J-E01005-14


                             2014 PA Super 221


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF

                                                     PENNSYLVANIA

                        Appellee



                   v.



ROBERT MICHAEL PUGH



                        Appellant                  No. 343 EDA 2012


        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

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
        J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J., and
        OLSON, J.

OPINION BY PANELLA, J.                           FILED OCTOBER 07, 2014

     The primary issue before us is the admissibility of expert testimony

proffered by the defense in order to question the trustworthiness of a



in limine to preclude the defense from presenting such evidence. In light of

recent Pennsylvania Supreme Court case law, we conclude that expert

testimony regarding false confessions is impermissible as it provides no

                                                                y to assess
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Accordingly, we affirm.



Center, where she was diagnosed with a sexually transmitted disease

                               -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

                             -sister, M.Z., informed authorities that she had

been diagnosed with the same STD as S.P. Ultimately, medical testing

determined that Pugh was not suffering from this type of 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




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                                           ilty to statutory sexual assault and



       Approximately one month thereafter, S.P. wrote a letter to authorities,

recanting her allegations against Pugh. Two months later, S.P. underwent a

third interview with the Pennsylvania 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.

               irst 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 a 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,



confessions. Shortly thereafter, the Commonwealth supplemented its motion

in limine seeking to exclude expert testimony regarding false confessions,

and furthermore requested a Frye1 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

                                           in limine. At the conclusion of the


1
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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second trial, the jury found Pugh guilty of rape of an unconscious victim,2

rape of a substantially impaired person,3 sexual assault,4 unlawful contact

with a minor (sexual offenses),5 aggravated indecent assault without

consent,6 aggravated indecent assault (complainant is unconscious or

unaware),7 aggravated indecent assault (person impairs complainant), 8 and

incest.9 The trial court subsequently sentenced Pugh, who then appealed. In

a memorandum decision, a panel of this Court affirmed the judgment of

sentence and Pugh then applied for reargument en banc, which this Court

granted.

                                             aised on appeal. 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. See Commonwealth v.

Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010). Pursuant to that standard,

       [t]he admission of evidence is committed to the sound discretion

       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.




2
    18 PA.CONS.STAT.ANN. § 3121(a)(3).
3
    18 PA.CONS.STAT.ANN. § 3121(a)(4).
4
    18 PA.CONS.STAT.ANN. § 3124.1.
5
    18 PA.CONS.STAT.ANN. § 6318(a)(1).
6
    18 PA.CONS.STAT.ANN. § 3125(a)(1).
7
    18 PA.CONS.STAT.ANN. § 3125(a)(4).
8
    18 PA.CONS.STAT.ANN. § 3125(a)(5).
9
    18 PA.CONS.STAT.ANN. § 4302.
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Id. (citations omitted).      Admissibility of expert testimony on scientific

knowledge is governed by Pennsylvania Rule of Evidence 702 which states:

      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.

      There has been a long-standing policy in this Commonwealth of



influence that accompanies expert testimony on the subject of credibility of

witnesses. See, e.g., Commonwealth v. Delbridge, 855 A.2d 27, 42 (Pa.



way to reach the issue of credibility, and thereby usurp the function of the

factfinder.    Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992)

(ruling expert testimony on the ability of children to recall events of abuse

not admissible); Commonwealth v. Gallager, 547 A.2d 355 (Pa. 1988)

(holding testimony regarding Rape Trauma Syndrome was not admissible);

Commonwealth v. Rounds, 542 A.2d 997, 999 (Pa. 1988) (ruling expert

testimony     that   victim   was   not   dissembling   was     not   admissible);

Commonwealth v. Seese, 517 A.2d 920 (Pa. 1986) (finding expert

testimony that pre-pubescent children do not fabricate stories of sexual

abuse not admissible).



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      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. D.J.A., 800 A.2d 965, 975 (Pa.

S

upon suggestive interview technique).      We have also affirmed trial court

rulings that prohibited the introduction of expert testimony on the issue of

false confessions. See Commonwealth v. Harrell, 65 A.3d 420, 429-431

(Pa. Super. 2013); Commonwealth v. Szakal, 50 A.3d 210, 228 (Pa.

Super. 2012). Recently, our Supreme Court decided a case that directly

dealt with admissibility as it pertains to experts who seek to testify about the

phenomena of false confession.

