PA Superior Court: Commonwealth May Not Show Photos of Now-Adult Sexual Assault Complainant as Child

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Vucich, holding that the trial court erred when it permitted the Commonwealth to introduce photographs of the now-twenty-year-old complainant as a ten-year old child. In other words, the court found that there was no relevance to how the complainant would have appeared at the time of the alleged sexual assault.  

The Facts of Vucich

In Vucich, the defendant was charged with rape of a child, involuntary deviate sexual intercourse, unlawful contact with a minor, corruption of minors, and indecent assault. The Commonwealth alleged that the defendant repeatedly molested his then ten-year-old step-son after he married the complainant’s mother and moved into the home. The complainant did not disclose the abuse until ten years later. He eventually told his therapist, and then subsequently told his mother. The defendant was found guilty of all charges except rape of a child and sentenced to 10-20 years of incarceration.

The Superior Court Appeal

Following his conviction, the defendant appealed to the Pennsylvania Superior Court. The defendant raised a number of issues. However, the most interesting issue that he raised was whether the trial court had improperly allowed the Commonwealth to introduce photos of what the complainant looked like when he was ten years old.

The defendant argued that the photographs were irrelevant and therefore inadmissible. Relevant evidence is evidence that logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact. The defendant argued on appeal that the photos were not relevant because the complainant’s appearance at the time of the alleged abuse did not establish any material fact. What he looked like was not the question. Instead, the only issue was whether the abuse had occurred, and therefore showing the jury what the complainant looked like as a child served only to prejudice the jury against the defendant.

The trial court, however, concluded that the photographs were admissible to help the jury picture the complainant as a child so that the jury could better evaluate his testimony. Likewise, the Commonwealth advanced this argument again in defending the appeal.

The Superior Court, however, rejected the argument. It noted that in homicide cases, photographs of the decedent which were taken while the decedent was still alive are typically inadmissible unless there is something about the decedent’s appearance which makes the photograph relevant. Without some specific connection between the allegations and a decedent’s appearance in a photograph, the introduction of such a photograph may be reversible error because the only purpose of such evidence is to engender sympathy in the jury and prejudice the jury against a homicide defendant. Thus, in most cases, simply showing photographs of a victim or decent is prohibited and could lead to reversal.

Here, the Superior Court recognized that this was a novel issue; no Pennsylvania court had previously addressed the issue of whether a now-adult complainant’s photos as a child could be introduced in a sexual assault case. The Superior Court ultimately concluded that the rule should be the same in these types of cases as it is in homicide cases. The evidence is admissible because it is simply not probative of whether a defendant committed the crimes charged. Therefore, the court agreed with the defendant that the trial court should have sustained the defense attorney’s objections.

What is harmless error? 

Nonetheless, the Court did not reverse the defendant’s conviction because it found that the admission of the photographs amounted to harmless error. Harmless error is the idea that an erroneous ruling by a trial court on an evidentiary issue does not necessarily require the reversal of a conviction where 1) the error did not prejudice the defendant or the prejudice was de minimis; 2) the erroneously admitted evidence was merely cumulative of other unrelated evidence which was substantially similar to the erroneously admitted evidence, or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the prejudice was de minimis and that the error was harmless beyond a reasonable doubt. The Court concluded that the use of the photographs was brief and limited. Although they should not have been introduced, they did not contribute to the verdict. Therefore, the Court upheld the conviction.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. We have obtained successful results in trials, appeals, and post-conviction relief act litigation in cases involving charges of homicide, rape, possession with the intent to deliver, and other serious crimes. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an award-winning criminal defense lawyer today.  

NJ Supreme Court: Most Expert Testimony Concerning “Child Sexual Abuse Accommodation Syndrome” Is Inadmissible

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Supreme Court of New Jersey has decided the case of State v. J.L.G., holding that the prosecution cannot introduce expert testimony regarding “Child Sexual Abuse Accommodation Syndrome” (CSAAS) in general and its component behaviors, with the exception of delayed disclosure, at trial. Specifically, the Court found that this evidence, other than delayed disclosure, does not have a sufficiently reliable basis in science to be the subject of expert testimony. This is a truly significant decision that will no doubt affect countless child sex cases.

