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HomeMy WebLinkAboutCP-21-CR-0002574-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : NICHOLAS SCALESE : CP-21-CR-2574-2009 IN RE: OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., September 9, 2010:-- Before the court are the omnibus pre-trial motions filed by Defendant, Nicholas Scalese, in anticipation of his trial for various sexual offenses allegedly committed against his daughter, C.S. Defendant presents seven motions: (1) Motion to dismiss/habeas corpus; (2) Motion to exclude C.S.'s testimony of repressed memories; (3) Motion to exclude repressed memory testimony because such testimony, like hypnotically refreshed testimony, alone is not reliable and should be deemed inadmissible; (4) Motion to exclude expert testimony; (5) Motion to suppress expert testimony to buttress credibility of complainant; (6) Motion to exclude watchnet.com and theeroticreview.com postings; and (7) Motion to exclude portions of Natalie Scalese's testimony as prejudicial. For the following reasons, motions 4 and 5 are granted. In all other respects, Defendant's motions are denied. Background Defendant stands accused of numerous sexual offenses allegedly CP-21-CR-2574-2009 committed against C.S. over a two-year period when C.S. was between six and eight years old. At the time, C.S. did not tell anyone about the alleged abuse and would not do so for several years. In 2008, C.S. began attending therapy sessions, in the course of which she revealed the instant allegations of abuse. Prior to beginning therapy, C.S. had no recollection of the alleged abuse. C.S.'s allegations were referred to police and Defendant was charged with the instant offenses. At Defendant's preliminary hearing, the Commonwealth presented C.S.'s testimony and then rested. Defendant called two witnesses, Carole Cleckner (Defendant's ex-wife and C.S.'s mother), and Natalie Scalese (Defendant's sister-in-law). Relevant here, Ms. Cleckner testified that throughout the time of the alleged abuse she intimately bathed C.S. and never noticed any irritation or injury consistent with repeated sexual abuse. Then, Defendant called Ms. Scalese and questioned her regarding a family vacation she attended with, among others, Defendant and C.S. in 1996. Ms. Scalese testified that during the trip, she would briefly inspect C.S.'s vaginal area while helping her go to the bathroom or change clothing. These brief inspections revealed no evidence of sexual abuse. Despite this, Ms. Scalese went on to testify that during the trip she became concerned with what she considered to be Defendant's inappropriate behavior toward C.S. Specifically, Ms. Scalese testified that Defendant insisted on rearranging the family sleeping arrangements so that he and C.S. could share a room together. At the close of the hearing, the Magisterial District Judge bound -2- 2 CP-21-CR-2574-2009 over all charges to the Court of Common Pleas. I. Motion to Dismiss/Habeas Corpus Defendant moves for the dismissal of all charges on the grounds that C.S.'s unreliable memories are insufficient to establish a prima facie case against him. Further, Defendant points to the lack of corroborating evidence shown by Ms. Cleckner's and Ms. Scalese's inability to observe any physical irritation to C.S.'s body consistent with sexual abuse. Accordingly, Defendant contends there is insufficient evidence to establish he committed the crimes for which he is charged. The court disagrees. In the context of a habeas corpus petition, the Commonwealth bears the burden of “establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it.” Commonwealth v. Gettemy, 591 A.2d 320, 323 (1991). The Commonwealth carries this burden by producing evidence that, if accepted as true, would permit the court to send the case to a jury. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). In reaching this decision, the court views the evidence in the light most favorable to the Commonwealth. Commonwealth v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004). Here, the court has little difficulty concluding the Commonwealth has carried its burden of establishing a prima facie case. At the preliminary hearing, C.S. provided ample testimony to establish the elements of the crimes alleged -3- 3 CP-21-CR-2574-2009 against Defendant. She described two years of repeated vaginal and anal sexual assaults committed against her while she was between six and eight years old. Notes of Testimony, Sept. 22, 2009 (N.T.) at 8-22. Taking her testimony as true, there is clearly enough evidence to allow a jury to convict Defendant of all charges brought against him. Accordingly, Defendant's motion to dismiss/habeas corpus is denied. II. Motion to Exclude C.S.'s Testimony of Repressed Memories Defendant next argues C.S. is not competent to testify regarding her memories of sexual abuse because she was unable to recall them for 12 years, and then, only via therapy, dreams, and external suggestion. All persons are presumed competent to testify and the burden is upon the party challenging the testimony to establish incompetence. Pa. R.E. 601. At the hearing on Defendant's omnibus pre-trial motions, Defendant called two expert witnesses in the field of human memory. These witnesses testified at length that the theory underlying the reliability of repressed memories was not generally accepted within the relevant scientific community. They also testified to their opinions of the unreliability of repressed memories. Based on this testimony, Defendant asks the court to find C.S. incompetent to testify about her memories of abuse. Upon review, the court concludes it cannot consider Defendant's experts' opinions in rendering a competency determination. As such, Defendant fails to carry his burden to challenge C.S.'s testimony. -4- 4 CP-21-CR-2574-2009 In Commonwealth v. Delbridge, 771 A.2d 1 (Pa. Super. 