Com. v. Taylor

• Decision Date: 08 January 1982
• Citation: 439 A.2d 805,294 Pa.Super. 171
• Parties: COMMONWEALTH of Pennsylvania v. Brett TAYLOR, Appellant. COMMONWEALTH of Pennsylvania v. Carl V. KING, Appellant.
• Court: Pennsylvania Superior Court

Page 805

439 A.2d 805

294 Pa.Super. 171

COMMONWEALTH of Pennsylvania v. Brett TAYLOR, Appellant.

COMMONWEALTH of Pennsylvania v. Carl V. KING, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 12, 1980.

Filed Jan. 8, 1982.

John H. Corbett, Jr., and David G. Metinko, Pittsburgh, for appellants.

Dara A. DeCourey, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before HESTER, BROSKY and VAN der VOORT, JJ.

HESTER, Judge:

The appellants, Carl King and Brett Taylor, were both convicted following a jury trial in the Court of Common Pleas of Allegheny County, of rape, involuntary deviate sexual intercourse, criminal attempt, aggravated assault, burglary, recklessly endangering another person, and criminal conspiracy.

The relevant facts concern a gruesome account of what happened to Karen Gallagher on the evening on January 13, 1979. For the purposes of this Opinion, a brief summary of this event will suffice. Miss Gallagher met two black males, for the first time, at a party given by her next door neighbor [294 Pa.Super. 173] at 61 Lawn Street in the City of Pittsburgh on the evening of January 13, 1979. She carried on a conversation with both of these men in a well-lighted room for approximately 10 to 15 minutes. Following this conversation, Miss Gallagher returned to her apartment at 63 Lawn Street, accompanied by the same two men, in order to search for some marijuana, which she intended to contribute to the party. Due to the fact that she could not find anything, she decided not to return to the party and requested that the two men leave. After the two men left, Miss Gallagher retired to bed. Sometime later that night, she was awakened by a loud noise. When she went into her living room to investigate, she found the same two men standing in the living room. The lights were on in the living room at the time. Following her repeated demands that the two men leave, the two men suddenly grabbed her, and started beating her head against a door jam and articles of furniture. The two men committed multiple acts of rape and deviate sexual intercourse upon her while continuing to beat her severely. The two men finally threw a table top on her and slit her throat with a knife.

Appellants do not contest the sufficiency of the evidence presented, nor do they question that these grotesquely brutal acts were committed upon the victim.

Both appellants raise four issues on appeal, all of which involve the competency of Karen Gallagher to testify at trial, due to the fact that she was hypnotized by a police hypnotic investigative expert on February 8, 1979. Appellants contend that, due to the fact that the victim was hypnotized, her testimony was unreliable because of the potential for fantasy and confabulation which the hypnosis produced.

We disagree and, therefore, affirm the judgment of sentence with respect to both appellants.

The Supreme Court of Pennsylvania has recently decided the appeal of the three co-defendants allegedly involved in the Heidi Morningstar murder. Commonwealth v. Nazarovitch et al., --- Pa. ---, 436 A.2d 170 (1981). Speaking for a unanimous Court, Chief Justice O'Brien held that the Commonwealth's chief witness was incompetent to testify against the defendants because her memory had been refreshed by the use of hypnosis.

The Supreme Court stated:

"While we do not want to establish a pro se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory. We believe that the facts of this case warranted the suppression by the trial judge of this witness' refreshed testimony." (436 A.2d at Page 178).

In Nazarovitch, supra, the Supreme Court closely scrutinized the scientific basis and use of hypnosis and also summarized the authority of the federal courts and sister states concerning this subject. We will not attempt to reanalyze this authority, due to the fact that the record before us contains no expert testimony or other scientific information which has not already been considered by the Supreme Court and also due to the fact that we are not impressed with the safeguards and procedures utilized by the investigating officer during the hypnotic session with the victim. ¹

Although we do abide by the learned decision of the Supreme Court, the instant appeal is clearly distinguishable from Nazarovitch, supra. The issue in Nazarovitch, as succinctly stated by the Court, was: "This case raises the novel issue of whether hypnotically-refreshed testimony is admissible in a criminal trial when the witness has no present recollection of the facts prior to hypnosis." (436 A.2d at page 171).

In the instant case, it is apparent that Karen Gallagher did have present recollection of the identity of her assailants, prior to the hypnotic session on February 8, 1979. ²

The issue before us on appeal is not whether the evidence supports the various elements of the crimes of which the appellants were convicted. The crucial inquiry is whether the two appellants, were in fact, the two assailants who committed the crimes which were proven, a question of identification. In order to determine this issue, it is necessary to determine whether the victim's identification of the two appellants at trial was rendered inadmissible as a result of the ill-advised hypnotic session. Under the circumstances of this case, we hold that the victim's testimony was admissible due to the fact that she identified both appellants prior to the hypnotic session.

The victim was found in critical condition by her roommate Frank Poloney early in the morning on January 14, 1979. Since their telephone had been ripped out of the wall, Poloney told the victim he was going next door to 61 Lawn Street in order to call the police. In her condition, the victim still managed to protest by uttering, "They did it"! While she was being treated by paramedics at her apartment, the victim continually pointed toward 61 Lawn Street. Although she was near death, the victim managed to indicate the association between 61 Lawn Street and the crime.

The victim was taken to Presbyterian University Hospital, where police attempted to interview her concerning the identity of her assailants. Due to the severe nature of her throat wound, she was unable to speak. In response to police questions about the identity of her assailants, she wrote on a card, "Carl and friend, Carl, Carl". Clearly, this response indicates there were two persons involved, one named Carl and the other person being Carl's friend. In the context of the victim's other testimony concerning how she was introduced to Carl and his friend at a party given by her next door neighbor earlier in the evening of January 13, 1979 and how Carl and his friend had accompanied her for a brief period to her apartment, this response establishes that the victim had prior recollection to the effect that her two assailants were, in fact, the two black men who she had met earlier at the party.

This positive identification is also consistent with the testimony of the numerous other persons who attended the party on January 13, 1979, for the purpose of verifying that both appellants had, in fact, attended the party and had been introduced to the victim. The victim had numerous opportunities to clearly see both appellants at the party, when they returned to her apartment and when they subsequently broke into her apartment in the lighted living room.

The entire scenario was also reinforced by a Mr. John Gant, who was a friend of both appellants and who lived below appellant King in the same apartment house. Mr. Gant testified that, although he did not attend the party on January 13, 1979, both appellants had called him from the party on two occasions during the evening and repeatedly asked him to come to the party. After the party, early...