Commonwealth v. Purcell

BECK, Judge,

dissenting:

I agree with the majority’s resolution of the first four issues. However, unlike the majority I would not remand to determine trial counsel’s ineffectiveness. I conclude counsel was not ineffective in failing to object to the admission of expert testimony on characteristics common to victims of child sexual abuse and that counsel was not ineffective for failing to request a jury instruction on the statute of limitations. Since I would affirm the judgment of sentence, I dissent.

I find counsel was not ineffective in failing to object to the admission of expert testimony on the characteristics common to victims of child sexual abuse. Given the state of the case law at the time of appellant’s trial (March 1987), counsel could not have foreseen the more restrictive and, in my view, unfortunate turn that cases dealing with this issue have taken in recent years. Therefore, counsel cannot be charged with ineffectiveness for failing to make an objection which, at the time it might have been raised, was likely to fail under prevailing law.

As the majority makes clear in its thorough review of the development of the law on the admissibility of expert testimony in the context of child sexual abuse prosecutions, at the time of appellant’s trial the law was governed by two relevant cases, Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985) and Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). Every other case which the majority cites for its conclusion that “expert testimony may not be used by the Commonwealth to bolster the credibility of an alleged victim of child abuse” was decided after appellant’s trial. Therefore, the question is whether in March 1987, under Baldwin and Seese, counsel would have *383had grounds to object to the admissibility of the expert’s testimony. In my view, there were no such grounds.

In Baldwin, this court held that the testimony of a qualified expert concerning the psychological dynamics of incest and the behavioral patterns of incest victims is properly before the jury where such testimony is relevant to the issues at trial. In fact, the social worker in Baldwin, whose testimony was found to be admissible, testified about matters strikingly similar to the disputed testimony here. In Baldwin the social worker was permitted t® testify to “the effects of the incestuous relationship on the victim’s self-esteem, 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” Baldwin, supra, 348 Pa.Super at 373, 502 A.2d at 255.

In the instant case, these matters made up a large part of the substance of clinical social worker Sandra Steiker’s testimony as well The testimony was introduced because defense counsel In the instant case, similar to Baldwin, sought to impeach the credibility of the complainant based on her failure to report the abuse for six years, the lack of definition and detail in her accounts and her seemingly conflicted relationship with her father.

Based on Baldwin, defense counsel would have reason to assume that Sfeiker’s testimony was admissible assuming she was properly qualified and assuming the matters she addressed were issues at trial. At that time, the only other case which addressed the issue was Seese, which, although it delineated the proper limits of expert testimony In this context, did not undermine Baldwin and could not have alerted defense counsel to question the admissibility of this witness’ testimony. Seese Involved the testimony of a pediatrician who had treated about one hundred alleged child abuse victims over the course of the previous four years. During the course of her testimony, the witness stated that it is “very unusual” for children to Me about sexual abuse. She even went further and said that the category of ehil*384dren in which the complainant fell (prepubertal children) “do not lie.” She stated a presumably scientifically based opinion that these children “don’t know how to lie.” The Supreme Court condemned the introduction of the testimony and found that the expert had directly commented on the veracity of the one witness in the case whose credibility was most at issue. The court never cited Baldwin, nor did it directly or indirectly indicate that its resolution in Seese eroded the principles announced in Baldwin.

In the instant case, the expert, Sandra Steiker, never intimated an opinion regarding the credibility of the victim, Barbara Purcell, nor did she comment on the general truthfulness of members of her “class.” When appellant’s case was tried, the applicable law was as follows:

The fact that the jury, if it believes the expert’s testimony, may draw inferences which would tend to bolster the victim’s credibility does not make the evidence inadmissible. It is a commonplace fact that the testimony of one witness may tend to corroborate another. Far from being improper, this is normal and is good trial strategy____ In other words, so long as the expert does not render an opinion on the accuracy of the victim’s recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury.