2001), the defendant was convicted of various sexual offenses against a child. At a pretrial competency hearing, the defendant sought to introduce expert testimony regarding the issues of taint and reliability of memory relating to victims of childhood sexual abuse. The trial court denied his request. He appealed to the Superior Court which affirmed the denial. The Superior Court reasoned that even though expert testimony is normally admissible to determine competency, the purpose of the defendant's proposed testimony was not “to render an opinion on whether [the victim], in fact, was competent to testify under the aforementioned standard, but to provide an opinion as to the reliability of [the victim's] testimony….” Id. at 7. As such, the expert testimony constituted an impermissible attack on the victim's credibility and was therefore properly excluded. In the instant matter, Defendant's experts testified persuasively that there are serious concerns with the reliability of recovered memories such that the concept is not generally accepted in the scientific community. Nonetheless, their testimony is not relevant to the court's determination of whether C.S. is competent to testify. Defendant cannot escape that the Commonwealth will not be presenting its own expert to explain the concept of repressed memories or promote their reliability. In fact, the Commonwealth contends that C.S.'s memories are simply that—memories. Therefore, no psychological qualifier (e.g. -5- 5 CP-21-CR-2574-2009 repressed or recovered memory, dissociative or traumatic amnesia) is necessary, nor, is there a need for expert psychological explanations. In light of the Commonwealth's strategy, there is no danger that the jury will be unduly swayed by expert testimony. Further, the record indicates C.S. did not undergo any specific memory recovery therapy that would permit the experts' to opine regarding the lack of general acceptance of the therapeutic technique. Accordingly, Defendant's experts' opinions regarding the reliability of recovered memories are not admissible to determine whether C.S. is competent to testify. III. Motion to Exclude Repressed Memory Testimony Because Such Testimony Like Hypnotically Refreshed Testimony Alone Is Not Reliable and Should Be Deemed Inadmissible Defendant asks the court to exclude C.S.'s repressed memory testimony because it is inherently unreliable. Defendant argues the reliability of repressed memories is not generally accepted in the scientific community. In support, Defendant cites Commonwealth v. Nazarovitch, 436 A.2d 170 (Pa. 1981), where our Supreme Court excluded testimony based on hypnotically refreshed memories because of hypnotism's lack of general acceptance in the scientific community. Upon review, the court finds Nazarovitch distinguishable and denies Defendant's motion. In the instant matter, Defendant's experts identified several characteristics recovered memories share with hypnotically refreshed memories. The experts -6- 6 CP-21-CR-2574-2009 also persuasively testified that the reliability of recovered memories is not generally accepted in the scientific community. Thus, Defendant contends repressed memory testimony, like hypnotically refreshed memory testimony, is inadmissible. See id. However, Nazarovitch is distinguishable. The hypnosis in Nazarovitch constituted a direct, formalized procedure employed by a hypnotist with the explicit goal of coaxing out repressed memories. Here, the record indicates C.S. uncovered her repressed memories largely on her own. The record does not indicate her therapist engaged in any specific process designed to uncover repressed memories. Accordingly, C.S. did not undergo any procedure or technique that would be required to meet the standard for general acceptance in the relevant scientific community. Based on this conclusion, the only remaining purpose of Defendant's experts is to attack the credibility of C.S.'s recovered memories. Our Supreme Court has consistently held expert testimony cannot be introduced to attack the credibility of a lay witness. The line of cases articulating this position began with Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992). In Dunkle, the defendant was convicted of various sexual offenses committed against his teenage stepdaughter. During the trial, the Commonwealth called an expert witness to testify regarding the behavior patterns of sexually abused children. Specifically, the expert explained