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COMMONWEALTH PENNSYLVANIA v. ANTHONY J. GALLAGHER (05/12/86)

filed: May 12, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY J. GALLAGHER, APPELLANT



Appeal from the Judgment of Sentence of May 29, 1984 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 82-09-2584.

COUNSEL

Seymore Johnson, Jr., Philadelphia, for appellant.

Dawn L. Morton, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, Olszewski and Hoffman, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Hoffman

[ 353 Pa. Super. Page 431]

This is an appeal from the judgment of sentence for involuntary deviate sexual intercourse, 18 Pa.C.S.A. ยง 3123. Appellant contends that (1) the trial court erred in (a) allowing the Commonwealth to present expert testimony on the "rape trauma syndrome," (b) excluding testimony by appellant's expert witness, (c) allowing Dominic Ragno to testify, and (d) permitting the jury to take two mugshots of

[ 353 Pa. Super. Page 432]

    appellant into the jury deliberation room; (2) the trial court lacked jurisdiction to try him; (3) he was denied the right to a non-jury trial; (4) the lower court erred in denying his petition for habeas corpus; (5) his trial counsel was ineffective for failing to (a) raise a statute of limitations defense, (b) raise a Rule 1100 defense, (c) object to portions of the complainant's testimony, (d) move for dismissal of the charges against appellant for a violation of the Interstate Agreement on Detainers, (e) interview or call two alibi witnesses, and (f) present certain evidence; and (6) his sentence was (a) excessive and (b) unconstitutional. We disagree and, accordingly, affirm.

In the early morning hours of November 26, 1977, the complainant was sexually assaulted by a man who had gained entrance to her home by posing as a police officer. At the time, she recognized her assailant as a man named Gallagher who had visited her house six months earlier to give her an estimate for installing windows in her basement. On that occasion, he had also claimed to be a police officer. Two weeks after the assault, the complainant was shown a photographic display containing appellant's picture; she also confronted appellant at the police station, but was unable to identify him positively in either instance.*fn1 In February, 1982, however, the complainant positively identified appellant in both a photographic display and a lineup.

Appellant was arrested on February 17, 1982 and charged with rape, indecent assault, indecent exposure, involuntary deviate sexual intercourse, burglary, aggravated assault, simple assault, and impersonating a public servant. On April 14, 1982, appellant filed a petition for a writ of habeas corpus on the ground that the police lacked probable cause to arrest him. This petition was denied on September 15, 1982. On March 9, 1983, following a seven-day trial, the jury found appellant guilty of involuntary deviate sexual

[ 353 Pa. Super. Page 433]

    intercourse.*fn2 Post-verdict motions were filed by new counsel; the lower court denied them on May 29, 1984. On that same date, appellant was sentenced to a term of ten-to-twenty years imprisonment. He filed a motion to reconsider the sentence which the lower court denied on June 26, 1984. This appeal followed.

Appellant's primary contention is that the trial court erred in allowing Dr. Ann Burgess to testify concerning the rape trauma syndrome. At trial, appellant did not contest the occurrence of the rape and assault, but claimed that the complainant had incorrectly identified him as her attacker. Thus, the reliability of the complainant's identification became the central issue at trial.

In order to explain why the complainant was able to identify appellant four years after the assault, although she had been unable to do so only two weeks after it, the Commonwealth introduced Dr. Burgess's testimony on the rape trauma syndrome, a psychological condition observable in rape victims.*fn3 After testifying to her extensive credentials,

[ 353 Pa. Super. Page 434]

Dr. Burgess described the symptoms of rape trauma syndrome as occurring in two phases:

The symptoms are basically broken into two sections: the symptoms that occur right after the rape, which we call the acute phase, and these symptoms are very related to general stress symptoms; for example, the victim can't sleep or can't eat or is very upset and can't think about anything like what their normal activities are, have difficulty going back to work, to school, taking care of their children, whatever their normal pattern has been, because of the emotional impact of the event.

