.2d at 921. We summarized the expert's testimony in Seese by stating that:

the essence of [the expert's] response was that, based upon her own experience, young children usually do not fabricate stories of sexual abuse because they do not have sexual knowledge sufficient to supply details regarding sexual encounters. Thus, the testimony consisted of expert opinion as to the veracity of the class of potential witnesses of which the victim was a member.

Id. We noted that the veracity of a particular witness is a question which must be answered in reliance on the ordinary experiences of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness's credibility is reserved exclusively for the jury. We relied upon Commonwealth v. Shaver, 501 Pa. 167, 460 A.2d 742 (1983); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); and Danovitz v. Portnoy, 399 Pa. 599, 161 A.2d 146 (1960). The quoted testimony in Seese was condemned as "an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment," quoting O'Searo, supra. Seese, 512 Pa. at 443-44, 517 A.2d at 922. We concluded:

Such testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called "expert" assessment of the truthfulness of the class of people of which the particular witness is a member.

Id.

There is no question that the prohibition of Seese applies squarely to the testimony given by the Commonwealth expert in this case. It, too, was an " 'expert' assessment of the truthfulness of the class of people of which the particular witness is a member"; indeed, Mannarino's testimony was virtually identical to that of the Seese expert. The issue is whether the appellant's trial counsel was ineffective for failing to object to the testimony even though the appellant's trial took place prior to our decision in Seese.

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Relevant to this case is the additional principle that counsel will not be deemed ineffective for failing to predict a change in the law. Commonwealth v. White, 515 Pa. 348, 528 A.2d 596 (1987); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

The appellant's trial took place on August 2 and 3, 1984, prior to the decision of this Court in Commonwealth v. Seese, supra. Trial counsel could not, therefore, rely on Seese to bolster an objection to the testimony of Anthony Mannarino. Nevertheless, Seese followed and applied the holdings of Commonwealth v. Shaver, supra (1983), Commonwealth v. O'Searo, supra (1976), and Danovitz v. Portnoy, supra (1960). Thus it was evident at least since 1960 that such testimony was...

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