Commonwealth v. Pugh

101 A.3d 820

2014 PA Super 221

COMMONWEALTH of Pennsylvania, Appellee

v.Robert Michael PUGH, Appellant.

No. 343 EDA 2012

Superior Court of Pennsylvania.

Argued April 23, 2014.

Filed Oct. 7, 2014.

Wieslaw T. Niemoczynski, Stroudsburg, for appellant.

Michael T. Rakaczewski, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J., and OLSON, J.

Opinion

OPINION BY PANELLA, J.

The primary issue before us is the admissibility of expert testimony proffered by the defense in order to question the trustworthiness of a defendant's confession. The trial court granted the Commonwealth's motion in limine to preclude the defense from presenting such evidence. In light of recent Pennsylvania Supreme Court case law, we conclude that expert testimony regarding false confessions is impermissible as it provides no pedagogical purpose and interferes with the jury's exclusive duty to assess the credibility of witnesses. We also find Pugh's other issues merit no relief. Accordingly, we affirm.

On January 21, 2010, Pugh's sister, S.P., was taken to Pocono Medical Center, where she was diagnosed with a sexually transmitted disease (“STD”). S.P. was 13 years-old at the time. Because of her age and diagnosis, the hospital reported the incident to authorities.

In response, Trooper Patrick Finn of the Pennsylvania State Police interviewed S.P., at which time she stated that Pugh had drugged and raped her. Several days later, Trooper Finn contacted Pugh via telephone, and convinced Pugh to come to the police station to be interviewed. During his interview, Pugh admitted to, among other things, drugging and raping S.P. on multiple occasions. The interrogation and confession were not recorded, and Pugh was subsequently charged with several counts of rape and related offenses.

While incarcerated, Pugh soon recanted his confession, claiming that his confession had been coerced. Additionally, approximately one month after Pugh's arrest, his step-sister, M.Z., informed authorities that she had been diagnosed with the same STD as S.P. Ultimately, medical testing determined that Pugh was not suffering from this type of STD. M.Z. stated that she believed that she had contracted the disease from her husband. When presented with these circumstances, S.P. did not initially recant her accusations against Pugh; she stated that M.Z.'s husband had also assaulted her. M.Z.'s husband subsequently pled guilty to statutory sexual assault and unlawful contact with a minor pursuant to S.P.'s allegations.

Approximately one month thereafter, S.P. wrote a letter to authorities, recanting her allegations against Pugh. Two months later, S.P. underwent a third interview with the Pennsylvania State Police. S.P. told the State Police that her mother and sister pressured her to recant her allegations against Pugh. Both women subsequently pled guilty to obstructing justice based upon their conduct towards S.P.

Pugh's first trial commenced on March 24, 2011. After the jury was unable to reach a verdict, the trial court declared a mistrial and scheduled a new trial. Before a new trial could be held, Pugh notified the Commonwealth that he intended to present expert testimony on the phenomenon of false confessions. The Commonwealth responded by filing a motion in limine, seeking to exclude, among other things, the expert's testimony on false confessions. Shortly thereafter, the Commonwealth supplemented its motion in limine seeking to exclude expert testimony regarding false confessions, and furthermore requested a Frye¹ hearing to determine the admissibility of such testimony.

The trial court held a Frye hearing and accepted supplemental briefing on the issue. On the eve of trial, the court entered an order that in relevant part granted the Commonwealth's motion in limine. At the conclusion of the second trial, the jury found Pugh guilty of rape of an unconscious victim,² rape of a substantially impaired person,³ sexual assault,⁴ unlawful contact with a minor (sexual offenses),⁵ aggravated indecent assault without consent,⁶ aggravated indecent assault (complainant is unconscious or unaware),⁷ aggravated indecent assault (person impairs complainant),⁸ and incest.⁹ The trial court subsequently sentenced Pugh, who then appealed. In a memorandum decision, a panel of this Court affirmed the judgment of sentence and Pugh then applied for reargument en banc, which this Court granted.