These symptoms tend to subside within a few days to weeks, so that person can at least get back into their usual routine.

Then the second phase is what we call the reorganization phase, and this is where the person now must deal with the symptoms that are very specific to the rape. We call them the rape-related symptoms, and these symptoms can take months, years, for the person to really fully integrate into their psychological experience so that they can go about their business as they had prior to the event.

N.T. March 4, 1983 at 5.76. After elaborating on these symptoms, Dr. Burgess testified that she believed that the complainant was suffering from rape trauma syndrome, and enumerated the symptoms exhibited by the complainant that had led her to that conclusion. She also explained how phobias associated with the rape trauma syndrome could affect a victim's ability to identify her attacker immediately after the assault, but, after a period of integration that might last years, the victim finally would be able to make an identification. At no time did Dr. Burgess state a personal opinion that the complainant was telling the truth.

Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge, intelligence and experience of the jury. Auerbach v. Philadelphia Transport Co., 421 Pa. 594, 604, 221 A.2d 163, 171 (1966); Kubit v. Russ, 287 Pa. Superior Ct. 28, 35,

[ 353 Pa. Super. Page 435429]

A.2d 703, 706 (1981). Of course, such testimony must also be relevant, that is, it must tend to make a fact at issue more or less probable, see Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983), and it should not confuse, mislead, or prejudice the jury. See Lewis v. Mellor, 259 Pa. Superior Ct. 509, 515, 393 A.2d 941, 944 (1978). As the dissent notes, the admission of expert testimony is a matter within the sound discretion of the trial court, and its decision will not be reversed absent a clear abuse of that discretion. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, supra 287 Pa. Superior Ct. at 35, 429 A.2d at 706.

Here, we believe that Dr. Burgess's testimony was relevant to the central issue of identification and, if believed by the jury, was useful to explain a psychological phenomenon beyond the knowledge and experience of the average juror. We also find no evidence that this testimony confused, misled, or prejudiced the jury. We therefore conclude that the lower court did not abuse its discretion in admitting Dr. Burgess's testimony.*fn4

The dissent, while conceding that Dr. Burgess's testimony was relevant to the issue of identification, see dissenting op. at 751, nevertheless finds it inadmissible. It would base this finding upon two grounds: that Dr. Burgess was not qualified to present expert testimony that the complainant suffered from rape trauma syndrome and that Dr. Burgess's

[ 353 Pa. Super. Page 436]

    testimony bolstered the credibility of the complainant, thereby invading the province of the jury to determine credibility. We cannot agree with either of these grounds.

The dissent would find first that, while Dr. Burgess's expertise qualified her to testify about the phenomenon of rape trauma syndrome, she was not qualified to testify as to her conclusion that the complainant was suffering from the syndrome. We do not believe that this issue is properly before our Court. Although appellant arguably objected to Dr. Burgess's qualifications at trial, see N.T. March 4, 1985 at 5.75,*fn5 he failed to preserve this issue for appellate review by raising it in his post-verdict motions, filed March 15, 1983; his amended post-verdict motions, filed October 11, 1983; his further amended post-verdict motions, filed March 1, 1984; or in any of the numerous post-verdict motions filed pro se by appellant. See Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978) (issues not raised in post-verdict motions are waived on appeal). He also failed to raise the issue in his statement of questions involved contained in his brief to this Court, see Pa.R.A.P. 2116 (ordinarily no point will be considered which is not set forth in the statement of questions involved), or in the argument section of that brief, see Commonwealth v. Balch, 328 Pa. Superior Ct. 71, 76, 476 A.2d 458, 461 (1984) (issues not argued in brief are waived). I would, therefore, find this issue waived. See also Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975) (ordinarily, Superior Court may not raise issue sua sponte).

