Commonwealth v. Gallagher

CAVANAUGH, Judge,

dissenting:

I respectfully dissent and would grant a new trial. The evidence presented at trial evinced the following facts. At approximately 2:20 A.M. on November 26, 1977 a man gained entrance to the house of the victim by posing as a Philadelphia police officer. Once inside, the imposter grabbed the complainant and threw her against the wall. He proceeded to choke her and said “shut up or I will kill you.” The assailant pushed the victim into the dining room and ordered her to disrobe. He then forced her to kneel and commit oral sex. Before he left, the assailant gathered the victim’s clothing and told her that he was taking them *454 to prove to the police that she was a willing participant, in the event that he was caught. The victim was subsequently treated at Jefferson Hospital and gave police a detailed description of the criminal, including his name. 1

On December 10, 1977, the appellant voluntarily went with police to the Northeast Detective Division where the complainant failed to make a positive identification. Years later, the victim happened upon the appellant and identified him to the police as her attacker. The appellant was subsequently arrested on February 17, 1982, on charges of rape, indecent assault, indecent exposure, involuntary deviate sexual intercourse, burglary, aggravated assault, simple assault, and impersonating a public servant. 2 On March 9, 1983 the jury found appellant guilty of involuntary deviate sexual intercourse. 3 Post verdict motions were filed by new counsel and, following a hearing, were denied on May 29, 1984. Appellant was then sentenced to a term of imprisonment for ten to twenty years to run consecutive to any sentence he was then serving.

Appellant asserts that the trial court erred in allowing the prosecution to present the testimony of Dr. Ann Burgess. At trial, the Commonwealth called as an expert witness, Ann W. Burgess. Burgess stated that her training has been as a registered nurse in psychiatric nursing. She holds a Masters Degree in psychiatric nursing and a degree of Doctor of Nursing Science. The witness is not a medical doctor and, of course then, not a psychiatrist. Dr. Burgess *455 testified concerning the phenomenon known as the “rape trauma syndrome.” She described rape trauma syndrome as a set or cluster of symptoms that she and her colleague, Linda Holmstrohm, observed in rape victims. (Burgess and Holmstrohm co-authored the study, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981 (1974) which is accredited with being the first study to describe the crises resulting from a sexual attack as “rape trauma syndrome”). Dr. Burgess testified as to extensive teaching, research, lecturing, writing and forensic experience dealing with the psychological results found in victims of rape. She stated that the Manual of Diagnostic Disorders published by the American Psychiatric Association recognizes rape trauma syndrome under its classification of post-traumatic stress response disorders and that it has done so since 1972. The rape trauma syndrome (RTS) symptoms are stated to be present in two phases: those which occur right after the rape (the acute phase) and which generally subside within a few days to weeks and the second phase (the reorganization phase), which may subsist for months or years until the victim can fully integrate the symptoms into her psychological experience so as to fully resume daily life as before the rape. The jury was told about features of the stress disorder including stress of “significant magnitude”, intrusive imagery, numbing, phobias, hyperaltertness and other symptomology. Following this desription of RTS the witness stated that she had examined the victim in this case about a week previously and had reviewed the preliminary hearing notes of testimony and police reports relating to the case. Over objection, Burgess stated that it was her conclusion that the victim was suffering from rape trauma syndrome and related how certain aspects of this phenomenon bore upon the victim’s post-rape history.

The court initially heard the witness outside the hearing of the jury prior to her jury testimony. At that time much of the inquiry to the witness related to her qualifications and an explanation of RTS. Inquiry was made concerning the victims’ identifying her assailant. Objection was made *456 that the testimony of the witness was irrelevant and prejudicial in that it would tend to create sympathy for the victim: further it was objected that the testimony was improper insofar as it bore upon the identification procedures.

