Judges Opinions, — October 19, 2022 9:28 — 0 Comments

Commonwealth of Pennsylvania v. Kimberly Maurer, Commonwealth of Pennsylvania v. Scott F. Schollenberger

Commonwealth of Pennsylvania v. Kimberly Maurer

Commonwealth of Pennsylvania v. Scott F. Schollenberger

 

Criminal Action-Law-Criminal Homicide-Child Victim-Neglect and Abuse-Blunt Head Trauma-Defenses-Formation of Intent-Mental Health-Insanity-Guilty But Mentally Ill-Diminished Capacity-Domestic Violence Abuse-Posttraumatic Stress Disorder-Qualification of Experts-Psychologists

 

Defendant’s Kimberly Maurer (“Mauer”) and Scott F. Schollenberger (“Schollenberger”) were charged with Criminal Homicide and related charges following the death of Schollengberger’s twelve (12) year old son, who was found malnourished lying naked on a bed covered in feces in a locked room of Defendants’ home.  An autopsy report determined the cause of death to be blunt force head trauma complicating starvation/malnutrition.  Maurer filed a Notice of Mental Health Infirmity Defense seeking to present expert testimony that intimate party violence (“IPV”) by Schollenberger and/or posttraumatic stress disorder (“PTSD”) resulting from domestic abuse of Schollenberger to negate criminal intent with regard to the charges.

 

  1. Under Pennsylvania law, mental illness is not a defense to criminal liability unless the mental illness rises to the level of insanity.

 

  1. A diminished capacity defense is designed to reduce First Degree Murder to Third Degree Murder by negating specific intent to kill upon which the former is predicated.

 

  1. Diminished capacity can be predicated upon an alleged mental infirmity.

 

  1. To establish a defense of diminished capacity, a defendant must show that his or her cognitive abilities of deliberation and premeditation were so compromised that he or she was unable to form a specific intent to kill.

 

  1. A diminished capacity defense to First Degree Murder is available only to defendants who admit that their conduct caused the death of another.

 

  1. A defendant seeking to invoke a diminished capacity defense must produce evidence establishing that he or she suffered from one or more mental disorders that prevented formulation of the intent to kill.

 

  1. In serving as the gatekeeper with regard to proffered expert testimony, the court must evaluate whether the expert is qualified to render the type of opinion proffered and whether the analytic paradigm of the expert generally is accepted within his or her field.

 

  1. The standard for evaluating the qualifications of an expert witness under Pennsylvania law is a liberal one with the most often cited test being whether the witness has any reasonable pretention to specialized knowledge on the subject under investigation.

 

  1. Psychologists have been qualified to testify as experts in a wide variety of contexts.

 

  1. A party seeking to exclude proffered expert evidence must persuade the court that the scientific evidence is novel by demonstrating that there is a legitimate dispute regarding the reliability of the expert’s conclusions.

 

  1. After the objecting party identifies some legitimate dispute regarding the propriety of the science employed by the expert, then the proponent of the scientific evidence must show that the expert’s methodology has general acceptance in the relevant scientific community despite the legitimate dispute.

 

  1. The qualifications of Mauer’s offered expert are sufficient under Pennsylvania law to enable him to describe and to render an opinion regarding PTSD premised about domestic violence abuse.

 

  1. Based upon a report of an expert engaged by the Court that the Court finds reliable, while there is scientific support for the theory that PTSD can impact an individual’s ability to form intent at a precise moment in time, there is no scientific support for the theory that PTSD can prevent an individual from forming intent over a period of time measured in weeks or months.

 

  1. To the extent that the charges pertain to the death of the victim from infliction of blunt force trauma to the head, there is scientific support for the theory that PTSD could have affected Mauer’s ability to form intent at that point in time such that Mauer’s expert may be permitted to provide evidence that PTSD prevented Mauer from having criminal intent at the time of the infliction of the trauma.

 

  1. As the charges relate to the death of the victim resulting from abuse, neglect and/or failure to protect the victim over a long period of time, there is insufficient scientific support for the theory that PTSD could prevent an individual from forming intent over an extended period of time such that Mauer’s expert will not be permitted to render an opinion that Mauer’s PTSD rendered her incapable of forming intent relating to those charges.

 

  1. The alleged abuse would be relevant to issues contested at trial including the Criminal Conspiracy charges alleged.

 

  1. The jury will be allowed to consider all relevant evidence of diminished capacity.

 

  1. Mauer’s expert will be permitted to testify about Mauer’s abuse related PTSD in that the expert will be permitted to describe PTSD, to opine that domestic abuse can lead to PTSD and to opine that he believes that Mauer suffered from domestic abuse PTSD, but not to opine that Mauer was unable to form intent during the entire period of the victim’s abuse.

