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COMMONWEALTH PENNSYLVANIA v. CARL EDWIN MCILVAINE. COMMONWEALTH PENNSYLVANIA V. CARL EDWIN MCILVAINE (05/17/89)

filed: May 17, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
CARL EDWIN MCILVAINE. COMMONWEALTH OF PENNSYLVANIA V. CARL EDWIN MCILVAINE, APPELLANT



Appeal from the Order Granting a New Trial June 17, 1988, in the Court of Common Pleas of Washington County, Criminal Division, No. 1321 of 1986.

COUNSEL

Bradley M. Bassi, Assistant District Attorney, for Com., appellant in No. 1035 and appellee in No. 1036.

Bruce A. Antkowiak, Greensburg, for appellee in No. 1035 and appellant in No. 1036.

Rowley, Kelly and Hester, JJ. Kelly, J., files a concurring statement.

Author: Rowley

[ 385 Pa. Super. Page 40]

Once again this Court is confronted with the question of whether an expert witness, called by the Commonwealth in a sexual assault case, improperly encroached upon the fact-finding role of the jury by commenting upon the veracity of the victim/witness. Defendant, a neighbor of the victim's grandmother, was found guilty by a jury of Rape, Involuntary Deviate Sexual Intercourse ("IDSI"), Statutory Rape, Indecent Assault and Corrupting the Morals of a Minor. In cross-appeals now before this Court, the Commonwealth appeals the granting of a new trial, while defendant

[ 385 Pa. Super. Page 41]

    appeals the denial of his motion in arrest of judgment. We reverse in part and affirm in part.

COMMONWEALTH'S APPEAL

We first address the Commonwealth's appeal. The trial court granted defendant a new trial on the basis that testimony given by a clinical psychiatric social worker, Michael Weller, contained an impermissible reference to the "reliability" of information given to him by children he interviewed in his employment capacity. The court held that "[t]his is the same kind of testimony which is condemned in [ Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986)] as a usurpation of the jury's function to pass on credibility of a witness." Slip op. at 6.

Our standard of review is well-settled: A trial court's grant of a motion for a new trial will not be overturned absent a palpable and clear abuse of discretion or an error of law which controlled the outcome of the case. Westing-house Elevator Co. v. Herron, 514 Pa. 252, 523 A.2d 723 (1987). For reasons which follow, we hold that the testimony of Michael Weller did not usurp the jury's function as fact-finder.

At trial Dr. Gwendolyn Ross, a psychiatrist specializing in child adolescent psychology, was called by the Commonwealth and testified that the victim was a patient at Southwood Psychiatric Hospital for a six week period following the attacks. The victim had been referred to the hospital for treatment of severe depression, suicidal thoughts and self-abusiveness. Dr. Ross testified that the victim received cognitive and milieu therapy at Southwood.

Following Dr. Ross' testimony, the Commonwealth called Michael Weller to the stand. Weller joined Southwood Hospital in 1985 to practice family therapy with the Children's Unit. He testified that from 1985 until 1987 he was "a clinical psychiatric social worker . . . on the children's program, doing family therapy with the children on that program." N.T. at ...


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