why a victim may delay reporting such an offense, why a victim may have difficulty remembering the exact dates -7- 7 CP-21-CR-2574-2009 and times of the offense, and why a victim may omit details of the incident when she first tells her story. The defendant appealed his conviction to our Superior Court which reversed on the grounds that the expert's testimony served to impermissibly buttress the victim's testimony. The Commonwealth appealed and our Supreme Court granted the petition for allowance of appeal to address whether the expert witness should have been permitted to testify. Ultimately, our Supreme Court concluded the expert testimony was inadmissible for multiple related reasons. Relevant here, the Court concluded that the reasons why child sexual abuse victims may be reluctant to report a sexual offense or may have difficulty recounting the details of the incident are matters of common knowledge. The Court stated, “we do not believe that there is any clear need for an expert to explain this to a jury. This understanding is well within the common knowledge of jurors.” Id. at 838. As such, expert testimony was unnecessary and therefore inadmissible. In reaching this conclusion, the Court characterized these issues as matters of credibility, whose determination is exclusively the jury's prerogative. Accordingly, the trial court erred in admitting the expert testimony and defendant's conviction was reversed and remanded for retrial. Subsequent to its decision, Dunkle has been interpreted to preclude expert testimony to bolster or attack a witness's credibility. For example, expert -8- 8 CP-21-CR-2574-2009 opinion on the credibility of a victim of sexual abuse under the guise of rape trauma syndrome testimony is inadmissible. Commonwealth v. Gillespie, 516 A.2d 1180 (Pa. 1986). See also Commonwealth v. Smith, 567 A.2d 1080 (Pa. Super. 1989) (holding witness opinion concerning truth-telling abilities of child inadmissible). Also inadmissible is an opinion from an expert that, based on experience, victims similar to the one at trial are truthful or that literature in the field indicated that these types of victims are generally truthful. Commonwealth v. Cepull, 568 A.2d 247 (Pa. Super. 1990) (overruled on other grounds). Further, a rape victim's inability to immediately identify her assailant cannot be explained by reference to rape syndrome testimony. Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988). Expert testimony that a child acted in a way consistent with abuse is also inadmissible. Commonwealth v. Higby, 559 A.2d 939 (Pa. 1989); Commonwealth v. Emge, 553 A.2d 74 (Pa. Super. 1988). See also Commonwealth v. Purcell, 589 A.2d 217 (Pa. Super. 1991) (holding testimony concerning general dynamics of child sexual abuse and incest to really be improper syndrome testimony); Commonwealth v. Gibbons, 556 A.2d 915 (Pa. Super. 1989) (finding testimony about psychological aspects of incest trauma, without stating that the child's behavior matched it, inadmissible). As illustrated, the Dunkle holding has been consistently reaffirmed; expert testimony is inadmissible to attack or bolster the credibility of a lay witness. -9- 9 CP-21-CR-2574-2009 In opposition to Defendant's motion, the Commonwealth relies on Commonwealth v. Crawford, 718 A.2d 768 (Pa. 1998) for the proposition that a witness's testimony based on recovered or repressed memories may not be attacked by expert testimony regarding the reliability of these types of memory. The court agrees. In Crawford, a witness to a homicide repressed his memories of the incident and did not contact police. Twenty years later, he spontaneously recovered these memories with no outside assistance. He then contacted police, identified the defendant, and testified at trial. The defendant sought to introduce expert testimony regarding the unreliability of repressed memories. The trial judge excluded the evidence and the defendant was convicted. On appeal, our Superior Court reversed the conviction on the grounds that the expert testimony was admissible because the phenomenon of repressed memory would not be within the ordinary training, knowledge, intelligence, and experience of the average juror. The Commonwealth appealed and our Supreme Court granted review, reversing the Superior Court, and reinstating the verdict against the defendant. In so doing, our Supreme Court stated, The expert testimony offered by defense counsel in this case was intended to establish that John Reed was not a credible witness. Dr. Himmelhoch's adamant assertion, that Reed's memories of the events leading to Altman's death could not be -10- 10 CP-21-CR-2574-2009 considered accurate to any degree which would obviate reasonable doubt, was inadmissible as an assessment of Reed's credibility. The jurors were eminently capable of assessing the credibility of the witness, a matter not within the domain of expert witnesses. Id. at 773 (emphasis added). The Court explicitly rejected defendant's argument that the expert's testimony was necessary for the jury to understand the concept of repressed memory. The Court continued, While it is true that Reed offered an explanation for his inordinate