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[U] Commonwealth v. Pugh

Superior Court of Pennsylvania

July 11, 2013



Appeal from the Judgment of Sentence December 19, 2011 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000303-2010




Appellant, Robert Micheal Pugh, appeals form the judgment of sentence entered December 19, 2011, by the Honorable Jennifer H. Sibum, Court of Common Pleas of Monroe County. After careful review, we affirm.[1]

The certified record in this appeal reveals the following factual and procedural history. On January 21, 2010, Pugh's sister, S.P., was taken to Pocono Medical Center, where she was diagnosed with a sexually transmitted disease ("STD"). S.P. was 13 years-old at the time. Because of her age and diagnosis, the hospital reported the incident to authorities.

In response, Trooper Patrick Finn of the Pennsylvania State Police interviewed S.P., at which time she stated that Pugh had drugged and raped her. Several days later, Trooper Finn contacted Pugh via telephone, and convinced Pugh to come to the police station to be interviewed. During his interview, Pugh admitted to, among other things, drugging and raping S.P. on multiple occasions. The interrogation and confession were not recorded, and Pugh was subsequently charged with several counts of rape and related offenses.

While incarcerated, Pugh soon recanted his confession, claiming that his confession had been coerced. Additionally, approximately one month after Pugh's arrest, his step-sister, M.Z., informed authorities that she had been diagnosed with the same STD as S.P. Ultimately, medical testing found that Pugh was not suffering from this STD. M.Z. stated that she believed that she had contracted the disease from her husband. When presented with these circumstances, S.P. did not initially recant her accusations against Pugh; she stated that M.Z.'s husband had also assaulted her. M.Z.'s husband subsequently pled guilty to statutory sexual assault and unlawful contact with a minor pursuant to S.P.'s allegations.

Approximately one month after that, S.P. wrote a letter to authorities, recanting her allegations against Pugh. Two months after her letter, S.P. underwent a third interview by the State Police. S.P. told the State Police that her mother and sister pressured her to recant her allegations against Pugh. Both women subsequently pled guilty to obstructing justice based upon their conduct towards S.P.

Pugh's first trial commenced on March 24, 2011. After the jury was unable to reach a verdict, the trial court declared a mistrial, and scheduled a new trial. Before the new trial could be held, Pugh notified the Commonwealth that he intended to present expert testimony on the phenomenon of false confessions. The Commonwealth responded by filing a motion in limine, seeking to exclude, amongst others, the expert's testimony on false confessions. Shortly thereafter, the Commonwealth supplemented its motion in limine seeking to exclude expert testimony regarding false confessions, and furthermore requested a Frye[2] hearing to determine the admissibility of such testimony.

The trial court held a Frye hearing and accepted supplemental briefing on the issue. On the eve of trial, the court entered an order that in relevant part granted the Commonwealth's motion in limine. At the conclusion of the second trial, the jury found Pugh guilty of rape of an unconscious victim, [3]rape of a substantially impaired person, [4] sexual assault, [5] unlawful contact with a minor (sexual offenses), [6] aggravated indecent assault without consent, [7] aggravated indecent assault (complainant is unconscious or unaware), [8] aggravated indecent assault (persons impairs complainant), [9] and incest.[10] The trial court subsequently sentenced Pugh, and this timely appeal followed.

On appeal, Pugh raises the following issues for our review:

A. Does the Constitutional right to present a defense include the right to offer proven science bearing on custodial interrogation techniques through an expert, lay witnesses who can demonstrate the motive, interest or bias of a complainant, and also jury instructions which meaningfully shed light on the theory of defense?
B. Should a mistrial be granted where the prosecutor sandbags expert discovery until rebuttal resulting in irremediable prejudice to defendant?

Appellant's Brief, at 7.

Pugh's first purported issue actually raises three distinct issues under the umbrella of the right to present a defense. First, he contends that the trial court erred in excluding his expert's testimony on the issue of false confessions. Next, Pugh argues that the trial court erred in denying him the right to call M.Z.'s husband as a witness. Third, he asserts that the trial court erred in refusing to instruct the jury explicitly on the State Police's failure to record the interview and confession. We will address these issues in order.

Pugh first argues that the trial court erred in granting the Commonwealth's motion in limine to exclude the testimony of his expert on the issue of false confessions. In evaluating the denial or grant of a motion in limine, our standard of review is the same as that utilized to analyze an evidentiary challenge. Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010). Pursuant to that standard, we have held that:

The admission of evidence is committed to the sound discretion of the trial court, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Id. (citations omitted). Rule 702 of the Pennsylvania Rules of Evidence governs the admissibility of expert testimony on scientific knowledge:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702.

The trial court held a Frye hearing in response to the Commonwealth's motion in limine, and its analysis refers to the Frye analysis. However, our review of the trial court's opinion reveals that it relied directly upon Rule 702 in excluding the testimony of Pugh's expert. The trial court concluded that the testimony was not based upon an understanding outside the realm of common knowledge. The trial court therefore held that the proposed testimony did not meet the test set forth in Rule 702. See Trial Court Opinion, 3/13/2012, at 14. In reaching this conclusion, the trial court noted that the expert himself testified that an average person could understand the importance of the factors that have been found to lead to false confessions. See, N.T., Hearing, 8/24/2011, at 28-31. Based upon this testimony, we conclude that the trial court did not abuse its discretion in excluding the expert's testimony.

