Commonwealth v. Boich

DISSENTING OPINION BY

KLEIN, J.:

¶ 1 The majority claims that the experienced trial judge, the Honorable Peter Paul Olszewski, Jr., abused his discretion when he believed based on uncontradicted medical testimony that neither the doctor nor he had sufficient information to ascertain whether or not the alleged victim in this case, C.U., was competent to testify. I disagree, and do not believe he abused his discretion by finding that he had a compelling need to order a psychiatric evaluation to make this determination. When the expert concluded that there was a good chance that C.U. was unable to perceive, remember and recount what happened and could not make that determination without an examination, it is understandable that the trial judge would agree and find this one of those rare occasions *116when a psychiatric examination should be ordered.

¶ 2 It is clear that Judge Olszewski knew the restrictions on the right of a trial judge to order a psychiatric evaluation of a complaining witness in a sexual abuse case, and understood that the defense must establish a compelling reason for the evaluation. Judge Olszewski said on page 9 of his 1925(a) opinion:

Initially, we make the following observation. For fifteen (15) years the undersigned has served both as a prosecutor and member of the bench. From this perspective I have acquired considerable experience in the criminal justice system. A defense request for an involuntary psychiatric examination of an alleged victim of sexual assault is infrequent, if not rare. A court’s grant of such request is extraordinary. The record in the instant matter suggests this is an extraordinary case, as the Defense has demonstrated a compelling need for the examination.

¶ 3 The question of a person’s competency to be a witness is vested in the sound discretion of the trial court. Commonwealth v. D.J.A., 800 A.2d 965 (Pa.Super.2002) (en banc). Furthermore, “the mental competency of every witness is presumed [... ].” Commonwealth v. Ware, 459 Pa. 334, 352, 329 A.2d 258, 267 (1974). Lastly, incompetency does not follow from the fact that the witness is insane or mentally ill. Id. at 352, 329 A.2d at 267. As a result, a trial court does not have an obligation to order an investigation of a witness’ competency unless the trial court has some doubt on the issue from having observed the witness. See Commonwealth v. Jennings, 446 Pa. 294, 304, 285 A.2d 143, 149 (1971); see also Commonwealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939, 943 (1992). Here, based on the evidence presented to him, Judge Olszewski had some doubt. The expert said that the drugs taken could well have an effect on the ability of C.U. to perceive, remember and relate what happened and there may have been some underlying medical and psychological conditions that could have an effect. This medical judgment was supported by the fact that the witness was unable to remember many of the details of the event. If the medical expert has serious questions as to competence, and the judge had no other means to make that determination, acquiescing in the expert’s opinion that a psychiatric evaluation was necessary to possibly shed some light on the situation is not an abuse of discretion.

¶ 4 When a trial court addresses the competency of a witness to testify, it must determine if the witness has the ability to: (1) perceive an event with a substantial degree of accuracy; (2) remember it; (3) communicate about it intelligibly; and (4) be mindful of the duty to tell the truth under oath. Commonwealth v. Goldblum, 498 Pa. 455, 465, 447 A.2d 234, 239 (1982). The core of the competency test is the ability to give a correct account of the matters that the witness has seen or heard. Ware, 459 Pa. at 353, 329 A.2d at 268. Stated otherwise,

A competency hearing concerns itself with the minimal capacity of the witness to communicate, to observe an event and understand the necessity to speak the truth. A competency hearing is not concerned with credibility. Credibility involves an assessment of whether or not what the witness says is true; that is a question for the fact finder. An allegation that the witness’s memory of the event has been tainted raises a red flag regarding competency, not credibility. Where it can be demonstrated that a witness’s memory has been affected so that their recall of events may not be dependable, Pennsylvania law charges *117the trial court with the responsibility to investigate the legitimacy of such an allegation.

Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 40 (2003) (“Delbridge I”) (citations omitted).

