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

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- 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 expe rt testimony proffered by the defense in order to question the tru stworthiness of a defendant’s confession. The trial court granted the Co mmonwealth’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 exc lusive dut y to assessJ-E01005- 14

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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 transmit ted disease (“STD”). S.P. was 13 years -old at the time. Because of her age and diagnosis, the hospital reported the incident to autho rities. In response, Trooper Patrick Finn of the Pennsylvania S tate Police interviewed S.P., at which time she stated that Pugh h ad drugged and raped her. Several days later, Trooper Finn contacted Pugh via telephone, and convinced Pugh to come to the police station to be inter viewed. During his interview, Pugh admitted to, among other things, dr ugging 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, cla iming that his confession had been coerced. Additionally, approximat ely 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, m edical testing determined that Pugh was not suffering from this type of STD. M.Z. stated that she believed that she had contracted the disease fro m her husband. When presented with these circumstances, S.P. did not ini tially recant her accusations against Pugh; she stated that M.Z.’s husband h ad also assaultedJ-E01005- 14

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her. M.Z.’s husband subsequently pled gu ilty to statutory sexual assault and unlawful contact with a minor pursuant to S.P.’s alleg ations. Approximately one month thereafter, S.P. wrote a le tter to authorities, recanting her allegations against Pugh. Two months lat er, 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 a llegations against Pugh. Both women subsequently pled guilty to obstructi ng justice based upon their conduct towards S.P. Pugh’s f irst trial commenced on March 24, 2011. After the jury was unable to reach a verdict, the trial court declared a m istrial and scheduled a new trial. Before a new trial could be held, Pugh no tified the Commonwealth that he intended to present expert testimony on the phenomenon of false confessions. The Commonwealth responded by filing a moti on in limine , seeking to exclude, among other things, the expert’s t estimony on false confessions. Shortly thereafter, the Commonwealth suppl emented its motion in limine seeking to exclude expert testimony regarding false co nfessions, and furthermore requested a Frye 1 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 a n 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).J-E01005- 14

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second trial, the jury found Pugh guilty of rape of a n 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 a ppealed. 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 r 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 di scretion of the trial court, and a trial court’s ruling regardi ng 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 P A .C ONS .S TAT .A NN . § 3121(a)(3). 3 18 P A .C ONS .S TAT .A NN . § 3121(a)(4). 4 18 P A .C ONS .S TAT .A NN . § 3124.1. 5 18 P A .C ONS .S TAT .A NN . § 6318(a)(1). 6 18 P A .C ONS .S TAT .A NN . § 3125(a)(1). 7 18 P A .C ONS .S TAT .A NN . § 3125(a)(4). 8 18 P A .C ONS .S TAT .A NN . § 3125(a)(5). 9 18 P A .C ONS .S TAT .A NN . § 4302.J-E01005- 14

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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, ex perience, 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 Commonw ealth of protecting the jury’s prerogative to determine credibi lity from the undue influence that accompanies expert testimony on the subje ct 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 t o recall events of abuse not admissible); Commonwealth v. Gallager , 547 A.2d 355 (Pa. 1988) (holding testimony regarding Rape Trauma Syndrome wa s not admissible); Commonwealth v. Rounds , 542 A.2d 997, 999 (Pa. 1988) (ruling expert testimony that victim was not dissembling was not admissi ble); 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).J-E01005- 14

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This Court has also consistently upheld the exclusion of expert evidence that intrudes upon the duty of the jury to d etermine credibility of
witnesses. See , e.g. , Commonwealth v. D.J.A. , 800 A.2d 965, 975 (Pa. S uper. 2002) (precluding testimony on credibility of chi ld’s testimony based upon suggestive interview technique). We have also aff irmed trial court rulings that prohibited the introduction of expert te stimony 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 se ek 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 t he phenomenon of false confessions would impermissibly invade the jury’s exclusi ve role as the sole arbiter of credibility. In Alicia , the defendant was accused of murder and other related charges. The police questioned the defend ant and he eventually confessed to the murder. Defendant later mo ved to use a false confession expert, citing his own low intelligence, menta l health issues, and that his written confession contained a number of hallma rks which indicated his confession was false. The expert proffered by the de fendant claimed, during an a hearing on the admissibility of his testimo ny, that he would testify generally about police interrogation methods t hat can put an innocentJ-E01005- 14

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suspect at risk and also about the specific ones used in def endant’s case. The trial court held that the testimony was permissible as to the general aspects of police interrogation techniques, but prohibite d 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 l ead 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 f ound that “ expert testimony such as the proposed testimony of [the defense e xpert] 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 disrega rd the confession and credit the defense’s testimony that it was a lie. See id . Second, if the expert testimony were allowed, the C ommonwealth would likely counter with its own rebuttal expert test imony, which would lead to befuddlement rather than serve to educate th e jury. See id

. Ultimately, the Pennsylvania Supreme Court found tha t “ 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 rel evant issues related to, am ong other things, the particular circumstances surrounding theJ-E01005- 14

