No. 955 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 4693-81.
Dennis B. Stephens, Media, for appellant.
Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
Wieand, Johnson and Lipez, JJ.
[ 336 Pa. Super. Page 264]
Vincent Romanelli was tried by jury and was convicted of rape,*fn1 unlawful restraint,*fn2 indecent assault,*fn3 involuntary deviate sexual intercourse,*fn4 simple assault*fn5 and possession of instruments of crime.*fn6 On direct appeal from the judgment of sentence, he contends that the trial court erred in permitting the victim's "hypnotically-refreshed" testimony to be received by the jury. We disagree and affirm the judgment of sentence.
On the morning of June 3, 1981, at or about 11:00 o'clock, Deborah Deckman was standing on the platform of the Gladstone station in Lansdowne, Delaware County, when she observed a man walking along the railroad tracks. When the man reached the station, he came upon the platform and approached Ms. Deckman. When he was within a few feet of her, he pulled out a knife and asked her if she had ever been raped. He grabbed her by the arm, placed the knife to her neck and pulled her across the parking lot to a parked vehicle. He forced Ms. Deckman into the front seat, entered behind her, again placed the knife against her throat and ordered her to undress. When she failed to respond, he removed her clothes. He compelled her to commit fellatio and, after forcing her into the rear seat, engaged in vaginal intercourse. He then threatened her with the knife and a hammer and extracted from her a promise not to report the incident. When Ms. Deckman was released, she got in her car, drove home and called the police.
Later the same day, she gave the Lansdowne police a detailed account of the crime and a description of her assailant. She said that she had been raped by a white male, approximately five feet, eight inches in height, with
[ 336 Pa. Super. Page 265]
dark brown hair, dark eyebrows, very dark eyes, and an upper tooth which protruded from the right side of his mouth. She assisted a police officer in preparing a composite drawing of her attacker and later gave police a drawing which she had prepared by herself. The following day she assisted an officer of another police department in preparing another composite drawing. However, she felt that none of the drawings was entirely satisfactory. Thereafter, Sergeant Joseph Nero of the Lansdowne Police Department compiled a set of seven hundred thirty-six (736) photographs from police files by use of a "mirocode system." From a physical description of "short, fat, ruddy complexion," Nero entered into the system a corresponding code which produced photographs of individuals whose descriptions matched that represented by the code. Ms. Deckman identified none of the individuals depicted as her assailant, and the display was not preserved.
On June 8, 1981, Ms. Deckman went to the Delaware County Court House where she again gave a detailed account of the attack and a description of her assailant. She again stated that he was about 5'8", had dark brown hair and a "[v]ery protruding tooth in the front[;] that's the one thing that I won't forget." "I am almost positive I would" remember him if I saw him again, she remarked. Immediately thereafter, Mr. Paul Schneider, who was employed by the Major Crimes Task Force of Delaware County, placed Ms. Deckman under hypnosis and interviewed her in an effort to extract any facts which she might previously have forgotten. No additional facts of significance, either with respect to the details of the incident or the description of the rapist, were produced.
On August 8, two months later, Ms. Deckman was shown a series of eight photographs and identified appellant as the man who had raped her. On August 12, 1981, a new array of eight photographs was prepared and contained an older photograph of appellant. Ms. Deckman again identified appellant as her assailant.
[ 336 Pa. Super. Page 266]
Appellant moved pre-trial to suppress all of Ms. Deckman's testimony. At the suppression hearing, the court was shown a videotape recording of the pre-hypnotic and hypnotic interviews. The court refused to suppress Ms. Deckman's testimony or her identification of appellant but did suppress all testimony "insofar as it relate[d] to those matters in the hypnotic interview which were not previously referred to or stated by her to have occurred in any statement or interview given by Deborah Lee Deckman prior to being hypnotized on June 8, 1981." Ms. Deckman testified at trial as to the events of June 3, 1981 and identified appellant as her assailant. She said that her assailant didn't have all his top teeth and had one tooth that was protruding. Appellant's mouth, with false teeth removed, was observed by the jury.
The uses to be made of hypnotically retrieved and hypnotically-refreshed testimony have been considered in several recent decisions of the appellate courts in Pennsylvania. In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Supreme Court was asked to determine "whether hypnotically-refreshed testimony [was] admissible in a criminal trial when the witness ha[d] no present recollection of the facts prior to hypnosis." Id., 496 Pa. at 99, 436 A.2d at 171. After exploring the scientific data and reviewing the decisions of other jurisdictions, the Court held: "While we do not want to establish a per se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory." Id., 496 Pa. at 111, 436 A.2d at 178.
This Court followed Nazarovitch in Commonwealth v. McCabe, 303 Pa. Super. 245, 449 A.2d 670 (1982), a murder case wherein the chief Commonwealth witness, a sixteen-year-old girl, had seen the apparent murderers but could not identify them. During and after hypnosis, the witness was able to recall the identity of ...