We begin with Pugh's first issue raised on appeal. In evaluating the denial or grant of a motion in limine, our standard of review is the same as that utilized to analyze an evidentiary challenge. See Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super.2010). Pursuant to that standard,

[t]he admission of evidence is committed to the sound discretion of the trial court, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Id. (citations omitted). Admissibility of expert testimony on scientific knowledge is governed by Pennsylvania Rule of Evidence 702 which states:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702.

There has been a long-standing policy in this Commonwealth of protecting the jury's prerogative to determine credibility from the undue influence that accompanies expert testimony on the subject of credibility of witnesses.See, e.g., Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 42 (2003) ( “[E]xpert testimony will not be permitted when it attempts in any way to reach the issue of credibility, and thereby usurp the function of the factfinder.”); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 837 (1992) (ruling expert testimony on the ability of children to recall events of abuse not admissible); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) (holding testimony regarding Rape Trauma Syndrome was not admissible); Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997, 999 (1988) (ruling expert testimony that victim was not dissembling was not admissible); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) (finding expert testimony that pre-pubescent children do not fabricate stories of sexual abuse not admissible).

This Court has also consistently upheld the exclusion of expert evidence that intrudes upon the duty of the jury to determine credibility of witnesses. See, e.g., Commonwealth v. D.J.A., 800 A.2d 965, 975 (Pa.Super.2002) (precluding testimony on credibility of child's testimony based upon suggestive interview technique). We have also affirmed trial court rulings that prohibited the introduction of expert testimony on the issue of false confessions. See Commonwealth v. Harrell, 65 A.3d 420, 429–431 (Pa.Super.2013) ; Commonwealth v. Szakal, 50 A.3d 210, 228 (Pa.Super.2012). Recently, our Supreme Court decided a case that directly dealt with admissibility as it pertains to experts who seek to testify about the phenomena of false confession.

The Supreme Court's recent decision, Commonwealth v. Alicia, ––– Pa. ––––, 92 A.3d 753 (2014), held that expert testimony on the phenomenon of false confessions would impermissibly invade the jury's exclusive role as the sole arbiter of credibility. In Alicia, the defendant was accused of murder and other related charges. The police questioned the defendant and he eventually confessed to the murder. Defendant later moved to use a false confession expert, citing his own low intelligence, mental health issues, and that his written confession contained a number of hallmarks which indicated his confession was false. The expert proffered by the defendant claimed, during an a hearing on the admissibility of his testimony, that he would testify generally about police interrogation methods that can put an innocent suspect at risk and also about the specific ones used in defendant's case. The trial court held that the testimony was permissible as to the general aspects of police interrogation techniques, but prohibited the expert from providing any testimony as to the specific allegations in defendant's case. This Court, in a divided panel, affirmed the decision.

The Supreme Court of Pennsylvania, following the lead of the United States Court of Appeals for the Tenth Circuit in United States v. Benally, 541 F.3d 990 (10th Cir.2008), reversed. The Court found that “expert testimony such as the proposed testimony of [the defense expert] Dr. Leo constitutes an impermissible invasion of the jury's role as the exclusive arbiter of credibility.” Alicia, 92 A.3d at 764. First, the Court noted that regardless of whether an expert opined on whether the confession was true or false, the effect would be the same: jurors would be persuaded to disregard the confession and credit the defense's testimony that it was a lie. See id. Second, if the expert testimony were allowed, the Commonwealth would likely counter with its own rebuttal expert testimony, which would lead to befuddlement rather than serve to educate the jury.See id.

Ultimately, the Pennsylvania Supreme Court found that “the matter of whether Appellee's confession is false is best left to the jury's common sense and life experience, after proper development of relevant issues related to, among other things, the particular circumstances surrounding the elicitation of his confession, using the traditional and time-honored techniques of cross-examination and argument.” Id.

Instantly, there is no dispositive factual or legal basis with which to distinguish Pugh's claim from that of the recent Supreme...