Commonwealth v. McGinnis
| Docket Number | 26 WAP 2022 |
| Decision Date | 01 December 2023 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. RICKEY MCGINNIS, Appellant |
| Court | Pennsylvania Supreme Court |
1
COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RICKEY MCGINNIS, Appellant
No. 26 WAP 2022
Supreme Court of Pennsylvania
December 1, 2023
ARGUED: April 19, 2023
Appeal from the Order of the Superior Court entered June 28, 2021 at No. 16 WDA 2020, affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered December 4, 2019 at No. CP-02-CR-0011014-2018.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION IN SUPPORT OF AFFIRMANCE
MUNDY, JUSTICE
In this appeal by allowance, we consider the admissibility of expert testimony regarding the possible false or distorted memories of alleged child sexual-abuse victims.
The complainant, J.M., was born in June 2007 to Mother and her paramour, Appellant. Appellant and Mother began living separately in 2010. Thereafter, J.M. lived with Mother but visited Appellant at his home from time to time. Appellant would also see J.M. whenever Appellant visited Mother at her residence. In September 2012, all such visits ceased after Mother and Appellant permanently ended their relationship.
Four months later, in January 2013, J.M. disclosed to Mother that Appellant had sexually abused him. Mother took J.M. to the hospital. J.M. did not report the abuse at the hospital and a medical exam produced no evidence of abuse. Nevertheless, Mother was advised to make a report with the police. Mother did so and was told someone would
contact her for a forensic interview.[1] After the interview, it was determined J.M. was unable to provide testimony due to his young age.[2] Instead, he treated with therapists, who encouraged him to draw pictures if he was unable to express his thoughts verbally.
J.M. drew pictures which, though rudimentary, depicted Appellant sexually abusing him. J.M. continued to treat with therapists and draw pictures for several years. Eventually, when J.M. was eleven years old, he gave a forensic interview (his third) with a disclosure sufficient to qualify him as a witness and for charges to be brought against Appellant. Police obtained statements from J.M.'s therapists and collected the booklet of the drawings J.M. made during therapy. In August 2017, four years and seven months after J.M.'s first disclosure, Appellant was charged with rape of a child, involuntary deviate sexual intercourse with a child, incest of a minor, endangering the welfare of children, corruption of minors, and indecent exposure.[3]
Appellant filed an omnibus pretrial motion, seeking to preclude J.M. from testifying.
Appellant alleged, among other things, that J.M.'s memories had been tainted by Mother's hostility toward Appellant, combined with a protracted course of investigative interviews with detectives and counselors in which the counselors had allegedly influenced J.M.'s memories of what occurred when he was five years old. This request was denied.
Citing Section 5920 of the Judicial Code, the Commonwealth filed a notice of intent to offer the expert testimony of Jamie Mesar, M.S.W., concerning how children generally disclose sexual abuse. That provision states, in relevant part:
(b) Qualification and use of experts.--
(1) In a criminal proceeding [involving certain enumerated offenses], a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness's experience with, or specialized training or education in criminal justice, behavioral sciences or victim services issues, related to sexual violence or domestic violence that will assist the trier of fact in understanding the dynamics of sexual violence or domestic violence, victim responses to sexual violence or domestic violence and the impact of sexual violence or domestic violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.
(3) The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.
42 Pa.C.S. § 5920(b) (emphasis added).[4]
In response, Appellant filed a motion in limine to preclude Ms. Mesar's testimony. He also moved to proffer his own expert witness on false memories in children, cognitive psychologist Bruce Chambers, Ph.D. The common pleas court held a hearing on the motions at which Ms. Mesar testified. The court ultimately permitted the Commonwealth to call Ms. Mesar as an expert witness under Section 5920.
The court indicated, however, that Dr. Chambers' testimony could not be admitted absent a Frye hearing. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (holding novel scientific evidence based on a scientific technique is only admissible if the technique has gained general acceptance in the relevant scientific community). The court also expressed skepticism that Dr. Chambers' testimony fell within the scope of Section 5920. As well, the court requested decisional authority addressing the type of evidence Dr. Chambers would provide, his curriculum vitae, and information as to whether he had testified as an expert in this area in Pennsylvania or had been subject to a Frye hearing in the past. Defense counsel responded he "believed" Dr. Chambers had testified in other Pennsylvania judicial proceedings.
