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Commonwealth v. Boich

October 6, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
DARYL J. BOICH, APPELLEE



Appeal from the Order entered October 5, 2006 In the Court of Common Pleas of Luzerne County, Criminal, No. CP-40-CR-0000024-2006.

The opinion of the court was delivered by: Gantman, J.

BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY GREEN*fn1, KLEIN, BENDER, BOWES, GANTMAN, AND SHOGAN, JJ.

OPINION

¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Luzerne County Court of Common Pleas, which granted the pre-trial motion of rape defendant Appellee, Daryl J. Boich, to direct the adult rape complainant ("C.U.") to submit to an involuntary psychiatric examination for purposes of deciding her competency to testify at trial. The Commonwealth asks whether the court erred when it found compelling reasons to grant Appellee's request. We hold the court erred when it ordered an involuntary psychiatric examination of C.U. on the grounds alleged. Accordingly, we reverse and remand for further proceedings.

¶ 2 The testimony of C.U. at Appellee's preliminary hearing revealed that on October 13, 2005, at approximately 10:00 p.m., C.U. and three friends went to a bar in Wilkes-Barre, Pennsylvania. At the bar, C.U. saw a co-worker who knew Appellee. They greeted Appellee, while they and others were all crowded in front of the stage where a band was preparing to perform. As the evening wore on past midnight, C.U., Appellee, and others drank, danced, and casually conversed mostly in a group setting. Upon repeated questions as to the content of her conversations with Appellee, C.U. could not recall the gist of those conversations because the bar was crowded and loud. C.U. maintained the conversations were all casual and inconsequential. At one point, C.U. accepted a dare from her co-worker to kiss another female dancer C.U. did not know. C.U. agreed and did so, but on the rebuttal dare that the co-worker would kiss Appellee, which he also did. C.U. testified that the kiss was just a prank.

¶ 3 Later, when C.U. decided she wanted to go home, she could not readily locate the friends she had arrived with, so she accepted a ride home from Appellee. On the way out of the bar, C.U. encountered her co-worker, who also offered C.U. a ride home, but not until later. As C.U. wanted to leave at that moment, she told her co-worker she was going to leave with Appellee. Appellee preceded C.U. out of the bar and into the parking lot, where he cleared off the front passenger seat of his car for C.U. C.U. admitted she was attracted to Appellee and hoped to exchange phone numbers with him.

¶ 4 Once inside Appellee's Mercedes, C.U. and Appellee began to kiss. C.U. soon became uncomfortable, because Appellee was "getting a little pushy" by grabbing C.U.'s breasts. At that point, C.U. told Appellee she just wanted to go home. Appellee agreed. Appellee instead drove to the back parking lot of the bar, stopped his vehicle, grabbed C.U.'s hair, pulled her head down into his lap, and forced C.U. to perform oral sex on him. When it became evident that C.U. would not participate, Appellee released her head. Appellee again purported to leave but instead drove the car to an even more secluded area behind the bar. Appellee and C.U. then moved outside the vehicle, where Appellee forcibly pulled down C.U.'s jeans and panties, pushed her onto the car, held her firmly, and forced her to have sexual intercourse with him on the hood of the car. C.U. told Appellee to stop, but he refused and ceased only when C.U.'s cell phone rang. C.U. advised Appellee that her friends would contact the police if she did not answer the phone, so Appellee released C.U. who was then able to push him off of her. C.U.'s phone was inside the car on the floor. C.U. answered it and had a short phone conversation. After C.U. terminated the call, Appellee told her to get out of the car, which she did. Appellee left C.U. and drove away from the area. While making her way back to the bar's main parking lot, she contacted her co-worker and told him what had happened. C.U. went to the hospital where a rape kit was performed. The incident was later reported to the police. (N.T. Preliminary Hearing, 12/12/05, at 7-121).