delay in reporting what he had observed that suggested revival of repressed memory, and the presence of apparitions urging him to come forward, the Commonwealth did not seek to establish that his explanation was scientifically supported by the phenomenon of revived repressed memory. No expert testimony was offered by the Commonwealth to explain that revived repressed memory was recognized by the scientific community. The Commonwealth did not attempt to prove that Reed had suffered from memory loss as a result of the trauma of observing the incident, or that any lost memory had been in fact revived. Not only did the Commonwealth fail to introduce evidence to persuade the jury that Reed's proffered explanation was believable, the prosecutor's closing argument conceded that Reed's explanation strained credulity. Id. (footnote omitted) (emphasis added). Accordingly, the Court concluded the Superior Court's reversal of the defendant's conviction was erroneous. This court reaches the same conclusion here. -11- 11 CP-21-CR-2574-2009 The Commonwealth's case clearly rests on C.S.'s testimony and whether a jury will find her recovered memories credible. Defendant's experts' testimony goes to the reliability of C.S.'s repressed memories and is therefore inadmissible. Defendant may not introduce expert testimony to attack the credibility of C.S.'s memories. IV. Motion to Exclude Expert Testimony Defendant seeks to preclude the Commonwealth from presenting expert testimony to explain the validity of repressed memories. For its part, the Commonwealth has consistently maintained that it would not present expert testimony in this matter. Accordingly, Defendant's motion is granted. V. Motion to Suppress Expert Testimony to Buttress Credibility of Complainant Again, because the Commonwealth has not and will not present expert testimony in this matter, Defendant's motion is granted. VI. Motion to Exclude watchnet.com and theeroticreview.com Postings Defendant asks the court to exclude evidence relating to his alleged posting on chat rooms or websites discussing legal escort services or other adult entertainment information as irrelevant. Based on Defendant's characterization of this issue the court is inclined to agree. However, at this time the record contains insufficient information for a definitive ruling on this matter. Accordingly, Defendant's motion is denied without prejudice to his right to file a motion in -12- 12 CP-21-CR-2574-2009 limine on this issue. VII. Motion to Exclude Portions of Natalie Scalese's Testimony as Prejudicial Finally, Defendant seeks to prevent his sister-in-law from testifying regarding her perception of inappropriate interactions between Defendant and C.S. Defendant argues the prejudicial effect of such testimony outweighs its probative value. The court disagrees. Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. Pa. R.E. 403. Here, Ms. Scalese's testimony directly corroborates C.S.'s allegations of abuse. As such, its probative value far outweighs any unfair prejudice to Defendant. Ms. Scalese's testimony will not be excluded; the motion is denied. Conclusion Based on the foregoing, the court reaches the following conclusions. C.S. is competent to testify to her memories of sexual abuse. This testimony carries the Commonwealth's burden to present a prima facie case against the Defendant. The reliability of C.S.'s repressed memories is a question of witness credibility reserved exclusively for the jury. Accordingly, neither Defendant nor the Commonwealth may present expert testimony regarding the reliability of repressed memories, as such testimony would only serve to undermine or buttress C.S.'s credibility. See Commonwealth v. Crawford, 718 A.2d 768 (Pa. -13- 13 CP-21-CR-2574-2009 1998); Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992). Finally, the court will allow Natalie Scalese's testimony because its probative value outweighs its potential for unfair prejudice. The court also declines to exclude evidence regarding Defendant's internet activity as the record currently lacks sufficient information to justify such exclusion. ORDER OF COURT AND NOW, this day of September, 2010, defendant Nicholas Scalese's omnibus pre-trial motions are granted, in part, and denied, in part. Specifically, defendant's motions four and five, seeking to prevent the GRANTED Commonwealth from presenting expert testimony, are . In all other DENIED respects, defendant's motions are . By the Court, Albert H. Masland, J. Christylee L. Peck, Esquire For the Commonwealth Ari Weitzman, Esquire For Defendant :saa -14- 14 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : NICHOLAS SCALESE : CP-21-CR-2574-2009 IN RE: OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of September, 2010, defendant Nicholas Scalese's omnibus pre-trial motions are granted, in part, and denied, in part. Specifically, defendant's motions four and five, seeking to prevent the GRANTED Commonwealth from presenting expert testimony, are . In all other DENIED respects, defendant's motions are . By the Court, Albert H. Masland, J. Christylee L. Peck, Esquire For the Commonwealth Ari Weitzman, Esquire For Defendant :saa