Commonwealth v. Allison

703 A.2d 16, 550 Pa. 4, 1997 Pa. LEXIS 2531
CourtSupreme Court of Pennsylvania
DecidedNovember 24, 1997
Docket13 E.D. Appeal Docket 1995
StatusPublished
Cited by16 cases

This text of 703 A.2d 16 (Commonwealth v. Allison) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Allison, 703 A.2d 16, 550 Pa. 4, 1997 Pa. LEXIS 2531 (Pa. 1997).

Opinions

OPINION

ZAPPALA, Justice.

We granted allocatur to address the issue of whether the trial court erred in allowing a lay person to testify as to the condition of a rape victim’s hymen. We find that the trial court abused its discretion in admitting such testimony. Therefore, we vacate the judgment of sentence and remand for a new trial.

Following a jury trial, Appellant, Donald R. Allison, was convicted of statutory rape, involuntary deviate sexual intercourse, and aggravated indecent assault. Appellant’s motion for a new trial and arrest of judgment was denied and he was sentenced to an aggregate imprisonment term of seven to fourteen years. Appellant appealed to the Superior Court, which affirmed the judgment of sentence.

[6]*6The record reveals that the complainant, the seven-year-old daughter of Appellant’s common-law wife, lived with her aunt, Mildred Harvey, in North Carolina. In 1991, the complainant, with her two sisters and her brother, came to visit their mother in Norristown, Pennsylvania for the months of July and August. Upon returning to North Carolina, Harvey noticed blood stains on the complainant’s underwear. Harvey took the complainant to a physician, who informed the aunt that the bleeding could have been caused by a sexual assault. The complainant subsequently told her aunt that Appellant had touched her and sexually assaulted her in August, 1991.

At trial, the complainant’s examining physician did not testify. Harvey testified as to her observations of the condition of the complainant’s hymen which she made during the physician’s gynecological examination of the complainant. On direct examination, the aunt’s testimony concerning her observations during the physician’s examination of the complainant was as follows:

Q. Do you know whether the doctor performed a physical examination of [complainant]?
A. Yes, she did.
Q. Who was present for that physical examination?
A. I was and her assistant, nurse.
Q. During the time of the physical examination, were [complainant’s] pants or panties on or off?
A. They were off.
Q. Did you have a chance to observe her vaginal area?
A. Yes, I did.
Q. Do you know what a hymen is?
A. Yes, I do.
[DEFENSE COUNSEL]: Your Honor, great latitude was given during direct examination of the victim as a result of—
THE COURT: Are you objecting?
[DEFENSE COUNSEL]: Yes.
THE COURT: Don’t lead as much.
[7]*7[PROSECUTOR]:
Q. Do you know what a hymen is?
A. Yes.
Q. What is it, as best you can describe?
A. It is the thin layer of skin over the opening of the vagina.
Q. What was the condition of [complainant’s] vaginal area with regard to her hymen?
A. It was split.
Q. What do you mean by it was split?
A. It showed that a penetration had been made—
[DEFENSE COUNSEL]: Your Honor, I’m objecting.
THE COURT: Sustained.
[PROSECUTOR]:
Q. What is it that you mean by split?
A. It showed that someone had forced—
[DEFENSE COUNSEL]: Your Honor, I’m objecting.
THE COURT: Yes and I’m sustaining it.
[PROSECUTOR]: I agree.
Q. Mrs. Harvey, just explain what you saw with your eyes that gave you the impression that it was split.
A. Well, it wasn’t—
Q. As best you can.
A. It was opened. It was just open, not a normal—it was a penetration that had been made.
[DEFENSE COUNSEL]: Your Honor—
THE COURT: That’s not what you observed. Sustained.
[PROSECUTOR]:
Q. I assume the last phrase.
THE COURT: The last phrase, yes.
THE WITNESS: It was a large opening.

(N.T., 1/4/93, pp. 77-79.)

At the outset, we note the applicable standard of review. The admission or exclusion of evidence is a matter for [8]*8the discretion of the trial court. This court will only reverse for a clear abuse of the trial court’s discretion. Commonwealth v. Foy, 531 Pa. 322, 325, 612 A.2d 1349, 1351 (1992).

Appellant argues that the trial court erred in allowing Harvey, a lay person, to testify concerning the condition of the complainant’s hymen. Appellant contends that Harvey’s testimony was in the nature of an opinion and that to be admissible, such testimony had to be given by a medical expert.

The Commonwealth counters that Harvey’s testimony as to the condition of the complainant’s hymen was not an opinion for which an expert was required. Rather, the Commonwealth asserts that Harvey testified as a lay person regarding her personal observation of facts and that such testimony is admissible.

As a general rule, a lay person may testify as to distinct facts observed by him concerning the apparent physical condition or appearance of another. Travellers Insurance Co. v. Heppenstall Co., 360 Pa. 433, 440, 61 A.2d 809, 813 (1948) (“A lay witness may testify as to the apparent physical condition of a person; he is barred only as to matters involving the existence or nonexistence of a disease the discovery of which requires the training and experience of a medical expert.”); Commonwealth v. Green, 251 Pa.Super. 318, 323, 380 A.2d 798, 801 (1977) (“The existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, can as easily be ascertained by the lay person as by the trained physician.”); Baum v. Metropolitan Life Ins. Co., 144 Pa.Super. 37, 41, 19 A.2d 486, 487 (1941) (“Lay witness may testify as to certain matters involving health, the apparent physical condition of a person, and as to obvious symptoms, but this testimony must be confined to facts within his knowledge, and may not be extended to matters involving the existence or non-existence of a disease, which is discoverable through the training and experience of a medical expert.”).

During an in chambers conference prior to Harvey’s testimony, defense counsel objected to her testimony regarding

Free access — add to your briefcase to read the full text and ask questions with AI

Related

WILKOSKI v. B&T EXPRESS, INC
W.D. Pennsylvania, 2022
Com. v. Poteet, E., Sr.
Superior Court of Pennsylvania, 2021
Com. v. Santiago, J.
Superior Court of Pennsylvania, 2020
Com. v. Spaulding, K.
Superior Court of Pennsylvania, 2020
Com. v. Greenfield, S.
Superior Court of Pennsylvania, 2020
Com. v. Schrock, J.
Superior Court of Pennsylvania, 2018
Commonwealth v. Gause
164 A.3d 532 (Superior Court of Pennsylvania, 2017)
Commonwealth v. Montalvo
986 A.2d 84 (Supreme Court of Pennsylvania, 2009)
Cominsky v. Donovan
846 A.2d 1256 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Minerd
753 A.2d 225 (Supreme Court of Pennsylvania, 2000)
Commonwealth v. Counterman
719 A.2d 284 (Supreme Court of Pennsylvania, 1998)
Commonwealth v. Bardo
709 A.2d 871 (Supreme Court of Pennsylvania, 1998)
Commonwealth v. Allison
703 A.2d 16 (Supreme Court of Pennsylvania, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
703 A.2d 16, 550 Pa. 4, 1997 Pa. LEXIS 2531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-allison-pa-1997.