Commonwealth v. Smith
Commonwealth v. Smith
Opinion of the Court
This is a Commonwealth appeal from an Order dated November 14, 1988 in the Court of Common Pleas of Northumberland County. The trial court Order granted Harold W. Smith, Jr., the appellee, a new trial. We affirm.
Smith was charged with indecent exposure and corruption of minors for alleged incidents involving his seven-year-old stepdaughter. At Smith’s trial, the alleged victim testified. Following the child’s testimony, the Commonwealth presented the testimony of a family therapist who counseled the child following the alleged incidents. The counsel- or, Ms. Wiley, was asked on direct examination whether she had “an opinion as to [the child’s] ability to in character tell
On appeal, the Commonwealth argues that “the lower court erred in granting [Smith’s] motion for a new trial on the basis of ineffective assistance of counsel as the Commonwealth’s testimony did not infringe on the fact[-]finder’s obligation to determine the credibility of the witnesses and the introduction of testimony regarding the character for truthfulness of the victim, if in error, was harmless beyond a reasonable doubt.” We disagree.
There are three elements to a valid claim of ineffective assistance of counsel. First, we inquire into whether the underlying claim is of arguable merit, that is, whether the disputed action or omission is of questionable legal soundness. If the underlying claim is of arguable merit, we then ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interests. If he did, our inquiry ends. If not, the defendant will be granted relief if he can demonstrate that counsel’s improper course of conduct was prejudicial to his interests. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988).
Under Pennsylvania law, only evidence of a general reputation for truthfulness in the community is admissible as character testimony. Commonwealth v. Stiefel, 286 Pa.Super. 259, 428 A.2d 981 (1981) (Vander Voort, J. dis
If a witness is impeached by proof of bad reputation for truth and veracity, evidence may then be admitted to prove good reputation for truth and veracity. Wertz v. May, 21 Pa. 274 (1853); McCormick, Evidence § 49 (3d ed. 1984); Packel and Poulin, Pennsylvania Evidence § 608.1 at 419. Bolstering evidence, however, is not admissible unless the character of the witness has been attacked, and even then, only at the trial court’s discretion. Wertz, 21 Pa. 274; Commonwealth v. Ford, 199 Pa.Super. 102, 184 A.2d 401 (1962); Packel and Poulin, supra, at 419.
At bar, the Commonwealth witness gave her personal opinion as to the child/witness’s character for honesty. Pennsylvania law clearly prohibits this testimony. The length of time the witness counseled or knew the child is clearly of no consequence to this conclusion. Furthermore, it is also decidedly irrelevant that the opinion testimony was offered, according to the Commonwealth, to rehabilitate the child/witness. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), states that “[although opinion evidence is not to be permitted on the issue of a witness’ credibility, there remain, of course, all of the traditional methods for developing or attacking a witness’ credibility.” Seese, 512 Pa. at 444, 517 A.2d 920. Because rebuttal or rehabilitative opinion testimony as to a witness’s character for telling the truth is not a traditional method for developing a witness’s credibility, Seese is not supportive of the Commonwealth’s
We also find that the admission of the testimony prejudiced Smith and warranted the grant of a new trial ordered by the trial court. The Pennsylvania Supreme Court has stated:
The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness____ The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness’ credibility has routinely been regarded as a decision reserved exclusively for the jury.
Commonwealth v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986) (citations omitted) (emphasis added); see Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989).
