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COMMONWEALTH PENNSYLVANIA v. PAUL NAZAROVITCH. COMMONWEALTH PENNSYLVANIA (10/29/81)

decided: October 29, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
PAUL NAZAROVITCH. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. ROBERT WHITELEATHER. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. WILLIAM D. DECKER



No. 80-1-143, Appeal from Order of July 25, 1980, of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC7906260A and CC7906275A. No. 80-1-144, Appeal from Order of July 25, 1980, of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC7906261A and CC8000385A. No. 80-1-145, Appeal from Order of July 25, 1980, of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC7906262A and CC7906375A.

COUNSEL

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellant.

Gary B. Zimmerman, Pittsburgh, for Nazarovitch.

John L. Doherty, Pittsburgh, for Whiteleather.

John T. Bender (court-appointed), Pittsburgh, for Decker.

Norma Chase, Pittsburgh, for amicus curiae Society for Investigative and Forensic Hypnosis.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: O'brien

[ 496 Pa. Page 99]

OPINION OF THE COURT

This case raises the novel issue of whether hypnotically-refreshed testimony is admissible in a criminal trial when the witness has no present recollection of the facts prior to the hypnosis. For the reasons which follow, and because of the facts peculiar to this case, we find the trial court properly exercised its discretion in suppressing the testimony of the witness in question.

On the morning of September 18, 1976, twelve-year-old Heidi Morningstar of Ambridge, Pennsylvania, was found murdered on the front lawn of an Allegheny County home. Despite intensive investigation and interrogation of numerous suspects, the Beaver County police discovered no clues to the unsolved crime. Three years to the day of the murder, Pamela Wilfong entered the Ambridge police station and informed Chief George Kyragyros that she had been experiencing nightmares about Heidi Morningstar and felt that she might know something about the murder. Prior to that day, Ms. Wilfong had been interviewed several times about the murder but had never provided significant information concerning the crime.

Chief Kyragyros immediately informed her not to say anything more until he contacted Beaver County Detective Louis Marshionda. Detective Marshionda arrived at the Ambridge police station a short time later, and Ms. Wilfong reiterated her feelings concerning the Morningstar murder. The detective and Chief Kyragyros then asked Ms. Wilfong if she would voluntarily meet with a hypnotist who would attempt to hypnotically refresh her memory. Ms. Wilfong acquiesced in their request and thereafter left the police station without any further interrogation. Two days later, Ms. Wilfong was accompanied by the detective and Chief Kyragyros to the office of Dr. Russell Scott, a licensed psychologist with extensive experience in therapeutic and investigative hypnosis. When they arrived, Chief Kyragyros spoke privately with Dr. Scott and briefly explained the

[ 496 Pa. Page 100]

    facts surrounding the crime. Dr. Scott then spent approximately one-half hour alone with Ms. Wilfong and proceeded to hypnotize her. Chief Kyragyros and Detective Marshionda subsequently entered the doctor's office and remained throughout the hypnotic session, occasionally passing written questions to Dr. Scott for him to relate to Ms. Wilfong. They adjourned for lunch and then continued the session for the rest of that day. Five days later, Dr. Scott conducted another hypnotic session with Pamela Wilfong and the same parties were present. Although no notes were taken of the sessions, tape recordings were made.

On September 28, 1979, Ms. Wilfong gave a statement to the Beaver County District Attorney. The Allegheny County authorities, who had been involved in the investigation of the Morningstar murder, were thereafter notified of the emergence of a witness in the case. Detective Francis Murphy of the Allegheny County Police interviewed Ms. Wilfong and decided that another hypnotic session might provide additional information and clarify certain details. On October 12, 1979, Ms. Wilfong was again hypnotized by Mr. George Gimigliano, a self-styled "master hypnotist." Before the session began, Detective Murphy provided Mr. Gimigliano with a copy of the statement that Ms. Wilfong had given to him. Detective Murphy and Chief Kyragyros were present during this last hypnotic session, and in fact conducted some of the questioning of the witness.

