Com. v. Gallagher

• Decision Date: 12 May 1986
• Citation: 510 A.2d 735,353 Pa.Super. 426
• Parties: , 54 USLW 2626 COMMONWEALTH of Pennsylvania v. Anthony J. GALLAGHER, Appellant.
• Court: Pennsylvania Superior Court

Page 735

510 A.2d 735

353 Pa.Super. 426, 54 USLW 2626

COMMONWEALTH of Pennsylvania v. Anthony J. GALLAGHER, Appellant.

Superior Court of Pennsylvania.

Argued April 4, 1985.

Filed May 12, 1986.

Seymore Johnson, Jr., Philadelphia, for appellant.

Dawn L. Morton, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from the judgment of sentence for involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123. Appellant contends that (1) the trial court erred in (a) allowing the Commonwealth to present expert testimony on the "rape trauma syndrome," (b) excluding testimony by appellant's expert witness, (c) allowing Dominic Ragno to testify, and (d) permitting the jury to take two mugshots of appellant into the jury deliberation room; (2) the trial court lacked jurisdiction to try him; (3) he was denied the right to a non-jury trial; (4) the lower court erred in denying his petition for habeas corpus; (5) his trial counsel was ineffective for failing to (a) raise a statute of limitations defense, (b) raise a Rule 1100 defense, (c) object to portions of the complainant's testimony, (d) move for dismissal of the charges against appellant for a violation of the Interstate Agreement on Detainers, (e) interview or call two alibi witnesses, and (f) present certain evidence; and (6) his sentence was (a) excessive and (b) unconstitutional. We disagree and, accordingly, affirm.

In the early morning hours of November 26, 1977, the complainant was sexually assaulted by a man who had gained entrance to her home by posing as a police officer. At the time, she recognized her assailant as a man named Gallagher who had visited her house six months earlier to give her an estimate for installing windows in her basement. On that occasion, he had also claimed to be a police officer. Two weeks after the assault, the complainant was shown a photographic display containing appellant's picture; she also confronted appellant at the police station, but was unable to identify him positively in either instance. ¹ In February, 1982, however, the complainant positively identified appellant in both a photographic display and a lineup.

Appellant was arrested on February 17, 1982 and charged with rape, indecent assault, indecent exposure, involuntary deviate sexual intercourse, burglary, aggravated assault, simple assault, and impersonating a public servant. On April 14, 1982, appellant filed a petition for a writ of habeas corpus on the ground that the police lacked probable cause to arrest him. This petition was denied on September 15, 1982. On March 9, 1983, following a seven-day trial, the jury found appellant guilty of involuntary deviate sexual intercourse. ² Post-verdict motions were filed by new counsel; the lower court denied them on May 29, 1984. On that same date, appellant was sentenced to a term of ten-to-twenty years imprisonment. He filed a motion to reconsider the sentence which the lower court denied on June 26, 1984. This appeal followed.

Appellant's primary contention is that the trial court erred in allowing Dr. Ann Burgess to testify concerning the rape trauma syndrome. At trial, appellant did not contest the occurrence of the rape and assault, but claimed that the complainant had incorrectly identified him as her attacker. Thus, the reliability of the complainant's identification became the central issue at trial.

In order to explain why the complainant was able to identify appellant four years after the assault, although she had been unable to do so only two weeks after it, the Commonwealth introduced Dr. Burgess's testimony on the rape trauma syndrome, a psychological condition observable in rape victims. ³ After testifying to her extensive credentials, Dr. Burgess described the symptoms of rape trauma syndrome as occurring in two phases:

The symptoms are basically broken into two sections: the symptoms that occur right after the rape, which we call the acute phase, and these symptoms are very related to general stress symptoms; for example, the victim can't sleep or can't eat or is very upset and can't think about anything like what their normal activities are, have difficulty going back to work, to school, taking care of their children, whatever their normal pattern has been, because of the emotional impact of the event.

These symptoms tend to subside within a few days to weeks, so that person can at least get back into their usual routine.

Then the second phase is what we call the reorganization phase, and this is where the person now must deal with the symptoms that are very specific to the rape. We call them the rape-related symptoms, and these symptoms can take months, years, for the person to really fully integrate into their psychological experience so that they can go about their business as they had prior to the event.