State v. J.L.G.

In J.L.G., the defendant was charged with first-degree aggravated sexual assault, third-degree aggravated sexual criminal sexual contact, second-degree endangering the welfare of a child, and third-degree witness tampering. The complainant in the case was the defendant’s stepdaughter. The complainant testified that the defendant abused her on a daily basis for approximately eighteen months. At one point, the defendant pointed a gun at her and threatened to hurt her, her mother, and her brother if she told anyone about the abuse. Further, the complainant did not tell anyone because she was embarrassed about the abuse.

On one occasion, a friend of the complainant’s mother visited her residence and found the defendant lying on top of the complainant with an erection. The complainant’s mother became aware of this incident and threatened to kill the defendant. However, the complainant, fearful that her mother would do something that would result in her getting arrested, denied any sexual activity was occurring. Eventually, the complainant did tell her mother about the abuse. The complainant then made a statement to the prosecutor’s office and, under the guidance of the detectives, the complainant called defendant. In these conversations, which were recorded, the defendant offered to give the complainant money if she would withdraw the allegations. The complainant also had an audio recording of the last time the defendant abused her which the Court described as “graphic.”  

Police arrested the defendant and charged him with the previously mentioned crimes. At trial, the State presented evidence through various witnesses and the recorded phone conversations and interaction with the defendant. Additionally, the State also presented expert testimony. Specifically, the State called a clinical psychologist who testified about CSAAS. The defendant had filed a pre-trial motion to exclude this testimony, but the motion was denied. At the conclusion of the trial, the jury convicted the defendant on all charges. The defendant then filed a timely appeal.

What is CSAAS?

Dr. Roland Summit is credited for creating CSAAS. In 1983, he published an article which he described the syndrome as “a common denominator of the most frequently observed” behaviors of child sexual abuse victims. In essence, CSAAS testimony is used to explain how a sexually abused child behaves and why a child may not immediately report abuse. According to Dr. Summit, there are several frequently observed behaviors of child abuse victims. These “components” form CSAAS and are: secrecy, helplessness, entrapment and accommodation, delayed, conflicted, and unconvincing disclosure, and retraction. If a child were to exhibit these behaviors, according to Dr. Summit, CSAAS can be used to support the theory that the child was abused.

Notably, neither the American Psychiatric Association nor the American Psychological Association has recognized CSAAS. Further, this syndrome does not appear in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which is the authoritative list of mental disorders. CSAAS has been undermined by a number of scientific studies. Despite this, in 1993, the New Jersey Supreme Court in State v. J.Q., 130 N.J. 554 (1993) held that CSAAS had “sufficiently reliable scientific basis” to be presented to a jury. The Court opined that its introduction allowed juries to understand “traits found in children who have been abused” and thus allowed expert testimony of CSAAS to be introduced in criminal trials.

What is Expert Testimony?

To put it simply, expert testimony is testimony about a subject that is beyond the range of knowledge of the average person. Expert testimony is used in a variety of cases. To give an example, experts are frequently called to testify in drug cases. Typically, the Commonwealth would not need an expert if a defendant was charged with Possession with the Intent to Deliver and the facts demonstrated that a defendant exchanged drugs for money. However, an expert may be needed if a defendant was not seen engaging in a hand-to-hand transaction, but instead was arrested with a significant amount of narcotics on his person. The average person might not know that particular amount of drugs is enough to establish that the defendant possessed those drugs with the intent to sell them and thus the Commonwealth may need an expert to prove its case.

In New Jersey, Rule 702 of the Rules of Evidence governs the admission of expert testimony. In order to introduce expert testimony they must establish: 1) the subject matter of the testimony must be “beyond the ken of the average juror”; 2) the field of inquiry “must be at a state of the art such that an expert’s testimony could be sufficiently reliable;” and 3) “the witness must have sufficient expertise to offer the” testimony. However, this is not the end of the analysis. The trial court then must make a determination as to whether the science underlying the proposed expert testimony has “gained general acceptance in the particular field in which it belongs.” This is known as the Frye standard.

