Commonwealth v. McGinnis

258 A.3d 554 (Table)

COMMONWEALTH of Pennsylvania

v.Rickey MCGINNIS, Appellant

No. 16 WDA 2020

Superior Court of Pennsylvania.

Filed: June 28, 2021

MEMORANDUM BY McCAFFERY, J.:

Appellant, Rickey McGinnis, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, seeking relief from his jury convictions for rape of a child, involuntary deviate sexual intercourse (IDSI) with a child, incest of a minor,¹ and related sexual offenses. On appeal, he argues the trial court erred in denying his proffer of expert testimony regarding false memories.² We affirm.

Appellant's convictions result from the sexual assault of his minor son J.M., who was born in 2007.³ J.M. lived with his mother, S.W., who had an "on-again-off-again relationship" with Appellant. N.T. Trial, 9/9/19, at 227. See N.T. Trial, 9/9/19, at 222.⁴ On January 31, 2013 — after S.W. and Appellant had separated — J.M., then five years old, disclosed to his mother, "[M]y dad hurt my butt." See id. at 222, 226; N.T. Hearing, 8/15/19, at 18. When S.W. asked J.M. to clarify, J.M. "pull[ed] his pants down[,] point[ed] back to his butt and ... said, ‘[H]e put a hole back there[,]" and "[I]t felt like it was knives." N.T. Trial at 222-23. At this time, it had been "months" since the last time Appellant saw J.M. Id. at 227.

The next day, S.W. took J.M. to see the doctor. N.T. Trial at 226. At some time, S.W. took J.M. to the hospital,⁵ where S.W. was advised to make a report with the North Versailles Police Department. Id. at 227. S.W. did so, on the day after the hospital visit, and was told someone would contact her for a "forensic interview." Id. at 227-28.

At this juncture, we note Allegheny County Police Detective Timothy Stetzer testified, at trial, that in cases of child sexual assault, victims ages thirteen years old and younger "are kind of susceptible to how you ask questions and there is a proper methodology as to how to interview them." N.T. Trial at 177. He explained that forensic interviews are thus used to assess a child accuser's "qualification" to testify at trial, meaning the child's ability to: "tell the difference between the truth and a lie[;]" possess "common knowledge of things like ... what's inside[ or] outside, what's on top, what's underneath, colors, numbers, [and] date of birth[;]" and demonstrate "a cognitive level of understanding so that we know when they tell us something, ... it's likely the truth, [and] they can articulate what really happened." Id. at 178-79. Forensic interviews are administered outside the custodial parent's presence, conducted "by a third party [using] non-leading questions[ and] observed by the police." Id. at 178, 184. Detective Stetzer also emphasized that children ages three to four are "rarely" qualified, and children ages "five and six are still tough. As they get older, it's easier[.]" Id. at 179. Where "an allegation exists but the victim isn't able to articulate [the incident] sufficiently," law enforcement recommends counseling to aid in developmental progression, so the child "can articulate things and get comfortable talking about [the assault.]" Id. at 179-80.

On February 11, 2013 — approximately 11 days after J.M.’s disclosure to his mother — Detective Stetzer's partner, Allegheny County Detective Todd Dolfi, witnessed a forensic interview of J.M. N.T. Trial at 178, 183. At the time, five year old J.M. made a "disclosure but [it was not] sufficient to file charges." Id. at 184. As a result, J.M.’s mother followed the recommendation that J.M. be placed in therapy. Id. at 229-30. J.M.’s therapist, Natalie Bencivenga, testified that during the course of their therapy, J.M. disclosed "his father[ ] had been laying on top of him and hurting him. [J.M.] was screaming. Things felt like they were inside of him, like it felt like a knife[.]" Id. at 131. Therapist Bencivenga explained J.M. had "a hard time articulating[,] and [a] lot of times with younger children that experience that kind of violence, we often offer them to draw a picture[sic.]" Id. J.M. then began to draw pictures of the incident during his therapy sessions. Id. At trial, Therapist Bencivenga described one drawing depicting J.M. "on the left ... with the sad face and ... that is supposed to be his buttocks[,] and then the man [ ] smiling is his father[,] and he said his father was getting on top of him and then he would pee on him."⁶ Id. at 136.

On October 2, 2013, eight months after his first interview, J.M. sat for a second forensic interview in the wake of "another disclosure from counseling[.]" N.T. Trial at 180. Detective Stetzer testified that both he and Detective Dolfi witnessed the interview, and although "[w]e did have a little more disclosure[, w]e still had issues qualifying [J.M.] as a witness." Id. at 181. Detective Stetzer further explained that J.M.:

did a little bit better recounting[, J.M.] still had a little bit [of] trouble with colors. The difference between what's real and not real, that was a big one we ran into. For kids at that age [it] is not uncommon[,] but whether it's common or not, we have to have that to be able to qualify them as a witness and we didn't have that at this time.

