Commonwealth v. Loner

POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Centre County, following appellant’s conviction on three counts each of rape, incest, indecent assault, corruption of minors and statutory rape. The charges against appellant stemmed from the alleged sexual abuse of his eight year old daughter. Herein, appellant questions whether the trial court erred in admitting the testimony of a Cindy Miele, a Children & Youth Services caseworker, concerning the use of anatomically correct dolls during the initial interview of the child-victim. Since we are convinced the testimony of the CYS caseworker impermissibly infringed upon the jury’s function of ascer*582taming the credibility of the victim, we reverse and remand for a new; trial.1

Appellant argues that the trial court erred in allowing, over objection, the direct testimony of CYS caseworker Cindy Miele. Specifically, appellant argues that the testimony concerning the victim’s use of anatomically correct dolls was equivalent to a “polyester polygraph,” used solely for the purpose of ascertaining the validity of the victim’s allegations. Further, appellant asserts the Ms. Miele’s testimony impermissibly bolstered the credibility of the victim, thereby, invading the exclusive province of the jury.

The record reveals that Ms. Miele was the caseworker from CYS who investigated the victim’s allegations of sexual abuse. She testified that the purpose of her initial interview with the victim was “to determine whether or not the report that was received from our office was an accurate report. Whether there was any truth to the matter that Mr. Loner had sexually abused [the victim]” Trial Transcript, p. 102 (emphasis added). Subsequently, Ms. Miele again stated that during her interview, she “was attempting to validate [the victim’s] report.” Trial Transcript, p. 106 (emphasis added). While attempting to “validate” the report, Ms. Miele provided the victim with anatomically correct dolls so that the child could demonstrate the alleged sexual acts with the dolls. Trial Transcript, p. 107. After describing the anatomically correct dolls and their investigatory function, Ms. Miele testified that the victim used the dolls in a manner “consistent” with her prior oral statement. Trial Transcript, p. 108.

Ms. Miele further testified that following her interview with the victim, she “determined that it would not be safe *583for [the victim] to return to her parents’ home.” Trial Transcript, p. 110. Significantly, Ms. Miele specifically testified that she told Mrs. Loner and her mother-in-law that “I believed the victim’s statements and accordingly had placed her in foster care until the legal work was completed.” Trial Transcript, p. 110 (emphasis added).

The law is clear that the determination of the veracity of a witness is reserved exclusively for the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). As such, testimony, especially that of an expert, which serves to bolster the veracity of a child sexual abuse victim impermissibly infringes upon the province of the jury. Seese, supra; Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991). Accordingly, we must determine the purpose for which Cindy Miele’s testimony was offered.2

We are convinced that Ms. Miele’s testimony was offered to “bolster the veracity” of the victim and, therefore, impermissibly infringed upon the jury’s function of assessing the victim’s credibility. Ms. Miele testified that her function was to determine whether there was any “truth” to the report of sexual abuse and to “validate” the report. She testified that the child’s oral recitation of the abuse was consistent with her use of the dolls. Most importantly, Ms. Miele specifically testified that after her initial investigation was complete, she “believed” the victim. We find that the Commonwealth should not be permitted to present testimony which so clearly usurps the jury’s function by allowing them to defer to Ms. Miele’s assessment of the victim’s allegations.

This is not merely a case where the Commonwealth presented evidence of the child-victim’s prior consistent statement in order to corroborate the victim’s testimony. *584See Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988) (even unimpeached testimony of a child-victim may be corroborated by prior consistent statement); Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987) . Rather, through Ms. Miele’s testimony, the Commonwealth entered into evidence not only the victim’s prior consistent statement (and consistent use of the anatomically correct dolls) but also presented the CYS caseworker’s personal assessment of the truth of those statements. Simply, Ms. Miele’s testimony that she believed the victim should not have been allowed. Accordingly, we reverse the decision below and remand this case for a new trial.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

. Appellant also questions: Whether the trial court erred in permitting the Commonwealth to introduce the testimony of a registered nurse and a physician regarding the physical examination of the victim, and whether the trial court erred in permitting the Commonwealth to present testimony regarding statements made by appellant to a state trooper during the investigation. We do not reach these issues on their merits due to our resolution of appellant’s first allegation of error.

. Ms. Miele testified that she had undergone specialized training in the area of interviewing and working with child-victims of abuse. Trial Transcript, p. 102.