Baldwin, 348 Pa.Super. at 376-377, 502 A.2d at 257 (citations omitted).

Sandra Steiker’s testimony fell directly within the permissible bounds of then current case law. Counsel cannot be ineffective for failing to predict changes in the law. Commonwealth v. White, 515 Pa. 348, 528 A.2d 596 (1987); Commonwealth v. Williams, 364 Pa.Super. 630, 528 A.2d 980 (1987). Counsel in the instant case attacked Ms. Steiker’s testimony on every available ground and subjected the witness to extensive and challenging cross-examination. Appellant is not entitled to relief on the issue because at time of trial Baldwin and Seese controlled and counsel cannot be ineffective for failing to predict changes in the law.

*385Since the time of appellant’s trial, this court has been called upon to interpret the reach of Seese in numerous cases. The majority has amply outlined the direction in which the law seemingly has gone since Baldwin and Seese were decided. I will not repeat the history of the case law here. I write instead to challenge the course these cases have taken with respect to the use of expert testimony in child sexual abuse cases and to join with others in advocating the need to allow appropriate use of expert testimony in this area. See Commonwealth v. Garcia, No. 1076 Philadelphia 1989, (Ford Elliott, J. dissenting), en banc reargument granted 8/16/90; Commonwealth v. Dunkle, 385 Pa.Super. 317, 332, 561 A.2d 5, 12-16 (1989) (Kelly, J. dissenting); Commonwealth v. Emge, 381 Pa.Super. 139, 146, 553 A.2d 74, 77-79 (1988) (Brosky, J. dissenting); Commonwealth v. Pearsall, 368 Pa.Super 327, 331 n. 1, 534 A.2d 106, 108-109 n. 1 (1987). See also Commonwealth v. Gallagher, 519 Pa. 291, 301, 547 A.2d 355, 361-362 (Papadakos, J. dissenting; Nix, C.J. joining dissent).

The consequence of the majority’s view will be to disallow any expert testimony in intrafamily abuse cases. As a result of this regrettable approach, juries will be left uninformed on the often mystifying and seemingly irreconcilable behavior patterns known to be characteristic of victims of child sexual abuse. This restrictive and unwarranted limitation on admittedly relevant testimony will inhibit the truth determining process of the trial. It will deprive the jury of knowledge derived from a body of scientific evidence and the experience of experts which is beyond the knowledge of laypeople. Justice Papadakos predicted in his dissent in Gallagher, supra, that these kinds of decisions “would lead inevitably to a situation where all psychological evidence would be barred.” Id. I find this trend particularly distressing in light of the fact that the probative nature and underlying validity of the expertise in this field has not been questioned by the appellate courts in any of its decisions. Rather the principal concern with the testimony in this and other similar cases appears to be that it invades the province of the jury and impermissibly influences its assess*386ment of the credibility of the complainant. It should be apparent that this class of expert testimony when properly limited does not invade the province of the jury any more than any other expert testimony. Expert testimony is designed to support one side of a controversy. Expert testimony practically always supports the position of the party who called the expert. Expert knowledge in all fields is based on the expert’s experience and a body of scientific evidence. Expert testimony on interfamily abuse is no different. I see no reason to single out this kind of expert testimony for exclusion.

Many factors converge in cases of this nature, i.e., intrafamily sexual abuse, which make these cases particularly appropriate for the proper use of expert testimony. First, there appears to be an undisputed body of knowledge regarding the patterns of behavior particular to victims of familial sexual abuse and their families. See Commonwealth v. Dunkle, supra, 385 Pa.Superior Ct. at 336-338 n. 4, 561 A.2d at 14-15 n. 4 (Kelly, J. dissenting) (citing dozens of scholarly articles documenting the significant amount of research accomplished in this field); see also State v. Middleton, 294 Or. 427, 431 n. 3, 657 P.2d 1215, 1222 n. 3 (1983). Moreover, incest continues to be a deep and pervasive taboo in our society and is beyond the ken and experience of most jurors. Yet, the jury is asked to assess the credibility of a child whose testimony or behavior would appear bizarre or inexplicable when judged by traditional credibility barometers. Depriving the jury of the expert’s knowledge and understanding of the psychological causes and manifestations which can be observed in these child victims, leaves the jury without guideposts in an area where their cumulative common sense and experience is likely to be of little use.