Even if the issue were not waived, however, we conclude that Dr. Burgess was qualified to testify. The

[ 353 Pa. Super. Page 437]

    dissent would find that Dr. Burgess was not qualified to testify because she holds a doctorate in nursing rather than a medical degree. See dissenting slip op. at 9-10. This Court has previously held, however, that an expert need not have a medical degree in order to testify to the diagnosis of a psychological condition. In Kravinsky v. Glover, 263 Pa. Superior Ct. 8, 396 A.2d 1349 (1979), and Simmons v. Mullen, 231 Pa. Superior Ct. 199, 331 A.2d 892 (1974), we held that psychologists, who hold doctoral rather than medical degrees, were qualified to testify as to their diagnoses of emotional disturbances.

For the purpose of comparison, we note that in Kravinsky this Court concluded that a psychologist with the following credentials was qualified to testify about his diagnosis of a psychological condition: a Ph.D. in psychology; a one-year internship in clinical psychology; one year of post-doctoral training in behavior therapy; three years of teaching undergraduate psychology at the State University of New York, Buffalo; five years of private practice; treatment of twenty to twenty-five patients for the psychological condition at issue; and publication of several articles on that condition. Here, Dr. Burgess's credentials were as relevant and supportive of her ability to diagnose rape trauma syndrome as those of the psychologist in Kravinsky to diagnose the psychological condition at issue in that case. Dr. Burgess received a master's degree in psychiatric nursing and a Ph.D. in nursing science and is a certified specialist in mental health nursing. She received three years of clinical training at the Massachusetts Mental Health Center and did a clinical internship at the Massachusetts Treatment Center. She has taught courses in psychiatric nursing and research at Boston College since 1966 and at Boston University since 1968 and has been a full professor at both institutions. She was Chairperson of the Graduate Program in Nursing at Boston College and both Director of Nursing Research and Interim Dean at Boston University School of Nursing. She has had a private clinical practice since 1966, specializing in the treatment of persons experiencing

[ 353 Pa. Super. Page 438]

    life crises. In 1972 and 1973, Dr. Burgess did clinical research involving 146 rape victims that resulted in the development of the theory of rape trauma syndrome. Since that time, she has written three books and over twenty articles on rape trauma syndrome, has lectured on the subject, and has chaired the National Advisory Board to the National Rape Center which reports directly to the Secretary of the United States Department of Health and Human Services. See N.T. March 4, 1983 at 5.30-.36, 5.66-.75.

These credentials, particularly her clinical practice and her work and research with rape victims, gave Dr. Burgess an adequate basis for her opinion that the complainant exhibited symptoms of rape trauma syndrome. See id. at 5.82, 5.89. In light of the discretion that must be accorded to the trial court's finding that Dr. Burgess was qualified to testify as she did, and rejecting, under these facts, formalistic distinctions between a psychiatrist, a psychologist, and a nurse, we conclude that Dr. Burgess's training, expertise, and clinical experience qualified her to testify on both the general topic of rape trauma syndrome and her conclusions with regard to the complainant. Cf. Commonwealth v. Baldwin, 348 Pa. Superior Ct. 368, 502 A.2d 253 (1985) (admitting expert testimony of social worker on dynamics of intra-family sexual abuse and victim behavioral patterns).

This conclusion is supported by caselaw in jurisdictions where expert testimony concerning rape trauma syndrome has been admitted. Contrary to the dissent's conclusions, see dissenting op. at 753-754 n. 5, most jurisdictions admitting rape trauma syndrome evidence do not require that an expert witness hold a medical degree in order to testify that a complainant exhibits symptoms of rape trauma syndrome. See State v. Huey, 145 Ariz. 59, 699 P.2d 1290 (1985) (testimony of a person qualified by training and experience, such as a psychiatrist or a psychologist, that complainant has characteristics associated with rape trauma syndrome held admissible); State v. Young, No. 57,369, slip op. (Kan. July 26, 1985) (psychologist is competent to testify to diagnosis