Furthermore, the trial court's decision is correct pursuant to the Supreme Court of Pennsylvania's long-standing policy of protecting the jury's duty to determine credibility from the undue influence that accompanies expert testimony on the credibility of witnesses. See, e.g., Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) (Expert testimony that pre-pubertal children do not fabricate stories of sexual abuse not admissible); Commonwealth v. Davis, 518 Pa. 204, 542 A.2d 997 (1988) (Expert testimony that victim was not dissembling was not admissible); Commonwealth v. Gallager, 519 Pa. 291, 547 A.2d 355 (1988) (Testimony regarding Rape Trauma Syndrome was not admissible); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992) (Expert testimony on the ability of children to recall events of abuse not admissible); Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993) (Expert testimony on the effect of stress on eyewitness testimony not admissible); Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003) ("[E]xpert testimony will not be permitted when it attempts in any way to reach the issue of credibility"). This Court has also consistently upheld the exclusion of expert evidence that intrudes upon the duty of the jury to determine credibility of witnesses. See, e.g., Commonwealth v. Boromack, 827 A.2d 503 (Pa. Super. 2003) (Expert testimony on the issue of false identifications not admissible); Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. 2002) (Expert testimony on credibility of child's testimony based upon suggestive interview technique inadmissible). Thus, we must conclude that the trial court's decision to exclude the expert testimony at issue in this appeal was consonant with existing caselaw. We therefore conclude that Pugh's first issue on appeal merits no relief.

In his second issue on appeal, Pugh argues that the trial court erred in precluding from questioning M.Z.'s husband on issues such as her sexual history and S.P.'s motive to fabricate allegations against Pugh. The trial court states that it precluded this testimony based upon, inter alia, the Pennsylvania Rape Shield statute. Pursuant to Pennsylvania's Rape Shield statute:

Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

18 Pa.Cons.Stat.Ann. § 3104(a).

Specifically, Pugh argues that he wished to inquire "at trial only in the issue of veracity with respect to the [Victim's] representation at the medical center that she was a virgin when that representation could not have been true under any circumstances then existing, and was actively false based upon the allegations made either against [Appellant]or subsequently against [Mr. Alverio]." Appellant's Brief at 39. Pugh contends that "[s]uch an inquiry will have probative value regarding veracity of the [Victim] which is exculpatory to [Appellant]." Id. We disagree.

In the present case, it is uncontested that at trial, M.Z.'s husband was permitted to testify that he had engaged in sexual intercourse with S.P. Consequently, the jury was presented with ample evidence establishing that, at the medical center, S.P. falsely claimed to be a virgin. We agree with the trial court that any additional details regarding the sexual encounters between M.Z.'s husband and S.P. were unnecessary and would have violated the Rape Shield statute. Therefore, we find no abuse of discretion in the trial court's limitation of M.Z.'s husband's testimony.

In his next issue on appeal, Pugh contends that the trial court erred in refusing to provide the jury with his proposed instruction on unrecorded custodial interrogations. We review a trial court's jury instruction as follows:

When evaluating jury instructions, the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation omitted), appeal granted, 35 A.2d 3 (Pa. 2012). "A jury charge is erroneous if the charge as a whole is inadequate, unclear, or has a tendency to mislead or confuse the jury rather than clarify a material issue." Commonwealth v. Pope, 14 A.3d 139 (Pa. Super. 2011) (citation omitted), appeal denied, 32 A.3d 1277 (Pa. 2011). "Therefore, a charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said." Id.

Here, Pugh complains that he was prejudiced by the failure to instruct the jury that the ideal evidence regarding his confession was not available, despite the ability of the Commonwealth to provide for it, and therefore that the jury should consider this fact in determining credibility. The trial court states that it refused the proposed instructions because it had adequately covered the issue in other instructions. After reviewing the jury charge as a whole, we agree.

The trial court provided multiple instructions addressing Pugh's confession, the credibility of witnesses, and the consideration of evidence. Those instructions adequately addressed the concepts that Pugh sought to cover in the proposed instructions. We therefore conclude that the absence of these instructions did not prejudice Pugh. Accordingly, we find no abuse of discretion in the trial court's rejection of the proposed jury instructions addressing the absence of a video recording of Pugh's custodial interrogation.[11] Pugh's third issue on appeal merits no relief.

In his final issue on appeal, Pugh argues that the trial court erred by failing to grant his motion for mistrial after the Commonwealth allegedly committed a Brady[12] violation. In Brady, the United States Supreme Court held that a defendant's due process rights are violated when the prosecution withholds favorable, material evidence from the defense. To prove a Brady violation, the defendant bears the burden of demonstrating that: "(1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant, and (3) the suppression prejudiced the defendant." Commonwealth v. Koehler, ___Pa. __, __, 36 A.3d 121, 133 (2012) (citation omitted). Therefore, even if the first two prongs have been established, a defendant must establish that he was prejudiced by the failure to disclose. See Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997). To establish prejudice, the defendant must prove that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. (citation omitted).