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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 ba sis with which to distinguish Pugh’s claim from that of the recent Suprem e Court decision in Alicia . Accordingly, as we can find no distinguishable differe nce between the claim advanced by Pugh and the Supreme Court’s deci sion in Alicia , we must conclude that Pugh’s claim warrants no relief. Pugh next argues that the trial court erred in preclud ing from questioning M.Z.’s husband, Rocky Alverio, on issues such as her sexual history and S.P.’s motive to fabricate allegations agai nst 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 victi m’s past sexual conduct, and reputation evidence of the alleged victim 's past sexual conduct shall not be admissible in prosecutions und er this chapter except evidence of the alleged victim’s past se xual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuan t 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 i n this case. Defendant wanted to call Rocky Alverio as a witn ess in his defense to challenge the accuser’s veracity due to the ac cuser’s sexual relationship with Alverio constituting the cause, byJ-E01005- 14

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motive, interest, or bias resulting in her false accusati ons against Robert Pugh. Appellant’s Brief at 41. Pugh contends that “[s]uch an inquiry will have probative value regarding veracity of the [victim] w hich is exculpatory to [Pugh].” Id ., at 42. We disagree. In the present case, it is uncontested that at trial, R ocky Alverio was permitted to testify that he had engaged in sexual in tercourse with S.P. Consequently, the jury was presented with ample eviden ce establishing that, at the medical center, S.P. falsely claimed to be a vir gin. We agree with the trial court that any additional details regarding the sexual encounters between Rocky Alverio and S.P. were unnecessary and wou ld have violated the Rape Shield statute. Therefore, we find no abu se of discretion in the trial court’s limitation of Rocky Alverio’s testimony. Pugh next contends that the trial court erred in ref using to provide the jury with his proposed instruction on unrecorded custodial interrogations. We review a trial court’s ju 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, ad equately, and accurately presented to the jury for its considerat ion. 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 tende ncy to mislead or confuse the jury rather than clarify a material issue.” Commonwealth v.J-E01005- 14

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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 fo und adequate unless the issues are not made clear to the jury or the jury w as palpably misled by what the trial judge said.” Id

. Here, Pugh complains that he was prejudiced by the fai lure to instruct the jury that the ideal evidence regarding his confessio n was not available, despite the ability of the Commonwealth to provide f or it, and therefore that the jury should consider this fact in determining credib ility. The trial court states that it refused the proposed instructions because it had adequately covered the issue in other instructions. After reviewi ng the jury charge as a whole, we agree. The trial court provided multiple instructions addressin g Pugh’s confession, the credibility of witnesses, and the considera tion of evidence. Those instructions adequately addressed the concepts that Pu gh sought to cover in the proposed instructions. We therefore conclud e that the absence of these instructions did not prejudice Pugh. Accordingl y, we find no abuse of discretion in the trial court’s rejection of the prop osed jury instructions addressing the absence of a video recording of Pugh’s cu stodial interrogation. 10

10 Furthermore, we note that Pugh cites to no legal au thority requiring instructions on the absence of recorded interrogations. Indeed, while acknowledging that recording such interrogations is not m andatory in Pennsylvania, Appellant invites us to create such a rule . Creation of suchJ-E01005- 14

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In his final issue on appeal, Pugh argues that the tr ial court erred by failing to grant his motion for mistrial after the Commonwealth allegedly committed a Brady 11 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 defen se. To prove a Brady violation, the defendant bears the burden of demonst rating that: “(1) the prosecutor has suppressed evidence; (2) the evidence, wheth er 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 t he first two prongs have been established, a defendant must establish that he wa s prejudiced by the failure to disclose. See Commonwealth v. Appel , 689 A.2d 891 (Pa. 1997). To establish prejudice, the defendant must pro ve that “there is a reasonable probability that, had the evidence been di sclosed to the defense, the result of the proceeding would have been differen t.” 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 Comm onwealth’s failure to timely disclose all email correspondence regarding hi s STD testing and rules and regulations, however, is a role reserved for the General Assembly, not the courts. Consequently, we decline Appellant’s invitatio n.

11 Brady v. Maryland , 373 U.S. 83 (1963).J-E01005- 14

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results. The existence of the withheld correspondence was apparently revealed during examination of one of the Commonwea lth’s witnesses. That surprise revelation, according to Pugh, disrupted his de fense strategy, entitling him to a mistrial. The trial court states that it denied Pugh’s motion f or a mistrial because the alleged failure to disclose did not prejud ice 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 wit hheld 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 alon g. See id

. We find no error in the trial court’s analysis. Inde ed, even assuming that the Commonwealth should have disclosed the subject d ocuments prio r to trial, and accepting that the manner in which the documents were disclosed to Pugh was inconvenient, Pugh has not establish ed that he suffered prejudice from the untimely disclosure. Consequ ently, we find no abuse of discretion in the trial court’s denial of Appel lant’s motion for a mistrial, and conclude that Pugh’s final issue on appea l merits no relief. Judgment of sentence affirmed. Jurisdiction relinquish ed.J-E01005- 14

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President Judge Gantman, President Judge Emeritus Ford Elliott, President Judge Emeritus Bender, and Judges Allen, La zarus, and Mundy join the opinion. Judge Olson files a concurring opinion in which Judge D onohue joins. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014