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COMMONWEALTH PENNSYLVANIA v. ROBERT EMGE (12/08/88)

filed: December 8, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT EMGE, SR., APPELLANT



Appeal from the Judgment of Sentence entered January 23, 1987, Court of Common Pleas, Allegheny County, Criminal Division at No. CC 8513508.

COUNSEL

Stanton D. Levenson, Pittsburgh, for appellant.

Debra B. Barnisin, Assistant District Attorney, Pittsburgh, for Com., appellee.

Brosky, Johnson and Melinson, JJ. Brosky, J., files a dissenting opinion.

Author: Johnson

[ 381 Pa. Super. Page 140]

On this appeal, Robert Emge, Sr., stands convicted of sexual misconduct with his six-year-old son.

He was convicted by a jury of Involuntary Deviate Sexual Intercourse, Indecent Assault and Corruption of Minors.

Appellant raises the following issues for our consideration: (1) whether the trial court erred in permitting the Commonwealth's psychologist to express opinions bearing directly upon the veracity of the alleged child victim; (2) whether the trial court erred in permitting testimony by the Commonwealth's psychologist where it did not relate to any specific issue at trial; (3) whether the trial court erred in refusing to allow appellant to call his divorce attorney as a witness; and (4) whether the trial court erred in refusing appellant's motion for a mistrial following testimony that appellant's wife "feared for her life".

The last two issues raised by appellant were properly discussed and disposed of by the trial court. Opinion,

[ 381 Pa. Super. Page 141]

December 2, 1987. Thus, it is only appellant's first two assignments of error which warrant discussion.

The main issue in the case was the credibility of the father versus the credibility of the son. Because we conclude that the testimony of the clinical psychologist was an intrusion upon the function of the jury, we reverse the conviction and grant a new trial.

The admission of expert testimony lies within the sound discretion of the trial court. It normally would involve explanations and inferences not within the ordinary knowledge, intelligence and experience of the jury. A trial judge's decision to allow expert testimony may not be reversed absent a clear abuse of discretion. Commonwealth v. McNeely, 368 Pa. Super. 517, 520, 534 A.2d 778, 779 (1987).

Defense counsel had appeared before the trial court, prior to the selection of the jury, to present a motion in limine with respect to the possible testimony of Anthony P. Mannarino, a clinical child psychologist employed at Western Psychiatric Institute and Clinic. R.R. 7a, 25a-28a. The matter was reviewed the afternoon of June 10, 1986, R.R. 193a-202a, and prior to resumption of trial the morning of June 11, 1986, R.R. 210a-214a. The Commonwealth offered that Dr. Mannarino would testify on the following subjects:

THE COURT: We were to discuss the matter, contemplation, of the Commonwealth in calling some expert witness.

MR. KRASTEK [Asst. D.A.]: Yes, Your Honor. The expert in question would be Dr. Anthony Mannarino, Western Psychiatric Institute and Clinic and the University of Pittsburgh.

As a clinical psychologist, he examined this boy at the request of Judge Kaplan. In fact, we offer that the reason we would call him to testify is to note, number one, behavioral observations of the boy, you know, that he was able to respond to questions, that he was cooperative, that he had enough of an attention span to be able to

[ 381 Pa. Super. Page 142]

    go through that interview process, to describe his manner of when he was comfortable, when he was ...


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