Commonwealth v. Dunkle

LARSEN, Justice,

dissenting.

I vigorously dissent to the majority’s remand of this case for retrial. Today, the majority completely rules out the use of expert testimony to aid a jury in understanding a subject which is shrouded in myth and shame and about which the average citizen/juror knows little or nothing. To add insult to injury, the majority supports its holding atop a fragile house of cards consisting of the writings of various “authorities” whose studies and opinions carry only as much legal weight as any other untested authority who can be found to espouse opinions that are in direct opposition to the “authorities” cited. It is anomalous, in fact, that the majority uses experts to convince the legal community of its position due to the legal community’s ignorance and yet *189concludes that such information is a matter of common knowledge to the average juror.

The issue raised by the Commonwealth in its appeal to this Court is whether the admission of expert testimony regarding the behavioral characteristics of the victims of sexual abuse invaded the exclusive province of the jury to determine the credibility of witnesses, where the expert did not testify as to the credibility of sexual abuse victims in general, did not testify that the victim in this case was a victim of sexual abuse, and did not testify that the victim was credible. The issue raised by the cross-appellant, Neil F. Dunkle, is whether Dunkle waived his objection to the admission of evidence of his prior misconduct with the victim by failing to object to it during trial on the basis of remoteness and on the basis that the prior misconduct did not constitute a continuous course of conduct.1 I shall address these issues seriatim.

Dunkle was charged on June 30,1986, with rape, indecent assault, corruption of minors and criminal attempt to commit involuntary deviate sexual intercourse. The charges arose out of an incident occurring in April of 1983, involving Dunkle’s sexual assault upon his fourteen year old stepdaughter as she was taking a shower. Following a jury trial in the Court of Common Pleas of Lycoming County, Dunkle was found guilty of indecent assault, corruption of minors and criminal attempt to commit involuntary deviate sexual intercourse. He was acquitted of the charge of rape. The trial court denied Dunkle’s post-verdict motions in arrest of judgment and for a new trial. Dunkle was sentenced to concurrent sentences of imprisonment totalling two to four years.

Dunkle filed an appeal to Superior Court which reversed by a divided panel and remanded for a new trial. Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989). *190Superior Court determined that the admission of the expert testimony constituted reversible error and that, although Dunkle had waived his objection to the evidence of prior acts involving the victim on the ground asserted in his appeal, that evidence would be inadmissible at Dunkle’s retrial. Both the Commonwealth and Dunkle filed petitions for allowance of appeal to this Court. We granted both petitions, and I would reverse the order of the Superior Court.

The decision whether to admit or exclude evidence is entrusted to the discretion of the trial judge, who is not to be reversed unless an abuse of that discretion is shown. Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). Moreover, this Court has stated:

An abuse of discretion is more than just an error of judgment and, on appeal, a trial court will not be found to have abused its discretion unless the record discloses that “the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Lane, 492 Pa. 544, 549, 424 A.2d 1325, 1328 (1981) (citations omitted). As there has been no allegation of partiality, prejudice, bias or ill-will on the part of the trial court herein, we must determine whether the admission of the expert testimony in this case was manifestly unreasonable.

During the prosecution’s case, a Child Protective Service Supervisor for the Department of Children and Youth in Lycoming County was permitted to testify as an expert witness, over Dunkle’s objection, about the behavioral characteristics of child sexual abuse victims.2 The expert testi*191fied, based upon her personal observations of approximately 500 such victims, that child sexual abuse victims may delay reporting incidents of abuse by a family member for any of several reasons. These include threats made against the child, fear that the family will be split up as a consequence of reporting an incident, embarrassment, fear that the child will not be believed, and pressure by the family to recant. This testimony was presented in response to the inference raised by Dunkle that the victim’s three year delay in reporting the assault was a result of insincerity or fabrication.

The expert also testified that it is common for child sexual abuse victims to be unable to recall dates, times, and other factual details of the incidents, either because the incidents were frequent, the incidents occurred long before they were reported, or the child has repressed painful thoughts from conscious memory. This testimony was presented in response to Dunkle’s attempt to impeach the victim’s credibility by her inability to recall the exact date on which the sexual assault occurred and her failure to describe all the circumstances of the assault when she initially reported it.

