Commonwealth v. Johnson

690 A.2d 274, 456 Pa. Super. 251, 1997 Pa. Super. LEXIS 242
Superior Court of Pennsylvania·Decided February 17, 1997·Published·Cited by 17 cases

Opinions

JOHNSON, Judge:

In this appeal, we are asked to determine whether a trial court may exclude expert medical testimony that the absence of evidence of physical trauma is consistent with incidents of sexual abuse. We hold that this testimony is admissible. Accordingly, we reverse and remand for further proceedings consistent with this Opinion.

[253] On January 23, 1995, the Commonwealth charged Glenn A. Johnson with two counts each of involuntary deviate sexual intercourse (IDSI), attempted IDSI, aggravated indecent assault, indecent exposure and corruption of minors. The Commonwealth based these charges upon allegations that Johnson had sexually abused F.A., a six-year-old boy.

During discovery, Johnson learned that the Commonwealth planned to introduce the testimony of expert medical witness Dr. Allan R. DeJong. DeJong is a pediatrician who examined F.A. approximately two years after the last assault allegedly occurred. DeJong planned to testify that

“[t]he absence of specific or diagnostic injuries or scars is common and does not exclude the possibility of penile anal penetration or other forms of sexual contact. Many injuries are mild and superficial, such as swelling, bruising, erythe-ma and superficial lacerations or abrasions which heal rapidly without scarring.”

Order of Court n. 1, September 8, 1995, quoting DeJong’s letter to the Assistant District Attorney, dated August 2,1995. DeJong also planned to explain that it was not unusual for F.A. not to have scars, despite his reported pain and bleeding. Id.

Johnson filed a pre-trial motion in limine to exclude the portions of DeJong’s testimony relating to the absence of evidence of physical trauma. In his motion, Johnson argued that: (1) the proposed testimony would improperly bolster F.A.’s credibility; and (2) testimony regarding the significance of the presence or absence of evidence of physical trauma is inadmissible in child sexual abuse cases. On September 8, 1995, the trial court granted Johnson’s motion, stating that the proffered testimony would be excluded during the Commonwealth’s “case in chief because it touches upon the significance of the non-findings and tends to bolster the credibility of the victim.” Id.

The Commonwealth appealed, certifying that the grant of the motion in limine handicapped its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 [254] (1985). A panel of this Court affirmed. The Commonwealth then petitioned the full determine whether the Commonwealth can introduce expert medical testimony that the absence óf evidence of physical trauma is consistent with allegations of sexual assault.

Pennsylvania courts permit expert testimony “as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman.” Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976). Conversely, expert testimony is not permitted on matters of common knowledge. Commonwealth v. Hernandez, 420 Pa.Super. 1, 13, 615 A.2d 1337, 1343 (1992). Expert testimony may not be used to bolster the credibility of witnesses because witness credibility is solely within the province of the jury. See Commonwealth v. Davis, 518 Pa. 77, 82, 541 A.2d 315, 317 (1988).

In determining the admissibility of expert testimony on matters related to sexual assaults, our courts have distinguished between testimony regarding physical facts and testimony regarding the behavior of victims. Generally, the conduct or behavior of victims has been held not to be a proper subject for expert testimony because such testimony tends to encroach upon the jury’s function of evaluating witness credibility. See, e.g., Commonwealth v. Emge, 381 Pa.Super. 139, 144, 553 A.2d 74, 76 (1988). Testimony regarding physical facts, however, has been held to be admissible. Hernandez, supra.

For example, in Hernandez, a panel of this Court held that “a pediatrician ..., qualified as a medical expert, may testify that the physical facts observed and reported by the treating physician were consistent with the allegation of anal sodomy.” Id. at 14, 615 A.2d at 1343. In making this determination, we did not expressly state whether the pediatrician testified regarding the absence of evidence of physical trauma or the presence of such evidence. We also concluded that this testimony concerned a matter that was not within the common knowledge of an average juror. Id. Further, because the [255] witness was informing the jury about objective and verifiable physical facts, we concluded that his testimony did not imper-missibly withdraw “the issue of witness credibility from the jury.” Id. In other words, because the witness was testifying about the physical condition of the victim, the purpose of his testimony was not simply to bolster the credibility of the victim. Likewise, in Commonwealth v. Seigrist, 253 Pa.Super. 411, 421 n. 7, 385 A.2d 405, 410 n. 7 (1978), we concluded that an expert medical witness could testify that the physical condition of an alleged rape victim was consistent with her rape allegations.

On the other hand, our courts have generally excluded expert testimony that discusses behavior patterns that are common to victims of sexual assault. Such testimony encroaches upon the jury’s function of evaluating witness credibility. See, e.g., Commonwealth v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986); Commonwealth v. Garcia, 403 Pa.Super. 280, 288, 588 A.2d 951, 955 (1991) (en banc); Emge, supra, at 144, 553 A.2d at 76 (“testimony which matches up the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and this purpose is patently prohibited.”).

In Seese, for example, an expert witness testified that “[i]t is very unusual that a child would lie about sexual abuse.” Seese, supra, at 441, 517 A.2d at 921. This testimony bolstered the credibility of the alleged victim by stating that the class to which she belonged, children, generally told the truth about sexual abuse. Id. at 442, 517 A.2d at 922. Thus, the supreme court held that this testimony was impermissible because the expert — by rendering an opinion on witness credibility — had intruded upon a function reserved solely for the

jury-

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Commonwealth v. Johnson, 690 A.2d 274, 456 Pa. Super. 251, 1997 Pa. Super. LEXIS 242 (Pa. Ct. App. 1997).

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