On August 5, 2019, Appellant sent the prosecution a letter from Dr. Chambers setting forth his curriculum vitae and indicating his testimony would include such matters as: the role of interview bias; the effects of repeated questioning; the tainting effects of suggestive interviewing; the role of suggestion in delayed recall of child sexual abuse; and the creation of false memories. Dr. Chambers added he would not testify about J.M. specifically, but about the topic of false memories generally. In his curriculum vitae, Dr. Chambers stated he had testified as an expert witness in hundreds of child sexual abuse cases in Pennsylvania. Although this was sent to the prosecution, the record does not
indicate it was filed with the court. Thereafter, on August 19, 2019, Appellant filed with the court a brief in support of the admissibility of Dr. Chambers' testimony.
The following day, August 20, 2019, the trial court issued an order rejecting the defense proffer and indicating the testimony did not fall within Section 5920 because it did not relate to the dynamics of sexual violence, victims' responses to such violence, or the impact of such violence. The court added Appellant had not provided the requested information, such as the curriculum vitae or an explanation of whether Dr. Chambers had been qualified as an expert in any area, and hence, it could not determine whether a Frye hearing was needed. Separately, the court stated Dr. Chambers' testimony would invade the province of the jury to determine credibility, and as such, was inadmissible on that basis per Commonwealth v. Pugh, 101 A.3d 820 (Pa. Super. 2014) (en banc), which concluded that "expert testimony regarding false confessions is impermissible as it provides no pedagogical purpose and interferes with the jury's exclusive duty to assess the credibility of witnesses." Id. at 821.[5]
One week later, on August 27, 2019, the court held an in camera hearing where J.M., now twelve years old, was questioned. Based on J.M.'s answers, the court found him competent to testify, and the matter proceeded to a jury trial.
At trial, the Commonwealth called Ms. Mesar as an expert in child sexual abuse pursuant to Section 5920. Her testimony was general rather than being connected with J.M.'s behavior specifically. She stated: there is no "normal" way children disclose sexual abuse, and instead, the disclosure process differs with each victim; with a very young
child, disclosure may be affected by the relationship between the abuser and the child and the abuser's closeness with or supervision of the child; there is likewise no "normal" way in which victims behave, as children react differently to mistreatment, trauma, and other events; and some children may never disclose sexual abuse. The drawings J.M. made in therapy were introduced. J.M. testified about them and stated his father "put his penis in my butt." The Commonwealth also presented the testimony of Mother, two police detectives, and the two therapists J.M. had treated with. Appellant testified in his defense, stating he did not rape J.M., nor did he engage in any sexual contact with him.
The jury convicted Appellant on all counts and the court sentenced him to 1414-to-29 years in prison. Appellant appealed to the Superior Court.
In compliance with a trial court order, Appellant filed a Rule 1925(b) concise statement, see Pa.R.A.P. 1925(b), in which he maintained, inter alia, that the trial court erred in (1) precluding Dr. Chambers' testimony to the effect that "certain 'responses and behaviors' may not be the result of actual sexual assaults," and (2) failing to allow Dr. Chambers to testify so as to discuss the "fallibility of 'therapy' that . . . resulted in the drawings/trauma narrative done by [J.M.] while in the care of [Mother]." In this latter issue, Appellant continued that "Dr. Chambers would have provided testimony as to the unreliability and/or suggestibility of the 'therapy'. . . that resulted in said drawings/trauma narrative." Commonwealth v. McGinnis, No. CP-02-CR-10014-2018, Concise Statement of Errors Complained of on Appeal, at 1-2 (C.P. Allegheny, filed Jan. 27, 2020).
The trial court issued a Rule 1925(a) opinion. The court noted it never received the information necessary to determine whether a Frye hearing was needed, such as whether Dr. Chambers had...
To continue reading
Request your trial