N.T. March 4, 1983 at 5.76. After elaborating on these symptoms, Dr. Burgess testified that she believed that the complainant was suffering from rape trauma syndrome, and enumerated the symptoms exhibited by the complainant that had led her to that conclusion. She also explained how phobias associated with the rape trauma syndrome could affect a victim's ability to identify her attacker immediately after the assault, but, after a period of integration that might last years, the victim finally would be able to make an identification. At no time did Dr. Burgess state a personal opinion that the complainant was telling the truth.

Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge, intelligence and experience of the jury. Auerbach v. Philadelphia Transport Co., 421 Pa. 594, 604, 221 A.2d 163, 171 (1966); Kubit v. Russ, 287 Pa.Superior Ct. 28, 35, 429 A.2d 703, 706 (1981). Of course, such testimony must also be relevant, that is, it must tend to make a fact at issue more or less probable, see Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983), and it should not confuse, mislead, or prejudice the jury. See Lewis v. Mellor, 259 Pa.Superior Ct. 509, 515, 393 A.2d 941, 944 (1978). As the dissent notes, the admission of expert testimony is a matter within the sound discretion of the trial court, and its decision will not be reversed absent a clear abuse of that discretion. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, supra 287 Pa.Superior Ct. at 35, 429 A.2d at 706.

Here, we believe that Dr. Burgess's testimony was relevant to the central issue of identification and, if believed by the jury, was useful to explain a psychological phenomenon beyond the knowledge and experience of the average juror. We also find no evidence that this testimony confused, misled, or prejudiced the jury. We therefore conclude that the lower court did not abuse its discretion in admitting Dr. Burgess's testimony. ⁴

The dissent, while conceding that Dr. Burgess's testimony was relevant to the issue of identification, see dissenting op. at 751, nevertheless finds it inadmissible. It would base this finding upon two grounds: that Dr. Burgess was not qualified to present expert testimony that the complainant suffered from rape trauma syndrome and that Dr. Burgess's testimony bolstered the credibility of the complainant, thereby invading the province of the jury to determine credibility. We cannot agree with either of these grounds.

The dissent would find first that, while Dr. Burgess's expertise qualified her to testify about the phenomenon of rape trauma syndrome, she was not qualified to testify as to her conclusion that the complainant was suffering from the syndrome. We do not believe that this issue is properly before our Court. Although appellant arguably objected to Dr. Burgess's qualifications at trial, see N.T. March 4, 1985 at 5.75, ⁵ he failed to preserve this issue for appellate review by raising it in his post-verdict motions, filed March 15, 1983; his amended post-verdict motions, filed October 11, 1983; his further amended post-verdict motions, filed March 1, 1984; or in any of the numerous post-verdict motions filed pro se by appellant. See Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978) (issues not raised in post-verdict motions are waived on appeal). He also failed to raise the issue in his statement of questions involved contained in his brief to this Court, see Pa.R.A.P. 2116 (ordinarily no point will be considered which is not set forth in the statement of questions involved), or in the argument section of that brief, see Commonwealth v. Balch, 328 Pa.Superior Ct. 71, 76, 476 A.2d 458, 461 (1984) (issues not argued in brief are waived). I would, therefore, find this issue waived. See also Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975) (ordinarily, Superior Court may not raise issue sua sponte ).

Even if the issue were not waived, however, we conclude that Dr. Burgess was qualified to testify. The dissent would find that Dr. Burgess was not qualified to testify because she holds a doctorate in nursing rather than a medical degree. See dissenting slip op. at 9-10. This Court has previously held, however, that an expert need not have a medical degree in order to testify to the diagnosis of a psychological condition. In Kravinsky v. Glover, 263 Pa.Superior Ct. 8, 396 A.2d 1349 (1979), and Simmons v. Mullen, 231 Pa.Superior Ct. 199, 331 A.2d 892 (1974), we held that psychologists, who hold doctoral rather than medical degrees, were qualified to testify as to their diagnoses of emotional disturbances.

For the purpose of comparison, we note that in Kravinsky this Court concluded that a psychologist with the following credentials was qualified to testify about his diagnosis of a psychological condition: a Ph.D. in psychology; a one-year internship in clinical psychology; one year of post-doctoral training in behavior therapy; three years of teaching undergraduate...