Com. v. Garcia

• Decision Date: 28 March 1991
• Docket Number: No. 1076,1076
• Citation: 588 A.2d 951,403 Pa.Super. 280
• Parties: COMMONWEALTH of Pennsylvania v. Jose GARCIA, Appellant. Phila. 1989.
• Court: Pennsylvania Superior Court

Page 951

588 A.2d 951

403 Pa.Super. 280

COMMONWEALTH of Pennsylvania v. Jose GARCIA, Appellant.

No. 1076 Phila. 1989.

Superior Court of Pennsylvania.

Argued Dec. 18, 1990.

Filed March 28, 1991.

Regina Boutcher and George Henry Newman, Philadelphia, for appellant.

Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

OLSZEWSKI, Judge:

This is an appeal from judgment of sentence. Jose Garcia was convicted following a jury trial of involuntary deviate sexual intercourse (18 Pa.C.S.A. § 3123); corruption of minors (18 Pa.C.S.A. § 6301); rape (18 Pa.C.S.A. § 3121); and criminal attempt, rape (18 Pa.C.S.A. § 901). ¹ Garcia was sentenced to a term of seven to fifteen years for these convictions.

Garcia appealed the convictions to the Superior Court, which reversed the conviction and ordered a new trial in a split panel decision. Commonwealth v. Garcia (No. 01076 Phila.1989, filed June 4, 1990, Olszewski, J., dissent by Ford Elliott, J.). The Commonwealth petitioned for reargument before this Court en banc; having reviewed the record, the parties' briefs and arguments, we vacate the judgment of sentence Garcia alleges seven instances of error by the trial court; due to our disposition of the first issue, we need not reach the other six. Garcia argues that the trial court erred in allowing the expert testimony of Alan R. DeJong, M.D., a pediatrician, clinical associate and professor of pediatrics, and a co-director of the Pediatric Sexual Assault Follow-up Program, who testified as to the typical behavior of child sexual assault victims. Garcia characterizes DeJong's testimony as an inadmissible attempt by the Commonwealth to bolster the credibility of the child witness/victims who testified against him. The Commonwealth argues that DeJong's testimony was permissible observations of objective behavior demonstrated by other victims of child sexual abuse. We are constrained by recent opinions of our Supreme Court to agree with Garcia.

and remand the matter for a new trial.

This case arose out of incidents alleged to have occurred in Garcia's home during 1985 and 1986. The Commonwealth presented the testimony of two children, ages nine and eight, indicating that Garcia had subjected them to multiple acts of sexual abuse during the time in question. The children's testimony contained inconsistencies and uncertainties as to the dates and number of the incidents of abuse; however, it was clear from their testimony that the children had delayed in reporting the incidents. The children also testified as to their reasons for failing to report the abuse promptly. ² (See generally, N.T., vol. IV, V.)

The mother of the second victim testified that her daughter had told her of incidents of abuse. Other testimony indicated that an investigation commenced in late August 1986, and that Garcia was arrested on September 10, 1986.

At trial, Garcia relied upon the alleged victim's delay in reporting the abuse as a central element of his defense. Accordingly, the trial court instructed the jury how the delay should enter into their deliberations. (N.T., vol. VIII, P. 124-126.)

Certain aspects of DeJong's testimony centered on his observations of other abuse cases and the presence of delay in those cases. Specifically, DeJong testified that one-third of child sexual abuse victims who report the incident do so within 24 hours; another third of the reporting victims do so within 24-72 hours; the remainder of the victims who report the incident may take up to years do so. (N.T., vol. VII, P. 69-70.) DeJong further testified as to the reasons why children delay in reporting sexual abuse. (Id. at 69-71.) ³

The trial court allowed this testimony, relying upon Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985). (Trial court opinion at 15-16.) Baldwin allows expert testimony regarding the behavior patterns of child sexual abuse victims as long as the expert does not opine as to the veracity of the child witnesses. Baldwin, supra at 377, 502 A.2d at 257 (citations omitted). Baldwin, however, has Baldwin permitted a social worker "to explain the dynamics of intra-family sexual abuse and the behavior patterns of the victims ... and why victims are often unable to recall exact dates or times or describe the specific incidents in detail." Baldwin, supra, 348 Pa.Super. at 373, 502 A.2d at 255. The Baldwin Court stated that the reactions and behavior of incest victims "are not matters of common knowledge and experience." Id. at 377, 502 A.2d at 257-258 (citations omitted). The Court held that the behavioral and psychological characteristics of child sexual abuse victims are proper subjects of expert testimony. Id. Also, "so long as the expert does not render an opinion on the accuracy of the victim's recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury." Id.; see also, Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317.