Id. at 181-82. The detectives recommended that J.M. continue "therapy until such time as he can disclose suitable for us to be able to proceed." Id. at 182.

J.M. continued therapy. See N.T. Trial at 182. From February of 2017 through July of 2018, ten-year-old J.M. treated with therapist Bryce Shirey. Id. at 148. Therapist Shirey testified, "I [sic] was pretty clear from the beginning that we were working more with trauma and trying to help [J.M.] get through his story and build skills to be able to deal with that." Id. at 158. Approximately six months into their treatment, J.M. disclosed "[t]hat his father penetrated him in the buttocks" with "his penis." Id. at 149, 153. Therapist Shirey also stated that J.M. "didn't usually explain everything outright. He did better with drawing a picture and then started to explain what the picture was about." Id. at 150. After J.M. and Therapist Shirey discussed "the trauma narrative that [J.M.] created," as part of his treatment, J.M. shared it with his mother. Id. at 153-54.

In June of 2018, Allegheny County Police Detective Edward Watts was assigned to J.M.’s case following J.M.’s disclosure of the abuse to Therapist Shirey. N.T. Trial at 187. Detective Watts then scheduled 11-year old J.M. for a third forensic interview, after which Detective Watts believed J.M.’s disclosure sufficient to qualify him as a witness, and for charges to be brought against Appellant. Id. at 187-88, 191-92. Following the forensic interview, Detective Watts took statements from several witnesses, including Therapists Bencivenga and Shirey, and collected the booklet of drawings J.M. made during therapy. Id. at 192-93.

On August 17, 2018, five and a half years after J.M.’s first disclosure, Appellant was charged with rape of a child; IDSI with a child; incest of a minor; indecent exposure; endangering welfare of children; and corruption of minors.⁷ On May 13, 2019, the Commonwealth filed a notice of intent to offer, pursuant to 42 Pa.C.S. § 5920, the expert testimony of Jamie Mesar, MSW, about how children disclose sexual abuse generally.

In response, Appellant filed a motion in limine to preclude Ms. Mesar's testimony, as well as a motion to proffer his own expert witness on false memories in children, cognitive psychologist Bruce Chambers, Ph.D., in rebuttal. Appellant attached a letter from Dr. Chambers, which outlined his testimony about false memories would include:

• The role of interview bias[ ]

• The effects of repeated questioning.

• The tainting effects of suggestive interviewing techniques

• Role of suggestion in delayed recall of child sexual abuse

• Age differences in reliability of reports[ ]

• Source Monitoring: Distinguishing Reality from Fantasy[ ]

• Creating false memories

Letter to Appellant from Bruce Chambers Ph.D., 8/5/19, at 1-2; see also N.T. Hearing, 8/19/19, at 23-28. Dr. Chambers would not testify about J.M. specifically, but rather the topic of false memories generally. We note Appellant additionally filed a motion to preclude J.M.’s drawings.

On August 15, 2019, the trial court held a hearing. It permitted the Commonwealth to call Ms. Mesar as an expert witness under Section 5920. See N.T. Hearing at 3. With respect to Appellant's proposed expert witness, Dr. Chambers, the trial court stated it was "not aware of any testimony of this nature ever provided in Allegheny County," a point which Appellant conceded. Id. at 23. The court found Dr. Chambers’ testimony could not be admitted under Section 5920 (discussed infra ) and reasoned instead, "at a minimum we need a Frye^{[8 ]} hearing." Id. The court explained:

I don't think [Dr. Chambers’ testimony] falls under [ Section 5920 ] to help a jury understand the behaviors of children who are victims of sexual assault, ... like the fact that children don't promptly report and there are many reasons for it. The fact that children have no specific single behavior that typifies what you might expect a child to do after being a victim, such as [making a] report or [being] afraid of the perpetrator, that kind of thing, that's 5920 testimony. So with regard to recovered memories, all that is a different area of expertise, specifically challenging the credibility of this witness’ testimony, attacking the credibility of it. And very much will be fact-based specific to this child. So [a]gain, at a minimum, we would need a Frye hearing to determine whether it's credible [and] generally accepted science.

Id. at 28. The court requested case authority addressing the type of evidence that Dr. Chambers would proffer, Dr. Chambers’ curriculum vitae , as well as information as to whether Dr. Chambers has testified as an expert in this area in other Pennsylvania judicial proceedings⁹ or been subject to a Frye hearing. Id. at 24, 29.

On August 19, 2019, ...