Commonwealth v. Gallagher

PAPADAKOS, Justice,

dissenting.

I dissent on two grounds. First, I believe the majority’s analysis of our own precedents to be erroneous. Second, *302the majority has overlooked the existence of a recent Superior Court case directly on point which is contra to the proposed disposition of this case.

The majority correctly cites our decision in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), for the rule that an expert cannot characterize a witness in such a way as to speak to the issue of witness credibility which is exclusively the province of the jury. In Seese, the expert’s profile testimony was inadmissible because it stated with scientific certainty that the witness was telling the truth as to the facts of that case. Seese, therefore, sharply focuses on the specific problem of whether to permit an expert who is profiling a witness to testify that the witness is not lying. In this particular context, Seese was decided correctly by this Court.

Profile evidence of an expert, nevertheless, has been used extensively by other jurisdictions for a different purpose of aiding the factfinder in understanding the behavioral or psychological characteristics of crime victims. Courts have admitted such expert evidence especially in various sexual crimes where, on the one hand, it is presumed that the average layman lacks knowledge of how such victims react and, on the other, where victims of sexual abuse have difficulty remembering dates and other facts. See, for example, State v. Pettit, 66 Or.App. 575, 675 P.2d 183 (1984); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983) ; and Smith v. State, 100 Nev. 570, 688 P.2d 326 (1984) . As to rape trauma syndrome in particular, numerous courts also have admitted profile evidence for the limited purpose of aiding the jury. See the extensive citations and bibliography collected in McCormick on Evidence § 206 (E. Cleary ed. 3rd ed. 1987) and Annot., 42 A.L.R.4th 879. McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C.L.Rev. 1143, 1177-78 (1985), concludes that “there is unanimous agreement among the courts which have considered the issue that rape trauma syndrome testimony (and child sexual abuse testimony) is properly admis*303sible to explain what might otherwise seem to be unusual complainant behavior.” Seese properly excluded such evidence because it ran to the issue of telling the truth. Also see, e.g., Hall v. State, 15 Ark.App. 309, 692 S.W.2d 769 (1985), and Duley v. State, 56 Md.App.275, 281, 467 A.2d 776, 779 (1983). At the same time, however, there is no reason to disallow the use of profile evidence to help the jury understand the various and seemingly unexplainable reactions of crime victims. State v. Petrick, 101 Wash.2d 566, 683 P.2d 173 (1984).

The Superior Court recently ruled on this specific issue in Commonwealth v. Baldwin, 348 Pa.Superior Ct. 368, 502 A.2d 253 (1985).1 In that case, a social worker was allowed to testify to the effects of an incestuous relationship on the victim and “the psychological forces which cause the victim to keep the incest a secret for a long time, and why victims are often unable to recall exact dates or times or describe specific incidents in detail.”

Relevant portions of Judge Beck’s opinion are as follows: The courts of several other jurisdictions have considered the issue, though, and have held that expert testimony regarding the behavior patterns of child sexual abuse victims was properly admitted. See, e.g., People v. Dunnahoo, 152 Cal.App.3d 561, 199 Cal.Rptr. 796 (1984); State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983); State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (1984). Other courts have admitted similar expert testimony on “rape trauma syndrome” to assist the jury in understanding the dynamics of rape; see, e.g., State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); State v. Staples, 120 N.H. 278, 415 A.2d 320 (1980). See also State v. Conlogue, 474 A.2d 167 (Me.1984) (expert testimony on “battered child syndrome” and patterns of child abuse within family admissible to impeach credibility of mother’s retraction of confession that she had abused her child); State v. Kelly, 97 *304N.J. 178, 478 A.2d 364 (1984) (“battered woman syndrome” proper subject for expert testimony where issue was whether defendant wife could establish claim of self-defense in prosecution for killing husband).
(4) The foregoing decisions support our conclusion that expert testimony such as that offered by Battinieri does not improperly invade the jury’s prerogative.
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We also hold that the behavioral and psychological characteristics of child sexual abuse victims are proper subjects for expert testimony.
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Courts and commentators alike have observed that for these reasons child sexual abuse victims often have difficulty remembering dates and times or describing details of sexual acts, and are reluctant witnesses, sometimes refusing to testify or recanting prior allegations out of fear or coercion.

Id., 348 Pa.Superior Ct. at 375-378, 502 A.2d at 256-258.

It is to be noted, of course, that Judge Beck specifically included rape trauma syndrome as part of the “foregoing decisions” which formed the basis of her argument. We now have appellate court precedent on the subject. We should acknowledge its existence and give serious consideration to the rationale which supports such precedent before overruling it.

I conclude that the testimony in this case more accurately fits within the Baldwin analysis rather than under Seese. Finally, while I believe that we should retain a healthy skepticism regarding the value of such expert testimony, the majority opinion would lead inevitably to a situation where all psychological evidence would be barred. Opinion evidence certainly cannot usurp the function of the jury where it touches the very issue before the jury, but I believe that a fundamental difference exists where the *305evidence constructs a diagnostic or behavioral profile which provides background information for the trier of fact.

NIX, C.J., joins in this dissenting opinion.

. Allocatur was denied by this Court on September 17, 1986.