¶ 5 Appellee filed an omnibus pre-trial motion requesting a psychiatric examination of C.U. on grounds that she was not competent to testify because her mental capacity to observe and remember the occurrences were substantially impaired by the ingestion of alcohol and/or prescribed drugs. Essentially, the claim was that because of a combination of mental problems, and drug and alcohol consumption, C.U. was unable to perceive what had happened and therefore to recollect and recount it.

¶ 6 The defense called an expert witness. Dr. Fischbein, to discuss C.U.’s competency and to explain why he believed there was a need for a psychiatric examination to make that determination. C.U. testified that she had taken the prescription drugs Ortho-Tricyclen, Protonix, Zelnorm, and Lexapro. Dr. Fishbein labeled Lexapro as an anti-depressant. He also indicated that C.U. reportedly took Darvocet, which he labeled as a painkiller.

¶ 7 Judge Olszewski evaluated the testimony as follows:

While none of the factors relied upon by [Appellee], in isolation, establish a compelling need for an examination; considered together one is clearly warranted. This Court simply lacks sufficient expertise to understand and evaluate the physical/psychiatric affects and effects of ingestion of these substances by the alleged victim. This evaluation and determination becomes more difficult given the alleged victim’s acknowledged alcohol consumption. Dr. Fischbein’s testimony establishes the ingestion of a combination of these constituent substances implicates a person’s ability to perceive and recall. We cannot make a factual determination on the ultimate issue of testimonial competency unless we understand and appreciate the drugs’ interaction and the extent to which they effected [«c] the ability to accurately recall, [sic] perceive and articulate the relevant sequence of events.
The record before us sufficiently demonstrates the alleged victim’s inability to remember or recall relevant information at or near the time of the alleged assault. Indeed, the excerpts [from the preliminary hearing] referenced in [Ap-pellee’s] Exhibit 1 indicate her inability to recall information and events immediately prior to, during and shortly after the alleged sexual assault. The preliminary hearing testimony coupled with Dr. Fischbein’s testimony implicate the alleged victim’s testimonial competency. It is beyond argument, indeed the Commonwealth does not suggest otherwise, that the pharmacological combination of substance[s] referenced in this record produce impairment — the central consideration is to what extent.
The issue of the alleged victim’s testimonial competency has been sufficiently raised and the [October 5, 2006] hearing has indeed revealed the existence of a valid competency concern. Expert testimony would greatly assist this Court in assessing the question of competency. This examination, narrowly tailored and focused on the specific issues outlined by Dr. Fischbein, in the presence of an Assistant District Attorney, a police prosecutor and a close relative, if desired by the alleged victim, is warranted.

Trial court opinion, 12/13/06, at 10-11 (footnote omitted).

¶ 8 In the present matter, we have more than the bare assertions of Appellee con*118cerning C.U. s failure to answer questions to suggest that she could not describe accurately the events relating to the sexual assault. We have a record of significant ingestion of both drugs and alcohol, which well could affect the ability to perceive. In addition, we have a transcript of the preliminary hearing documenting C.U.’s responses to the defense’s inquiry into her recollection of events attendant to the charges filed. Contrast Commonwealth v. Counterman, 553 Pa. 370, 393, 719 A.2d 284, 295 (1998) (“Counterman’s bare assertions concerning Mrs. Counterman’s intelligence and her slowness in responding to questions did not suggest that she could not accurately describe [sic] the events leading up to the fire. Consequently, the trial court properly exercised its discretion in denying Counterman’s request for a competency examination of his wife.”).

¶ 9 At the preliminary hearing, C.U. gave an account surrounding the alleged sexual assault, which reflects upon her competency to recall the events surrounding the case. It is true that in and of itself, forgetting some details would not be sufficient to justify a court-ordered psychiatric examination. However, this is combined with the drug and alcohol ingestion, which is why the expert said he needed a psychiatric examination before reaching an opinion on competency.