                                               Commonwealth v. Alicia, 92

A.3d 753 (Pa. 2014), held that expert testimony on the phenomenon of false



arbiter of credibility. In Alicia, the defendant was accused of murder and

other related charges. The police questioned the defendant and he

eventually confessed to the murder. Defendant later moved to use a false

confession expert, citing his own low intelligence, mental health issues, and

that his written confession contained a number of hallmarks which indicated

his confession was false. The expert proffered by the defendant claimed,

during an a hearing on the admissibility of his testimony, that he would

testify generally about police interrogation methods that can put an innocent


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The trial court held that the testimony was permissible as to the general

aspects of police interrogation techniques, but prohibited the expert from



This Court, in a divided panel, affirmed the decision.

       The Supreme Court of Pennsylvania, following the lead of the United

States Court of Appeals for the Tenth Circuit in United States v. Benally,

                                                                         expert

testimony such as the proposed testimony of [the defense expert] Dr. Leo

constitutes an impermissible invasion of the

arbiter of credibility.   Alicia, 92 A.3d at 764. First, the Court noted that

regardless of whether an expert opined on whether the confession was true

or false, the effect would be the same: jurors would be persuaded to

disrega

See id. Second, if the expert testimony were allowed, the Commonwealth

would likely counter with its own rebuttal expert testimony, which would

lead to befuddlement rather than serve to educate the jury. See id.

                                                                   the matter of



and life experience, after proper development of relevant issues related

to, among    other   things, the   particular   circumstances   surrounding   the




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elicitation   of   his   confession,   using    the   traditional   and time-honored

techniques of cross-                                     Id.

      Instantly, there is no dispositive factual or legal basis with which to



Alicia.   Accordingly, as we can find no distinguishable difference between

                                                                           Alicia, we

                                       warrants no relief.

      Pugh next argues that the trial court erred in precluding from

                                  Rocky Alverio, on issues such as her sexual



court states that it precluded this testimony based upon, among other



Rape Shield statute:


      conduct, opinion evidence of the alleged victi
      conduct, and reputation evidence of the alleged victim's past
      sexual conduct shall not be admissible in prosecutions under this

      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 explains as follows:

      The veracity of the complaining witness is the core issue in this
      case. Defendant wanted to call Rocky Alverio as a witness in his

      sexual relationship with Alverio constituting the cause, by


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     motive, interest, or bias resulting in her false accusations against
     Robert Pugh.



probative value regarding veracity of the [victim] which is exculpatory to

            Id., at 42. We disagree.

     In the present case, it is uncontested that at trial, Rocky Alverio 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 Rocky Alverio and S.P. were unnecessary and would have violated

the Rape Shield statute.    Therefore, we find no abuse of discretion in the

                                           testimony.

     Pugh next contends that the trial court erred in refusing to provide the

jury with his proposed instruction on unrecorded custodial interrogations.

                            ry 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),        78 A.3d

charge as a whole is inadequate, unclear, or has a tendency to mislead or

                                                          Commonwealth v.

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Pope, 14 A.3d 139 (Pa. Super. 2011) (citation omitted), appeal denied, 32



the issues are not made clear to the jury or the jury was palpably misled by

                           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.



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




interrogation.10



10
   Furthermore, we note that Pugh cites to no legal authority requiring
instructions on the absence of recorded interrogations.     Indeed, while
acknowledging that recording such interrogations is not mandatory in
Pennsylvania, Appellant invites us to create such a rule. Creation of such
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        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 Brady11 violation. In Brady, the United States Supreme Court



withholds favorable, material evidence from the defense. To prove a Brady



prosecutor has suppressed evidence; (2) the evidence, whether exculpatory

or impeaching, is helpful to the defendant, and (3) the suppression

                              Commonwealth v. Koehler, 36 A.3d 121, 133

(Pa. 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, 689 A.2d 891 (Pa.



reasonable probability that, had the evidence been disclosed to the defense,

                                                                  Id. (citation

omitted).

        Pugh asserts that the Commonwealth committed a Brady violation




to timely disclose all email correspondence regarding his STD testing and

rules and regulations, however, is a role reserved for the General Assembly,
not the
11
     Brady v. Maryland, 373 U.S. 83 (1963).
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results.   The existence of the withheld correspondence was apparently



surprise revelation, according to Pugh, disrupted his defense strategy,

entitling him to a mistrial.



because the alleged failure to disclose did not prejudice Pugh.    See Trial

Court Opinion, 3/13/2012, at 10-                                    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. See 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. See id.



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




      Judgment of sentence affirmed. Jurisdiction relinquished.




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      President Judge Gantman, President Judge Emeritus Ford Elliott,

President Judge Emeritus Bender, and Judges Allen, Lazarus, and Mundy join

the opinion.

      Judge Olson files a concurring opinion in which Judge Donohue joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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