Com. v. Delbridge

• Citation: 859 A.2d 1254,580 Pa. 68
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gerald John DELBRIDGE, Appellant.
• Decision Date: 21 October 2004
• Court: United States State Supreme Court of Pennsylvania

859 A.2d 1254

580 Pa. 68

COMMONWEALTH of Pennsylvania, Appellee, v. Gerald John DELBRIDGE, Appellant.

Supreme Court of Pennsylvania.

Argued April 10, 2002.

Decided October 21, 2004.

Mark M. Mack, Esq., Thomas A. Pavlinic, Esq., pro hac vice, Kingston, for G. Delbridge.

David M. McGlaughlin, Esq., Philadelphia, for PA Association of Criminal Defense Lawyers.

David W. Lupas, Esq., Frank P. Barletta, Esq., Wilkes Barre, for Commonwealth of Pennsylvania.

BEFORE: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION AFTER REMAND

Chief Justice CAPPY.

On September 25, 2003, this court filed an opinion and order, wherein we retained jurisdiction and remanded this case to the trial court for a new competency hearing. Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003). That hearing has been completed, and the record and supplemental trial court opinion have been returned to our court. The case is now ready for final disposition. For the reasons set forth below, we now affirm the decision of the Superior Court, which in turn, affirmed the judgment of sentence.

This appeal was set in motion by Appellant's convictions on two counts each of endangering the welfare of children, 18 Pa.C.S.A. § 4304, corruption of minors, 18 Pa.C.S.A. § 6301(a), aggravated indecent assault, 18 Pa.C.S.A. § 3125(7), and indecent assault. 18 Pa.C.S.A. § 3136(a)(7). Appellant's convictions arise from his sexual abuse of his minor children, A.D. and L.D. At the time of the charged conduct, the children were ages six and three, respectively. The Superior Court affirmed the judgment of sentence. This court granted allowance of appeal to consider an issue of first impression: whether we should recognize the concept of taint, and if so, is taint a subject properly explored during a hearing testing the competency of a child witness in a sexual abuse case.

It is helpful to our continued discussion of these questions to begin by repeating the definition of taint and our findings in regard to that concept contained in our earlier opinion:

The core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. See Josephine A. Bulkley, The Impact of New Child Witness Research on Sexual Abuse Prosecutions, in Perspectives on Children's Testimony, 208, 213 (Stephen J. Ceci et al. eds, 1989). Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify. See, Julie Jablonski, Assessing the Future of Taint Hearings, 33 Suff. J. Trial & App. Adv., 49, 50 (1998).

Delbridge, 855 A.2d at 34-35. (emphasis supplied).

After reviewing the developing caselaw among our sister states, we held that an allegation of taint raises a legitimate question of witness competency in cases involving complaints of sexual abuse by young children. Id. at 34. Because taint implicates the ability of a child to distinguish real memories of an event from falsely implanted suggestions, we found that taint could infect the mental capacity of the child witness to independently recall the event and truthfully testify. The capacity to remember and the ability to testify truthfully about that memory are components of competency. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959). Therefore we held that taint was best explored in a competency hearing. Delbridge, at 40. In discussing the contours of a competency hearing where taint is at issue, we held that it is the burden of the party raising the question first, to present some evidence of taint before exploration of that question will be considered, and second, to overcome the presumption of competency by clear and convincing evidence. Id.

Further, our court found that in this case, Appellant had presented some evidence that would justify exploration of the issue of taint regarding the competency of the minor witnesses, A.D. and L.D., necessitating a remand for a new competency hearing. Id. at 41.¹ Within its obligation to preside over a new competency hearing, we directed that the trial court consider the necessity and admissibility of expert testimony on the subject of taint. In addition, as Appellant also challenged certain hearsay statements made by the children to third parties, arguing that if the memories of the children were corrupted by taint, that taint would also affect the trustworthiness of the hearsay statements, we withheld disposition of that issue pending the outcome of the hearing on remand.