¶ 5 As a result of interviews with C.U. and others, the police charged Appellee with rape,*fn2 involuntary deviate sexual intercourse,*fn3 and two counts of sexual assault.*fn4 On December 12, 2005, the district magistrate conducted the preliminary hearing. Based solely on C.U.'s testimony, including rigorous cross-examination of C.U. by the defense, the magistrate ruled the Commonwealth had presented a prima facie case on the charges and bound the matter over to the Court of Common Pleas for trial.

¶ 6 Thereafter, Appellee filed a request for a bill of particulars on July 20, 2006, several discovery requests on July 20, 2006, August 8, 2006, and August 14, 2006, as well as an omnibus pre-trial motion for a competency hearing, an involuntary psychiatric or psychological examination of C.U. by a defense expert, and disclosure of C.U.'s medical, psychiatric and psychological treatment records on August 14, 2006.

¶ 7 In his omnibus pre-trial motion, Appellee averred C.U. had demonstrated at the preliminary hearing "an inability to remember specific facts about the alleged incident." (See Omnibus Pretrial Motion of Appellee, filed 8/14/06, at 2-4). Relying on the transcript from the preliminary hearing, Appellee specifically asserted (1) C.U. had responded "I don't recall" no less that thirty-five (35) times during questioning at the preliminary hearing; (2) she admitted she was intoxicated on the night of the alleged incident; (3) she admitted taking "a number of medications" on the day of the alleged incident; (4) she "demonstrated a substantial inability to either remember or accurately remember material facts regarding the occurrences during her direct and cross-examination"; and (5) C.U. "has a history of exaggerating intimate physical contacts with prior boyfriends resulting in false allegations of physical abuse, is hot tempered and appears emotionally unstable during periods of intimacy."*fn5 (See id.) On these grounds, Appellee concluded C.U. was not legally competent to testify at trial.

¶ 8 On October 3, 2006, Appellee filed a document called "Supplemental Reasons Supporting Need for Involuntary Psychiatric Examination of Complainant" in which Appellee repeated that C.U.'s "mental instability" at the time of the incident was admissible to impeach her credibility. Appellee further averred C.U.'s admitted intoxication, use of narcotic drugs, inability to "remember material facts" and her "mental instability" affected her credibility. (See Appellee's Supplemental Reasons, filed 10/3/06, at 1). On these grounds, Appellee again requested, inter alia, the court to compel an involuntary psychiatric and/or psychological evaluation of C.U. by Appellee's defense expert. Id.

¶ 9 On October 5, 2006, the Court of Common Pleas trial court held a pre-trial hearing. Appellee presented testimony of the defense forensic psychiatry expert, Richard Fischbein, M.D. Over the Commonwealth's objection, Dr. Fischbein was permitted to say he would want to perform a psychiatric interview of C.U. to find out why C.U. was on a prescription medication for stomach problems, when that medication is typically used to treat depression or an anxiety disorder. Dr. Fischbein said without an examination, he could not tell why C.U. failed to remember all the details of the incident of October 5, 2005, that an examination "would be helpful" in figuring out why C.U. had difficulty remembering the event. He also opined that the prescription medications C.U. admitted taking were not compatible with alcohol intake. In other words, a person on her medications should limit drinking alcoholic beverages. Dr. Fischbein also stated he suspected C.U. was also being treated for depression rather than just stomach problems, because the medication she took on the morning of October 5, 2005 was a "commitment" drug not usually prescribed for short term disorders. Dr. Fischbein wanted to know why the medications had been prescribed. Coupled with significant other testing, Dr. Fischbein wanted to discover if C.U. had any "personality issues" consistent with post-traumatic stress disorder.