By testifying as to the child’s character for telling the truth, the Commonwealth witness usurped the credibility-
We find it unwise to create an exception to the credibility-determining function of the jury in a case in which an alleged child/victim testifies. We do not dispute that an alleged child/victim of sexual abuse should have the opportunity to take the witness stand and tell his or her story. The competency considerations for child witnesses, repeatedly articulated in Pennsylvania, are designed to allow a child witness to testify merely if the child has the capacity to have observed the event giving rise to the litigation with a substantial degree of accuracy, can remember the event giving rise to the litigation, has the ability to understand questions and communicate answers, and has a consciousness of the duty to speak the truth. Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988). Furthermore, child witnesses, like all witnesses, are presumed competent to testify. Anderson, 381 Pa.Super. at 7, 552 A.2d 1064. From this testimony, the jury, doubtlessly taking into consideration the youth of the witness, can make a determination as to the veracity of the testimony and the credibility of the witness. We find improper, on the other hand, a situation in which an expert witness, or any witness for that matter, takes the witness stand and under the guise of “rehabilitation” proceeds to testify as to the credibility of the child/witness. To allow such testimony is to permit the unlawful usurpation of the credibility-finding function of the jury. This strikes at the heart of our system of justice.
We would have reached our conclusion at bar if any Commonwealth witness presumed to give his or her personal opinion as to the veracity of another witness; we note, however, that our conclusion is augmented because Ms. Wiley was called as an expert. An expert witness, who has been introduced to the jury as possessing a specialized skill
Order affirmed.
. We further note that the Commonwealth’s expert witness, Ms. Wiley, explicitly compared the general behavioral characteristics of sexually abused children to the specific behavioral characteristics displayed by the child at bar following the alleged incidents. Additionally, Ms. Wiley testified that a child of seven years old is able to separate truth from reality. All of this testimony encroaches upon the credibility-finding function of the jury and is clearly prohibited by recent Pennsylvania Supreme and Superior Court caselaw. See Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988).
These cases were all filed subsequent to Smith’s trial. Because counsel shall not be deemed ineffective for failing to predict new law, Commonwealth v. White, 515 Pa. 348, 528 A.2d 596 (1987), we shall not find counsel ineffective for failing to object to this additional expert testimony.
Dissenting Opinion
dissenting:
I respectfully dissent from the majority’s affirmance of the Order of the trial court awarding appellee a new trial.
Appellant argues the court erred in granting a new trial because the witness’ testimony did not infringe upon the fact finder’s obligation to determine the credibility of witnesses, and the introduction of testimony regarding the victim’s character for truthfulness was, in any event, harmless.
In Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988), a claim was made that defense counsel was
[AJppellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Petras, [368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987) ]; see also Commonwealth v. Pierce, 515 Pa. 153, 159-60, 527 A.2d 973, 975-76 (1987).
Thek, supra, 376 Pa.Super. at 396, 546 A.2d at 87 (footnote omitted). We found that the expert involved in that case had exceeded the permissible bounds of testimony by an expert in a child sex abuse case by specifically stating the victim was credible, because such testimony “invaded the province of the jury by presuming to pass directly upon the veracity of the witness.” Id., 376 Pa.Superior Ct. at 391, 546 A.2d at 83.
Thek purports to follow Seese, supra, which held that an expert may not be permitted to testify as to the credibility of children, as a class, who have been subject to sexual abuse, as this encroaches on the province of the jury. Seese also said expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information or skill beyond what is possessed by the ordinary juror. Id. 512 Pa. at 442, 517 A.2d at 921. Where the question is one of whether a particular witness is testifying in a truthful manner, it must be answered in reliance upon inferences drawn from the life experiences and knowledge of the jurors, as well as the observation of the character and demeanor of the witness. Seese goes on to say, “[although opinion evidence is not to be permitted on the issue of a witness’ credibility, there remains, of course, all of the traditional methods for developing or attacking a witness’ credibility.” Id., 512 Pa. at 444, 517 A.2d at 922.
The law regarding testimony by an expert relating to the capacity of a child witness to tell the truth in an abuse case is clearly stated and follows a distinct pattern in Pennsylvania and a majority of the jurisdictions throughout the nation. Expert testimony in sexual abuse cases frequently relates to bolstering the credibility of child sexual abuse victims by describing behavior of sexually abused children, similar to that exhibited by the victim in the case, or by confirming, through recitation of reports and studies, the general reliability of victim reports of sexual abuse.
