Com. v. Pfender
| Citation | 421 A.2d 791,280 Pa.Super. 417 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Michael Xavier PFENDER. |
| Decision Date | 22 August 1980 |
| Court | Superior Court of Pennsylvania |
Ronald L. Buckwalter, Dist. Atty., Lancaster, for Commonwealth, appellant.
David F. Wedge, Lancaster, for appellee.
Before PRICE, CAVANAUGH and WATKINS, JJ.
Appellee, Michael Xavier Pfender, is charged with arson and related offenses 1 in Lancaster County. Pfender's former attorney met with the District Attorney to discuss the charges and thereafter an agreement was reached whereby Pfender would voluntarily undergo a polygraph (lie detector) test. The proposed use of the polygraph test results was set forth in a stipulation signed by Ronald L. Buckwalter, District Attorney of Lancaster County, Samuel M. Mecum, Pfender's attorney and appellee. The stipulation provides:
AND NOW, this 30 day of October, 1978, Michael Xavier Pfender, Defendant in the above-captioned matter, and Ronald L. Buckwalter, Esquire, District Attorney of Lancaster County, hereby stipulate and agree as follows:
1. Defendant Michael Xavier Pfender agrees to submit himself to a Polygraph (lie detector) test, which test will be designed to determine whether or not Defendant Pfender is telling the truth, in connection with his recollection of events transpiring at the Willow Street Mobile Home Park, 1014 Willow Street Pike, Lancaster, Pennsylvania, on or about the date of April 16, 1978.
2. The Polygraph, or lie detector test is to be administered by any qualified member of the Lancaster City Police Department.
3. It is agreed on part of Defendant Pfender that, should the results of the Polygraph indicate deception, these results may be used against him in connection with information No. 1376 of 1978.
4. On part of Ronald L. Buckwalter, Esquire, District Attorney of Lancaster County, it is agreed that, should the results of the Polygraph test indicate no deception on the part of Defendant Pfender, information No. 1376 of 1978 shall be nol prossed (dismissed).
5. Defendant Michael Xavier Pfender expressly certifies that this Stipulation is entered voluntarily on his part, after having had his legal rights explained to him by his attorney, Samuel M. Mecum, Esquire, of 121 East King Street, Lancaster, Pennsylvania, and further certifies that he has been made aware of the fact that he is not required to enter into the above Stipulation, and does so, * * * any rule of law or of court to the contrary notwithstanding.
STIPULATED AND AGREED the day and year first above written.
District Attorney of
Pursuant thereto, a polygraph test was administered to appellee by an experienced polygraphist from the Lancaster Bureau of Police, Jan G. Walters. The result in the opinion of Mr. Walters, was that Pfender was "not being entirely truthful" in that the examiner found deception indicated in three of the four pertinent questions asked during the test.
Thereafter, Pfender obtained new counsel who filed an application to suppress any evidence of the results of the polygraph examination. After a hearing the Court suppressed the results of the polygraph examination, reasoning that since the appellate courts in Pennsylvania have determined that the results of polygraph tests are inadmissible in evidence, that a stipulation could not cure the inadmissibility. The court found, however, that the stipulation was entered into by Pfender "knowingly, voluntarily and intelligently, without coercion having been exerted against him." The court also entered a certification under the Act of July 9, 1976, P.L. 586, No. 142 § 2 (42 Pa.C.S. § 702(b)) that an immediate appeal may materially advance the ultimate termination of the case. However, since the Commonwealth did not file a petition for permission to appeal as required by Pa.R.A.P. 1311, the certification under § 702(b) does not provide us with jurisdiction over this case.