Indeed, it is necessary to focus on the testimony to see if it was relevant to any issue in the case and, if so, whether it was properly admitted. Regardless of the inherent reliability of the evidence, it can be argued that it is in fact not relevant. Here, there was no issue that the victim had been raped — the contention of the defendant was simply that he was not the perpetrator. In support of his defense, defendant was able to show in his case, that the victim had failed to identify him among photographs shown to the victim in her home on December 10, 1977 by two detectives. On the same date, Gallagher agreed to a one-on-one confrontation with the victim at a police station and again there was no identification. This was just two weeks after the rape which occurred on November 26, 1977. Appellant persisted in pursuit of her attacker and finally in February of 1982 made an identification from a group of photos presented by the police and later made a lineup identification. Thus clearly emerged the basic issue in the case — the victim’s identification of Gallagher as the rapist.

A number of jurisdictions have dealt with the admissibility of rape trauma syndrome testimony. Most commonly, the evidence is offered to support the prosecution on the issue of consent. (If the victim exhibits the symptomology of RTS it is likely that she was in fact raped and there was, therefore, no consent). The jurisdictions are divided on this issue. The evidence has been held admissible in State v. McQuillen, 236 Kan. 161 , 689 P.2d 822 (1984) and State v. Liddell, 685 P.2d 918 (Mont. 1984). However, the weight of authority is against admissibility on the consent issue: People v. Bledsoe, 36 Cal.3d 236 , 203 Cal.Rptr. 450 , 681 P.2d 291 (1984); Allewalt v. State, 61 Md.App. 503 , 487 A.2d 664 (1985); State v. Saldana, 324 N.W.2d 227 (Minn.1982); State v. Taylor, 663 S.W.2d 235 (Mo.1984). As these cases *457 demonstrate, there are serious questions to be answered concerning RTS expert testimony even when bearing upon the relevant issue of consent. Since there was no issue of consent in this case one might conclude that the expert testimony was not relevant, and should then ask if it was prejudicial and harmful, but a close examination of the evidence discloses that the Commonwealth in fact sought to use this evidence in a highly relevant manner on the core issue in the case-identification. In assessing the relevancy issue we observe that the Commonwealth has not briefed this issue on appeal, but instead relies upon the trial court opinion. The trial court in its opinion denying post verdict motions, stated that the testimony was admitted to educate the jury as to the concept and rationale of rape trauma syndrome. The court further stated (relative to the claim of impropriety of the evidence on the issue of identification) that the evidence was considered “to call the jury’s attention to an injury suffered as a consequence of an assault— especially an injury affecting the victim’s abilities to relate or recall the incident is not per se prejudicial.” (Emphasis added.) Lower court op. at 19. Our examination of Dr. Burgess’ testimony before the jury, does reveal that, though somewhat opaquely stated, the witness did indeed offer an expert explanation of the witness’ troubles with identification:

Q. And, what about the phobia about repetition of seeing the face? Could you describe and explain that to us? A. The — right. She had an opportunity to see the assailant’s face, and, so, that imprinted, if you will, in her mind, and that is a flashback. That keeps coming back.

In fact, right after the assault, she described how this would happen, where suddenly thinking she saw someone, again a common reaction that she also had, feeling that he is everywhere, because the assault was still so new, still so fresh.

Q. How is that integrated, that phobia?

A. That becomes integrated as their time advances, and some perspective, some of the cognative, [sic] functioning *458 can come over, and there can be some, if you will — that’s not many — some consoring, in other words, concede the person — see some facial characteristics and say, “That doesn’t match. There is something different” kind of thing, and, so, that whole phenomena comes in so that over time they move from everybody is the assailant to maybe only people that have a certain characteristic, and then it subsides to they get into focus of what the person is.

It’s a gradual process.

Q. Is a five-year time period a telling time period for this gradual integration process?

A. Our study of our victims showed four to six years later we had still twenty-five percent that were still very symptomatic. We had others, of course, who had recovered, but five years you still have a very — in certain areas you can have specific symptoms in the phobic area, because that’s more or less the definitions of a phobia. It wards off into a particular area of symptoms.

Q. And, would that account for her flood of emotions still to this day about the material?

A. Yes. What seems to happen in the research we have been looking at is traumatic events are what is called actively stored in the mind, and when a certain, if you will, button is pressed: i.e., seeing someone, or whatever, all of that emotion and everything can just come flooding back, and that’s the phenomenon of a flashback out of the past.

