[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 of the Superior 

Court entered June 28, 2021, at No. 

16 WDA 2020, affirming the Judgment 

of Sentence of the Court of Common 

Pleas of Allegheny 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 a party can present allegations of taint to a jury as a matter of 

reliability or credibility. Instead, I believe that allegations of taint constitute a challenge to 

the competency of a witness, which is a question properly addressed to the trial court. 

While I recognize that Appellant " 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 issue 
persuasive. 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 a red flag regarding competency, not credibility." Delbridge 1, 855 A.2d at 40. 

Issues of competency, in turn, " ha[ve] often been declared to be a question 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 OISA states that this Court held that 

"the question of whether a child witness's memory of an event has been tainted may be 

examined during a pretrial competency determination." (OISA at 9 n.6 ( Mundy, J.) 

(emphasis added).) I believe this is a mischaracterization 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 [of taint]" 

and "that such an investigation should occur within a competency 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 a competency 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, a hearing probing the competency of the child witness 

or, within the context of a suppression hearing examining whether the 

evidence was obtained by improper techniques, and, finally, during the 

course of the trial itself. 

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

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, reconsider the 

arguments forwarded in Delbridge I and Delbridge // and reach a contrary conclusion. I 

would deny this request. The Court has already considered whether "taint is a legitimate 

question for examination" and "whether a competency hearing is the appropriate venue 

to explore possible taint of a child 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 of taint at the competency hearing—i.e., in the appropriate venue—and found 

that Appellant 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 of taint." ( R.R. at 109.) The trial court explained that it was " aware that 

the child was forensically interviewed initially" but found 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 a result of natural maturity of 

' Justice Nigro filed a lone dissent in Delbridge /, explaining his view that taint is a matter 

of credibility and, therefore, not an issue of competency or " a proper 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, 859 A.2d at 1261 ( Nigro, J., concurring) 

("[T]aint is a matter of credibility, not competency, and is therefore not the proper subject 

of either expert testimony or a competency hearing."); id. (Eakin, J., concurring) ("[T]his 

is a matter of credibility, not competence, and should have been dealt with accordingly. "). 

[J-21-2023] [ OISA: Mundy, J.] - 3 
a 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 a taint challenge to the 

competency of a child witness is a matter addressed to the discretion of the trial court." 

Delbridge /, 855 A.2d at 41. Appellant does not presently argue, nor can he argue for the 

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 a matter of competency properly 

addressed to the trial court. 

2 An 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 of the view that.. . [the] appellant 

was obliged at trial 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, if the incompetency appears 

on the trial, an objection must be interposed as soon as the incompetency becomes 

apparent. "). 

[J-21-2023] [ OISA: Mundy, J.] - 4