The expert further testified about the types of behavior exhibited by child sexual abuse victims, i.e., that they can exhibit anger, confusion, depression, and lack of self-esteem, that they may become promiscuous, disrespectful and disobedient, and that they may abuse drugs or alcohol. The victim in this case had become more withdrawn following the assault, she became more modest in her attire, she became more hostile and she spent more time in her room which she kept dark by putting blankets over the curtains. *192Dunkle sought to prove that the victim had always been a hostile and difficult adolescent and introduced evidence tending to show that the victim’s behavior had not changed following the assault. The expert’s testimony merely provided support, based upon the behavior of other child sexual abuse victims, for the prosecution’s contention that it would not be unusual for the complaining witness to exhibit changed behavior following a sexual assault. The expert did not testify that child sexual abuse victims are credible, that this victim was credible, or that this victim exhibited the same behavioral characteristics as other known victims of child sexual abuse.

The trial court cited Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985) (expert testimony that goes to the general behavioral characteristics of the victims of sexual abuse held to be admissible), to support its determination that the expert testimony was admissible and did not usurp the credibility determining function of the jury. This Court has several times considered the issue of the admissibility of expert testimony in child sexual abuse cases. In Commonwealth v. Seese, 512 Pa. 439, 441, 517 A.2d 920, 921 (1986), we held that a pediatrician’s testimony that pre-pubertal children “do not lie” about sexual abuse was inadmissible because it encroached upon the jurors’ credibility determining role by passing upon the credibility of a class of victims of which a witness in the case was a member.

In Commonwealth v. Davis, 518 Pa. 77, 80, 541 A.2d 315, 316 (1988), we held that a clinical child psychologist’s testimony that “children who have not been involved in sexual experiences typically do not fantasize about sexual experiences,” was inadmissible for the same reason, i.e., that the phenomenon of lying is within the capacity of jurors to assess, and such expert testimony would encourage jurors to defer to the expert assessment of the truthfulness of a class of people of which the witness was a member. In Davis, this Court disapproved Commonwealth v. Baldwin, supra, “insofar as it conflicts” with Commonwealth v. *193Seese, supra, and Davis. Commonwealth v. Davis, 518 Pa. at 81 n. 1, 541 A.2d at 317 n. 1. In Baldwin, as in the case presently before the Court, the expert testimony went to the psychological dynamics of incest and the behavioral patterns of incest victims. The expert in Baldwin did not testify about the veracity of the victims of sexual abuse or the veracity of the complaining witness in the case, nor did the expert testify that the complaining witness was a victim of sexual abuse. In Davis we did not overrule Baldwin. The expert testimony in Davis and in Seese specifically involved statements about the propensity of sexual abuse victims to tell the truth. The court in Baldwin did not have before it such expert testimony. Thus, there is no statement in the Baldwin case which precludes such testimony. The only limitation noted is that the expert may not express an opinion regarding the credibility of the complaining witness. This Court in Davis, recognized that Baldwin could and might be construed to permit the type of expert testimony that was presented in Seese and Davis; hence, our limited disapproval of Baldwin.

In Commonwealth v. Rounds, 518 Pa. 204, 207 n. 4, 542 A.2d 997, 998 n. 4 (1988), we noted in dictum that a pediatrician’s testimony that the victim in the case was not lying about sexual abuse was “patently inadmissible.” Most recently, this Court, in Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), held that the testimony of a psychiatric nurse that the victim in the case was suffering from rape trauma syndrome and, as such, could have identified the perpetrator years after the attack in spite of having failed to do so immediately after the attack, was inadmissible as encroaching upon the credibility determining function of the jury. It is clear in all of these cases that the experts were making a direct and express “expert” assessment of witness credibility, thereby impermissibly usurping the function of the jury.

