Argued: September 11, 2012.
Appeal from the Judgment of Superior Court entered on March 14, 2011 at No. 2445 EDA 2008 (reargument denied on May 18, 2011) affirming/remanding the Order entered on August 18, 2008 in the Court of Common Pleas, Philadelphia County, Criminal Division No. CP-51-CR-0107261-2008. Appeal allowed May 15, 2012 at 365 EAL 2011. Trial Court Judge: Benjamin Lerner, Judge. Intermediate Court Correale F. Stevens, Mary Jane Bowes, JJ, Stephen J. McEwen, Jr., President Judge Emeritus.
For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns Jr., Esq., Peter Carr, Esq.
For Jose Alicia, APPELLEE: Lawrence Samuel Krasner, Esq.; Lloyd Everett Long III, Esq.
For The Innocence Network and The Pennsylvania Innocence Project, APPELLEE AMICUS CURIAE: Bruce Philip Merenstein, Esq., Hans Justin Park, Esq., Julie Elizabeth Randolph, Esq.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE McCAFFERY. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Justice Baer joins the opinion. Mr. Chief Justice Castille files a concurring opinion and Mr. Justice Eakin files a concurring opinion. Mr. Justice Saylor files a dissenting opinion in which Madame Justice Todd joins.
MR. JUSTICE McCAFFERY
The Commonwealth appeals from the order of the Superior Court that affirmed the pre-trial order of the court of common pleas permitting Jose Alicia (" Appellee" ) to introduce expert testimony concerning the phenomenon of " false confessions" at his upcoming murder trial. Because we agree with the Commonwealth that such testimony is not admissible, we reverse the order of the Superior Court and remand this matter to the court of common pleas.
On November 1, 2005, Appellee was arrested and charged with murder and related offenses in the shooting death, two days earlier, of one George Rowe at the Blue Mountain Café in Philadelphia. Evidence adduced at the pre-trial stage established that Appellee and several of his friends, including Lydia Rivera, Jeremy Duffy (" J.P." ), and Angel Ortiz, had gone to the café after receiving word that individuals who had previously robbed Ortiz were there. In the midst of the physical altercation that ensued between the two groups, a gun was fired, hitting the victim, an innocent bystander who was not part of either group.
Appellee was detained by police and questioned over a period of approximately six hours. Although Appellee initially denied involvement, near the end of the interview he confessed to shooting the victim during the altercation in the café , and he
subsequently was charged with murder, criminal conspiracy, possession of an instrument of crime, and two violations of the Uniform Firearms Act. The Commonwealth's evidence against Appellee included a statement from Lydia Rivera that Appellee was the shooter. However, other eyewitnesses identified the shooter as Angel Ortiz, and Ortiz told police that Jeremy Duffy was the shooter.
On May 3, 2007, Appellee filed a Motion for Use of a False Confessions Expert, averring the following. Appellee is of low intelligence and has been an SSI disability beneficiary due to mental health issues most of his life. The only evidence identifying Appellee as the shooter (other than his confession) comes from two corrupt sources, one of whom initially stated that the shooter was Jeremy Duffy. Appellee believes Duffy was the shooter, and that the evidence at trial will show that Appellee was told by Duffy's associates to " take the fall for the real perpetrator." Motion for Use of a False Confessions Expert, dated 5/3/07, at ¶ ¶ 4-6. According to this Motion, the text of Appellee's confession,
along with his handwritten corrections, " provide a number of clues indicating it is a false confession." Id. at ¶ 7. Further, the Motion avers that although " jurors find it impossible to believe that a person would make a false confession," it has been proven in over 185 cases that false confessions do indeed occur. Id. at ¶ 9. Based on the above averments, Appellee requested that the court grant his motion to permit a false confessions expert to testify.
On June 6, 2007, the Commonwealth filed a motion to exclude any defense expert on false confessions. The Commonwealth noted that Appellee, in his motion for such an expert, did not allege that the police had influenced or coerced him to give a false confession. Commonwealth's Motion to Exclude Defense Expert in False Confession and for a Frye Hearing on the Admissibility of Said Expert, filed 6/6/07, at ¶ ¶ 3, 12. The Commonwealth averred that the determination of whether an individual falsely confessed to a crime is within the jury's own ability to evaluate. In addition, the Commonwealth argued that expert testimony regarding the phenomenon of false confessions in general, proffered in order to give rise to the inference that Appellee's confession must also be false, would undermine the fact-determining process because such testimony would be based on mere speculation. Id. at ¶ 12. Accordingly, the Commonwealth asked the court to deny Appellee's motion as not relevant because the jury was capable of assessing whether the evidence established that non-police sources might have influenced Appellee to confess falsely.
On June 17, 2008, the court of common pleas held a hearing to determine whether the proposed testimony of Richard Leo, Ph.D., J.D., Appellee's proffered expert in the area of police interrogation practices, psychological coercion, and false confessions, was admissible. Notes of Testimony (" N.T." ), 6/17/08, at 11. The court first found that Dr. Leo was " qualified as an expert in the field of police interrogations."  Id. at 34. Dr. Leo then explained police interrogation as a two-step psychological process: the first step is to convince the suspect that he or she is caught and denial is futile, and the second step is to motivate the suspect to believe that it is in his or her best interest to make a full confession. Id. at 45-46. Dr. Leo testified that there are two different types of false confessions that may result from police interrogation: 1) a " compliant" false confession in which a suspect is psychologically coerced to lie, knowingly giving a false confession in order to end the interrogation and perhaps to be treated
more leniently; and 2) a " persuaded" or " internalized" false confession in which a suspect confesses to a crime under the belief that he or she did in fact commit the crime although he or she has no memory of doing so. N.T., 6/17/08, at 50-52.
When asked what he would testify to, were he permitted to testify in Appellee's case, Dr. Leo responded as follows. First, in general terms, he would educate the jury as to police interrogation methods, psychological research on interrogation methods, and coercive interrogation methods that can put an innocent suspect at risk of making a false confession. Id. at 59-64. Second, in terms of the specifics of this case, Dr. Leo would discuss the specific interrogation techniques he discerned from interviewing Appellee about what took place during his interrogation, and identify any possible risks of false confession posed by those techniques. In addition, Dr. Leo would discuss the relevance of Appellee's low IQ to the risk of false confession. Id. at 61-62. At the end of the hearing, the trial court ordered the parties to submit memos on the admissibility of Dr. Leo's proffered trial testimony.
On August 12, 2008, the court issued the following order, which permitted Dr. Leo to testify in general regarding police interrogation techniques, but barred him from giving testimony as to any specific allegations in Appellee's case:
1. Dr. Leo may testify, based on his knowledge, his own research and the research of others with which he is familiar, about the general concept of false confessions.
2. Dr. Leo may further testify, again based on his knowledge, his own research and the research of others ...