Pugh asserts that the Commonwealth committed a Brady violation when the prosecution failed to turn over two pages of Pugh's medical testing results for STDs. Appellant's Brief, at 44. Specifically, Pugh challenges the Commonwealth's failure to timely disclose all email correspondence regarding his STD testing and results. Id. The existence of the withheld correspondence was apparently revealed during examination of one of the Commonwealth's witnesses. That surprise revelation, according to Pugh, disrupted his defense strategy, entitling him to a mistrial. Id. at 47.

The trial court states that it denied Pugh's motion for a mistrial because the alleged failure to disclose did not prejudice Pugh. Trial Court Opinion, 3/13/2012, at 10-11. Significant to the trial court's analysis was the fact that the information set forth in the withheld documents was contained within a separate final report document that Appellant received from the Commonwealth in a timely manner. Id. at 10. Therefore, the trial court reasoned that Appellant was not prejudiced by the missing documents, as he had the relevant information all along. Id.

We find no error in the trial court's analysis. Indeed, even assuming that the Commonwealth should have disclosed the subject documents prior to trial, and accepting that the manner in which the documents were disclosed to Pugh was inconvenient, Pugh has not established that he suffered prejudice from the untimely disclosure. Consequently, we find no abuse of discretion in the trial court's denial of Appellant's motion for a mistrial, and conclude that Pugh's final issue on appeal merits no relief.

As we conclude that none of Pugh's issues on appeal merit relief, we affirm the judgment of sentence.

Judgment of sentence affirmed. Motion to File Supplementary Materials Denied. Jurisdiction relinquished.

Judgment Entered.



I agree with the learned Majority's affirmation of 1) the trial court's rejection of Appellant's proposed jury instructions regarding videotaped custodial interrogations; 2) the trial court's order limiting the cross- examination of the Victim's brother-in-law; and, 3) the trial court's order denying Appellant's motion for a mistrial. However, I part company with my learned colleagues on the issue of whether the trial court erred when it granted the Commonwealth's motion in limine to exclude expert testimony regarding the phenomena of false confessions. I believe that the trial court did err in granting said motion and, therefore, I would vacate Appellant's judgment of sentence and remand for a new trial. Accordingly, I respectfully dissent.

In order to understand the basis for my dissent, I believe that it is necessary to set forth the facts and circumstances surrounding the Commonwealth's motion in limine.

On July 7, 2011, Appellant provided the Commonwealth with the name and curriculum vitae of Frank Dattilio, Ph.D., an expert Appellant intended to call to testify regarding the phenomena of false confessions. On July 8, 2011, the Commonwealth filed a motion in limine, seeking to exclude, inter alia, Appellant's proposed expert testimony regarding false confessions. On August 9, 2011, the Commonwealth supplemented its motion in limine seeking to exclude expert testimony regarding false confessions, and requested a Frye[1] hearing to determine the admissibility of such evidence.

On August 24, 2011, the trial court conducted a Frye hearing regarding the admission of Dr. Dattilio's expert testimony. At that hearing, Dr. Dattilio testified that he has been a clinical and forensic psychologist for over 25 years, and that he is currently on the faculty of Harvard Medical School and the University of Pennsylvania Medical School. N.T., 8/24/2011, at 4-6. After additional discussion regarding Dr. Dattilio's experience and expertise, Appellant offered Dr. Dattilio as an expert in clinical and forensic psychology. Id. at 10. With no objection from the Commonwealth, the trial court qualified Dr. Dattilio as an expert. Id. at 10.

Dr. Dattilio then explained that over the last 10 years, there has been a great deal of growth in the empirical data which supports the phenomena known as false confessions – "people who wrongly confess to crimes that they didn't commit. Some of the most common ones, of course, involve acts of rape and murder." Id. at 11. Dr. Dattilio explained that advances in science have given rise to the recognition of the false confessions. Id. Particularly, Dr. Dattilio explained that advances in social and clinical psychology have focused on the issue of the vulnerability of human beings to reward and punishment, as well as to responses to stress, fatigue, fear, and intimidation. Id. at 11-12. Additionally, Dr. Dattilio explained that scientific advances in DNA technologies have reached a degree of medical certainty, resulting in the exoneration of, for example, many homicide convictions. Id. at 12. Dr. Dattilio testified that false confessions as a result of certain human vulnerabilities are now conclusively documented as an accepted phenomena. Id.

Dr. Dattilio testified that he based his knowledge of the phenomena of false confessions upon peer reviewed medical journals, curriculum within his training of psychiatric residents at the University of Pennsylvania and Harvard, lectures on the topic, and, in particular, upon two publications by individuals with whom Dr. Dattilio works at the University of Pennsylvania. Id. at 12-13. Dr. Dattilio explained that he had testified twice before in Pennsylvania courts regarding false confessions. Id. at 13-14.