¶ 10 On cross-examination, Dr. Fischbein conceded that C.U. had remembered many details about the incident. He also agreed the details C.U. failed to remember were minor things, such as whether the beer she drank was draft or in a bottle. Although Dr. Fischbein insisted the issue for him was more than just intoxication, he also conceded the real issue was not necessarily why the prescription drugs had been prescribed but the effects of the interaction of the drugs and alcohol. Dr. Fischbein also conceded that after an evaluation, he might still not have an explanation for why C.U.'s memory was "impaired." (N.T. Pre-trial Hearing, 12/12/06, at 27-73). C.U. was also present at the hearing. Nevertheless, she was called to testify only with respect to (1) whether she had generated any emails about the incident, which she denied; and (2) whether she had ever been treated as an outpatient or inpatient at any psychiatric facility, which she also denied. (Id. at 75-76; R.R. Vol. II at 77a-78a). Neither the court nor defense counsel asked C.U. any other questions, although she was available for inquiry.

¶ 11 Following the hearing, the trial court granted Appellee's motion for medical records limited to the prescription drugs Lexapro and Darvocet. The court also granted the defense motion for an involuntary psychiatric and/or psychological examination of C.U. by Dr. Fischbein. In support of its decision to grant these requests, the court stated:

¶ 12 While none of the facts relied upon by [Appellee], in isolation, establish a compelling need for an examination; considered together one is clearly warranted. This [c]court simply lacks sufficient expertise to understand and evaluate the physical/psychiatric affects and effects of ingestion of these substances by the alleged victim. This evaluation and determination becomes more difficult given the alleged victim's acknowledged alcohol consumption. Dr. Fischbein's testimony establishes the ingestion of a combination of these constituent substances implicates a person's ability to perceive and recall. We cannot make a factual determination on the ultimate issue of testimonial competency unless we understand and appreciate the drugs' interaction and the extent to which they [a]ffected the ability to accurately recall, perceive and articulate the relevant sequence of events. (Trial Court Opinion, filed December 13, 2006, at 10) (emphasis added) (internal footnotes omitted). The court denied the defense request for C.U.'s past psychiatric and/or psychological treatment records as moot.

¶ 13 On October 10, 2006, the Commonwealth filed a motion for reconsideration, which the court denied on October 11, 2006. On October 19, 2006, the Commonwealth timely filed its notice of appeal and a second motion for reconsideration. On the same day, the court ordered the Commonwealth to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely filed its Rule 1925(b) statement on November 2, 2006. In a rather unprecedented move, Appellee filed a "reply" to the Commonwealth's Rule 1925(b) statement on November 7, 2006.*fn6

¶ 14 On August 22, 2007, a panel of this Court affirmed, with one dissent. The Commonwealth subsequently requested en banc reargument. By per curiam order, on October 29, 2007, this Court granted reargument, withdrew its panel decision, directed the case to be listed before an en banc panel, and instructed the parties to re-file the brief previously filed together with a supplemental brief or prepare and file a substituted brief. Both parties filed substituted briefs.

¶ 15 On appeal, the Commonwealth raises the following issue for our review:

DID THE TRIAL COURT ERR IN GRANTING [APPELLEE'S] MOTION FOR THE INVOLUNTARY PSYCHOLOGICAL EXAMINATION OF THE VICTIM, WHERE NO COMPELLING NEED FOR SUCH AN EXAMINATION IS DEMONSTRATED IN THE RECORD? (Commonwealth's Substituted Brief on Reargument at 4).

¶ 16 The Commonwealth argues in general court-ordered psychiatric examinations involve a high degree of intrusion that unnecessarily invades a victim's privacy rights. The Commonwealth asserts the defense failed to demonstrate a compelling reason or substantial need for an involuntary examination in this case. The Commonwealth maintains a compelling need exists only when the record unequivocally indicates a question of witness competency. The Commonwealth claims the trial court essentially merged the concepts of competency and credibility. The Commonwealth suggests C.U.'s inability to remember small or insignificant details about the evening in question does not warrant a compelled psychiatric evaluation, given legal precedent disfavoring such examinations, except under the most extreme circumstances. Any gaps in C.U.'s testimony present a credibility issue for the fact finder.

