Com. v. Hernandez

• Decision Date: 26 October 1992
• Citation: 420 Pa.Super. 1,615 A.2d 1337
• Parties: COMMONWEALTH of Pennsylvania v. Eziquil HERNANDEZ, Appellant.
• Court: Pennsylvania Superior Court

Page 1337

615 A.2d 1337

420 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Eziquil HERNANDEZ, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 17, 1992.

Filed Oct. 26, 1992.

Michael Coard, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.

JOHNSON, Judge:

Eziquil Hernandez appeals from the judgment of sentence following his jury convictions for involuntary deviate sexual intercourse and corruption of a minor. The convictions stem from the sexual assault by Hernandez upon his step-nephew. Hernandez was sentenced on the involuntary deviate sexual intercourse conviction to a term of imprisonment of five to ten years; no sentence was imposed on the corruption of a minor charge. We affirm.

This appeal concerns, inter alia, the admissibility of testimony of a social worker regarding the procedures followed in investigating a child sexual abuse report. We are asked to further define the conditions which govern the admissibility of testimony in child sexual abuse cases.

Hernandez raises several issues for our review: (1) whether there was sufficient evidence to establish that the crimes occurred in Philadelphia County; (2) whether defense counsel was ineffective for eliciting testimony from a Philadelphia Department of Human Services social worker which improperly bolstered the victim's credibility; (3) whether defense counsel was ineffective by "permitting" an expert medical witness to testify that, assuming the truthfulness of the victim's history, the physical facts from a medical examination of the victim were consistent with the victim's allegation of anal sodomy, thus improperly bolstering the victim's credibility; (4) whether defense counsel was ineffective for failing to request a low grade witness instruction regarding the testimony of the expert medical witness; and (5) whether defense counsel was ineffective for failing to object to two comments made by the Commonwealth during its closing argument.

Hernandez's claim that there was insufficient evidence to establish that the crimes occurred in Philadelphia County is frivolous. Hernandez states in his Court Bail Program application that he has been a resident of Philadelphia his entire life. The record reveals that he lived at 3901 North 5th Street, Philadelphia. The criminal incidents occurred at his apartment on 5th Street. Clearly, sufficient evidence existed that the crimes occurred in Philadelphia County. With no credible evidence to the contrary, we must conclude that the trial court properly exercised jurisdiction here.

We turn next to Hernandez's multiple claims of ineffective assistance of defense counsel. The standard of review is well settled:

In reviewing a claim of ineffectiveness of counsel, we must first determine whether the issue underlying the claim has arguable merit. If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client's interests. Finally, appellant must show that counsel's ineffectiveness so prejudiced his case that he was denied a fair trial (citations omitted).

Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). The test for determining whether a defendant has been prejudiced is whether the reviewing court can say with confidence that the jury would have returned its guilty verdict if counsel had provided effective assistance. If we so conclude, then there is no prejudice. The law presumes that counsel is effective, so that the burden of establishing each element of an ineffectiveness claim rests entirely upon the defendant. Commonwealth v. Mescall, 405 Pa.Super. 326, 592 A.2d 687 (1991). With this standard in mind, we review Hernandez's claims of ineffective assistance of counsel.

Hernandez initially asserts defense counsel was ineffective in calling Patty Ann Stewart as a witness. Stewart, a social worker from the Department of Human Services (DHS), had previously testified for the Commonwealth. Hernandez alleges that the statements elicited by defense counsel during direct examination were so prejudicial, under Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), and Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991), that defense counsel was ineffective. We disagree.

The record reveals that Stewart had investigated the initial report of child abuse in this matter. Stewart testified that during the course of the DHS investigation she had met with the victim and his mother, and had advised the mother to take the boy to a hospital for an examination. Notes of Testimony (N.T.) 7/8/91, pp. 92-98.

When called by defense counsel on direct, Stewart was asked:

Q. What did your investigation consist of?

A. My investigation consisted of interviewing the child, the mother, other collaterals such as the counselor at school, the doctor. I called the social worker at a prison and tried to talk with her. I believe that is it.