                been expressly overruled inasmuch as it conflicts with Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), and Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988).  Davis, supra at 81 n. 1, 541 A.2d at 317 n. 1.   Our analysis, therefore, turns to an examination of what is left of Baldwin in light of Davis and other case law
                

In Seese, the expert testified that it was very unusual for a prepubertal child to lie about sexual abuse, because they do not have sufficient sexual knowledge to know how to describe such abuse unless they have experienced it. Id. 512 Pa. at 442, 517 A.2d at 921. Our Supreme Court stated that the testimony was essentially an inadmissible "expert opinion as to the veracity of the class of potential witnesses of which the victim was a member." Id.

Baldwin prohibited only direct testimony regarding the veracity of the witness or complainant. Baldwin, supra 348 Pa.Super. at 376-79, 502 A.2d at 257-258; Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317. Seese expanded this prohibition to include expert testimony which commented on the veracity of a class of potential witnesses of which the victim was a member. Seese, supra 512 Pa. at 443-44, 517 A.2d at 922. The testimony in Davis was similar in many respects to that in Seese. Essentially, children do not fantasize about sexual experiences. Davis, supra 518 Pa. at 79-81, 541 A.2d at 316. Hence, there was expert testimony concerning the veracity of a class of individuals of which the particular witness was a member. ⁴

In both Seese and Davis, our Supreme Court's ratio decidendi was the well-known proposition of law that the determination of the veracity of a witness is reserved exclusively for the jury. Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317 (citations omitted); Seese, supra 512 Pa. at 443-44, 517 A.2d at 922 (citations omitted). The Court was concerned with the possibility that such expert testimony would encourage the trier of fact to abdicate its responsibility to ascertain the facts by deferring to an "expert." Ibid. In Seese, the Court stated "such testimony would imbue the opinions of 'experts' with an unwarranted appearance of reliability upon a subject, veracity, which is not beyond the facility of the ordinary juror to assess." Seese, supra 512 Pa. at 443-44, 517 A.2d at 922.

Since Seese and Davis, the authority of Baldwin has been continually eroded. In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), an expert testified that the victim suffered from "rape trauma syndrome" and that the victim's failure to identify her attacker two weeks after rape in one-on-one identification was unremarkable, and an in-court identification five years later was credible. Our Supreme Court held that the expert testimony on rape trauma syndrome should not have been admitted. Gallagher, supra 519 Pa. at 297-99, 547 A.2d at 359. The Court stated that the only purpose of the testimony was to enhance the credibility of the victim. Id. ... this information was beyond the ordinary training, knowledge, intelligence and experience of the ordinary juror and assisted the jury in assessing the testimony of the victim ...

at 295-97, 547 A.2d at 358. ⁵ Gallagher sparked two dissenting opinions. The thrust of the first dissent was that the expert testimony should have been admitted to explain the apparently inconsistent conduct of the victim as:

Id. at 301, 547 A.2d at 360 (Larsen, J. dissenting). The second dissent argued that the expert testimony should have been allowed as a profile of the behavior of the class of which the victim was a member to help the jury understand the victim's actions. Id. at 302-03, 547 A.2d at 361 (citations omitted) (Papadakos, J. dissenting). ⁶

The erosion of Baldwin continued in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988), where an expert testified that alleged victim's post-attack behavior was consistent with behavior of victims of child sexual abuse. The Emge Court stated that Seese and Davis prohibited express testimony regarding the alleged victim's ability to verbally communicate the truth. It concluded that behavioral testimony equally invaded the exclusive province of the fact finder. Emge, supra 381 Pa.Super. at 145, 553 A.2d at 76 (emphasis in original). The Court concluded that testimony which matches the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and so is prohibited. Id. (citations omitted). Emge, therefore, treated indirect comment on the veracity of an alleged child sexual abuse witness/victim via testimony as to the behavior of typical victims as an invasion of the province of the jury. See also, Commonwealth v. Higby, 384 Pa.Super. 619, 559 A.2d 939 (1989) alloc. denied, 525 Pa. 978, 575 A.2d 109 (1990).

In Commonwealth v. Gibbons, 383 Pa.Super....