On the basis of her hypnotically-refreshed recollection, Ms. Wilfong testified at the preliminary hearing on October 30, 1979, concerning the facts of the crime. As a result of her testimony alone, Paul Nazarovitch, Robert Whiteleather, and William Decker were held for court on the charges of Criminal Homicide, Kidnapping, and Conspiracy.

Appellees informed the prosecution that they intended to attack the credibility of the Commonwealth's main witness. Rather than select a jury, begin the trial, and then confront the defense challenge to her testimony, the Commonwealth agreed to a pre-trial hearing on the competency of Pamela Wilfong. Testimony and argument were heard

[ 496 Pa. Page 101]

    on June 11-18, 1980. By Order of Court of July 25, 1980, appellees' motion to suppress the testimony of Pamela Wilfong was granted. The Commonwealth thereafter filed this appeal.*fn1

The Commonwealth argues that hypnosis must be viewed as simply another method of refreshing a witness' recollection in that it accomplishes the stimulation of a latent memory just as the more traditional aids of memoranda and document do.

The use of writings or business records to refresh forgotten memories has long received approval and legal recognition in this Commonwealth. Dodge v. Bache, 57 Pa. 421 (1868), First Nat'l Bank of DuBois v. First Nat'l Bank of Williamsport, 114 Pa. 1, 6 A. 366 (1886), Nestor v. George, 354 Pa. 19, 46 A.2d 469 (1946); Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951), Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973), Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974). However, any means by which evidence is scientifically adduced must satisfy the standard established in Frye v. United States, 293 F. 1013 (D.C. 1923), which is generally accepted by many jurisdictions, including our own. In Frye, the court opined:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, supra at 1014. (emphasis supplied).

[ 496 Pa. Page 102]

Therein, the court held that the results of a polygraph test were inadmissible because the defense had not established that the machine was generally accepted in the scientific community as a reliable indicator of one's veracity. We adopted this standard in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), when we ruled that spectrograms had not yet received general acceptance of their validity by those scientists active in that field. Consequently, evidence of the defendant's voiceprint was found to be inadmissible.

One proffered rationale for this standard is "fear that the trier of fact will accord uncritical and absolute reliability to a scientific device without consideration of its flaws in ascertaining veracity." Spector and Foster, "Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?", 38 Ohio L.J. 567, 583 (1977) (hereinafter "Spector and Foster"). We believe this same standard should be applied in resolving the question now before us of whether hypnotically-refreshed testimony is generally accepted in the scientific community as yielding reasonably reliable results.

In order to determine whether hypnosis is a reliable and trustworthy evidentiary device whereby memory can be sufficiently and adequately refreshed, it is necessary to understand the phenomenon of hypnosis. Although the use of hypnosis dates back to ancient times, the scientific community began to view the subject with less scepticism and a more discerning eye after World War II. Diamond, "Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness," 68 Cal.L.R. 313, 317-320 (1980) (hereinafter "Diamond"). In fact, hypnosis has become "a powerful medical technique that is useful as an anesthetic, in the treatment of various forms of mental illnesses, and in the treatment of amnesia." Spector and Foster, supra at 570. The main application of hypnosis today is for psychotherapeutic purposes by a minority of psychiatrists.*fn2 Diamond, supra at 320, Spector and Foster, supra at 579.

Although experts disagree about many aspects of hypnosis, all concur that hypnosis is a sleeplike state whereby

[ 496 Pa. Page 103]

    response to stimuli is more easily achieved than in a waking state. 11 Encyclopedia Brittanica, Hypnosis, 995-997 (1973). Spector and Foster, supra. Categorized as a state of heightened concentration, hypnosis is achieved by creating a passiveness in the subject, usually by employing eye fatigue. The subject, with increased receptivity to instruction, is guided into a trance-like state through a series of suggestions from the hypnotist. The hypnotized subject can be regressed to past times and places and recount the emotions and events experienced then. For this purpose, hypnosis has been utilized by prosecution ...


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