Appeal from the Order of the Superior Court of Pennsylvania at No. 955 Philadelphia, 1983, dated December 12, 1984 affirming the Judgment of Sentence of the Court of Common Pleas of Delaware County at No. 4693 of 1981.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Zappala, J., concurs in the result.
On June 3, 1981 a young woman who was waiting for a train in the Borough of Lansdowne, Delaware County, was forced into a car, raped, made to perform oral intercourse, and threatened with a knife and a hammer. Following these acts of violence, the rapist then unsuccessfully attempted to start the car, and while he wiped his fingerprints from the interior of the car, the victim escaped. She ran to her car in the parking lot, drove to her apartment and called the police.
The victim's description of the rapist was that he was a white male with dark brown hair, dark eyebrows, dark eyes, approximately five feet eight inches tall, heavy, dirty, missing several teeth and having a protruding tooth on the upper right side of his mouth. She assisted the police in preparing a composite drawing of the assailant and gave police a drawing which she herself had made.
The next day the victim assisted another police officer in producing another composite drawing and viewed 736 photographs from police files. She was unable to identify any of the persons in these photographs as her assailant, and the photographic display was not preserved.
On June 8, 1981 the victim again gave a detailed account of the attack and a description of the rapist. She stated that she was "almost positive" she would remember him if she saw him again. Immediately after this, the victim was placed under hypnosis by a law enforcement officer and the process was taped.*fn1 Except for a few minor details, the victim's statement under hypnosis was the same as her statements prior to hypnosis and no new information regarding the appearance of the rapist was produced.
Two months later, the victim was shown an array of eight photographs from which she identified Romanelli as the rapist. Four days after that, she was shown a different selection of eight photographs, including an older photograph of Romanelli. Again, she identified Romanelli as the assailant. Subsequently, Romanelli was tried by a jury in the Court of Common Pleas of Delaware County, Criminal Division, and convicted of rape, unlawful restraint, indecent assault, involuntary deviate sexual intercourse, simple assault, and possession of instruments of crime.
Prior to trial, Romanelli moved to suppress all of the victim's testimony on the grounds that it was impermissibly tainted by hypnosis. The trial court then reviewed the tape
of the pre-hypnotic and hypnotic interviews and found them to be non-suggestive. The victim, therefore, was permitted to testify as to information she had given police prior to hypnosis and to identify Romanelli as the rapist, but the court suppressed all of the victim's testimony "insofar as it relate[d] to those matters in the hypnotic interview which were not previously referred to or stated by her to have occurred in any statement or interview given by [the victim] prior to being hypnotized on June 8, 1981."
Post-trial motions were filed and denied and Romanelli was sentenced on September 7, 1982. From this judgment of sentence, Romanelli appealed to Superior Court, which affirmed, 336 Pa. Super. 261, 485 A.2d 795 (1984). Romanelli then petitioned this Court for allowance of appeal, and we granted allocatur to address the issues of whether a hypnotist employed by the police can be sufficiently "neutral" as we have required in earlier cases, and whether an identification subsequent to hypnosis is admissible where the Commonwealth did not preserve a pre-hypnosis photographic display from which no identification was made.
In Commonwealth v. Smoyer, 505 Pa. 83, 89-90, 476 A.2d 1304, 1308 (1984), we held that a witness who had been hypnotized could testify as to information not derived from the ...