Dr. Dattilio then testified that experts have identified four different types of false confessions. Id. at 14. Within the stress compliant type, individuals become overwhelmed by anxiety and their physical exhaustion elevates their desire to bring the uncomfortable interrogation to an end. Id. at 14-15. Dr. Dattilio explained that those individuals confess, just so they can go home. Id. Dr. Dattilio classified the second group as the coerced compliant type. Id. at 15. Those individuals respond to either overt promises of leniency, or the notion that punishment will be reduced if you just comply and confess. Id. Dr. Dattilio testified that the third group is called the persuaded false non-coerced type, which is an individual persuaded by the interrogator or the investigator of the probability of guilt. Id. Those individuals have no memory or recollection of the accused event, so they assume that they are guilty if there is evidence to suggest their guilt. Id. Finally, Dr. Dattilio labeled the fourth group as the persuaded false coerced, wherein there is more coercion overtly used with regard to the individual's confession. Id. Coercion, Dr. Dattilio explained, included things such as pressure, intimidation, or presentation of false evidence. Id.

Dr. Dattilio explained that there is a well-recognized group called the "Innocence Project, " which investigates the potential for improper convictions based upon false confessions. Id. at 16. Dr. Dattilio said that, as a result of advancements in DNA technologies, the Innocence Project's statistics have shown that, in about 20 to 25 percent of confessions in homicide cases, the confessions were actually false, and wrongly convicted individuals were proven innocent. Id.

Dr. Dattilio then testified about his familiarity with police interrogation techniques, opining that certain techniques risk affecting the reliability of a confession. Id. at 16-17. Particularly, Dr. Dattilio testified that techniques such as deprivation of water and food, the denial of the ability to go home or somewhere of comfort, deprivation of an attorney or family member, and being shackled to an existing spot for hours, may affect the reliability of a confession. Id. at 17. Additionally, Dr. Dattilio said that confessions may be affected by falsely informing an accused of evidence such as videotapes, DNA, or other bodily fluids that place the accused at the scene of the crime. Id. Dr. Dattilio testified that a confession may emerge simply from fatigue or fear where, for example, an accused has been informed that he or she is going to get a life sentence, so he or she had better confess, or where the accused responds to suggestions that he or she tell authorities what he or she did so the accused can finally go home. Id.

Dr. Dattilio explained that, in the last 20 years, the American Psychological Association has published 78 scientifically-based peer-reviewed articles on the subject matter of false confessions. Id. at 18-21. A list of the 78 articles was admitted into evidence without objection from the Commonwealth. Id. at 21. Also admitted into evidence, without objection, were two of the articles identified in the list, and a copy of a chapter of a book regarding police interrogation techniques and false confessions. Id. at 23-24.

Dr. Dattilio explained, however, that in the absence of DNA evidence, he is unable to opine as to whether a particular confession, such as Appellant's, is false. Id. at 21. Rather, Dr. Dattilio explained that his testimony would be limited to explaining the phenomena of false confessions, and identifying factors proven to potentially affect the reliability of a confession. Id.

Dr. Dattilio opined that the average layperson without training in the field of psychology would be unaware of the factors that have been disclosed by research to increase the likelihood of a false confession. Id. at 25. Dr. Dattilio testified that the literature on false confessions explained that most people believe that if a person admits to something that he or she allegedly has done, then the individual in fact must have done it. Id. at 26.

The Commonwealth cross-examined Dr. Dattilio, highlighting that the factors that he identified as contributing to the propensity for a false confession, such as deprivation of food and water, are each, individually, not beyond an average layperson's understanding. Id. at 29. Dr. Dattilio also re-confirmed that, without DNA evidence, there is no scientific means to prove whether a confession is false. Id. at 32. Consequently, Dr. Dattilio explained that there are no studies to represent how widespread false confessions are in cases without DNA evidence. Id. at 33-34.

At the conclusion of the hearing, the trial court took Dr. Dattilio's proposed testimony under advisement and indicated that it would be willing to accept supplemental briefing regarding the admissibility of the testimony. Thereafter, the parties submitted those briefs, and on September 8, 2011, the trial court entered an order, inter alia, granting the Commonwealth's motion in limine to exclude Appellant's proposed expert testimony regarding false confessions. Specifically, in its September 8, 2011 order, the trial court precluded Dr. Dattilio "from testifying as to the phenomenon of false confessions, as such expert opinion invades on the province of the jury and may not be allowed to intrude upon the jury's basic function of deciding credibility." Order, 9/8/2011, at ¶ 2. Furthermore, in its Rule 1925(a) opinion, the trial court explained that it excluded Dr. Dattilio's testimony, because the proposed testimony was not beyond the understanding of a layperson, and because it was not proposed to assist the jury in understanding the evidence or determining an issue of fact. Trial Court Opinion, 3/13/2012, at 14. Ultimately, the trial court concluded that the proposed expert testimony "would not have provided assistance to the jury regarding the alleged false confession of [Appellant]." Id. at 15.

In its order sustaining the Commonwealth's motion in limine and it its Rule 1925(a) opinion, the trial court did not comment on whether Dr. Dattilio's testimony meets the Frye standard, but instead excluded the testimony based upon application of Rule 702. In affirming the trial court, the Majority notes that, although the trial court conducted a Fyre analysis, the court "relied directly upon Rule 702 [of the Pennsylvania Rules of Evidence][2] in excluding the testimony of [Appellant's] expert." Majority at 5.

Throughout this case, however, the Commonwealth has challenged the admission of the proposed testimony, as failing to satisfy the Frye test. Because proposed expert testimony must meet the Frye test before being admitted under Rule 702, I believe that we must address that issue first -whether Dr. Dattilio's testimony is based upon generally accepted theories or methodologies.