¶ 17 The Commonwealth also argues a compelled psychiatric evaluation of C.U., conducted months after the incident, would not resolve the question of C.U.'s ability to recall some of the details of the evening in question. The Commonwealth urges forced psychiatric examinations of adult sexual assault victims, on a record lacking compelling need, will further chill victims already reluctant to report sex crimes for fear of intrusive mental health evaluations. The Commonwealth concludes the record in this case does not support the trial court's order directing C.U. to submit to an involuntary psychiatric evaluation, and this Court should reverse the order and remand for trial to proceed.

¶ 18 In response, Appellee argues C.U. had "substantial" difficulty during the preliminary hearing recalling relevant matters relating to the alleged assault. Appellee maintains that on seventy-one (71) occasions during cross-examination, C.U. stated she either did not remember or did not recall a specific detail of the night in question. Appellee claims C.U.'s "selective, piecemeal description of events" raises a substantial and valid question of her "testimonial competency," which the trial court was obligated to resolve. Appellee insists these testimonial omissions, C.U.'s delay in reporting the alleged assault, and her admitted alcohol consumption prior to the alleged attack, create a heightened danger that C.U. lacks the capacity to accurately recall the facts. Appellee further argues the only way to determine the "cause for the blanks in complainant's memory" is through a compelled psychiatric and/or psychological evaluation. Thus, Appellee concludes the record established the need for an involuntary psychiatric and/or psychological evaluation of C.U., and this Court should affirm the trial court's order. For the following reasons, we agree with the Commonwealth's position.

¶ 19 As a prefatory matter, the Commonwealth's appeal is proper under the collateral order doctrine. See Commonwealth v. Shearer, 584 Pa. 134, 882 A.2d 462 (2005) (holding Commonwealth's appeal of order requiring complainant to submit to psychiatric examination was proper under collateral order doctrine); Commonwealth v. Alston, 864 A.2d 539 (Pa.Super. 2004) (en banc) (stating court's decision to require rape victim to undergo involuntary psychiatric examination is subject to review under collateral order doctrine). See also Commonwealth v. Watson, 597 Pa. 483, 952 A.2d 541 (2008) (reviewing as immediately appealable, under Pa.R.A.P. 313, order denying Commonwealth's request for involuntary administration of antipsychotic medication for purposes of rendering death-row inmate competent to participate in post-conviction proceedings).

¶ 20 Generally, on review of an order granting or denying a discovery request, an appellate court applies an abuse of discretion standard. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999). Likewise, evidentiary rulings are subject to an abuse of discretion standard. Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa.Super. 2007), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008).

Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073 (2005) (internal citations and quotation marks omitted).

¶ 21 Pennsylvania Rule of Evidence 601 provides, in pertinent part:

Rule 601. Competency

(a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these Rules.

(b) Disqualification for Specific Defects. A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable of perceiving accurately;

(2) is unable to express.herself so as to be understood either directly or through an interpreter;

(3) has an impaired memory; or

(4) does not sufficiently understand the duty to tell the truth.

Pa.R.E. 601 (emphasis added). This rule is expressly intended to preserve existing Pennsylvania law. Id., Comment. "In general, the testimony of any person, regardless of [her] mental condition, is competent evidence, unless it contributes nothing at all because the victim is wholly untrustworthy. Thus, in Pennsylvania, [a witness is] presumed competent to testify, and it is incumbent upon the party challenging the testimony to establish incompetence." Commonwealth v. Anderson, 552 A.2d 1064, 1067 (Pa.Super. 1988), appeal denied, 524 Pa. 616, 571 A.2d 379 (1989) (internal citations omitted).*fn7 Above all, given the general presumption of competency of all witnesses, a court ought not to order a competency investigation, unless the court has actually observed the witness testify and still has doubts about the witness' competency. Id.