The disputed expert testimony in the instant case, however, involved observed traits that commonly appear in child sexual abuse victims, but that would not be a matter of *194common knowledge to the average juror.3 The expert witness did not act as a human lie detector who gave the stamp of scientific legitimacy to the truth of the victim’s factual testimony. The expert witness did not testify that Dunkle sexually abused the victim at a specific time or place or that the expert believed the victim’s claim. The testimony of the expert provided a background against which the jury could assess the behavior of the victim. In this respect, the expert testimony regarding the actual behavior of other sexual abuse victims was of help to the jury in assisting them to understand possibly unfamiliar reactions.4

In Commonwealth v. Lane, 521 Pa. 390, 397-98, 555 A.2d 1246, 1250 (1989), this Court stated:

*195Unquestionably, a prompt complaint is a factor which must be assessed with all of the other pertinent evidence bearing upon the question of the credibility of the complaining witness. In such cases the question of the sincerity of the complaint is raised if it is established that the delay under all of the factors present was either unreasonable or unexplained. Therefore, the inference of insincerity is only justified where the facts of the case fail to disclose a reasonable explanation for the challenged time lapse prior to the complaint.

(citations omitted). In the absence of the expert’s testimony, the jury in the instant case would not have known that insincerity is not the only possible explanation for the delay of a child sexual abuse victim in reporting a sexual assault.

The standard jury instructions on witness credibility invite the jury to consider the following factors when judging credibility:

(a) Was the witness able to see, hear or know the things about which he testified?
(b) How well could the witness remember and describe the things about which he testified?
[(c) Was the ability of the witness to see, hear, know, remember or describe those things affected by youth or old age or by any physical, mental or intellectual deficiency?]
(d) Did the witness testify in a convincing manner? (How did he look, act and speak while testifying? Was his testimony uncertain, confused, self-contradictory or evasive?)
(e) Did the witness have any interest in the outcome of the case, bias, prejudice or other motive that might affect his testimony?
(f) How well does the testimony of the witness square with the other evidence in the case, including the testimony of other witnesses? (Was it contradicted or supported by the other testimony and evidence? Does it make sense?)

*196Pennsylvania Suggested Standard Criminal Jury Instructions § 4.17(l)(a)-(f) (material in brackets is optional).

To the extent that a complaining witness may not recall certain details of a sexual assault, may not give complete details about the incident, and may delay reporting the incident, the jury will, on the basis of the standard jury instruction regarding credibility, be inclined to disbelieve that complaining witness’s testimony, in the absence of any evidence that such behavior can be explained.

The expert testimony presented, although bearing upon the complaining witness’s credibility, did not improperly enhance this witness’s credibility in that it did not directly address her credibility or the credibility of sexual abuse victims in general. As cogently observed by Superior Court in Commonwealth v. Pearsall, 368 Pa.Super. 327, 331 n. 1, 534 A.2d 106, 108-09 n. 1 (1987), allocatur denied, 524 Pa. 596, 568 A.2d 1246 (1989):

[Tjhere is a fundamental distinction between expert testimony which supports the credibility of a witness inferentially by establishing that a witness’ testimony is consistent with the acts and responses evidenced in known child abuse cases, and expert testimony which presumes to pass directly upon the veracity of a particular witness,

(emphasis in original). The jury herein had to decide whether this victim’s behavioral changes, inability to recall dates and times, failure to make a prompt complaint and omission of details resulted from sexual abuse or were due to other reasons. The expert’s testimony would assist the jury in its truth-seeking function (the same as the aforementioned jury instructions assist the jury in its truth-seeking function), but inasmuch as it did not “pass directly upon the veracity” of the victim, I believe that the trial court’s decision to admit this testimony was not “manifestly unreasonable,” and did not constitute an abuse of discretion.

With regard to the issue raised by Dunkle, i.e., whether Dunkle waived consideration of the trial court’s admission of evidence regarding prior misconduct involving the victim, the victim testified over Dunkle’s objection that prior to *197November, 1982, Dunkle would always go into his bedroom when she took showers and, by moving a panel in his closet, would peek at her while she showered. An experiment set up by the victim and her mother resulted in the victim’s mother observing Dunkle kneeling in the closet at the movable panel and watching the victim as she showered. The victim further testified that on one occasion in November of 1982, Dunkle came into her bedroom at night and fondled her breasts while she pretended to be asleep. Dunkle objected to this testimony on the ground that 1) testimony about prior sexual acts involving a victim and defendant is permissible only where incest is alleged; 2) the prior acts were substantially different from the acts with which Dunkle had been charged; and 3) the probative value of the evidence was clearly outweighed by the prejudice to Dunkle. Notes of Testimony at 46-47 (Mar. 24-27, 1987).

