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 

defendant’s confession. The trial court granted the Commonwealth’s motion 

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 

pedagogical purpose and interferes with the jury’s exclusive duty to assess 
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the credibility of witnesses. We also find Pugh’s other issues merit no relief. 

Accordingly, we affirm. 

On January 21, 2010, Pugh’s sister, S.P., was taken to Pocono Medical 

Center, where she was diagnosed with a sexually transmitted disease 

(“STD”). S.P. was 13 years-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 

after Pugh’s arrest, his step-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 

accusations against Pugh; she stated that M.Z.’s husband had also assaulted 
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her. M.Z.’s husband subsequently pled guilty to statutory sexual assault and 

unlawful contact with a minor pursuant to S.P.’s allegations.

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. 

Pugh’s first 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, 

seeking to exclude, among other things, the expert’s testimony on false 

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 

part granted the Commonwealth’s motion 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. 

We begin with Pugh’s first issue raised 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 

of the trial court, and a trial court’s ruling regarding the 

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 

protecting the jury’s prerogative to determine credibility from the undue 

influence that accompanies expert testimony on the subject of credibility of 

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

2003) (“[E]xpert testimony will not be permitted when it attempts in any 

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. 

Super. 2002) (precluding testimony on credibility of child’s testimony based 

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. 

The Supreme Court’s recent decision, Commonwealth v. Alicia, 92 

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

confessions would impermissibly invade the jury’s exclusive role as the sole 

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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suspect at risk and also about the specific ones used in defendant’s case. 

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

aspects of police interrogation techniques, but prohibited the expert from 

providing any testimony as to the specific allegations in defendant’s case. 

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, 

541 F.3d 990 (10th Cir. 2008), reversed. The Court found that “expert 

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

constitutes an impermissible invasion of the jury’s role as the exclusive 

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 

disregard the confession and credit the defense’s testimony that it was a lie. 

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. 

Ultimately, the Pennsylvania Supreme Court found that “the matter of 

whether Appellee’s confession is false is best left to the jury’s common sense 

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-examination and argument.” Id. 

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

distinguish Pugh’s claim from that of the recent Supreme Court decision in 

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

the claim advanced by Pugh and the Supreme Court’s decision in Alicia, we 

must conclude that Pugh’s claim warrants no relief. 

Pugh next argues that the trial court erred in precluding from 

questioning M.Z.’s husband, Rocky Alverio, on issues such as her sexual 

history and S.P.’s motive to fabricate allegations against Pugh. The trial 

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

things, the Pennsylvania Rape Shield statute. Pursuant to Pennsylvania’s 

Rape Shield statute: 

Evidence of specific instances of the alleged victim’s past sexual 

conduct, opinion evidence of the alleged victim’s past sexual 

conduct, and reputation evidence of the alleged victim's past 

sexual conduct shall not be admissible in prosecutions under this 

chapter except evidence of the alleged victim’s past sexual 

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 

defense to challenge the accuser’s veracity due to the accuser’s 

sexual relationship with Alverio constituting the cause, by 
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motive, interest, or bias resulting in her false accusations against 

Robert Pugh. 

Appellant’s Brief at 41. Pugh contends that “[s]uch an inquiry will have 

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

[Pugh].” 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 

trial court’s limitation of Rocky Alverio’s testimony. 

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

jury with his proposed instruction on unrecorded custodial interrogations. 

We review a trial court’s jury 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), aff’d 78 A.3d 1044 (Pa. 2013). “A jury charge is erroneous if the 

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

confuse the jury rather than clarify a material issue.” Commonwealth v. 
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Pope, 14 A.3d 139 (Pa. Super. 2011) (citation omitted), appeal denied, 32 

A.3d 1277 (Pa. 2011). “Therefore, a charge will be found adequate unless 

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

what the trial judge said.” 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. 

The trial court provided multiple instructions addressing Pugh’s 

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 

of discretion in the trial court’s rejection of the proposed jury instructions 

addressing the absence of a video recording of Pugh’s custodial 

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 

held that a defendant’s due process rights are violated when the prosecution 

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

violation, the defendant bears the burden of demonstrating that: “(1) the 

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

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

prejudiced the defendant.” 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. 

1997). To establish prejudice, the defendant must prove that “there is a 

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

the result of the proceeding would have been different.” Id. (citation 

omitted). 

 Pugh asserts that the Commonwealth committed a Brady violation 

when the prosecution failed to turn over two pages of Pugh’s medical testing 

results for STDs. Specifically, Pugh challenges the Commonwealth’s failure 

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 courts. Consequently, we decline Appellant’s invitation.

11 Brady v. Maryland, 373 U.S. 83 (1963). 
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results. The existence of the withheld correspondence was apparently 

revealed during examination of one of the Commonwealth’s witnesses. That 

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

entitling him to a mistrial. 

The trial court states that it denied Pugh’s motion for a mistrial 

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

Court Opinion, 3/13/2012, at 10-11. Significant to the trial court’s 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. 

We find no error in the trial court’s analysis. Indeed, even assuming 

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 

abuse of discretion in the trial court’s denial of Appellant’s motion for a 

mistrial, and conclude that Pugh’s final issue on appeal merits no relief.

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