¶ 22 Claims that a witness' memory has been corrupted by insanity, mental retardation, hypnosis, or taint go to the competency of that witness to testify. Commonwealth v. Delbridge, 578 Pa. 641, 643, 855 A.2d 27, 40 (2003) ("Delbridge I"). The capacity to remember and the ability to testify truthfully about the matter remembered are components of testimonial competency. Delbridge II, supra. The party alleging a witness is incompetent to testify must prove that contention by clear and convincing evidence. Delbridge I, supra at 644, 855 A.2d at 40.

¶ 23 When rendering a decision to disqualify a witness as incompetent, a court can rely on expert testimony. Alston, supra at 549. Nevertheless, whether the court can order an involuntary psychiatric examination of the witness to determine testimonial competency is an entirely distinct inquiry. Id. "The privacy implications of a compelled psychiatric examination are significant. Indeed, where the record fails to establish that there is a question as to the victim's competency, we refuse to sanction any intrusion into the victim's existing psychological records or any cross-examination as to psychiatric treatment." Id. The presumption of witness competency is necessary to "effectuate the fundamental policies underlying both the constitutional right to privacy and the statutory psychiatrist-patient privilege." Henkel, supra. Thus, a court-ordered, involuntary psychiatric or psychological examination "should never be the starting point" for a competency evaluation. Id.; Alston, supra at 549. Therefore, a court ought not to order an involuntary psychiatric examination of a witness unless the record unequivocally demonstrates a compelling need for the examination. Alston, supra. See also Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999) cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000) (affirming trial court's decision to overrule defense challenge to witness' testimonial competency on grounds of psychiatric instability and/or drug use, where court listened to witness testify and observed nothing to indicate impairment of witness' ability to observe, recall, or relate events relevant to case).

¶ 24 Pennsylvania case law does not expressly define "compelling need" in the context of a court-ordered, involuntary psychiatric examination of a sexual assault victim; however, other jurisdictions construe "compelling need" as follows: State of Kansas v. Blanchette, 134 P.3d 19, 31-32 (Kan.App. 2006), cert. denied, 549 U.S. 1229, 127 S.Ct. 1302, 167 L.Ed.2d 115 (2007) (stating six factors to consider when deciding if there is compelling need for involuntary psychological evaluation of victim include: "(1) whether the victim demonstrates mental instability; (2) whether the victim demonstrates a lack of veracity; (3) whether similar charges by the victim against others are proven to be false; (4) whether the defendant's motion for a psychological evaluation of the victim appeared to be a fishing expedition; (5) whether anything unusual results following the questioning of the victim's understanding of telling the truth; and (6) whether there are any other reasons why the victim should be evaluated"; holding where pretrial hearing provided defendant with opportunity for full cross-examination of victim and defense called psychologist to testify about general nature of trauma under such circumstances, defense failed to demonstrate compelling reason to subject victim to further psychological evaluation); State v. Maday, 507 N.W.2d 365, 372 (Wis.App. 1993) (emphasis added) (stating multi-factor balancing test on rights of defendant and victim to determine whether defense established compelling need for involuntary psychiatric examination of victim: "(1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the resulting physical and/or emotional effects of the examination of the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; (6) the evidence already available for the defendant's use" and adding another "(7) based on the testimony of the defendant's named experts, whether or not a personal interview with the victim is essential before the expert can form an opinion to a reasonable degree of psychological or psychiatric certainty, that the victim's behaviors are consistent with the behaviors of other victims of sexual abuse").*fn8 See, e.g., State v. Camejo, 641 So.2d 109 (Fla.App. 1994), decision approved by, 660 So.2d 242 (1995) (explaining court-ordered psychological examination of victim is improper where defense has various alternative means to attack victim's veracity); State v. Redd, 642 A.2d 829 (Del.Super. 1993) (stating allegations of discrepancies and inconsistencies in victim's testimony are fundamental matters of credibility and do not provide compelling reasons to warrant involuntary psychiatric examination of victim; "Bare allegations of fabrications will not suffice, nor will detailed allegations of fabrications if such detailed allegations do little more than attack the credibility of the victim.. The moving party must show 'some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ...


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