Commonwealth v. Dunkle

¶1dissenting:

¶2I respectfully dissent. Although I agree with the majority’s resolution of appellant’s fourth, fifth, sixth and seventh contentions, I disagree with its resolution of the first, second, and third contentions. I find no merit in the appeal, and would affirm judgment of sentence.

¶3I. Issues of Agreement

¶4I agree that defendant was not entitled to review privileged psychiatric records of the victim. The dictates of Pennsylvania v. Richie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), regarding defense access to such materials were complied with fully. I wholeheartedly agree with the majority’s rejection of appellant’s attempt to construe *333Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), appeal denied 518 Pa. 617, 541 A.2d 744 (1988), as limiting the privilege against disclosure to cases when the Commonwealth, as well as the defendant, has been denied full access to the file. I note that in such cases the Commonwealth stands in a relationship to the victim sufficiently analogous to the attorney/client relationship to warrant continuation of the patient/client privilege after disclosure of information covered by that privilege to the Commonwealth’s prosecuting attorney. Moreover, disclosure of such information to the Commonwealth attorney may be both necessary and appropriate to avoid questions opening the door to cross-examination regarding privileged matters at trial.

¶5In the past, some defense counsel made a practice of smearing sexual assault victims with irrelevant innuendo and character assassination. Unlimited access to privileged psychiatric or counseling records would not only be invasive by itself, but would also provide ammunition for a renewal of such assaults. Today, fortunately, a more enlightened approach prevails, and defense counsel is only provided with such information when the trial court, upon in camera inspection, deems the material relevant to legitimate issues at trial. All other information remains, as it should be, privileged and confidential.

¶6I also agree that the trial court did not abuse its discretion in permitting the Commonwealth to redirect Ms. Jean Fortins regarding a conversation the witness had with appellant, despite the fact that the redirect examination was outside the scope of the cross-examination of that witness. Such matters are within the sound discretion of the trial court. When, as here, neither bad faith nor prejudice is indicated by the variance in the order of the presentation of the evidence, the action of the trial court will be upheld. See Commonwealth v. Johnson, 355 Pa.Super. 123, 139-44, 512 A.2d 1242, 1251-52 (1986); accord Commonwealth v. King, 378 Pa.Super. 553, 549 A.2d 195 (1988).

¶7*334Finally, I agree that the trial court did not abuse its discretion in limiting appellant’s cross-examination regarding an incident when another person allegedly entered the bathroom when the victim was in the shower, or in refusing to admit blood stained panties in support of appellant’s claim that he could not have raped the victim because the panties established that she was still a virgin after the time that she was alleged to have been raped. Such matters are left to the sound discretion of the trial court. See Commonwealth v. Grove, 363 Pa.Super. 328, 346, 526 A.2d 369, 378 (1987). The evidence here vaguely, if at all, supported the inferences urged by appellant and presented a substantial risk of confusion and distraction on wholly collateral issues. Hence, I find no abuse of discretion in the decision to exclude the evidence.

¶8Here ends my agreement with the majority.

¶9II. Issues of Disagreement

¶10First, I note that with respect to the discovery violation which the majority finds it unnecessary to address, I would find that the trial court did not abuse its discretion in permitting the evidence to be used. Appellant has failed to demonstrate any actual prejudice arising from the discovery violation which could reasonably be said to have compelled the trial court to exclude the evidence. Nor is their any evidence that the violation arose from bad faith conduct on the part of the Commonwealth. See Commonwealth v. Pickford, 370 Pa.Super. 444, 448-51, 536 A.2d 1348, 1350-51 (1987).

¶11I cannot agree that the admission of evidence of other criminal acts by appellant was an abuse of discretion in this case. The challenged evidence taken together, and in the context of the charges presented in this case, plainly gave rise to a reasonable inference that appellant was engaged in a continuous and gradually escalating course of sexually exploitive and abusive conduct toward the victim.