The Frye standard does not require a universal acceptance by the scientific community. Nonetheless, the proponent must show that there is general acceptance of the what the expert is going to testify to. The proponent can do this numerous ways: they can introduce judicial opinions, scientific or legal articles, and expert testimony to establish that the science is generally accepted. Notably, Pennsylvania also uses the Frye standard, whereas federal courts use a different test.  

New Jersey Supreme Court Dramatically Restricts Expert Testimony Concerning CSAAS in Criminal Cases

 In State v. J.L.G., the Supreme Court of New Jersey dramatically restricted the introduction of CSAAS testimony in criminal trials. First, the Court reiterated that expert testimony can only be introduced when the evidence is beyond the understanding of the average juror. In the instant case, the complainant gave what the court described as “straightforward reasons” as to why the she did not immediately report the defendant’s abuse. Specifically, she did not report because she was embarrassed, the defendant had threatened her if she reported, and she was worried that her mother would incur criminal charges if she were to disclose said abuse. Therefore, CSAAS testimony was not necessary to show why there was a delayed report. The Court went on to say that if the child cannot offer a rational explanation as to why there was a delayed report, then the prosecution can introduce expert testimony to help understand the witness’s behavior. However, this was not applicable in the instant case and thus the trial court erred in allowing CSAAS testimony in the first place.  

The Court did not end its analysis there. The Court also addressed whether CSAAS testimony satisfies the Frye standard. To make this determination, the Court conducted a lengthy analysis of CSAAS and studied its origins and subsequent critiques by other experts. The Court found that there is a lack of data supporting CSAAS. The Court further highlighted that it is not in the Diagnostic and Statistical Manual of Mental Disorders and that it has not been accepted by the American Psychiatric Association and other notable associations. Further, there is limited scientific and empirical support for the majority of the individual components of CSAAS. As such, the Court found that with the exception of delayed reporting (because there is consistent and long-standing support in scientific literature to support that most child victims of sexual abuse do not immediately report their abuse), there is not enough scientific support to allow experts to testify to the other components of CSAAS.

In the instant case, this was a hollow victory for the defendant. Despite the Court agreeing with the defendant that this evidence should not have been introduced at trial, the Court found that this was a harmless error because the evidence against the defendant was so overwhelming. As such, the defendant will not get a new trial and will serve the majority of his 23 year prison term.

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Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Super. Ct. Finds Videotaped Forensic Child Abuse Interviews Not Necessarily Admissible as Prior Recorded Statements

Zak T. Goldstein, Esq. - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bond, affirming the defendant’s conviction but limiting the circumstances under which the prosecution may use a “forensic interview” in a criminal child molestation case. Although the court affirmed Bond’s conviction on a harmless error theory due to his incriminating statements, the court also found that the trial court erred in permitting the Commonwealth to play the entire videotaped forensic interview of the minor complainant in an case involving Involuntary Deviate Sexual Intercourse (“IDSI”), unlawful contact with a minor, aggravated indecent assault, and indecent assault charges.

The Facts of Commonwealth v. Bond

In Bond, the defendant was charged with Involuntary Deviate Sexual Intercourse and related charges for allegedly molesting his girlfriend’s daughter. Shortly after the one incident of alleged sexual contact, the complainant reported the incident to her aunt. The aunt immediately told the child’s mother, and the mother called the police. The child was subsequently interviewed by a “forensic interview specialist” with the Philadelphia Children’s Alliance (“PCA”). The prosecution played a video of the interview for the jury during the trial.

At the end of the trial, the jury found the defendant guilty of all charges. The sentencing judge imposed a sentence of 27.5 – 55 years in state prison. The defendant filed a motion to reconsider the sentence and for a new trial, and the trial judge denied those motions. The defendant then appealed to the Superior Court.

The Superior Court Appeal

In the appeal, Bond challenged the trial court’s decision to allow the Commonwealth to play the video of the PCA Interview. By way of background, PCA is an organization in Philadelphia which contracts with the police to help investigate child abuse cases. In almost all Philadelphia child abuse and child molestation cases, the investigating Special Victims Unit detective refers the case to PCA in order to have a PCA employee conduct a videotaped, recorded video of the complainant. The PCA interview is supposed to be conducted in an environment in which the child will feel more comfortable and in which the investigator will ask non-leading questions so as to avoid suggesting incriminating answers to the complainant. In practice, PCA procedures produce mixed results. In some interviews, the interviewers are relatively neutral, but in others, they appear to act more like an arm of law enforcement and not as a neutral, unbiased interviewer. PCA handles these interviews in Philadelphia, but most law enforcement agencies in counties throughout Pennsylvania rely on similar organizations to conduct these “forensic interviews.”