Upon considering the testimony presented at the new competency hearing, the trial court concluded that Appellant failed to meet his burden of proving that the children were tainted by clear and convincing evidence. Accordingly, the court again found that the children were competent. In addition, the trial court found that there was no necessity to admit expert testimony on the question of taint and further, that the expert testimony proffered by Appellant did not satisfy the requirements for admissibility. Finally, the trial court concluded that, as there was no taint, the reliability of the hearsay statements by the children were not subject to attack on that basis.

At present, we are required to review the trial court's ruling after remand on the question of competency and the related ruling as to the reliability of the hearsay statements. This court's standard of review of a trial court ruling on competency is for an abuse of discretion. Rosche, 156 A.2d at 309. Abuse of discretion is also the standard for review of trial court decisions on evidentiary rulings. Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989). The scope of our review is plenary as this court may review the entire record in making its decision. See Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002)

.

Early on in this case, Appellant challenged the competency of A.D. and L.D., raising the question of their ages and the outside influences placed on them in bringing forth their actual recollections regarding acts of sexual abuse. Appellant maintained throughout these proceedings that A.D. and L.D. were subjected to repetitive interviews by various authority figures, such as police officers, psychologists, social workers, medical doctors and attorneys, and that the interviewers were biased in their attitude towards Appellant, creating the inference that the information gained through the interview process was compromised. The information gathering process was also attacked by Appellant because of the influences placed upon A.D. and L.D. by their mother. It was Appellant's position that Mrs. Delbridge influenced the memories of A.D. and L.D. because of her own experiences as a child victimized by sexual abuse.

As directed by our earlier opinion, the trial court conducted a new competency hearing to allow Appellant a full opportunity to present evidence supporting his claim of taint. At the hearing, it was Appellant's burden to overcome the presumption of competency and establish by clear and convincing evidence that A.D. and L.D. were not competent witnesses as their proffered testimony was irreparably compromised by taint. Delbridge, 855 A.2d at 40.

On January 27, 2004, the trial court began hearing testimony on the question of taint. The hearing began with the Commonwealth calling A.D. and L.D. to the stand, establishing for the record that the children met the threshold for testimonial competency. Rosche, 156 A.2d at 310. Each child demonstrated the basic ability to communicate, to understand questions, and provide appropriate responses, to observe and recall an event, to differentiate between reality and make-believe, and to understand the consequences of telling a lie. (Evidentiary Hearing Transcript of January 27, 2004, pp. 11-14 and pp. 37-44, hereinafter "H.T.1")². Appellant then cross-examined A.D. and L.D. as to their memories of the investigation that preceded their testimony at the 1999 trial of Appellant on charges of sexual abuse. Appellant was given great latitude in his questioning of A.D. and L.D. regarding the memories of each child as to the interview process, their interactions with the various interviewers, and any influence their mother exercised over them during the investigation. Appellant failed to elicit any testimony from the children supporting his allegations that A.D. and L.D. had been subjected to repetitive, suggestive, or coercive interview techniques, to interviewer bias, or to inappropriate influence from their mother. (H.T.1. pp. 11-50). No other witnesses were called regarding the circumstances of the investigative interviews involving A.D. and L.D.³

The trial court in its assessment of the record presented at the new competency hearing concluded that Appellant failed to demonstrate the presence of taint and thus, necessarily failed to meet his burden of establishing by clear and convincing evidence that the competency of A.D. and L.D. was compromised by taint. We agree with that conclusion. Appellant failed to develop a record supporting his assertions as to the existence of taint that prompted this court in this first place to order the remand for a new competency hearing. Allegations are not evidence; the proponent of taint carries the burden of persuasion, that burden was not met in this instance.

Failing to develop evidentiary support for his allegations of taint, Appellant nevertheless presented expert testimony in furtherance of his argument that the children were incompetent witnesses because their memory of events at issue had been compromised by taint. The trial court admitted the expert testimony in order to develop a full record for this court's consideration...