[ 353 Pa. Super. Page 439]

    of rape trauma syndrome); People v. Stull, 127 Mich.App. 14, 338 N.W.2d 403 (1983) (testimony of rape counselor that complainant's behavior was consistent with profile of a rape victim held admissible); State v. Liddell, 685 P.2d 918 (Mont.1984) (testimony of doctor, psychiatric nurse, and psychological counselor that victim had symptoms of rape trauma syndrome held admissible); People v. Reid, 123 Misc.2d 1084, 475 N.Y.S.2d 741 (Sup.Ct.1984) (prosecution may introduce testimony of psychologist that complainant has rape trauma syndrome); State v. LeBrun, 37 Or.App. 411, 587 P.2d 1044 (1978) (testimony of "Rape Victim Advocate" associated with district attorney's office that complainant's emotional state comported with that of other sexual abuse victims held admissible); see also Comment, Expert Testimony on Rape Trauma Syndrome: Admissibility and Effective Use in Criminal Rape Prosecutions, 33 Am.U.L.Rev. 417, 451 n. 282 (1984) (nurses are licensed by the states to diagnose mental disorders); cf. People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984) (excluding on other grounds testimony of rape counselor with masters degree in psychology and social work that complainant had rape trauma syndrome); People v. Pullins, 145 Mich.App. 414, 378 N.W.2d 502 (1985) (excluding on other grounds testimony by therapist that complainant had rape trauma syndrome); State v. Taylor, 663 S.W.2d 235 (Mo.1984) (en banc) (testimony of expert in psychological testing field that complainant had characteristics consistent with those resulting from a traumatic stress reaction, such as rape, so long as term "rape trauma syndrome" is not used, held admissible); State v. Whitman, 16 Ohio App.3d 246, 475 N.E.2d 486 (1984) (court would allow expert testimony on rape trauma syndrome but rejects qualifications of social worker with no prior experience in diagnosing condition).*fn6

[ 353 Pa. Super. Page 440]

The dissent's second ground for rejecting Dr. Burgess's testimony is that it allegedly bolsters the complainant's credibility, thereby invading the exclusive province of the jury to determine the credibility of witnesses. See dissenting op. at 753. The theory behind excluding expert testimony that bolsters a witness's credibility is that it may encourage the jury to rely upon the expert's evaluation of the witness's veracity rather than making its own.*fn7 See Commonwealth v. O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976).*fn8

[ 353 Pa. Super. Page 441]

The contention that rape trauma syndrome evidence bolsters the credibility of a complainant has been raised in almost every instance where such evidence has been introduced. However, most jurisdictions have rejected that contention and found that expert testimony on rape trauma syndrome is admissible in certain circumstances because it aids the jury in understanding a subject beyond the knowledge and experience of an average lay person. Because the information imparted by such expert testimony is beyond the average juror's knowledge, its admission will not invade the jury's province.

The dispute among the states that have considered the admissibility of expert testimony on rape trauma syndrome has centered upon its reliability in proving or corroborating that a rape occurred or that the victim did not consent rather than the likelihood that it will bolster credibility. Five states have ruled that expert testimony on rape trauma syndrome is admissible to prove lack of consent or to corroborate testimony that a rape occurred. See State v. Huey, 145 Ariz. 59, 699 P.2d 1290 (1985) (rape trauma syndrome evidence on the issue of consent held admissible but court questions its use to prove that a rape occurred); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982) (court holds rape trauma syndrome testimony on the issue of consent admissible and finds that it provides detectable, reliable evidence of forceable assault); State v. Liddell, 685 P.2d 918 (Mont.1984) (rape trauma syndrome evidence on the issue of consent held admissible); State v. Stafford, 77 N.C.App. 19, 334 S.E.2d 799 (1985) (majority would allow testimony on characteristics of rape trauma syndrome to corroborate complainant's testimony); State v. Whitman, 16 Ohio App.3d 246, 475 N.E.2d 486 (1984) (court would admit qualified expert's testimony ...


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