Commonwealth v. A.R.

80 A.3d 1180, 622 Pa. 356, 2013 WL 5827031, 2013 Pa. LEXIS 2575
CourtSupreme Court of Pennsylvania
DecidedOctober 30, 2013
StatusPublished
Cited by18 cases

This text of 80 A.3d 1180 (Commonwealth v. A.R.) 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. A.R., 80 A.3d 1180, 622 Pa. 356, 2013 WL 5827031, 2013 Pa. LEXIS 2575 (Pa. 2013).

Opinions

OPINION

Justice EAKIN.

Appellant was found guilty of sexual abuse of children,1 invasion of privacy,2 and criminal use of a communications facility3 for videotaping his 13-year-old stepdaughter undressing in the bathroom. Although appellant admitted to the videotaping, he contended his motivation was to embarrass her and correct her behavior for having twice entered his bedroom while he was naked. The trial court did not credit appellant’s testimony concerning his motivation and found him guilty on all counts. He was sentenced to a probation[1181]*1181ary term of three and one-half years and ordered to undergo a sex offender evaluation and follow all treatment recommendations as a specific condition of his probation. Appellant did not appeal.

Appellant’s sex offender evaluator, Dr. Barry Zakireh, recommended appellant participate in mandated sex offender treatment with an emphasis on treatment of his denial and justification behavior, which included the use of therapeutic polygraph examinations when necessary. Dr. Zakireh reasoned appellant portrayed characteristics receptive to treatment, but minimized his actions and underreported his level of sexual attraction to the victim in planning his behavior. During his initial 12-week orientation period in the program, appellant continued to deny sexual motivation for his conduct, which prevented him from successfully advancing in his treatment. Therefore, a therapeutic polygraph was administered to confront appellant with his disingenuous behavior and attempt to steer him back to proper treatment, which required he admit the sexual nature of his actions as established by the trial court’s conclusions of fact, reflected in his conviction. During a one and one-half-hour examination, appellant was asked ten questions, three of which were “relevant questions” designed to probe his sexual motivation for his offense.4 Each of the questions was reviewed word-for-word with appellant before the polygraph was administered, and each was asked in different ways three times to assure accuracy. For each of the three “relevant questions,” the test evaluator concluded appellant provided deceitful answers.

After the polygraph examination, a program mental health professional continued to question appellant regarding his motivation for making the videos, and appellant continued his pattern of justifying his behavior and denying any underlying sexual motivation. It was determined appellant was engaged in cognitive distortions for the purpose of reasoning away his behavior and, thus, not making progress in his treatment. As a result, appellant was discharged from the program. Concluding appellant’s discharge from the program was a violation of his probation conditions, appellant’s probation officer filed a petition with the trial court. The trial court conducted a violation of probation (VOP) hearing, where it received the evidence outlined above, including the results of the therapeutic polygraph examination. Based on this evidence, the trial court found appellant violated his probation requirements, and it revoked his probation. Appellant was sentenced to another probationary term of three years and ordered to complete the sex offender program, including polygraph examinations administered to monitor his compliance.

Appellant appealed to the Superior Court, claiming there was insufficient evidence to support the trial court’s conclusion he violated his probation, and the trial court erred in admitting the results of his therapeutic polygraph examination into evidence at his VOP hearing. Commonwealth v. A.R., 990 A.2d 1, 2 (Pa.Super.2010). In a published opinion, the Superior Court affirmed and further expounded conditions on the admissibility of therapeutic polygraph examination results at VOP hearings. Id., at 2, 6-7. The court concluded a reasonable reading of its “precedent regarding probation revocation proceedings indicates that, with certain caveats, therapeutic polygraph evidence may be admitted as supportive proof of a violation of a condition of a [1182]*1182sexual offender’s therapy-related probation requirements.” Id., at 6 (citing Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa.Super.2007); Commonwealth v. Castro, 856 A.2d 178, 181 (Pa.Super.2004)). Thus, the court held:

[T]he results obtained from the administration of a therapeutic polygraph examination in a sexual offenders’ treatment program are admissible at a probation revocation hearing as evidence to support the underlying violation, ie., a sexual offender’s lack of amenability to treatment, so long as [1) ] the results of that examination are not the sole basis for the revocation petition; [2) ] they do not reveal uncharged criminal conduct on the part of the defendant; and [3) ] they are not used for purposes of the investigation of criminal conduct.

Id., at 7 (emphasis in original) (citations omitted).

The Superior Court concluded “the administration of the therapeutic polygraph examination was a ‘last ditch’ attempt to keep [a]ppellant in treatment, rather than having been the reason for his ultimate discharge.” Id. (emphasis in original). The court further noted concerns regarding potential violations of appellant’s Fifth Amendment privilege against self-incrimination were not present because the polygraph was used to underscore the fact appellant was not yet fully amenable to treatment — a requirement of his probationary sentence — due to his persistent denials of the sexual gratification component of his criminal activity. Id.; cf. Shrawder, at 442-43 (citations omitted) (Fifth Amendment issues arise where therapeutic polygraph examination evidence used to establish defendant’s commission of offense or used as investigative tool to ferret out defendant’s uncharged criminal conduct). Accordingly, the Superior Court concluded the trial court did not err in admitting into evidence the results of appellant’s therapeutic polygraph examination. Judge Colville dissented, finding Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976) (plurality), ovemled on other grounds by Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), precludes admission of polygraph results in all circumstances. A.R., at 8 (Colville, J., dissenting). We granted review of the following issue:

Did the Superior Court err in affirming the admission of the results of the therapeutic polygraph at the violation of probation hearing? Were the enumerated conditions of admissibility appropriate?

Commonwealth v. A.R., 616 Pa. 469, 50 A.3d 122 (2012) (per curiam).

Citing Gee, appellant contends polygraph examination results are unreliable and inadmissible for any purpose in Pennsylvania. While appellant recognizes his obligation to take the therapeutic polygraph, he asserts the results should only be used as part of therapy and treatment.

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Bluebook (online)
80 A.3d 1180, 622 Pa. 356, 2013 WL 5827031, 2013 Pa. LEXIS 2575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ar-pa-2013.