Q. You spoke with doctors?

A. Yes.

Q. In fact, you recommended he go to the hospital?

A. Yes.

Q. How did the Department of Human Services get involved in the case?

A. We received a report through a hot line, by report.

Q. Did you make that investigation then?

A. Excuse me?

Q. What was the result of your investigation?

A. The result of the investigation was that the case was indicated, meaning we found allegations to be true.

Q. You found allegations to be true?

A. Yes.

Q. How did you find that?

A. (No response).

Q. What allegations did you find to be true?

A. That the child--what the child reported.

Q. Pardon?

A. What was reported in the report.

Q. What was that?

A. That the perpetrator put his penis in the child's rectum.

Q. Where did you get that information?

A. I can't say.

Q. You have the report right there, don't you?

A. I can't say who reported this--who made the report.

Q. You are the person that investigated it, aren't you?

A. Yes.

Q. Did you make that determination?

A. I discussed the allegations and the findings in the investigation with my administrator and based on that, the decision was made that the case was indicated.

Q. When did you close the case?

A. The case was closed in March--March 21st.

Q. When you say, "The case was indicated," what does that mean?

A. That the allegations of the report were found to be true.

Q. Who told you the report was true, other than the statement of the child?

A. The report was indicated, based on the statement of the child.

Q. That is all the information you had, wasn't it?

A. Basically, yes.

Q. That is your report right there, do you want to look and see if you can find anything else?

A. We got a collateral from the medical doctor and basically, what the child says, is how the report was indicated. There is nothing else. The mother gave a story about what the child said, but based on what the child said, that is how the case was indicated. That is all I can say.

N.T. 7/9/91, pp. 32-34. Defense counsel went on to introduce the DHS report into evidence as exhibit D-1. N.T. 7/9/91, p. 35.

Relying upon Seese, supra, and Garcia, supra, for support, Hernandez claims that these statements unduly bolstered the credibility of the victim. We are mindful that the admissibility of expert testimony in child abuse cases must be evaluated cautiously in order to prevent encroachment upon the jury's function by the unfair enhancement of a child victim's credibility. Commonwealth v. Vidmosko, 393 Pa.Super. 236, 574 A.2d 96 (1990). After careful analysis, we conclude that these statements did not unduly bolster the victim's credibility, and that Seese and Garcia are readily distinguishable from this case.

In Seese, supra, our supreme court declared that it is error to admit expert testimony that young children do not usually fabricate stories of sexual abuse, in that it is a direct attempt to establish the victim's credibility. See also Commonwealth v. Evans, 412 Pa.Super. 332, 336, 603 A.2d 608, 610 (1992). Similarly, in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), a clinical child psychologist who was an expert in the treatment of child sexual abuse testified that "children who have not been involved in sexual experiences typically do not fantasize about sexual experiences." Id. at 80, 541 A.2d at 316. Our supreme court said in Davis that when the expert offers his assessment of the truthfulness of the class of people, of which the particular witness is a member, the testimony is inadmissible. Id. at 82-83, 541 A.2d at 317.

Their progeny, Garcia, supra, and Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), aff'd in part, rev'd in part, 529 Pa. 168, 602 A.2d 830 (1992), hold that expert testimony regarding the behavior patterns of victims of child sexual abuse, or the dynamics of interfamily sexual abuse and the behavior patterns of the child-victim, is inadmissible when offered to explain the conduct of a witness/victim. Garcia, 403 Pa.Super. at 290, 588 A.2d at 956; Dunkle, 529 Pa. at 180-184, 602 A.2d at 836-838. This Court has stated that the key criteria in determining whether such expert testimony is admissible is the purpose for which the testimony is offered; if it is offered solely to sustain the credibility of the victim, it should not be admitted. Garcia, 403 Pa.Super. at 288, 588 A.2d at 954; see also Commonwealth v. Loner, 415 Pa.Super. 580, 609 A.2d 1376 (1992) (petition for allowance of appeal filed September 1, 1992, No. 351 M.D. Alloc. Docket 1992) (in evaluating claim of expert improperly bolstering credibility of witness, initial determination is purpose for which testimony was offered).

Here, the purpose of Stewart's testimony was not to sustain the credibility of the victim, but to...