The instant case demonstrates the urgency for expert testimony in the truth determining process in incest and child sexual abuse cases. Here, the victim, Barbara Purcell, kept silent about the abuse for over six years. During that period of time, she maintained a superficially “normal” relationship with her father, even seeking out his company and approval. The incestuous relationship continued under *387the same roof as the rest of her family and yet they, particularly the mother, remained ostensibly unaware of it. The child's testimony was, at times, imprecise on details and time-frame. The expert’s testimony provided a context in which the jury could, with any hope of accuracy, assess the credibility of the child. Fairness alone would dictate the admissibility of the expert’s testimony. Defense counsel, through his cross-examination of the victim, sought to convince the jury that since the complainant did not report the abuse earlier it did not occur. It is unfair to permit this suggestion to go unrebutted when there is a recognized phenomenon among qualified professionals which can explain the behavior.1 Obviously, the jury remains free to decide whether this complainant’s behavior is thus explained or whether the abuse in fact did not occur. Contrary to the conclusion of the majority and those cases on which it relies, I believe that the jury required the expert testimony in order properly to evaluate the complainant. Without it, the jury lacks the knowledge to exercise its collective judgment.

I agree with Justice Roberts of the Supreme Court of Oregon who reasoned:

While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert’s testimony demonstrates the routine indicia of witness reliability — consistency, willingness to aid the prosecution, straightforward rendition of the facts — may, for good reason, be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.

State v. Middleton, supra, 657 P.2d at 1222; see also Wheat v. State, 527 A.2d 269, 273 (Del.Supr.1987) (“Expos*388ing jurors to the unique interpersonal dynamics involved in prosecutions for intrafamily child sexual abuse can provide jurors with possible explanations for complainant actions and statements that are, to average laypeople, ‘superficially bizarre’.”).

The flaw in the reasoning of the cases which disallow this kind of expert testimony is that here, unlike in more conventional cases, we cannot depend only on the jury’s “ordinary experience of life, their common knowledge of the natural tendencies of human nature.”2 This is so because the behavioral and psychological workings of these unique victims are outside the “ordinary experience” of most jurors. Acknowledging this does not in any way denigrate the judgment of juries. Nor does the admission of helpful, relevant expertise rob the jury of its ultimate function. On the contrary, it enhances and assists that function.

Furthermore, the fact that the expert’s testimony, if accepted by the jury, tends to corroborate the Commonwealth’s theory of the case and the credibility of the victim, does not mandate its exclusion. That is not the principle upon which admissibility of expert testimony is assessed. The purpose of expert testimony is to aid the fact finder in matters which are so complex or which go beyond common understanding or knowledge, that a jury requires specialized knowledge in order to make its ultimate determination. Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988). The expert in the instant case no more usurped the jury’s fact-finding function than does the expert in a narcotics possession case who testifies on a “drug courier profile.” Likewise, the expert here no more bolstered the victim’s credibility than does a medical expert who testifies that vaginal lacerations and adhesions are consistent with a complainant’s version of a rape. In my view, a jury which has been properly instructed on the use it may make of relevant expert testimony has not had its function usurped nor its fact-finding province invaded.

*389This court has never decided that all expert testimony on the psychological and behavioral patterns characteristic of incest victims and other sexually abused children is inadmissible. In fact, we have declined to so rule. See Commonwealth v. Emge, supra, 381 Pa.Superior Ct. at 146, 553 A.2d at 77. In my opinion, the instant case exemplifies the proper use of expert psychological testimony. Sandra Steiker was a well-qualified expert. The traits about which she testified were directly at issue, i.e., the secrecy and silence surrounding the crime, the seemingly normal relationship between a victim and a parent, and the incompleteness of a victim’s memory concerning the offense.