The general rule is, as stated in Seese, supra, that an expert witness may not present testimony as substantive evidence which establishes sexual abuse based on the behavioral pattern of the child. In Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), this Court equated the “sexual abuse syndrome” with the “battered
In an article, “The Child Sexual Abuse Accommodation Syndrome”, 7 Child Abuse & Neglect 177 (1983), Dr. Roland Summit described the five characteristics commonly observed in sexually abused children:
1) Secrecy;
2) Helplessness;
3) Entrapment and accommodation;
4) Delayed, conflicted and unconvincing disclosure; and
5) Retraction
This syndrome does not diagnose and is not a test for sexual abuse. See People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886 (1988); People v. Gray, 187 Cal.App.3d 213, 231 Cal.Rptr. 658 (1986). With the battered child syndrome, one reasons from the type of injury to cause for the injury. It has probative value to establish the cause as arising out of neglect or physical assault as opposed to accident. With sexual abuse more often than not, no visible evidence of injury exists, and in the sexual abuse accommodation syndrome, one reasons from behavioral characteristics observed in some but not all sexually abused children as probative of the existence of sexual abuse. Thus it has properly been held that this syndrome may not be used as substantive evidence and probative of sexual abuse.
From the holding in Seese, it appears the testimony by Dr. Wiley was admissible, as rehabilitative or rebuttal testimony after the child had been cross-examined and her veracity brought into question. Prior to the expert’s testimony, the child victim testified and had been cross-examined by appellant’s attorney. The cross-examination, while not harsh, did test the child’s credibility as to the time of occurrence, her recollection of the event forming a basis of the charges, her reasons for not reporting the incidents
Dr. Wiley testified in response to the prosecutor’s question as follows:
Q. And, you have known Jill now for—
A. Two years.
Q. Two years. And, do you have an opinion as to her ability to in character tell the truth?
A. Yes, she is — she has the character which can tell the truth in the sense that if she would be talking— whether she was talking about school or she would be talking about events just in the family, when I would check those facts then with her mother or with her grandmother I would then learn the same facts from that parent.
T.T. at 78 (emphasis added). Had the question been posed and the answer been given prior to cross-examination of the child by defense counsel, it would have been improper as character testimony when character was not in issue. After cross-examination by defense counsel, the child’s character for truth telling was in issue.
For the above reasons, I believe the Commonwealth’s position is correct and should be sustained. I would vacate the Order of the trial court granting a new trial, reinstate the jury verdict and remand the case for sentencing.
. The Commonwealth’s brief at page 5 suggests the question was actually if she had "an opinion as to [the child’s] ability to and character to tell the truth.” The difference in words is not critical to my position.
. This holding is consistent with that of most jurisdictions throughout the country. See Thompson v. Alaska, 769 P.2d 997 (Alaska App. 1989) (an expert witness may not give a direct opinion on the truthfulness of a child); People v. Gaffney, 769 P.2d 1081 (Colo. 1989) (witness may not offer an opinion that a child was very believable); Tingle v. State, 536 So.2d 202 (Fla. 1988) (in rejecting expert testimony on credibility the court writes “[i]t was error for the state’s witnesses to directly testify to the truthfulness of the victim”); State v. J.C.E., 767 P.2d 309 (Mont. 1988) (the court writes that as a general rule, expert testimony evaluating the credibility of a witness is inadmissible. Where a child witness is a victim and testifies, under State v. Geyman, 224 Mont. 194, 729 P.2d 475 (Mont. 1986), an exception is made); State v. Eldredge, 773 P.2d 29 (Utah 1989) (an expert may not offer an opinion on the truthfulness of a child); State v. Madison, 53 Wash.App. 754, 770 P.2d 662 (1989) (an expert may not offer an opinion that a child was truthful; however, expert testimony is permissible to rehabilitate credibility ).