¶ 10 There were a number of matters that C.U. stated she either did not remember or did not recall related to what happened on the evening of October 13th and the early morning hours of October 14th. For example:

[Appellee’s counsel:]
Q. During the course of that evening, was there any sexual talk between you and [Appellee] when you were at the bar?
[Complainant:]
Again, I can’t remember what our conversation was.
I’m not asking you to remember every piece of your conversation— <y
Right. <¡
—but you’re claiming you were raped. Now, in the course of that night in that bar, are you telling me you can’t remember if there was any conversation related to any sexual overtones? <y
I honestly cannot remember our conversation at the time.
Relating to anything sexual? ¿o
Relating to anything. !>
Sexual? <©
Anything. !>
Anything? <©
Yes. ¡>
Okay. So other than you saying hello to [Appellee] that night in the bar, you can’t remember anything further in terms of your conversation with him? <©
No, I cannot. Inside the bar. ►>
Inside the bar we’re talking about? <©
Correct. Í»
[[Image here]]
And did you have any conversation with him up to his pants being unbuttoned? <y
I can’t recall any. ¡>
You can’t recall anything? <p
I can’t remember anything that was said, anything that he had said. ]>
And all of a sudden, the next thing you see is his pants were unbuttoned? <©
I saw them unbuttoned. >
At that point in time, up to that point in time, you don’t remember him threatening you in anyway? <©
*119A. I can’t remember anything. I mean I don’t, I can’t remember.
* * ijs *
Q. So, you see his zipper down and you see his penis out; is that correct?
A. Yes.
Q. And when you see this; what, if anything, did you say to him?
A. Again, I can’t remember words exchanged.
Q. You can’t remember anything that was said?
A. No.
Q. You don’t remember anything he even said to you either?
A. No.

N.T. Preliminary Hearing, 12/12/05, at 48-50, 85-86.

¶ 11 Furthermore, C.U. did not remember whether she drank draft or bottled beer at Murray’s Bar or how she got out of Appellee’s vehicle after performing oral sex, nor could she state where on her body Appellee picked her up to place her on the hood of his vehicle to have sex. Id. at 92-OS, 96. Yet, she did admit drinking enough beer and whiskey to be “intoxicated,” did recall taking prescription drugs, did kiss Appellee “passionately” in his vehicle, and claims he did perform oral sex and sexual intercourse against her will. Id. at 54, 60-61, 74, 90,100. C.U. attempted to minimize her memory loss by attributing it to the trauma of having been sexually assaulted by Appellee. Id. at 49-50.

¶ 12 Dr. Fischbein, on the other hand, opined such selective memory loss was sufficient to warrant a psychiatric examination to analyze the root-cause for such an episodic event, especially given the negative impact (memory loss and/or blackouts) anti-depressant drugs could have upon a person when ingested in tandem with alcohol. N.T. Competency Hearing, 10/5/06, at 89-40. Toward that end, Dr. Fischbein stated that knowledge of the dosage C.U. was taking and why she was being given these drugs were imperative to diagnose their influence on her competency to recall events post-ingestion. N.T. Competency Hearing, 10/5/06, at 7. Thus, proffered Dr. Fischbein, there was a need for a psychiatric examination to assess C.U.’s competency, which was predicated upon the expert’s review of the complaint; the affidavit of probable cause attached to the police criminal complaint; Wilkes-Barre police department offense report; Wilkes-Barre police department supplemental reports; Pennsylvania State Police serology report; Wyoming Valley Healthcare emergency room records; interview of C.U.; interview of six witnesses; preliminary hearing transcript; and Appel-lee’s omnibus pre-trial motion. Id. at 29.