An event comes back, because there has been some triggering in the environment that the person is in, and it just kind of brings it all back.

Q. By bringing it all back, does it also bring the phase back of the original assailant? Is that the kind of thing that would flash right back before your eyes?

A. Oh, yes.

N.T. at 5.85-5.86 (March 4, 1983). The evidence regarding RTS was, therefore, at least facially relevant to the issue of *459 identification. This fact, however, does not end the inquiry as to its admissibility.

The jury heard the impressive credentials of Dr. Burgess, including the fact that she had done some of the basic research and had conducted the studies which formed the basis for recognition of the principles of rape trauma syndrome. Given the aura of confidence which lay persons naturally attach to expertise, it would be unrealistic not to conclude that the jury would seize upon Dr. Burgess’ explanations to solve the critical issue of identification which faced it. The question then is whether or not the court erred in permitting expert testimony from Dr. Burgess as an aid to the jury on the issue of identification. I conclude the testimony was improperly admitted on this issue and since it was not relevant to any other issue in the case, it should have been excluded. I so conclude for several reasons. First, it must be remembered that the witness however qualified, is a doctor of nursing, not medicine. 4 Yet, the witness was permitted to give her diagnosis that the victim was suffering from the rape trauma syndrome and its characteristics including the crucial phobia relating to recognition of the perpetrator. The fact that the witness’ studies have found some acceptance in the medical community, does not mean that the expert is on an individual basis qualified to render a medical, in fact, psychiatric opinion. Thus, while the witness was undoubtedly qualified *460 to discuss the RTS phenomenon as a result of her broad experience and work in this area, there is nothing in the record to qualify her as a medical expert, one who could examine and diagnose the mental state of an individual patient. The relevant issue before the jury was the proper identification of appellant as perpetrator of the rape. On this issue the jury was faced with the victim’s seemingly inconsistent identifications and the witness is simply not qualified to give expert opinion in this area.

I recognize that in Pennsylvania, one who offers an expert may testify if there is a reasonable pretension to specialized knowledge on the subject under investigation. Arnold v. Loose, 352 F.2d 959 (1965).

I further recognize that the allowance of testimony by an expert witness is a matter within the sound discretion of the trial court, Houston v. Canon Bowl, Inc., 443 Pa. 383 , 278 A.2d 908 (1971); Reed v. Hutchinson, 331 Pa.Super. 404 , 480 A.2d 1096 (1984), and the decision to admit the testimony should not be reversed unless the trial court clearly abused that discretion. Junk v. East End Fire Dept., 262 Pa.Super. 473 , 396 A.2d 1269 (1978).

Here, however, Dr. Burgess did not purport to be an expert on a victim’s ability to identify. 5 Similarly, the expert did not testify to such qualifications as would permit her to testify about psychological phenomena and the diagnosis thereof. Cf. Kravinsky v. Glover, 263 Pa.Super. 8 , 396 A.2d 1349 (1979); Simmons v. Mullin, 231 Pa.Super. 199 , 331 A.2d 892 (1974).

More importantly, I do not believe that the RTS testimony, bearing as it does on the central issue of identification, *461 is properly admissible. Viewed practically, the evidence in this case presented nothing more than an attempt to bolster the credibility of the victim by expert opinion. In a similar vein, our supreme court recently dealt with a claim of error in the rejection of testimony of a clinical psychologist who would testify as to the defendant’s state of mind and intentions. In affirming the trial court’s exclusion of the testimony, Justice (now Chief Justice) Nix stated:

Traditionally, we recognized not only the jury’s ability to determine the credibility of the witnesses but also we have placed this determination within their sole province. Commonwealth v. Hampton, 462 Pa. 322 , 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605 , 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486 , 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258 , 293 A.2d 33 (1972). To permit psychological testimony for this purpose would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment. Our research has failed to reveal any authority for this proposition nor has [appellee] been able to supply either authority for or persuasive arguments in support of such a position. We do not believe that a concept as fundamental to our law as trial by jury of one’s peers can be cavalierly abandoned.