Where a party challenges the admissibility of scientific knowledge on the grounds that it constitutes a novel methodology, the proponent must establish that the methodology utilized by the expert witness is generally accepted by other practitioners in his or her field. Commonwealth v. Topa, 369 A.2d 1277, 1282 (Pa. 1977) (adopting Frye). The proponent need only demonstrate that the witness's methodology has achieved general acceptance in the relevant scientific community; his or her conclusions are not required to be generally accepted. See Tucker v. Community Med. Center, 833 A.2d 217 (Pa. Super. 2003). This rule is commonly referred to in Pennsylvania as the Topa/Frye rule.

In Grady v. Frito-Lay, 839 A.2d 1038 (Pa. 2003), our Supreme Court reaffirmed the use of the Topa/Frye test, reasoning that, "requiring judges to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof, as the Frye rule requires, is the better way of ensuring that only reliable expert scientific evidence is admitted at trial." Grady, 839 A.2d at 1045. Where the proponent of the evidence proves that the methodology is not novel, i.e., it is generally accepted, or that the science is not novel, the evidence meets the Frye test. See generally id.; Trach v. Fellin, 817 A.2d 1102 (Pa. Super. 2003) (en banc).

The Commonwealth argues that the data upon which Dr. Dattilio bases his theories is unreliable, because, absent DNA evidence (which does not exist in this matter), there is no quantitative way to establish the rate of false confessions. Commonwealth's Brief at 21. Furthermore, the Commonwealth explains that, absent DNA evidence, there is no scientific method to distinguish between true and false confessions. Id. Therefore, the Commonwealth suggests that the data for non-DNA matters is inherently unreliable and not generally accepted. Id. at 21-22.

Appellant, however, disagrees with the Commonwealth's application of the Frye standard. Instead, Appellant argues that the proposed testimony of Dr. Dattilio is generally accepted within the scientific community and outside the ken of a lay juror. Appellant's Brief at 14-18. Appellant relies largely upon an amicus brief submitted by the American Psychological Association in an extra-judicial matter, as well as numerous instances in which DNA evidence has exonerated individuals wrongfully convicted because of false confessions. Id. at 18-38. Considering advancements in science that have proven the existence of the phenomena of false confessions, Appellant argues that the exclusion of Dr. Dattilio's testimony violated his constitutional right to present a defense. Appellant seeks a new trial on that basis. Id. at 38.

After careful review of the record, I believe that, based on the testimony presented at the Frye hearing, Dr. Dattilio's methodology is generally accepted in his field. Although the Commonwealth argues that there is no statistical data to indicate how often false confessions transpire, the Frye test in Pennsylvania does not focus on scientific conclusions, i.e., the specific number of false confessions that occur. Instead, as mentioned supra, it concentrates on the acceptance of the methods employed in the field of study. Dr. Dattilio's un-rebutted testimony was that his expertise is in an area of social science research widely studied through traditional scientific methods and disseminated through customary scientific outlets. Since the Commonwealth presented no testimony to refute Dr. Dattilio's statements, Appellant established that Dr. Dattilio's methodology was generally accepted in his field.[3]

Once expert testimony clears the hurdle of the Frye test, in order to be admissible, it still must satisfy Rule 702; the testimony must involve "explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience, " of laypersons. See Pa.R.E. 702; Seese, 517 A.2d at 921.

The Majority concludes that the trial court did not err when it held that the subject of Dr. Dattilio's proposed testimony was not admissible under Rule 702 because it fell within the understanding of a layperson. Majority at 6. I respectfully disagree. To the contrary, my review of the transcript from the Frye hearing reveals that Dr. Dattilio very clearly stated that studies indicate that typical individuals do not understand the phenomena of false confessions. See N.T., 8/24/2011, at 26-27. As Dr. Dattilio explained, literature summarizing those studies reveals that an ordinary person is inclined to assume that, "if a person admits to something that they've done[, ] then they must have done it." Id. at 26. Dr. Dattilio further explained that, "there's some literature that depicts the fact that there's not a very sophisticated concept by the layperson as to all that goes into the factor that some people may actually falsely confess." Id.

On cross-examination, Dr. Dattilio acknowledged that the factors that he identified as contributing to the propensity for a false confession, such as deprivation of food and water, are each, individually, not beyond an average layperson's understanding. Id. at 29. However, contrary to the trial court's holding, Dr. Dattilio never testified that a layperson understands how the combination of those factors can lead to the phenomena of false confessions. Consequently, I do not believe that the record supports the trial court's determination that Dr. Dattilio's own Frye hearing testimony conceded that his proposed testimony fell within the scope of knowledge of an ordinary layperson.

I acknowledge that in Szakal, supra, a panel of our Court affirmed the trial court's exclusion of expert testimony regarding false confessions, reasoning that the testimony would not be of any assistance to the triers of fact in that case. Szakal, 50 A.3d at 228. Significant to the panel's determination in Szakal, however, was the fact that during voir dire each of the jurors admitted that he or she already knew false confessions occur. Id. Furthermore, without providing any analysis or summary of the proffered testimony or testimony from the Frye hearing, the panel agreed with the trial court's determination that the expert testimony, in that matter, was within the ordinary knowledge of a layperson. Id.