Ms. Steiker testified in a straightforward, measured manner regarding the common traits and emotional motivations shared by incest victims. She had never interviewed the complainant in this case and she did not attempt to match her behavior or psychological portrait to that of a known class of victims. She did not express an opinion on the credibility of Barbara Purcell nor did she intimate that incest victims never lie. She simply offered the jury the benefit of her expertise, experience and knowledge of studies about incest to assist them in understanding possible alternative interpretations of the child’s conduct. The jury was free to reject the testimony derived from the expert witness in whole or in part. The witness was subject to intensive cross-examination during which many of her assumptions and explanations were challenged by defense counsel.

A careful review of Steiker’s testimony reveals her as an unbiased expert whose testimony presented the jury with a context in which to consider the testimony of other witnesses. I find the expert testimony wholly within permissible limits. This case illustrates the value and proper use of expert testimony in intrafamilial abuse cases.

Furthermore, I would not find trial counsel ineffective for failing to raise the statute of limitations as a bar to a conviction for offenses occurring prior to 1983. The abuse in the instant case occurred continuously, repeatedly and *390frequently throughout the victim’s adolescence. The victim testified that the first incident of sexual touching occured around the time she was eleven years old. She further testified that sexual intercourse became regular and frequent about the time she was thirteen or fourteen years old. She did not refer to any one incident by date, except the final act of intercourse which took place on the weekend of May 17-18, 1986, a date clearly within the limitations period. The prosecution here was not based upon isolated, indeed even identifiable, discrete acts of abuse by appellant. Instead, it was based on appellant’s continuous course of conduct. Appellant did not defend himself in the instant case by arguing that certain acts of which he was accused occurred outside the limitations period. The factual issue in dispute here, and the one which the jury was charged to resolve, was whether the incidents of abuse occurred, not when. Appellant’s defense was that he never touched his daughter at all, indeed that he was never alone with her long enough for the sexual abuse to have happened. Contrary to the majority’s conclusion that it is “possible that appellant’s convictions were based upon conduct outside the limitations period,” I believe such a conclusion is impossible in the context of this case. The majority’s conclusion flies in the face of logic and ignores the nature of the evidence in this case. I believe it would have been irrational for defense counsel to have interposed a statute of limitations defense thereby raising to the jury an issue which was not a part of his defense.

This court’s decision in Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237 (1988) stands in stark contrast to the instant case. In Groff, a genuine issue of fact was presented concerning when the disputed act of intercourse occurred. Moreover, there defense counsel attempted to raise a substantial doubt in the jurors’ minds about whether the crime committed occured within the statutory period. In Groff, the date when the offense occurred was contested by the parties and was a major element of defense strategy. Therefore, in Groff we found that counsel was ineffective for failing properly to preserve the statute of limitations *391issue. In contrast, the trial in this case involved no such issue. In fact, it may well have undermined appellant’s strategy of total and resolute denial to have argued to the jury that since a period of time about which the victim testified fell outside the statute, appellant could not be convicted of those acts even if the jury found that he had committed them.

It is beyond dispute that appellant cannot prevail on a claim of ineffectiveness of counsel unless this court can conclude that there is a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different. Commonwealth v. Pierce, 515 Pa. 153, 161-62, 527 A.2d 973, 976-77 (1987). Under the circumstances of this case, the nature of the evidence and the matters in dispute, I am convinced beyond all doubt that the jury’s verdict would have been no different had a statute of limitations question been before it.

Accordingly, I would affirm the judgment of sentence.

. See McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence, 77 J.Crim.L. & Criminology 1, 62 (1986).

. Commonwealth v. Emge, supra, 381 Pa.Superior Ct. at 145, 553 A.2d at 77.