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COMMONWEALTH PENNSYLVANIA v. RAMIRO ZAMARRIPA (10/25/88)

filed: October 25, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
RAMIRO ZAMARRIPA, APPELLANT



Appeal from the Judgment of Sentence entered April 8, 1987 in the Court of Common Pleas of Cumberland County, Criminal Division, at No. 844 Criminal 1986.

COUNSEL

Taylor P. Andrews, Public Defender, Carlisle, for appellant.

Merle L. Ebert, Jr., Assistant District Attorney, Carlisle, for Com., appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Del Sole

[ 379 Pa. Super. Page 209]

This appeal follows Appellant's judgment of sentence on two counts of rape and two counts of indecent assault. While Appellant has raised three issues for review, we find that a new trial is required on one of these issues and therefore reverse. We find that error was committed when the Commonwealth was permitted to introduce a psychologist's testimony pertaining to rape trauma syndrome.

The victim in this case was a 21 year old woman suffering from cerebral palsy with an I.Q. of 61, which would classify her as educable mentally retarded. The Appellant admitted at trial that he had intercourse with the victim on two occasions, but claimed the victim was the sexually aggressive partner. At the time of the trial, the prosecution called Dr. Natale S. Berger, a licensed psychologist, who testified that the complainant suffered rape trauma syndrome. The Appellant argues that this testimony was inadmissible since

[ 379 Pa. Super. Page 210]

    it was being introduced for the purpose of proving that the victim did not consent to the sexual encounters. We agree and reverse.

In this case, the issue before the jury is whether the victim consented to the relationship. This issue is clearly framed and is one of credibility for the jury. Recently, the Pennsylvania Supreme Court in Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) overruled this court's decision and held that where an expert's opinion of rape trauma syndrome is offered "to enhance the credibility of the victim" it is inadmissible. Id. (519 Pa. at 297, 547 A.2d at 358). Therefore, we hold that the introduction of opinion evidence of rape trauma syndrome to establish lack of consent is improper. Where the accused and complaining witness are at odds over the question of whether or not the relationship was consensual the issue is one for the jury to resolve. As the Supreme Court stated in Commonwealth v. Davis, 518 Pa. 77, 82, 541 A.2d 315, 317 (1988):

We note [] that the veracity of a particular witness is a question which must be answered in reliance on the ordinary experience of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness credibility is reserved exclusively for the jury . . . The [expert testimony] in Seese was condemned as 'an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.'

The Supreme Court pointed out in Davis that expert testimony is not admissible to support the credibility of a witness. See also: Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. McNeely, 368 Pa. Super. 517, 534 A.2d 778 ...


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