Com. v. McCleery

• Decision Date: 01 February 1995
• Citation: 654 A.2d 566,439 Pa.Super. 378
• Parties: COMMONWEALTH of Pennsylvania v. Richard McCLEERY, Appellant.
• Court: Pennsylvania Superior Court

Page 566

654 A.2d 566

439 Pa.Super. 378

COMMONWEALTH of Pennsylvania v. Richard McCLEERY, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 25, 1994.

Filed Feb. 1, 1995.

Ellen M. Viakley, Pittsburgh, for appellant.

Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CIRILLO, TAMILIA and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from judgment of sentence entered on August 4, 1993. Appellant, Richard McCleery, raises the following issues for our review:

1. Whether the lower court erred in permitting expert witnesses to testify over defense objection that the witness' conduct was consistent with rape trauma syndrome[?]

2. Whether it was error to permit the prosecution to augment the credibility of the complaining witness with prior statements[?]

3. Whether the defendant was denied the effective assistance of counsel at trial, under both federal and state constitutional standards, by counsel's failure, inter alia, to introduce critical evidence regarding the competence and credibility of the complaining witness[?]

4. Whether defendant was denied due process of law, under both federal and state constitutional standards, by the trial court's refusal to permit counsel to present evidence in support of the post-trial motions; to mark exhibits for the record for purposes of appeal; and to order the enforcement of duly issued subpoenas[?]

5. Whether the lower court erred in ruling inadmissible evidence of allegations of sexual misconduct reported by the complainant and investigated in 1985, which attributed substantially similar misconduct to another person[?]

Appellant's Brief at 2. For the reasons that follow, we reverse.

The facts of this case may be summarized as follows. In September of 1982, T.M. and D.M. were removed from the custody of their mother with the assistance of Children Youth Services (hereinafter "CYS"). ¹ The children were then placed in the temporary custody of Joy and Richard McCleery as foster children. At that time, T.M. and D.M. were respectively two and one half and one years old. The girls remained in the custody of the McCleery's until July of 1985, at which time B.S., another foster child living with the McCleery's, reported to CYS that T.O.M., the McCleery's natural son, had been engaging in sexual conduct with both T.M. and D.M. All three children were removed from the household and T.O.M. later admitted to having sexual conduct with both girls.

Five years later, in May of 1990, while the victim attended a counseling session with a psychiatric social worker, she revealed that she had been raped by her foster father numerous times beginning at the age of two years old. ² As a result on May 9, 1991, appellant was charged with one count of rape, ³ one count of statutory rape, ⁴ one count of involuntary deviate sexual intercourse, ⁵ two counts of indecent assault ⁶ and one count of corruption of minors. ⁷

At trial, the Commonwealth presented expert testimony concerning the usual delay in reporting by child sexual abuse victims. In addition, they presented testimony regarding the presence and absence of physical trauma in child sexual abuse cases and the typical time for resolution of such physical trauma. Following a trial by jury, on September 17, 1992, appellant was found guilty of all charges and subsequently sentenced to an aggregate period of incarceration of not less than ten (10) nor more than twenty (20) years imprisonment. Post-trial motions were filed and denied. This timely appeal followed.

Appellant first argues that the lower court erred in permitting expert witnesses to testify that the victims' conduct was consistent with rape trauma syndrome. Specifically, he contends that both the admission of expert testimony regarding the delay in reporting by child sexual abuse victims and the admission of expert testimony concerning the significance of physical evidence of trauma in child victims of sexual abuse constitutes reversible error. After careful analysis of case law in this area, we are constrained to agree.

Recently, in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992), the Supreme Court specifically held that it was reversible error to permit the prosecution to introduce expert testimony regarding delay in reporting by child sexual abuse victims. The Court explained that such testimony comprises an impermissible attempt by the Commonwealth to bolster the credibility of the complaining witness. Dunkle at 184, 602 A.2d at 837. See also Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991), appeal denied, 529 Pa. 656, 604 A.2d 248 (1992) (determinations of credibility are reserved exclusively for the jury).

Dunkle, however, is only one case in a long line of decisions regarding the inadmissibility of expert testimony on issues related to the credibility of sexual complainants. See e.g., Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) (court found reversible error where expert witness testified that rape complainant's failure to identify her attacker was unremarkable); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988) (reversible error to permit an expert to testify that children generally lack the ability to fabricate sexual experiences); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920, 922 (1986) (rape conviction reversed where expert stated an opinion regarding the veracity of child sexual abuse complainants); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) (conviction reversed where expert testified that victim's post-attack behavior was consistent with behavior of victims of child sexual abuse). With these cases in mind, we will proceed with appellant's claim.

In the present case, Commonwealth witness, Mary Carrasco, an expert in the area of pediatrics and child abuse, was permitted to testify that the witness' delay in reporting was consistent with sexual abuse and that "most" child victims of sexual abuse delay in reporting the abuse. The expert was further permitted to testify to a reasonable degree of medical certainty, that the absence of any physical evidence of trauma was consistent with the complainant's allegations of sexual abuse. ⁸

The expert testimony challenged here is precisely that which this court en banc previously found to comprise reversible error. Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991) (en banc). In Garcia, the Commonwealth called an expert witness who was a pediatrician and co-director of a pediatric sexual assault program. ...