In this matter, however, we do not have evidence of voir dire questioning regarding the jury's knowledge of false confessions and we have a detailed Frye hearing establishing that the subject of Dr. Dattilio's testimony is, indeed, beyond the ordinary knowledge of a layperson. Consequently, while I respect my colleagues' determination in Szakal, I believe that it is distinguishable from this matter.

I further note that recently another panel of this Court relied upon Szakal in holding that the trial court did not abuse its discretion in precluding an expert from testifying to the phenomena of false confessions. In Commonwealth v. Harrell, 2013 WL 1501947 (Pa. Super. 2013), the majority, in reliance on Szakal, found that the trial court properly excluded such expert testimony on the basis that "the issue of false confessions was not beyond the ken of the average layperson." Id. at *8. However, as noted in Judge Christine Donohue's thoughtful and thorough dissenting opinion in Harrell, reliance on Szakal was misplaced as the facts in Harrell were clearly distinguishable from the facts of Szakal. Id. At *17-18. Specifically, in Harrell, as in the case sub judice, the order denying the defense's request to present expert testimony was issued prior to trial in response to the Commonwealth's motion in limine. Thus, jurors in Harrell, like the jurors in this case, were not questioned about their beliefs of the existence of false confessions, as they were in Szakal. Therefore, as Judge Donohue noted in her dissent, "neither the trial court nor the [Harrell] Majority [] offers any evidentiary support for the contention that as-yet-unselected jurors would have any basis to believe that false confession do or do not occur." Id. at *18 (emphasis in original).

Moreover, I respectfully disagree with the Majority's conclusion that "the trial court's decision is correct pursuant to the Supreme Court of Pennsylvania's long-standing policy of protecting the jury's duty to determine credibility from the undue influence that accompanies expert testimony on the credibility of witnesses." Majority at 6. The majority cites to Commwealth v. Seese, 517 A.2d 920 (Pa. 1986) and Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993), among other cases, in reaching this conclusion. I believe that Seese and Spence, and the other cases cited by the Majority (see Majority at 6-7), are distinguishable from this matter; therefore, I do not find that they support the Majority's conclusion.

In Seese, the sole issue was whether the trial court erred in admitting the testimony of the Commonwealth's expert witness, a board-certified pediatrician, who proposed to testify as to the veracity of eight-year-old children who allegedly were sexually abused. The prosecution questioned the witness as follows:

"Based upon your experience and your pediatric specialization, does the medical literature say anything about children of the age of eight in giving complaints of sexual abuse or rape as far as their veracity?"

Seese, 517 A.2d at 921. Defense counsel objected and the court sustained the objection insofar as it referred to medical literature, but permitted the witness to answer the question based upon the witness's own knowledge and experience. In answering the question, the witness testified that, "It would be very unusual for them to lie." Id. In granting the defendant a new trial, our Supreme Court ruled that because the testimony consisted of expert opinion as to the veracity of the class of potential witnesses of which the victim was a member, it improperly interfered with the credibility functions of the jury. Id. at 922.

According to the Seese Court,

[t]he question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness.

Id. Therefore, the Seese Court concluded that it was error to admit expert testimony as to the credibility of children who are of an age similar to that of the prosecution's chief witness, the crime victim. Id. See se instructs that expert testimony is inadmissible when offered as a means of showing, with scientific certainty, that the witness was telling the truth as to the facts of that case. See Seese, 517 A.2d at 922.

Our Supreme Court also analyzed the issue of expert testimony infringing on the jury's function as the arbiter of credibility in Spence. The facts in Spence involved a brutal attack against the victim, whom the Commonwealth called as a witness at defendant's trial. On cross- examination, defendant sought to impeach the victim using expert testimony which suggested that a person under extreme stress might be unable to identify his or her attacker. Spence, 627 A.2d at 1182. In upholding the trial court's decision not to permit the testimony, the Court stated that the proposed testimony would have created an "unwarranted appearance of authority in the subject of credibility which is within the facility of the ordinary juror to assess." Id. Thus, like See se, the holding in Spence barred expert testimony that purported to offer scientific grounds for attacking a victim's identification of a suspect because such evidence invaded the function of the jury as the sole arbiter of credibility. See also Commonwealth v. Davis, 541 A.2d 315, 316 (Pa. 1988) (holding inadmissible testimony of clinical child psychologist's opinion that children who had not been involved in sexual experiences typically do not fantasize about sexual experiences); Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988) (excluding testimony that victim suffered from Rape Trauma Syndrome);; Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992) (excluding testimony on patterns of behavior of sexually abused children, and on why a child may not remember abuse or give incomplete details or delay reporting); Commonwealth v. Boromack, 827 A.2d 503 (Pa. Super. 2003) (excluding testimony regarding false identifications); Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. 2002) (expert testimony on trustworthiness of child's statement in light of suggestive interview technique inadmissible).

