Appeal from the Order entered on August 20, 1986, in the Superior Court of Pennsylvania at No. 945 Pittsburgh, 1985, affirming the Judgment of Sentence entered on July 12, 1985 in the Court of Common Pleas of Allegheny County Pennsylvania, Criminal Division, at No. CC84023126A. 359 Pa. Super. 626; 515 A.2d 617 (1986).
Lester G. Nauhaus, Public Defender, John H. Corbett, Jr., Chief-Appellate Div., Mitchell A. Kaufman, Appellate Counsel, Robert W. Beckwith, Office of the Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., concurs in the result.
This is an appeal from an order of the Superior Court affirming the judgment of sentence entered in the Court of Common Pleas of Allegheny County on July 12, 1985, following the conviction of appellant, Kenneth Richard Davis, for numerous sex offenses allegedly committed against an eleven-year-old boy. The appellant claims his trial counsel was ineffective for failing to object to expert testimony presented by the Commonwealth regarding the credibility of sexually abused children. We agree, reverse the order of Superior Court, and remand for a new trial.
During a period of four or five months in late 1983 and ending on January 29, 1984, the appellant entertained the eleven-year-old son of a friend on approximately six occasions. Following the last visit, the boy told Linda Kelley, a mutual friend of his mother and the appellant, that the appellant had asked him to sleep with him. Ms. Kelley informed the boy's mother and police officials. Based on the boy's detailed account of the appellant's actions, he was charged with involuntary deviate sexual intercourse, corruption of a minor, indecent assault, criminal attempt, and simple assault.
The boy, twelve years old at the time of the trial, testified that on six visits, the appellant engaged in conduct which would constitute the offenses charged. The Commonwealth bolstered his testimony with that of Anthony Mannarino, a clinical child psychologist who was an expert in the treatment of child sexual abuse. He had never examined the victim, but testified that "children who have not been involved in sexual experiences typically do not fantasize about sexual experiences." On cross-examination, he elaborated: "My experience with children who have had some type of sexual experiences when they report about it, typically it is based upon some event that actually occurred and not some fantasized or fabricated experience." The jury found the appellant guilty of all charges.
Immediately after the trial, the appellant qualified to proceed in forma pauperis, and his privately-retained trial counsel was succeeded by present counsel, the Public Defender of Allegheny County. The public defender filed timely post-verdict motions, alleging, inter alia, that trial counsel was ineffective for failing to object to the testimony of the Commonwealth's expert, Anthony Mannarino. See Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n. 6, 372 A.2d 687, 695 n. 6 (1977). Following a hearing and the denial of post-verdict motions, the appellant was sentenced on July 12, 1985. Due to the youth of the victim, the appellant received a mandatory five to ten year sentence for involuntary deviate sexual intercourse pursuant to 42 Pa.C.S.
§ 9718, with concurrent or suspended sentences for the remaining convictions.
On appeal, the Superior Court affirmed the appellant's judgment of sentence, rejecting his allegations of ineffective assistance of trial counsel, 359 Pa. Super. 626, 515 A.2d 617. The court relied primarily on its decision in Commonwealth v. Baldwin, 348 Pa. Super. 368, 502 A.2d 253 (1985).*fn1 Baldwin permitted a CYS social worker "to explain the dynamics of intra-family sexual abuse and the behavior patterns of the victims." Id., 348 Pa. Superior Ct. at 373, 502 A.2d at 255. Although Baldwin argued that the expert "effectively testified that the victim was a credible witness, thereby usurping the jury's credibility-determining function . . .," id., the court held that "the testimony of a properly qualified expert concerning the psychological dynamics of incest and the behavioral patterns of incest victims is admissible . . . ." Id., 348 Pa. Superior Ct. at 373, 502 A.2d at 255-56. The Baldwin court based its holding on the fact that the expert did not "expressly comment on the victim's credibility," and the finding ...