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COMMONWEALTH PENNSYLVANIA v. HARRY ROBERT GIBBONS (04/07/89)

filed: April 7, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HARRY ROBERT GIBBONS, APPELLANT



Appeal from the Judgment of Sentence at the Court of Common Pleas, Criminal Division, of Cambria County, at No. 409A & 409C of 1987.

COUNSEL

Ralph T. Forr, Jr., Altoona, for appellant.

Theresa Homady, Assistant District Attorney, Edensburg, for Com., appellee.

Rowley, Del Sole and Montgomery, JJ.

Author: Per Curiam

[ 383 Pa. Super. Page 298]

At the conclusion of a jury trial, the appellant was found guilty of harassment and corruption of minors. After the trial court denied the appellant's timely filed post-verdict motions, he was sentenced to one to four years imprisonment and fined on the corruption of minors charge and forty-five to ninety days and fined on the harassment charge.*fn1 This direct appeal was then timely commenced. For the reasons which follow, we are constrained to vacate the judgment of sentence and remand the matter for a new trial.

[ 383 Pa. Super. Page 299]

The appellant raises eight issues for our review. Because of our disposition of the first issue presented, it is not necessary to reach the remaining issues. In his first issue, the appellant argues the trial court erred in permitting a psychologist, Dr. Maxine Kane, to testify concerning the behavior of incest victims in an attempt to bolster the credibility of the victim. In its brief to this Court, the Commonwealth acknowledges that "[h]er testimony concerned the general dynamics of child sexual abuse and the behavior patterns of its victims, particularly child incest victims." Indeed, in responding to the argument in the appellant's post-verdict motions, the trial court wrote:

Dr. Kane's testimony was relevant, material and probative. She testified as an expert in the general realm of incest, but that testimony specifically related to matters in issue during the trial. Dr. Kane elicited knowledge with regard to the fear, anxiety, and betrayal of trust which victims experience. She testified to the secrecy and non-disclosure surrounding such activity, the difficulty of remembering details from surrounding dates and times and the inconsistency attached thereto. Further, she testified as to the disassociation and disguised presentation that occurs as a result of such abuse. (T. 1/12/88 pp. 136-140)

Trial Court Opinion at 6. (Emphasis supplied)

We have reviewed the testimony of Dr. Kane and agree with the trial court's accurate observation as to its intended purpose. However, when the trial court's opinion was prepared, it did not have the benefit of this Court's recent decision in Commonwealth v. Emge, 381 Pa. Super. 139, 553 A.2d 74 (1988), where a panel of this Court ruled similar testimony inadmissible.

[ 383 Pa. Super. Page 300]

In Emge, the Commonwealth's psychologist, Dr. Anthony Mannarino, testified as to "[w]hether the changes in the child's behavior in this case were 'consistent with, generally speaking, a victim of child sexual abuse . . . .'" Id., 381 Pa. Superior Ct. at 143, 553 A.2d at 76. The panel concluded that testimony "which matches up the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and this purpose is patently prohibited." Id., citing, Commonwealth v. Rounds, 518 Pa. 204, 207, ...


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