In the instant case, however, testimony at the Frye hearing made it clear that Appellant would not offer Dr. Dattilio's testimony to comment as to the truthfulness of Appellant's confession. Dr. Dattilio expressly stated that he is unable to offer such an opinion. N.T., 8/24/2011, at 21. Nor has it been suggested that Dr. Dattilio would offer testimony regarding the particular circumstances of the police interrogation of Appellant. Indeed, I agree that, based upon the above precedent, Dr. Dattilio should not be permitted to opine as to whether Appellant's confession was false. As my learned colleagues note, such an opinion would improperly usurp the credibility determining function of the jury. The testimony proffered by Appellant, however, does not comment on credibility but instead describes police interrogation techniques and how they can, in certain instances, result in false confessions. Consequently, I believe it is error to conclude that the proposed testimony of Dr. Dattilio would improperly bolster a witness's credibility.[4]

As of yet, there is no on-point, published authority from our Supreme Court addressing the issue of the admission of expert testimony regarding the phenomena of false confessions.[5] In the absence of binding precedent, the Commonwealth opposes the challenge raised in this appeal by citing to authority from other jurisdictions. Although case law from outside jurisdictions is non-binding upon this Court, it can be instructive and provide persuasive authority. Thus, I have examined relevant authority from our sister states and the federal courts that have addressed this issue.

In United States v. Benally, 541 F.3d 990 (10th Cir. 2008), the Tenth Circuit Court of Appeals dealt with the propriety of expert testimony regarding false confessions. In that case, the defendant was accused of sexually abusing two minor females on an Indian reservation. Id. at 992. Tribal authorities referred the case to the Federal Bureau of Investigation ("FBI"). Id. Two FBI agents interviewed Benally at his workplace for approximately one and one-half hours and, at the conclusion of the interrogation, he provided a written confession. Id.

Prior to trial, Benally disavowed his confession, asserting that it was the result of coercive tactics used by the FBI agents. Id. at 993. In support of his claim, he proffered the testimony of Dr. Deborah Davis, a professor of psychology at the University of Nevada at Reno, an expert witness on false confessions. Id. Dr. Davis's proposed testimony would have focused on whether false confessions occur and why a person would falsely confess. Id. She did not opine as to whether the defendant had falsely confessed. Id.

The district court held and the appellate court affirmed that Dr. Davis' testimony was inadmissible, finding that it failed to meet the Daubert requirements of relevance and reliability. Id. Pursuant to federal law, expert testimony that is considered novel must meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and not the previously mentioned Frye test.

In so concluding, the court remarked that the expert testimony at issue "encroaches upon the jury's vital and exclusive function to make credibility determinations." Benally, 541 F.3d at 995. According to the court, the expert testimony, although not specifically addressing the credibility of the defendant, would have served the same purpose, i.e., "to disregard the confession and credit the defendant's testimony that his confession was a lie." Id. Additionally, the Benally court opined that the probative value of the evidence was substantially outweighed by its prejudicial impact. Id. In making this determination, the court stated that, "the prejudice to the prosecution that would result from permitting an expert to opine that prior confessions should essentially be disregarded because they are just as likely to be true as untrue, substantially outweighs the testimony's minimal probative value." Id.

In the present case, however, the proffered expert testimony was not that a confession was just as likely to be true as untrue. Indeed, Dr. Dattilio provided that there is no margin of error to quantify the number of false confessions as compared to the number of true confessions, only that false confessions, while counterintuitive, do occur. N.T., 8/24/2011, at 36-37. Dr. Dattilio's testimony is specifically relevant to the case herein because he set forth at the Frye hearing the various factors that could increase the likelihood of a false confession and that some factors were present during Appellant's interrogation.

Moreover, unlike the Benally court, I am not persuaded that Dr. Dattilio's testimony in the instant matter would result in the jury disregarding Appellant's confession and crediting Appellant's testimony that he lied to the police about committing several of the charged criminal acts. Rather, Dr. Dattilio's testimony would serve to educate the jury on police interrogation techniques and provide an appropriate tool for the jury to utilize when assessing the testimony of both Appellant and the officers involved in his interrogation. Simply put, I believe that the jury should be able to use the factors testified to by Dr. Dattilio to guide its independent assessment of the facts elicited from the officers and Appellant as it determines whether Appellant's testimony that his confession was false is credible. Therefore, I find the rationale of Benally inapplicable to the case sub judice.

In analyzing the additional relevant cases provided by the Commonwealth, I conclude that these cases are each readily distinguishable. Specifically, in Kolb v. State, 930 P.2d 1238 (Wy. 1996), a case decided nearly 15 years prior to Appellant's trial, the proposed defense expert testified that, at that time, there were no psychological studies upon which he could base his testimony. Furthermore, according to the court in Kolb, the proffered expert had received no formal training in his theory, had attended no seminars related to false confessions, and, "at best, " had viewed one television program that referred to false confession syndrome. Id. at 1242. Additionally, in People v. Rosario, 20 Misc.3d 401 (Ny. Sup. 2008), there was no evidence presented that the defendant had been subjected to coercive interrogation techniques. Therefore, the court excluded the testimony, inter alia, as irrelevant. Id. at 406. Finally, in Edmonds v. State, 955 So.2d 787 (Miss. 2007), the court excluded the proposed expert testimony regarding the possibility of false confessions because the expert admitted that her theories could not be empirically tested. For the reasons set forth supra, however, in Pennsylvania we are not concerned with test results or statistics reached by the expert, but with the methods employed in making the finding.

