Commonwealth v. Minerd

• Decision Date: 20 June 2000
• Citation: 562 Pa. 46,753 A.2d 225
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Timothy Paul MINERD, Appellant.
• Court: Pennsylvania Supreme Court

753 A.2d 225

562 Pa. 46

COMMONWEALTH of Pennsylvania, Appellee, v. Timothy Paul MINERD, Appellant.

Supreme Court of Pennsylvania.

Argued March 8, 2000.

Decided June 20, 2000.

Mark F. Morrison, Uniontown, Valerie M. Schwab, for Timothy Paul Minerd.

Peter Hook, Uniontown, Hugh J. Burns, Jr., Philadelphia, Jack R. Heneks, for Commonwealth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

The question presented in this appeal is whether the Commonwealth may, as part of its case-in-chief in a sexual assault prosecution, offer the testimony of an expert that the absence of physical trauma is nevertheless consistent with the alleged sexual abuse. For the reasons stated herein, we hold that such testimony is admissible in the Commonwealth's case-in-chief and accordingly, we affirm.

The following facts were developed at trial. The two victims were V.M., who was born in 1977, and her sister J.M., who was born in 1978. Their mother became romantically involved with Appellant, the brother of the girls' father, and in the early 1980s, he moved into the girls' home in Lemont Furnace, Pennsylvania. Appellant married the girls' mother in 1983.

In the early 1980s, appellant would look after the children in the evening while their mother was away from the home selling Tupperware at parties. V.M., who was twenty at the time of trial, testified that appellant began molesting her when she was three and one-half or four years old. She recounted that Appellant would awaken her in her bedroom and then take her into the bathroom and remove her clothes. He would have her wring out his wet jeans by walking on them in the bathtub. Afterwards, appellant would have V.M. step out of the tub and face away from him, and then he would touch her and engage in anal intercourse with her. Although V.M. did not remember the exact number of incidents, she recalled that they happened repeatedly while the family lived in Lemont Furnace.

According to V.M.'s mother, the family moved to Fairchance, Pennsylvania in 1984, where V.M. stated that appellant molested her three or four more times. V.M.'s younger sister, J.M., testified that appellant molested her in a similar manner when she was six years old. V.M. testified that appellant told her that if their mother learned about the incidents, she would abandon her just as their father had. The girls' mother stated that Appellant moved out of the home in 1985; they divorced in 1987. Appellant asserted that he had never lived with the family in Fairchance and denied all allegations of sexual abuse.

In 1989, after V.M. learned about AIDS in school, she became convinced that she had contracted the disease from appellant and revealed to her mother that she had been molested. J.M. then disclosed that appellant had sexually abused her as well. The girls' mother sought assistance from several social services agencies, and ultimately reported the incidents to the Pennsylvania State Police, who prepared an arrest warrant for appellant on October 4, 1989. Although appellant knew of the warrant in 1990, he did not surrender to police until June 1997.

At the trial in January 1998, the Commonwealth presented the testimony of Dr. Margaret Carver, a qualified expert in obstetrics and gynecology, who examined the girls on October 26, 1989, when V.M. was twelve years old and J.M. was eleven years old. Dr. Carver testified that she found no evidence of physical trauma to the girls' genital or anal areas. N.T. at 114-15. According to Dr. Carver, the absence of physical trauma did not prove that the abuse had never occurred. N.T. at 115. She explained that because of the nature of the muscle that closes the anus, there would have been an adequate time between when the abuse occurred and the examination for any damage that had been done to heal. Id. On cross-examination, Dr. Carver confirmed that she was not stating that the alleged acts did or did not occur, and agreed that that it could be that "there was no trauma to the anus or genitals because the acts in fact did not occur." N.T. at 117-18. Dr. Carver stated that "either way, there was no evidence of it." N.T. at 118.

The jury convicted appellant of one count each of involuntary deviate sexual intercourse (18 Pa.C.S. § 3123) and statutory rape (18 Pa.C.S. § 3122) for crimes committed against V.M. Appellant was also convicted of two counts of indecent assault (18 Pa.C.S. § 3126), one count for each child. He was acquitted of statutory rape and involuntary deviate sexual intercourse for alleged incidents involving J.M. The trial court sentenced appellant to an aggregate term of imprisonment of seven and one-half to twenty-two years.

