# Commonwealth v. Emge > Supreme Court of Pennsylvania · December 8, 1988 · 381 Pa. Super. 139 URL: https://www.frixlaw.com/law-library/cases/9542002 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Robert EMGE, Sr., Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 8, 1988 - **Citations:** 381 Pa. Super. 139; 553 A.2d 74; 1988 Pa. Super. LEXIS 3753 - **Precedential status:** Published - **Opinion:** Dissent by Brosky - **Judges:** Brosky, Johnson and Melinson - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9542002 ## How later opinions describe it (automated extraction) - holding that expert testimony that a child’s post-attack behavior was consistent with the behavior of victims of child sexual abuse invaded the province of the jury and was inadmissible ## Opinion text BROSKY, Judge, dissenting: I respectfully dissent. Appellant contends, and the majority agrees, that the testimony of the Commonwealth’s expert went too far in that it expressed an opinion bearing directly upon the alleged victim’s veracity. It is true that previous case law has held that testimony bolstering or commenting upon the child victim’s credibility is inadmissible. Commonwealth v. Rounds, 518 Pa. 204 , *147 542 A.2d 997 (1988), Commonwealth v. Seese, 512 Pa. 439 , 517 A.2d 920 (1986); Commonwealth v. Pearsall, 368 Pa. Super. 327 , 534 A.2d 106 (1987). However, the court has permitted expert testimony regarding the general behavioral and psychological characteristics of child sexual abuse victims. Commonwealth v. Pearsall, supra. In the Pearsall case, our Court stated: ... the record sustains the trial court’s ruling that the Commonwealth’s expert was qualified to express opinions regarding the child victim’s mental and verbal capacity as determined by standard and accepted tests and the effect of such capacity on a child’s ability to generate fantasies. * Id., 368 Pa.Superior Ct. at 332-333, 534 A.2d at 109 . Likewise, instantly, in language almost identical to that permitted in Pearsall , the expert testified that “Bobby’s ability to differentiate reality from fantasy is excellent for his age based on the testing and on the interview.” (Notes of Testimony, p. 209). Appellant equates this to a direct commentary on the child’s credibility. However, the expert merely commented upon the child’s general cognitive abilities. No opinion was expressed regarding the child’s veracity, nor was the issue removed from the jury. It must be remembered that even a child who is not fantasizing may not be telling the truth. Thus, credibility and veracity determinations remained with the jury. The expert’s testimony here falls far short of the forbidden testimony in Commonwealth v. Seese, supra. In Seese , the expert testified as follows: It is very unusual that a child would lie about sexual abuse____ [Pjrepubertal children usually do not lie about matters of sexual abuse no matter how chaotic or uncomfortable their home situation is, one, because they don’t *148 know how to lie about it. They don’t know what to say. It's not part of the life experience, so everything they say is something they have seen or experienced. It would be very unusual for them to lie. Supra, 512 Pa. at 441-42 , 517 A.2d at 921 . Nor does it approximate the testimony held to be inadmissible in Commonwealth v. Davis, 518 Pa. 77 , 541 A.2d 315 (1988), where the expert testified that “children who have not been involved in sexual experiences typically do not fantasize about sexual experiences.” On cross examination, .he said, “My experience with children who have had some type of sexual experiences when they report about it, typically it is based upon some event that actually occurred and not some fantasized or fabricated experience.” 518 Pa. at 80, 541 A.2d at 316 . Appellant claims that the expert’s comments regarding the child’s ability to distinguish between fantasy and reality, along with his testimony “that [the child] was the victim of sexual abuse ...” equalled the testimony in the Seese case; however, it must be noted that the expert here took every precaution to refer only to the “alleged child abuse” (Notes of testimony, 203-214). Nowhere was it affirmatively stated that the child was definitely a victim of child abuse. The majority cites the recent case of Commonwealth v. Gallagher, 519 Pa. 291 , 547 A.2d 355 (1988), in support of its position. However, Gallagher involved expert testimony on the Rape Trauma Syndrome, from which the victim was diagnosed as suffering, and its effect upon the identification process. There, the victim was unable to identify the appellant within weeks of the crime but did identify him four years later. The Pennsylvania Supreme Court disallowed such testimony in that case, as encroaching upon the province of the jury. The Gallagher testimony is much more similar to that of Davis or Seese than it is to Pearsall or the case sub judice. The Gallagher testimony was a corroboration of the victim’s immediate failure to identify the appellant and her recall four years later, rather than a *149 commentary on her cognitive abilities, as was the case instantly. I am in full agreement with the majority wherein they state: We retain an abounding faith in the ability of jurors to deal with these admittedly difficult and serious cases. We also steadfastly believe in the continued confidence and high regard in which we hold our jury system. Majority Op. at 146. I would, however, carry this “abounding faith” one step further, as I believe that jurors have the ability to decide whether a child is actually telling the truth, once they are told that the child knows the difference between truth and falsity. Believing, as I do, that the expert testimony did not strain the bounds of propriety, I do not feel that the expert’s testimony prejudiced appellant’s right to a fair trial. Finding no clear abuse of discretion on the part of the trial court, I would affirm the judgment of sentence. The expert testified that the child victim "is a very concrete thinking girl, and her ability to fantasize at an abstract level is quite limited.” (N.T. 3/6/86 at 19). On cross-examination, the expert explained, "her intellectual level is so limited, she would have a very difficult time describing the events that she described without having had the experience.” (N.T. 3/6/86 at 35). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9542002. Public record. Not legal advice.