I find the discussion in United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), and the cases that have adopted its rationale more applicable to the instant case.[6] In Hall, the defendant proffered Dr. Richard Ofshe as an expert in police interrogation techniques and coerced confessions.[7] Id. at 1341. Dr. Ofshe was widely published and had worked extensively with law enforcement officials and defense counsel. Id. He stated that he would testify regarding "the fact that experts in his field agree that false confessions exist, that individuals can be coerced into giving false confessions, and that certain indicia can be identified to show when they are likely to occur." Id. Additionally, Dr. Ofshe explained his methodology and what factors distinguish reliable from unreliable confessions. Id. The trial court denied admission of Dr. Ofshe's testimony in its entirety, finding that Dr. Ofshe would need to judge the credibility of the officers who conducted Hall's interrogation and that his opinions would add nothing to what the jury knew from common experience. Id. at 1341-1342.

In overruling the trial court, the Hall Court remarked that, "[i]f the expert testimony would be helpful and relevant with respect to an issue in the case, the trial court is not compelled to exclude the expert just because the testimony may, to a greater or lesser degree, cover matters that are within the average juror's comprehension." Id. It further opined that properly conducted social science research often shows that commonly-held beliefs are in error. Id. at 1345.

Similarly, in Boyer v. State, 825 So.2d 418 (Fla.App.Dist. 1 2002), the Florida District Court of Appeals held that the trial court erred in not allowing expert testimony from Dr. Ofshe. Id. at 419. The trial court therein determined that Dr. Ofshe's testimony met the Frye requirements; nevertheless, it excluded the testimony on the basis that it would not assist the jury in understanding the facts at issue. Id. In reversing the trial court's decision, the Boyer court quoted from Hall, stating that the evidence "would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried." Id. at 420, quoting Hall, 93 F.3d at 1345.

Likewise, the Supreme Court of Indiana, in Miller v. State, 770 N.E.2d 763 (Ind. 2002), reversed a trial court's decision to preclude expert testimony from Dr. Ofshe. Id. at 766. Dr. Ofshe testified prior to trial as follows:

The nature of the testimony is going to be: one, about the general way in which police interrogation works which fits the description that [the officer who conducted the interview] gave about the tactics that he used; second, it will be about those things that can lead to someone giving a false confession; and third, it will be about how to take the undisputed record of the interrogation, the recorded part of it and analyze it, in terms of trying to figure out what is-what the indicia of a true or false confession might be-and thereby for the jurors to reach their decision about how much weight to give it. My role is only to point out what things ought to be considered.

Id. at 770-771. In remanding for a new trial, the Indiana Supreme Court held that "the general substance of Dr. Ofshe's testimony would have assisted the jury regarding the psychology of relevant aspects of police interrogation and the interrogation of mentally retarded persons, topics outside the common knowledge and experience [of a jury]." Id. at 774.

In addition, in both People v. Page, 2 Cal.App. 4th 161 (Cal.Ct.App. 1991) and Callis v. State, 684 N.E.2d 233 (Ind. App. 1997), the courts permitted limited expert testimony on coerced confessions. The expert witness in each case was allowed to testify about the general factors that can influence a person to make a false confession and to give general examples of those factors. Page, 2 Cal.App. 4th at 185-186; Callis, 684 N.E.2d at 239. They were not authorized to testify about the specific facts of their respective cases. Page, 2 Cal.App. 4th at 185-186; Callis, 684 N.E.2d at 239. Even though there was no challenge on appeal to the admission of the limited testimony, each court approved of the trial court's delineation between permissible and impermissible false confession expert testimony. Page, 2 Cal.App. 4th at 186-187; Callis, 684 N.E.2d at 239-240.[8]

In this matter, because it is not within the average juror's common knowledge to know what causes a person to give a false confession, Dr. Dattilio's testimony would aid the jury in deciding this case, while preserving the jury's traditional role as the ultimate arbiter of a witness's credibility. It has long been settled that a defendant may introduce relevant evidence to demonstrate that his confession was involuntary. See Commonwealth v. McClean, 247 A.2d 640 (Pa. Super. 1968); see also Pa.R.Crim.P. 581(J).[9]In the case sub judice, Dr. Dattilio's testimony could give the jury a generally accepted framework within which it may reconsider the prevailing consensus that an individual does not ordinarily confess to perpetrating a crime he or she has not committed. It would, however, be up to the jury to weigh Dr. Dattilio's testimony against any other evidence introduced at trial.

As a whole, I believe that the cases excluding expert testimony regarding false confessions provide sparse reasoning for concluding that the testimony offered by Appellant is within the common knowledge of the jury and would infringe on the jury's credibility determining function. Even those jurors who are aware of police interrogation techniques, or believe that they are aware of such methods by watching media and television, are unlikely to understand how these methods can produce a confession from an innocent individual. As I do not believe that the proposed expert testimony in this case impermissibly interferes with the jury's ability to determine the credibility of Appellant or improperly attacks the credibility of the police officers involved in his interrogation, I would hold that the trial court committed an abuse of discretion in excluding the testimony of Dr. Dattilio and I would vacate Appellant's judgment of sentence and remand for a new trial. Consequently, I must dissent.

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