¶ 13 Despite the expert’s possession of the aforementioned data, he still was of the opinion that a psychiatric examination of C.U. was necessary; to-wit:

[Assistant District Attorney:]
Q. And with that knowledge [ — evidence in the transcript — ], you’re still telling this Court that you feel there is a substantial need for [sic ] to you conduct this psychiatric examination on [C.U.]?
[Dr. Fischbein:]
A. Yes, because that would not negate other explanations for why she can’t remember. It could be as simple as alcohol intoxication. It could be that, periodically, under severe stress, she may have a dissociative state where she goes blank, for a better term, a circuit breaker goes off; that can happen in certain personality makeups, or perhaps after what she perceived happen [sic ] in *120the car, she had a severe reaction and had a posttraumatic stress disorder and then blanked for that period of time.
So, there’s many, many explanations. If she didn’t take any Darvocet, it doesn’t negate any of the other possibilities. It’s just possibility.
Q. I believe that your testimony with regard to the need for this type of psychiatric examination is that the more history you can have, the more helpful it is to maximize your chance of being able to come to a conclusion on this issue; is that correct?
A. On the issue of why she can’t remember certain events of that evening, yes, that’s true.
sjj j¡t %
Q. Doctor, do you feel in your professional opinion that there is no other way to go about finding out a cause for the blanks in [C.U.’s] memory other than forcing her to undergo an involuntary psychiatric exam?
A. Based on what I know, no, I can’t. I can’t.

NT. Competency Hearing, 10/5/06, at 56-57, 61.

¶ 14 When viewed as a whole, the events (documented selective memory loss) associated with the consumption of alcohol and prescription drugs coalesce to present a compelling reason to warrant a psychiatric examination. See N.T. Competency Hearing, 10/5/06, at 39-40 (Dr. Fischbein: “alcohol in large quantity, depending on how much was had, can cause an alcohol blackout or trouble remembering events while you’re intoxicated. Mixing Darvocet with alcohol ... can cause sedation.... You then add Lexapro to the picture ... alcohol is depressogenic. It can make your depression worse or your anxiety.... Lex-apro with alcohol can increase the intoxication.”). As the Pennsylvania Supreme Court said in Commonwealth v. Delbridge (Delbridge), 578 Pa. 641, 668, 855 A.2d 27, 43 (2003):

In a competency hearing, the trial judge must determine the facts and reach a legal conclusion. It is thus the trial judge who must decide if expert testimony will advance a resolution of the question of competency on a case-by-case basis. Accordingly, we will leave it to each individual jurist, subject to appropriate review, the decision of whether in any particular case ... expert testimony would assist the court in understanding the evidence or determining a fact in issue during a competency hearing.” (Citation omitted)

¶ 15 I do not believe Judge Olszewski abused his discretion when he concluded:

The issue of the alleged victim’s testimonial competency has been sufficiently raised and the hearing has indeed revealed the existence of a valid competency concern. Expert testimony would greatly assist this Court in assessing the question of competency.

Trial Court Opinion, 12/13/06, at 11. To reverse this decision is not just taking over the role of the trial judge in initially making this determination, but also is taking over the role of the physician by discounting his uncontradicted medical testimony.

¶ 16 Based on the above, I believe that the trial court did not abuse its discretion in crediting the expert witness when the expert said he could not make a determination as to competency without a psychiatric examination of C.U. under the particular facts of this case.1 As Judge *121Olszewski said, “This Court simply lacks sufficient expertise to understand and evaluate the physical/psychiatric affects and effects of ingestion of these substances by the alleged victim.” Id. at 10. I believe that we also lack the expertise to make medical judgments, and should not fault the trial judge for asking for further help in making this medical decision.

¶ 17 Accordingly, I would affirm and am compelled to dissent.

. We note that the trial court directed that after the completion of the psychiatric examination, the preparation of the expert's written findings and opinion are to be submitted for *121its review within a timely fashion. After considering the findings of fact and opinion of the defense’s expert, the trial court must then determine whether Appellee’s burden to overcome the presumption of competency has been established by clear and convincing evidence. Commonwealth v. Delbridge, 580 Pa. 68, 73, 859 A.2d 1254, 1257-58 (2004) ("Del-bridge II"). If Appellee fails to meet his burden of proof that C.U. is not competent to testify by clear and convincing evidence, the trial court must find that she is competent to testify at trial about the events attendant to the charges filed. Delbridge II, at 73, 859 A.2d at 1257.