Commonwealth v. McIlvaine

560 A.2d 155, 385 Pa. Super. 38, 1989 Pa. Super. LEXIS 1427
CourtSupreme Court of Pennsylvania
DecidedMay 17, 1989
Docket1035 and 1036
StatusPublished
Cited by24 cases

This text of 560 A.2d 155 (Commonwealth v. McIlvaine) 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. McIlvaine, 560 A.2d 155, 385 Pa. Super. 38, 1989 Pa. Super. LEXIS 1427 (Pa. 1989).

Opinions

ROWLEY, Judge:

Once again this Court is confronted with the question of whether an expert witness, called by the Commonwealth in a sexual assault case, improperly encroached upon the fact-finding role of the jury by commenting upon the veracity of the victim/witness. Defendant, a neighbor of the victim’s grandmother, was found guilty by a jury of Rape, Involuntary Deviate Sexual Intercourse (“IDSI”), Statutory Rape, Indecent Assault and Corrupting the Morals of a Minor. In cross-appeals now before this Court, the Commonwealth appeals the granting of a new trial, while defen[41]*41dant appeals the denial of his motion in arrest of judgment. We reverse in part and affirm in part.

COMMONWEALTH’S APPEAL

We first address the Commonwealth’s appeal. The trial court granted defendant a new trial on the basis that testimony given by a clinical psychiatric social worker, Michael Weller, contained an impermissible reference to the “reliability” of information given to him by children he interviewed in his employment capacity. The court held that “[t]his is the same kind of testimony which is condemned in [Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) ] as a usurpation of the jury’s function to pass on credibility of a witness.” Slip op. at 6.

Our standard of review is well-settled: A trial court’s grant of a motion for a new trial will not be overturned absent a palpable and clear abuse of discretion or an error of law which controlled the outcome of the case. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 523 A.2d 723 (1987). For reasons which follow, we hold that the testimony of Michael Weller did not usurp the jury’s function as fact-finder.

At trial Dr. Gwendolyn Ross, a psychiatrist specializing in child adolescent psychology, was called by the Commonwealth and testified that the victim was a patient at South-wood Psychiatric Hospital for a six week period following the attacks. The victim had been referred to the hospital for treatment of severe depression, suicidal thoughts and self-abusiveness. Dr. Ross testified that the victim received cognitive and milieu therapy at Southwood.

Following Dr. Ross’ testimony, the Commonwealth called Michael Weller to the stand. Weller joined Southwood Hospital in 1985 to practice family therapy with the Children’s Unit. He testified that from 1985 until 1987 he was “a clinical psychiatric social worker ... on the children’s program, doing family therapy with the children on that program.” N.T. at 217. The Assistant District Attorney asked Weller if he had dealt with sexually abused children [42]*42at Southwood. Weller responded that at previous employment in West Virginia, twenty to thirty percent of the children with whom he worked were sexual abuse victims. At Southwood, fifteen to twenty percent of the children were identified as having been sexually abused, although as treatment programs progressed, the workers learned the actual rate was somewhat higher.

The testimony to which the defense ultimately objected centered on Weller’s description of his duties at Southwood. Weller testified:

I begin interviewing the family for past history, first starting with presenting problems, with the things that have led them and the child in coming to the hospital, and also looking at any past episodes, experiences or traumas that the child may have gone through. Part of that work is to interview extensively the family, and also the child, to pick up and see if there are any discrepancies in terms of what either of them are saying, and also to determine reliability of the information that’s being provided to me.

N.T. at 223-24. As Mr. Weller continued describing his duties, the testimony of which defendant complained came out:

So, as a part of that function, in addition to getting the history from the family, I also talk to the child to either confirm or deny what the adults are telling me, and I have found, within the practice, at least the children I'm working with right now, have a fairly high reliability of the information—

N.T. at 224. Defense counsel immediately moved for a mistrial on the basis that the statement that the children interviewed were of fairly high reliability is disallowed by Commonwealth v. Seese, supra. The Assistant District Attorney argued that the statement was cut off and, consequently, “he has not testified specifically about the child or about anything that he has done in this particular case.” N.T. at 226. The trial court did not grant a mistrial. At the post-trial motions stage, however, a new trial was granted on the basis of the Supreme Court’s ruling in Seese.

[43]*43In Seese the Commonwealth’s expert witness, a board certified pediatrician who had treated between 360 and 400 cases of sexual abuse, testified that in her experience, young children do not fabricate stories of sexual abuse because they do not have the necessary sexual knowledge to supply details regarding such encounters. Our Supreme Court found that such testimony “consisted of expert opinion as to the veracity of the class of potential witnesses of which the victim was a member.” Seese, 512 Pa. at 442, 517 A.2d at 922. The Court held “it was error to admit expert testimony as to the credibility of children who are of an age similar to that of the prosecution’s chief witness, the crime victim.” Id., 512 Pa. at 444, 517 A.2d at 920.

The Supreme Court re-examined this issue in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). There a clinical child psychologist who had not examined the victim, called as an expert in the treatment of child sexual abuse, testified: “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.” Id., 518 Pa. at 80, 541 A.2d at 316. The Court found that the prohibition of Seese applied squarely to the testimony given in Davis, as well. The Court reiterated that

[s]uch testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called “expert” assessment of the truthfulness of the class of people of which the particular witness is a member.

Davis, 518 Pa. at 82, 541 A.2d at 317, quoting Commonwealth v. Seese, 512 Pa. at 443-44, 517 A.2d at 922.

We hold that the case at bar is distinguishable from Seese and Davis. While Seese and Davis clearly prohibit an assessment by an expert of the truthfulness or veracity “of the class of people of which the particular witness is a member,” Weller made no such judgment of credibility in the case at bar. Weller testified that he interviews the [44]*44families of Southwood patients for: 1) events which led the child to the hospital; and 2) “any past episodes, experiences or traumas.” He then interviews the children to confirm or deny what the adults have said.

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Bluebook (online)
560 A.2d 155, 385 Pa. Super. 38, 1989 Pa. Super. LEXIS 1427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mcilvaine-pa-1989.