¶12Specifically, I find that the evidence regarding the incidents which the majority finds to be inadmissible must be considered together with the victim’s assertion that appel*335lant regularly retired to his bedroom when she was in the shower, that there was a removable panel which allowed him to voyeuristically view the victim from his bedroom closet, and that he was caught in the act of voyeuristically viewing her from that closet on one occasion. Rather than being isolated and individual, the incidents formed part of an all too recognizable pattern, common to intrafamilial sexual abuse cases. Indeed, I would have considered the exclusion of such evidence an abuse of discretion. See Commonwealth v. Thek, 376 Pa.Super. 390, 402 n. 9, 546 A.2d 83, 89 n. 9 (1988); Commonwealth v. Allem, 367 Pa.Super. 173, 182 n. 3, 532 A.2d 845, 849 n. 3 (1987); see also Myers, Uncharged Misconduct Evidence in Child Sexual Abuse Litigation, -— Utah L.Rev. 479, 479-568 (1988).

¶13I also disagree with Judge Olzewski’s suggestion that the expert testimony in this case was impermissibly general. Evidence presented at trial established that there was a lengthy delay in reporting the incident, the victim omitted various details of the incident when she reported it, and there were various observable behavioral changes in the victim following the date the incident occurred. In its proffer with respect to the expert testimony, the Commonwealth specifically indicated that the evidence to be presented was intended to assist the jury in determining the relevance of and weight to give those facts in their deliberations. The fact that the expert did not, herself, link her general expert testimony to the evidence presented, arose from the trial court’s express admonition to her that she not do so. The reason for the trial court’s admonition was its solicitousness for appellant’s interest in not having the jury confused or overawed by the expert testimony. Instead, the link between the facts presented and the expert’s relevant explanation of various normative responses and psycho-social dynamics in child sexual abuse cases was left to the arguments of counsel and the deliberations of the jury.

¶14*336Concededly, in the recent past, our Supreme Court has expressed concern regarding the potential for expert overreaching and usurpation of the jury’s function, as well as juror misunderstanding of expert testimony, in cases involving expert testimony concerning various recognized “syndromes.” 1 Our Supreme Court’s most recent opinion, however, indicated apparent willingness to reconsider the question of “syndrome” testimony. See Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989) (plurality).

¶15There is a wide and growing body of research concerning the existence of various myths and misconceptions entertained by victims, offenders, medical personnel, judges, and jurors, which bear directly on the need for expert testimony in sexual abuse cases.2 Likewise, there is a wide and growing body of research regarding various normative and individualistic psycho-social responses to sexual abuse which form the emperical basis for expert testimony regard*337ing sexual abuse generally, as well as regarding various “syndromes.”3 While there is undoubtedly potential for the usurpation of the jury’s function and/or misunderstanding of “syndrome” testimony, a wide and growing body of legal scholarship has provided an analytical framework for determining and permitting appropriate use of such testimony.4 With regard to the risk that jurors would misappre*338hend or give undue weight to such testimony, at least two recent articles have demonstrated effective cross-examination techniques to minimize such dangers.5

¶16Whatever may be the precise bounds and limits which must be put on “syndrome” testimony to protect a defendant’s legitimate interests, I find no error or abuse of discretion in the admission of the expert testimony provided in this case. Upon careful review of the record, especially the testimony of the well-qualified expert in this case, I find that the testimony was both relevant and helpful, rather than irrelevant and prejudicial. See Commonwealth v. Thek, supra, 546 A.2d at 87; Commonwealth v. Pearsall, 368 Pa.Super. 327, 331 n. 1, 534 A.2d 106, 108-09 n. 1 (1987); Commonwealth v. Emge, 381 Pa.Super. 139, 146-149, 553 A.2d 74, 77-79 (1988) (Brosky, J. dissenting; citing Pearsall ).

¶17The majority has failed to identify a single specific statement by the expert which was erroneous, inflammatory, misleading, or confusing. Assuming, arguendo, that some or all of the expert testimony was irrelevant, it still has not been shown how an arguable waste of trial time prejudiced the defendant or compromised the truth determining function of the trial. That irrelevant testimony may have been admitted at trial, is certainly not, by itself, grounds for reversal. Likewise, after review of the expert testimony, I *339did not find a single statement which presumed to pass on the victim’s credibility or veracity individually or as a putative member of a class of victims. I find that the corroborative effects of the expert testimony in this case did not in any way usurped the fact finding or credibility determining functions of the jury. See Commonwealth v. Thek, supra; Commonwealth v. Pearsall, supra; Commonwealth v. Emge, supra (Brosky, J., dissenting).

¶18Conclusion

¶19Based on the foregoing, I dissent.