This disputed testimony was not objected to on the grounds that the prior misconduct was too remote in time and did not constitute a continuous course of conduct on the part of the cross-appellant. Superior Court, however, addressed the issue of the admissibility of the testimony about prior sexual acts, in spite of finding that it had been waived on the grounds alleged in Dunkle’s appeal, and ruled that this testimony would not be admissible at Dunkle’s retrial on the basis that “the isolated occurrences of prior misconduct testified to by the victim simply do not constitute ‘a series of acts indicating continuousness of sexual intercourse.’ ” 385 Pa.Super. at 823, 561 A.2d at 8. Dunkle argues that his objection to the testimony at trial was sufficient to apprise the Commonwealth and the trial court of the issues raised by the objection. In Commonwealth v. Raymond, 412 Pa. 194, 202, 194 A.2d 150, 154 (1968), cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964), this Court stated that “if the ground upon which an objection to testimony is based is specifically stated, all other reasons for exclusion are waived.” As Dunkle did not challenge the testimony on the grounds that the prior misconduct was too remote in time and did not constitute a *198continuous course of conduct on the part of Dunkle, I would find that this issue was waived.

Even if Dunkle had not waived the issue, I agree with the majority that the testimony regarding prior misconduct is admissible upon retrial.

Accordingly, I would reverse the order of the Superior Court reversing the judgment of sentence and remanding for a new trial, and I would reinstate the order of the Court of Common Pleas of Lycoming County entering the judgment of sentence.

This dissenting opinion is joined by PAPADAKOS, J.

. Superior Court ruled, in the interest of judicial economy, that this evidence would not be admissible at Dunkle’s retrial. Because Superi- or Court determined that it could not remand the case on the basis of this issue due to waiver, it is evident that Dunkle raises the issue to this Court in an exercise of caution.

. The majority points out that the expert witness herein was not a psychiatrist or a psychologist. Maj. op. at 171. Her lack of a professional degree has absolutely no bearing upon her qualification as an expert witness. In this Commonwealth, there is a liberal standard for the qualification of an expert witness, i.e., “if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the [fact finder]." Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988) (plurality opinion). That pretension to specialized knowledge may be based upon background, *191training, and experience. Id. Moreover, the qualification of an expert witness is a matter within the sound discretion of the trial court. Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977). The expert witness herein, based upon her background, training and extensive experience working with the victims of child sexual abuse, was clearly qualified to state what she had observed regarding the behavioral characteristics of such victims, and the trial court did not err in qualifying her as an expert witness. Appellant’s Brief and Reproduced Record at 46a-65a.

. Expert testimony is admitted to aid a jury when the subject matter of the testimony is related to a science, skill or occupation beyond the knowledge or experience of the average layperson. Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988). The average juror, who has had no experience observing child sexual abuse victims, knows little if anything about the psychological dynamics of intrafamilial sexual abuse and the behavioral characteristics of child sexual abuse victims.

. The majority herein challenges the testimony relating to the general behavioral characteristics of the victims of child sexual abuse on the basis of the "Frye " standard, which was first set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Maj. op. at 832. This standard has been rejected as suffering from "serious flaws” in United States v. Downing, 753 F.2d 1224, 1237 (3d Cir.1985), particularly as it relates to the admissibility of novel scientific evidence. The standard from United States v. Downing now known as the Downing standard, focuses on the scientific methodology used in generating the evidence to determine if it can be accepted as reliable by the court even if the evidence has not received widespread acceptance in the relevant scientific community. See Rubanick v. Witco Chemical Corp., 125 N.J. 421, 593 A.2d 733 (1991); see also Commonwealth v. Garcia, 403 Pa.Super. 280, 307-08, 588 A.2d 951, 964-65 (1991) (Ford Elliott, J., dissenting, joined by Del Sole, J., and Hudock, JJ.) (urging case by case review rather than the establishment of blanket prohibitions on such evidence so as not to “abandon the child in the courtroom”). Clearly, in the case sub judice, the scientific methodology employed in gathering information about the behavioral characteristics of the victims of child sexual abuse was beyond reproach as the expert witness testified to behavioral characteristics she had personally observed in over 500 such victims. Although the so-called “laundry list” of characteristics may not be sufficiently specific to the victims of child sexual abuse to satisfy the majority herein, no one has disputed the fact that these characteristics do exist and have been observed in such victims.