. We must distinguish between the above class of testimony, which relies on behavioral characteristics, and expert medical testimony that offers proof that a child was sexually abused and relies in part on her testimony but is supported by a physical examination that confirms penetration, which might include the use of a colposcope (an instrument which provides low-power magnification, akin to binoculars, to aid in detecting subtle signs of genital injury). See People v. Mendi
. The great majority of courts approve such expert rebuttal testimony. See, e.g., State v. Davis, 422 N.W.2d 296 (Minn.Ct.app. 1988) (court approves expert testimony to inform jury that running away from home is common in sexually abused adolescents); State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651, 655 (1988) (expert could state why child would continue to cooperate with abuser); People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886, 891 (1988) (child sexual abuse accommodation syndrome testimony admitted to explain delay); People v. Hampton, 746 P.2d 947 (Colo. 1987) (adult rape victim; rape trauma syndrome admitted to explain delay); Wheat v. State, 527 A.2d 269 (Del. 1987); People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274, 277 (1986); State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987); Smith v. State, 100 Nev. 570, 688 P.2d 326, 326-27 (1984); People v. Benjamine R., 103 A.D.2d 663, 481 N.Y.S.2d 827, 831-32 (1984); State v. Hicks, 148 Vt. 459, 535 A.2d 776, 777 (1987); State v. Petrich, 101
But see Dunnington v. State, 740 S.W.2d 896 (Tex.Ct.App. 1987) (delay in reporting not beyond ken of lay jurors, therefore, expert testimony not needed).
Expert testimony is admissible to explain why children recant. See, e.g., State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 75 (1986).
. While those cases do not effect the disposition of this case, since the issue here is a much narrower one which turns on basic rules of evidence as to rehabilitation of a witness from personal knowledge, it appears that a total review of this area of the law by our Supreme Court is needed when viewed against the rapidly developing law throughout the United States.
. The majority holds this testimony was not admissible as invading the sacred province of the jury. This ignores the entire thrust of the law evolving toward providing a more even playing field for children of sexual abuse who must testify in court. The cases and evidentiary rules cited by the dissent are irrelevant to the present consideration. An adult on the witness stand has a far greater capacity to withstand cross-examination than a child. What may be a child’s limited knowledge of terminology, inability to be time or event specific, or capacity to.respond in a court environment can appear to a jury to be flaws in character or credibility. The law and the courts must and increasingly are sensitive to this inherent disability of child witnesses.
Here, the testimony in question was directed toward the child’s general character (reputation) for telling the truth and is therefore
Pennsylvania case law and the hornbooks and treaties follow uniformly the Federal Rules of Evidence 608(a), Opinion and reputation evidence of character, which states:
The credibility of a witness may be ... supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Dr. Wiley’s testimony was entirely proper and in conformity with the above principles.
The Pennsylvania Legislature has paid particular attention to the unique handicaps of child victims and witnesses in criminal proceedings. In its Declaration of Policy, 42 Pa.C.S. § 5981, the legislature states:
In order to promote the best interests of the children of this Commonwealth and in recognition of the necessity of affording to children who are material witnesses to or victims of crimes additional consideration and different treatment from that of adults, the General Assembly declares its intent, in this subchapter, to provide these children with additional rights and protections during their*642 involvement with the criminal justice system. The General Assembly urges the news media to use restraint in revealing the identity or address of children who are victims of or witnesses to crimes.
It goes on to provide for children under 14, and a rebuttable presumption in favor of children 14 to 15 years, that support services are required, video taping of depositions in lieu of direct testimony in court is permissible or testimony at trial by closed-circuit television, in addition to other protective measures.
The majority, rather than recognizing the special hardships to children in criminal proceeds, denies protections of the law afforded to every adult. The child in this case is twice victimized by the majority’s approach.
Reference
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- COMMONWEALTH of Pennsylvania, Appellant, v. Harold W. SMITH, Jr.
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- Published