No. 516 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Imposed on Bill of Information Nos. 489-490, July Session, 1978.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ. Brosky, J., files a concurring opinion. Popovich, J., concurs in the result.
[ 289 Pa. Super. Page 389]
After a jury trial, Appellant was convicted of Rape*fn1 and Criminal Conspiracy.*fn2 This is an appeal from the judgment of sentence.
Appellant raises two issues on appeal. First, he contends that the court erred in excluding the proffered expert testimony of a psychologist who would have testified concerning hysterical transposition.*fn3 Second, Appellant argues that the court erred in refusing to give a second instruction to the jury that the expert testimony had not been presented because of the court's ruling. We find that Appellant's arguments are without merit, and, accordingly, affirm.
[ 289 Pa. Super. Page 390]
The complainant testified that Appellant first held her on the ground while two companions raped her and then raped her himself. Appellant, denying these allegations, testified that he first saw the complainant, who was disheveled and extremely upset, near the scene of the crime. He subsequently took the complainant to his sister's house to obtain clothing.
Defense counsel offered the psychologist's testimony to inform the jury that the conditions for the occurrence of hysterical transposition existed in the instant case. The psychologist had not examined the victim and would not have testified that the victim actually, or even probably, did confuse Appellant's face with the deeds of one of the rapists.
In Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971), the plaintiff offered the testimony of a consulting engineer concerning factors that can create a non-uniform or sticky floor in a bowling alley. The expert could not testify that plaintiff's fall actually occurred because of these factors. The Supreme Court of Pennsylvania affirmed the lower court's refusal to admit the proffered expert testimony.
The court in Houston discussed three reasons why it affirmed the trial court. First, an expert witness can testify concerning the cause of an accident only if he either personally observed the scene of the accident or answers hypothetical questions based upon "'such facts as the jury would be warranted in finding from the evidence.'" Id., 443 Pa. at 385, 278 A.2d at 910 (quoting Battistone v. Benedetti, 385 Pa. 163, 170, 122 A.2d 536 ). Second, an expert witness must testify "not that the injury in question might have been or even probably was caused by the alleged negligence, but that . . . in his professional opinion the result in question came from the cause alleged." Id., 443 Pa. at 386, 278 A.2d at 910. Third, "the allowance of testimony by an expert witness is a matter within the sound discretion of the trial court." Id., 443 Pa. at 386, 278 A.2d at 910.
[ 289 Pa. Super. Page 391]
In the instant case, the psychologist had not examined the complainant. He would, however, have testified that the preconditions for the occurrence of hysterical transposition existed in the facts of a hypothetical question which was based on testimony regarding the incident, the complainant's behavior and state of mind, and Appellant's testimony concerning his encounter with the complainant (Appellant's brief, p. 6). In the instant case, the complainant's state of mind does not constitute a "fact" which the jury would find from the evidence. Since the psychologist had not examined the complainant, and since no other evidence was introduced concerning the complainant's state of mind at the time of the rape, the hypothetical questions, which the psychologist would have answered, would not have been based upon facts from the evidence in the instant case.
Second, the psychologist would not have testified that hysterical transposition actually, or even probably, occurred in the instant case. Under the second rationale given by the court in Houston, the psychologist's testimony would not have been admissible. If his testimony were to be admissible under the second criterion of Houston, the psychologist must have been able to testify that, in his professional opinion, hysterical transposition actually occurred in the instant case. Since the psychologist could not testify ...