The Issues on Appeal

Bond’s appeal focused on the issue of whether the PCA interview video should have been played for the jury. In general, when a witness makes an out-of-court statement, the statement will not be admissible in court because it will be hearsay. The criminal justice system in the United States is based on the principles of in-court testimony and cross-examination, meaning that in most cases, a live witness will have to testify to what happened in court. The prosecution may not simply call witnesses to testify as to what other alleged witnesses said previously or to play videotaped statements. However, there are a number of exceptions to the rule against hearsay which could allow for an out-of-court, videotaped statement like a PCA interview to be played at trial.

Prior Consistent Statements in Criminal Cases

In this case, the trial court permitted the Commonwealth to play the videotaped interview under Pennsylvania Rule of Evidence 613(c). The rule provides that under some circumstances, a witness’s prior consistent statement may be used to rehabilitate a witness who has been impeached and had his or her credibility attacked by the defense on cross-examination.

Rule 613(c) provides:

(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a witness’s prior consistent statement is admissible to rehabilitate the witness’s credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or

(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.

However, as the court eventually ruled, more is required for a prior consistent statement to become admissible than just that the complainant or witness has been impeached or accused of lying. Instead, the court recognized that “[T]o be admissible to rebut a charge of improper motive, as is the case here, the prior consistent statement must have been made before the motive to lie existed.” Further, a prior consistent statement, if admissible at all, is admissible only as rebuttal or rehabilitation evidence. It is not admissible as substantive evidence. The difference here is that substantive evidence may be considered by the jury as evidence of a defendant's guilt, whereas rebuttal or rehabilitation evidence may be considered by the jury only in assessing the credibility of the witness’s original testimony.

In this case, Bond argued that the trial court erred in admitting the video because the case did not involve any prior statements that predated the complainant’s motive to fabricate. His defense attorneys argued at trial that the complainant fabricated the allegations from the beginning because she did not like living with her mother and Bond and she was upset about the absence of her natural father, who was in jail. He argued that Rule 613 permits prior consistent statements only when the statement predates the alleged fabrication, bias, improper influence or motive, or faulty memory. Therefore, because the defense lawyers suggested that the fabrication existed from the start, the video which was taken after the allegations were made, was not actually a prior consistent statement because it did not predate the false allegations.

The Superior Court ultimately agreed. It found that the statement was not a prior consistent statement because it was not prior to anything – the videotaped interview was not recorded prior to the date on which the defense claimed that the child began fabricating the allegations. Therefore, the statement should not have been admitted as a prior consistent statement pursuant to Rule 613.

Harmless Error

Unfortunately for Bond, the Superior Court nonetheless affirmed the conviction for two reasons. First, the Court found that the admission of the video was harmless error. The defense had extensively cross-examined the complainant on what she said at the interview, so the jury had already heard a great deal about it. Additionally, the defendant had made a number of incriminating statements, including texting the complainant’s mother that he was sorry and very scared about what had done. He also took steps to try to avoid having the complainant testify. Second, the Court held that because defense counsel had asked so many questions about the testimony on the video, the trial court also properly admitted it into evidence under Pennsylvania Rule of Evidence 106.

Rule 106 is basically the rule of completeness. It provides that:

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.

Thus, because the defendant’s attorneys asked so many questions about the videotaped statement, it was only fair for the Commonwealth to actually play the video and let the jury see the whole thing.

Although things did not work out for Bond in this case, the case is actually incredibly important for anyone facing child abuse allegations. In general, these PCA videos and forensic interviews can be very damaging for the defense as they allow the Commonwealth to play a video of the child often being led into saying incriminating things by the interviewer where the child does not have to testify in public or face cross-examination. The story that comes out on the witness stand is often different from the testimony in the PCA video, and so allowing the Commonwealth to supplement its live testimony with pre-recorded, coached videos in any case in which the defense attacks the complainant’s credibility is incredibly unfair. This decision strongly protects the rights of a criminal defendant to face his or her accusers in court and for the defense to cross-examine witnesses before the judge or jury. The prosecution may not rely on out of court hearsay simply because it is easier or better for them.

