[J-21-2023] [OISA: Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 26 WAP 2022 Appellee

V.

RICKEY MCGINNIS, Appellant Appeal from the Order ofthe Superior Court entered June 28, 2021, at No. 16 WDA 2020, affirming the Judgment of Sentence ofthe Court of Common Pleas ofAllegheny County entered December 4, 2019, at No. CP-02-CR0011014-2018 :ARGUED: April 19, 2023

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE BROBSON DECIDED: DECEMBER 1, 2023 1 concur in the result of the Opinion in Support of Affirmance (OISA) authored by Justice Mundy. I

agree with Justice Mundy's OISA insofar as it concludes that expert testimony regarding taint by the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques does not fall under the purview of Section 5920(b) of the Judicial Code, 42 Pa.C.S. § 5920(b). I respectfully disagree, however, that aparty can present allegations of taint to ajury as amatter of reliability or credibility. Instead, I believe that allegations oftaint constitute a challenge to the competency of awitness, which is aquestion properly addressed to the trial court. While I recognize thatAppellant "state[d] on appeal that he did not proffer Dr. Chambers'[] testimony at the competency hearing as it was intended to challenge the credibility, not the competency, of the child's testimony," I do not find this reframing of the issuepersuasive. Commonwealth v. McGinnis ( Pa. Super., No. 16 WDA 2020, filed June 28, 2021), slip op. at 5 (Bowes, J., concurring). In my view, this Court has already addressed and decided the issue presented by Appellant in Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) ( Delbridge l), in which we held that "[a]n allegation that the witness's memory of [an] event has been tainted raises ared flag regarding competency, not credibility." Delbridge 1, 855 A.2d at 40. Issues of competency, in turn, "ha[ve] often been declared to be aquestion for the trial court." Commonwealth v. Kosh, 157 A. 479, 482 (Pa. 1931) (collecting cases). I see no compelling reason to alter this precedent. While addressing Delbridge 1, Justice Mundy's OISAstates thatthis Court held that "the question of whether achild witness's memory of an event has been tainted may be examined during apretrial competency determination." (OISA at 9n.6 (Mundy, J.) (emphasis added).) I believe this is amischaracterization of this Court's holding in Delbridge 1. Instead, this Court in Delbridge / held that "Pennsylvania law charges the trial court with the responsibility to investigate the legitimacy of ... an allegation [oftaint]" and "that such an investigation should occurwithin acompetency hearing." Delbridge 1, 855 A.2d at 40 (emphasis added); see also Commonwealth v. Delbridge, 859 A.2d 1254, 1256 (Pa. 2004) (

Delbridge ll) ("The capacity to remember and the ability to testify truthfully about that memory are components of competency.... Therefore[,] we held that taint was best explored in acompetency hearing.

## "). In reaching our conclusion in Delbridge 1, this Court considered the law of other jurisdictions, which found the issue capable of examination within the context of existing legal procedures such as, ahearing probing the competency ofthe child witness or, within the context of asuppression hearing examining whether the evidence was obtained by improper techniques, and, finally, during the course ofthe trial itself.

[J-21-2023] [OISA: Mundy, J.] - 2De/bridge /, 855 A.2d at 39. Ultimately, however, this Court "h[e]ld that acompetency

hearing is the appropriate venue to explore allegations of taint."' Id. at 40 (emphasis added). In the present matter, Appellant now asks this Court to, essentially, reconsiderthe arguments forwarded in Delbridge I and Delbridge // and reach acontrary conclusion. I would deny this request. The Court has already considered whether "taint is alegitimate question for examination" and "whether acompetency hearing is the appropriate venue to explore possible taint of achild witness," and we answered both inquiries in the affirmative. Id. at 39-40. The record in this matter reveals that the trial court addressed Appellant's allegations oftaint atthe competency hearing—i.e., in the appropriate venue—and found thatAppellant failed to prove taint. Appellant chose not to proffer expert testimony at the competency hearing. McGinnis, slip op. at 5 ( Bowes, J., concurring). The trial court, proceeding in normal course, "reviewed the mental health records in this case" and "did not find evidence oftaint." (R.R. at 109.) The trial court explained that it was "aware that the child was forensically interviewed initially" butfound that "nothing in the record at [that] point indicate[d] that his better ability to communicate what happened to him when he was five is the result of coaching of any sort as opposed to aresult of natural maturity of

' Justice Nigro filed alone dissent in Delbridge /, explaining his view that taint is a matter of credibility and, therefore, not an issue of competency or "aproper subject of expert testimony." Delbridge /, 855 A.2d at 47 (Nigro, J., dissenting). Justice Eakin filed a concurring and dissenting opinion in Delbridge 1, " disagree[ing] that `taint' always goes to competency," and "tak[ing] issue on the use of expert witnesses on what is really a credibility issue." Id. at 49 ( Eakin, J., concurring and dissenting). Both Justice Nigro and Justice Eakin repeated their positions in their respective minority opinions in Delbridge II. See Delbridge ll, 859A.2d at 1261 (Nigro, J., concurring) ("[T]aint is amatter of credibility, not competency, and is therefore not the proper subject of either expert testimony or acompetency hearing."); id. ( Eakin, J., concurring) ("[T]his is a matter ofcredibility, not competence, and should have been dealtwith accordingly.

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child from age [five] to [twelve]." (/d. at 110.) Accordingly, the trial court concluded that, "without further evidence," it "would not be able to find the child is incompetent for any reason specifically for taint.... [T]he defense has not met that burden." ( Id. at 110-11.) "[A]s with all questions of competency, the resolution of ataint challenge to the competency of achild witness is amatter addressed to the discretion of the trial court." Delbridge /, 855 A.2d at 41. Appellant does not presently argue, nor can he argue forthe first time on appeal, that the trial court abused its discretion.2 Thus, based upon this record, I

cannot conclude that Appellant should be permitted another opportunity to challenge the competency of J.M. where Appellant failed to establish taint at the appropriate stage of litigation. Appellant's attempts to reframe the issue of taint as a matter of reliability are, to me, unavailing. I would, therefore, affirm the order of the Superior Court on alternative grounds and hold that Appellant could not present to the jury expert testimony regarding taint because it is amatter of competency properly addressed to the trial court.

2An objection to the competency of a witness is subject to waiver. See Commonwealth v. Harris, 424 A.2d 1245, 1249 n.3 (Pa. 1981) ("[W]e are ofthe viewthat.. . [the] appellant was obliged attrial to put the competency of [the witness] in issue and, [the] appellant not having done so, the issue is not preserved for appellate review."); see also Kosh, 157 A. at 482 ("If a

party knows before trial that a witness is incompetent ... , he must make his objection before the witness has given any testimony, and, ifthe incompetency appears on the trial, an objection must be interposed as soon as the incompetency becomes apparent.

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