Commonwealth v. O’Searo, 466 Pa. 224, 229-30 , 352 A.2d 30, 32 (1976). See also Commonwealth v. Battle, 289 Pa.Super. 369 , 433 A.2d 496 (1981). I would therefore find that the trial court in the instant case abused its discretion in admitting the testimony of Dr. Burgess.

I would further grant a new trial because of trial counsel’s ineffectiveness in failing to object to a repetitive series of accusatory outbursts by the complainant during her testimony. Given the history of her difficulty in identifying the appellant, the derisive, conclusory, and hostile utterances by complainant could only serve to impress the jury of *462 her certitude at trial that appellant indeed was her attacker. Counsel’s restraint from objecting on the basis that it made appellant less credible in the eyes of the jury cannot reasonably be said to effectuate appellant’s interests.

In addition to the improper statements set out in footnote 18 of the majority opinion, complainant, during the course of her testimony, made the following statements without objections or admonition:

He’s running from me, that’s what he is running from.

He’s devious, sneaky. This is what he is all about.

Q. Now are you positive that the man you have identified today in this courtroom is the man that sexually assault you on November 26, 1977?

A. I am very positive.

He knows it, I know it.

Before this is over, everyone of you will know it, everyone of you will know it the way I know it.

■ I know his whole — I know how right now he can sit there and look at me like he did nothing, and I know it’s playacting, and he knows it’s playacting.

And, even in the courtroom, the first couple times I saw him in the courtroom, I cried every time he came in. The first time he came in here, I cried. I cried at the lineup when I saw him, and I just learned this week not to be afraid of him.

And, suddenly, I am at this stage where I want him to get it, and I am not afraid any more.

N.T. March 2, 3, 1983 at 391, 392, 393, 417 and 472.

I would grant a new trial.

. The assailant had identified himself while posing as a police officer. Also, the victim had recognized him as the person who came to her house in May, 1977 to give her an estimate on fixing her windows.

. Appellant was tried only on the charge of involuntary deviate sexual intercourse because the statute of limitations had run on the other seven offenses.

. Section 211 provided a five year statute of limitations for the crimes of sodomy and other specifically enumerated crimes, while establishing a two year limitations period for all other felonies not specifically listed. Appellant contends that involuntary deviate sexual intercourse falls within the latter category. However, as the trial court aptly noted, "[t]he crime of involuntary deviate sexual intercourse is but the crime of sodomy by another name." Compare 18 P.S. § 4501 (1973) with 18 Pa.C.S.A. § 3101 (1983).

. The record did not develop the area of expertise encompassed in earning a doctoral degree in nursing. Hence, I am unable to conclude unequivocally that Dr. Burgess’ training would render her an equivalent of a medical doctor for evidentiary purposes.

It should be noted that in those cases which have considered the admissibility of RTS expert evidence, the witness was a physician. See State of McQuillen, 236 Kan. 161 , 689 P.2d 822 (1984) (psychiatrist); Alle walt v. State, 61 Md.App. 503 , 487 A.2d 664 (1985) (psychiatrist); State v. Taylor, 663 S.W.2d 235 (Mo.1984) (psychiatrist). See also People v. Bledsoe, 36 Cal.3d 236 , 203 Cal.Rptr. 450 , 681 P.2d 291 (1984) (court rejected RTS evidence of non-medical experts; no discussion of qualifications); State v. Saldana, 324 N.W.2d 227 (Minn. 1982) (court rejected RTS evidence for reasons, inter alia, that witness was not qualified); State v. Whitman, 16 Ohio App.3d 246 , 475 N.E.2d 486 (1984) (court appears to approve psychiatric testimony and reject unqualified social worker testimony).

. Recently, the California Supreme Court which had rejected rape trauma syndrome evidence (People v. Bledsoe, supra.) approved the usage of expert testimony as to the psychological factors which may affect eyewitness identification testimony by an expert with specific qualifications with respect to the phenomenon and characteristics of eyewitness testimony. Similarly, such evidence was approved by the Third Circuit Court of Appeals interpreting the Federal Rules of Evidence. U.S. v. Downing, 753 F.2d 1224 (3d Cir.1985).