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Goldstein Mehta LLC - Philadelphia Criminal Lawyers

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.

PA Superior Court: Four or More Years Older Means a Full Four Years under Statutory Sexual Assault Statute

Criminal Defense Attorney Zak Goldstein

What does four or more years older mean in a statututory sexual assault case? 

The Superior Court has just decided the cases of Commonwealth v. Price. In Price, the court held that the defendants had not been properly convicted of Statutory Sexual Assault because they were less than four years older than the 16-year-old complainant in the case. The court held that the term “four or more years older” as used in the Statutory Sexual Assault (Statutory Rape) statute requires just that; that a defendant be four years or more older than the complainant. Here, because both defendants were actually a few hours less than four years older than the complainant, the trial court erred in finding them guilty of Statutory Rape.

The facts of Commonwealth v. Price 

The facts of Price are relatively straightforward. The defendants were twin brothers who were charged with Statutory Sexual Assault for having sexual intercourse with the complainant. The complainant was born on a certain date in May 1998, at 8:16 am. The brothers were identical twins who were born on the same day and month in 1994 at 7 pm. This means that they were just a few hours less than four years older than the complainant. Both brothers admitted to having sex with the complainant when she was 14 and they were 18. Accordingly, they were charged with Statutory Sexual Assault.

Statutory Sexual Assault in Pennsylvania 

Pennsylvania’s Statutory Sexual Assault statute creates a number of different offenses. For purposes of this appeal, the defendants were charged with the Felony of the second degree section of the statute. That section makes it illegal for a person to have sexual intercourse with a complainant to whom the person is not married if the complainant is under the age of 16 years AND the defendant is four years older but less than eight years older than the complainant. This means that the case depended on whether the defendants were four years older or less than four years older than the complainant. If they were four or more years older than the complainant, then they would be guilty of Statutory Sexual Assault even if the complainant consented to the sexual intercourse. If they were less than four years older, then they could not be convicted of Statutory Rape.

The trial court found that because they were born on the same day, they were four years older than the complainant. The court reasoned that for purposes of defining a year, the measurements should not be reduced below days to hours. The court found that a person becomes a certain age on their birthday, so the defendants became four years or more older than the complainant when the day began. Accordingly, the trial court convicted both brothers of Statutory Sexual Assault. The defendants appealed to the Superior Court.

The Superior Court Appeal

The Superior Court recognized that the issue in the case was how to define a year for purposes of the statute. It was not disputed that the defendants were three years, 364 days, and approximately ten hours older than the complainant. The Superior Court reversed. It noted that criminal statutes must be strictly construed and that any ambiguity in a statute must be construed in favor of a criminal defendant pursuant to the Rule of Lenity.

The Pennsylvania Crimes Code does not define the meaning of the term “four years older.” However, the court noted that the federal Third Circuit Court of Appeals and a previous panel of the Superior Court had interpreted four years to mean 1,461 days and that the defendants had been born 1,461 days before the complainant. Thus, if the period of time is counted in days, the defendants would be guilty. If it were counted in smaller increments like hours, minutes, or seconds, then the defendants would be innocent. Because the crimes code does not provide a method by which to measure years, the court accepted the defendants’ argument that they had to be a full 1,461 days older than the complainant. Because a day is 24 hours, they were not a full 1,461 days older than the complainant. They were 14 hours short of a full day from the age of the complainant.

The court concluded that the statute could reasonably be interpreted either way. Given the ambiguity in the statute, the court was required to give the benefit of the doubt to the defendants. Therefore, the court reversed the convictions.

Facing Criminal Chargs? We Can Help. 

Criminal Lawyer Demetra Mehta

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of cases in state and federal courts throughout Pennsylvania and New Jersey. We offer a complimentary 15-minute criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation by law enforcement. We can also provide advice to anyone who is considering the merits of filing an appeal or Post-Conviction Relief Act Petition. Call or text 267-225-2545 to speak with an experienced and understanding defense attorney today.