Appellant simultaneously filed post-verdict motions and a notice of appeal alleging, inter alia, that the trial court erred in admitting the testimony of Dr. Carver. The trial court dismissed the post-verdict motions on the basis that the filing of the notice of appeal had divested the court of jurisdiction. In the trial court's opinion pursuant to Pa.R.A.P.1925, the trial court concluded that Dr. Carver's "opinion that the lack of medical evidence is not inconsistent with the allegation of anal sodomy set forth in the history of the child because of the adequate time period for healing of wounds is admissible." Tr. Ct. Opin. at 13. On appeal, the Superior Court affirmed in a memorandum opinion, relying on Commonwealth v. Johnson, 456 Pa.Super. 251, 690 A.2d 274 (1997) (en banc).

In Johnson, a majority of an en banc panel of the Superior Court held that the trial court erred in excluding expert testimony that the "absence of diagnostic injuries or scars is common and does not exclude the possibility of penile anal penetration or other forms of sexual contact." Id. at 277. The panel reasoned that generally, testimony regarding conduct or behavior of victims of sexual assaults is not admissible since it tends to invade the jury's function of evaluating witness credibility, whereas testimony regarding physical facts is admissible. Id. at 275 (citations omitted). The court analogized to Commonwealth v. Hernandez, 420 Pa.Super. 1, 615 A.2d 1337 (1992), in which the Superior Court found that a pediatrician could testify "that the physical facts observed and reported by the treating physician were consistent with the allegation of anal sodomy." Id. at 1343. Following the reasoning in Hernandez, the court in Johnson concluded that "this subject is appropriate for expert testimony because the physical condition of a sexual assault victim is not a matter that is typically within the knowledge of average jurors." 690 A.2d at 277 (citation omitted). The court further found that the expert testimony did not encroach upon the jury's province of determining witness credibility since the testimony pertained to objective medical facts, rather than explanations of behavioral patterns. Id. (citation omitted).

The court in Johnson rejected the trial court's reliance on two prior decisions, Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991) (en banc), alloc. denied, 529 Pa. 656, 604 A.2d 248 (1992), and Commonwealth v. McCleery, 439 Pa.Super. 378, 654 A.2d 566 (1995). In Garcia, the Superior Court sitting en banc determined that expert testimony regarding the reasons why child victims delay in reporting sexual abuse was inadmissible because it improperly bolstered the child victim's credibility. 588 A.2d at 955. The court also indicated that testimony regarding the presence and absence of physical trauma was inadmissible since its prejudicial impact outweighed its probative value. Id. at 952 n. 3. Following the reasoning in Garcia, the court in McCleery determined that expert testimony that most child victims of sexual abuse delay in reporting the abuse, and expert testimony that the absence of any physical evidence of trauma was consistent with the victim's allegations of sexual abuse, was inadmissible. 654 A.2d at 569. The court in Johnson overruled those cases to the extent that they indicated "that expert testimony regarding the absence or presence of evidence of physical trauma on sexual abuse victims is inadmissible." 690 A.2d at 277. Finally, the court did not address the issue of relevancy or whether the probative value of the testimony was outweighed by its prejudicial impact as the relevancy issue was not properly preserved.

The dissenting opinion was authored by Judge Cirillo, who was joined by Judge Schiller. Relying on Garcia and McCleery, they believed that the expert testimony improperly bolstered the credibility of the witness. The dissenters distinguished Hernandez since the expert testimony there was admitted on cross-examination and with regard to positive physical findings of rape trauma. The dissenters noted that the expert's findings were made almost two years after the alleged assault, and they opined that the jury could have concluded without expert testimony that an assault occurred because the trauma may have healed over time. Finally, the dissenters argued that the prejudicial effect of the evidence outweighed its probative value, especially since it was introduced on direct, a situation which only confused or prejudiced the jury; the dissent did indicate, however, that if "the defense has asserted that the evidence of physical trauma is an element that must be proven in an assault case", then it would be proper for the Commonwealth, on rebuttal, to introduce the expert testimony. 690 A.2d at 279.

At the outset, we must set forth the appropriate standard and scope of review. As our standard of review, we recognize that an appellate court may reverse a trial court's ruling regarding the admissibility of evidence only upon a showing that the trial court abused its discretion. Commonwealth v. Hawk, 551 Pa. 71, 709 A.2d 373, 376 (1998). Because the trial court indicated the reason for its decision to admit Dr. Carver's testimony, our scope of review...