Nevertheless it is settled that the Commonwealth may appeal from a pretrial suppression order if the question raised is a pure question of law and if the order effectively terminates or substantially handicaps the prosecution. E.g., Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522 (1978); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). However, our Court is divided over how the Commonwealth establishes its right to appeal. Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978), presents three different views. One view is that the Commonwealth need only certify in its brief that the suppression order will effectively terminate or substantially handicap the prosecution. Id. at 12-13, 385 A.2d at 500 (Price, J. dissenting). A second view is that the record must indicate that the suppression order will in fact effectively terminate or substantially handicap the prosecution. Id. at 12, 385 A.2d at 499 (Hoffman, J. dissenting). The third view is that the Commonwealth in its brief must state that the suppression order will effectively terminate or substantially handicap the prosecution and must also provide an explanation, not inconsistent with the record, why this is so. Id. at 10, 385 A.2d at 499 (plurality opinion of Spaeth, J.). However, we need not decide which view should prevail since the instant case is properly before us under any of the three views.
We are thus asked to determine the admissibility of polygraphic evidence by stipulation of the parties. Before attempting to decide this issue, we first consider the status of Pennsylvania law on the subject of polygraph evidence in general. Pennsylvania cases still adhere to the principle set forth in Commonwealth ex rel. Riccio v. Dilworth, 179 Pa.Super. 64, 115 A.2d 865 (1955) that: 2
The reliability and scientific infallibility of polygraph, lie detector, or other psychological deception test must be more definitely established before our courts will accept their results as credible." 179 Pa.Super. at 68, 115 A.2d at 867.
In 1976 the Supreme Court of our State reiterated the exclusionary rule of Riccio noting that it has been repeatedly and consistently held in Pennsylvania that the results of a polygraph examination are inadmissible for "any purpose" because the reliability of such tests has not been established. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). However, the Court further stated:
Certainly it is incumbent upon us to be alert to developments in this field so that, if indeed lie detectors have passed beyond the experimental stage to a trustworthiness comparable to that of other scientific tests whose results have immeasurably aided our courts in their search for truth, we do not deny ourselves the enlightenment they might provide. (467 Pa. at 142, 354 A.2d 875.)
The court in Gee nevertheless declined to reconsider the established view of inadmissibility since in that case the polygraph test results were inconclusive. Since the time of Gee, our appellate courts have not reexamined the rule of inadmissibility and still follow the principle that polygraphic examinations have not obtained acceptance as a reliable means of ascertaining truth or deception. See Commonwealth v. Kemp, --- Pa.Super. ---, 410 A.2d 870 (Special transfer case) (1979).
Thus, it is the present view in Pennsylvania that such test results are not reliable even though the courts have evinced a desire to keep an open mind on the subject.
On the precise issue of admissibility of polygraphic evidence pursuant to stipulation we find that the Pennsylvania cases have only incidentally touched upon the subject. In Commonwealth v. McKinley, 181 Pa.Super. 610, 123 A.2d 735 (1956), the court held that the trial judge properly instructed the jury to ignore any evidence of the defendant's offer to take a lie detector test. In so holding, the court stated:
In the absence of a stipulation of the parties to the contrary, the results of lie detector tests are inadmissible when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction. (181 Pa.Super. at 619, 123 A.2d 735.)
We do not deem this statement as being any authority for the admission of polygraphic evidence by stipulation. The court was simply supporting its conclusion that the results of such tests are inadmissible and that therefore any evidence of an offer to undergo the test would likewise be inadmissible.
In Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978) our court had before it the issue of the refusal to permit a polygraph examination of a defendant under stipulation that the results would come into evidence. The court in a brief footnote (F.N. 15, p. 288, 386 A.2d 994) dismissing "other points" rejected the argument citing Commonwealth v. Gee, supra, and Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973).
It appears then, that the question of admissibility of polygraphic evidence by stipulation has yet to be squarely met in Pennsylvania.
The leading case dealing with the admissibility of polygraphic evidence by stipulation is State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962). In that case polygraphic evidence was used at trial pursuant to a stipulation and the Supreme Court of Arizona considered the propriety of the evidence in a presentence certified appeal. After a thorough review of the nature and scientific reliability of polygraphic examinations the court concluded:
Although much remains to be done to perfect the lie detector as a means of determining credibility we think it has been developed to a state in which its results are probative enough...
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