 

L.C.C.C.P. Nos. CP-38-CR-0001412-2020 and CP-38-CR-0001387-2020, Opinion by Bradford H. Charles, Judge, February 3, 2022.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                            : 

PENNSYLVANIA                                        :                                                                                                                                                           :           NO. CP-38-CR-1412-2020

  1. :          

                                                                        :

KIMBERLY MAURER                              :

:

 

COMMONWEALTH OF                            : 

PENNSYLVANIA                                        :                                                                                                                                                           :           NO. CP-38-CR-1387-2020

  1. :          

                                                                        :

SCOTT F. SCHOLLENBERGER :

:                                                                                  

 

AND NOW, this 3rd day of February 2022, in accordance with the attached Opinion, the Order of this Court is as follows:

  1. To the extent that it seeks to prohibit MAURER from presenting expert testimony that PTSD-related domestic abuse can negate criminal intent during the period of time when Maxwell Schollenberger was allegedly abused and neglected, the Commonwealth’s Motion to Preclude such testimony is GRANTED.
  2. With respect to whether MAURER can present expert testimony that she was incapable of forming intent due to a PTSD-related dissociative event at a specific moment in time, the Court defers a decision regarding the admissibility of such evidence until the time of trial.
  3. MAURER will be able to present testimony from Dr. Christian Jordal about PTSD and its symptomology, about whether PTSD can be triggered by domestic abuse and about whether MAURER suffered from PTSD. However, Dr. Jordal will not be permitted to testify that MAURER was incapable of forming criminal intent as a result of her PTSD.
  4. Leave is granted for the Commonwealth to present a rebuttal expert report regarding PTSD, its relationship to domestic abuse and the question of whether MAURER suffered from PTSD. Such rebuttal report will be due on or before February 18, 2022.
  5. Leave is granted for any party to file additional Motions in Limine regarding evidentiary issues triggered by the attached Opinion.

 

BY THE COURT:

 

                                                J.

BRADFORD H. CHARLES

BHC/pmd

 

cc:        Court Administration

DA (PHG)

PD (BD)

Andrew Race, Esq.

 

 

 

 

 

 

 

Table of Contents

Preamble 1

  1. PROCEDURAL HISTORY 3-5
  2. SUMMARY OF CHARGES 6-9
  • INTIMATE PARTNER VIOLENCE (IPV) 9-14
  1. EXPERT OPINIONS 15-24
  2. Christian Jordal 15-18
  3. John O’Brien 19-20
  4. Clarence Watson 20-24
  5. LEGAL PRINCIPLES 25-39
  6. Mental Health Defenses to Homicide 25
  • Insanity Defense 25-27
  • Guilty But Mentally Ill 27-30
  • Mental Health as Rebutting Criminal Intent 30-34
  • Diminished Capacity 34-39
  1. Historical Use of IPV as a Defense 39-49
  2. Expert Testimony 49-55
  • Expert Qualifications 50-52
  • Is the expert’s analytical paradigm generally accepted within his/her field of experience? 52-55
  1. ANALYSIS and CONCLUSION 55-63

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                            : 

PENNSYLVANIA                                        :                                                                                                                                                           :           NO. CP-38-CR-1412-2020

  1. :          

                                                                        :

KIMBERLY MAURER                              :

:

 

COMMONWEALTH OF                            : 

PENNSYLVANIA                                        :                                                                                                                                                           :           NO. CP-38-CR-1387-2020

  1. :          

                                                                        :

SCOTT F. SCHOLLENBERGER :

:

APPEARANCES

Pier Hess Graf, Esquire                   For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE       

 

Andrew J. Race, Esquire                  For Defendant Kimberly Maurer

REILLY WOLFSON

Brian Deiderick, Esquire                 For Defendant Scott Schollenberger

PUBLIC DEFENDER’S OFFICE

 

 

OPINION BY CHARLES, J., February 3, 2022

This case presents the question of whether or to what extent Intimate Partner Violence (IPV) can be employed as a defense to charges stemming from the homicide of a child.  The issue is complicated by the fact that the Commonwealth has proffered three theories of culpability against Kimberly Maurer (hereafter MAURER):

  • That she caused a traumatic injury at a specific point in time;
  • That she abused and neglected the child-victim over a more lengthy period of time; and
  • That she failed to protect the child by reporting what was occurring.

In addition, the issue is further complicated because MAURER asserts two theories as to why IPV should provide her with a defense:

  • Her purported prolonged victimization prevented her from forming criminal intent with respect to all charges proffered against her; and
  • Her victimization implicates diminished capacity that should reduce charges of First Degree Murder to Third Degree Murder.

Everyone involved in this case agrees that it presents “a very unique set of circumstances.”[1]  In fact, we have found no Pennsylvania Appellate precedent that controls the decision we must now make.  Because of this, we will undertake a comprehensive legal and factual analysis before providing the parties with our decision regarding MAURER’s proffered IPV defense.  After summarizing the procedural history of this case, we will divide our analysis into the following components:

  • A summary of the factual background and criminal allegations proffered by the Commonwealth;
  • A summary of MAURER’s proffered evidence of IPV;
  • A summary of the expert opinions that have been provided to us;
  • A summary of Pennsylvania legal principles; and
  • Our conclusions based upon all of the above.

 

  1. PROCEDURAL HISTORY

On October 19, 2020, the Commonwealth charged both MAURER and SCHOLLENBERGER with Criminal Homicide, Criminal Conspiracy to Commit Homicide, Endangering the Welfare of Children and Criminal Conspiracy to Endanger the Welfare of Children.  Many things occurred following the filing of charges that are not germane to the decision now before this Court.  Therefore, we will outline only those procedural events that have relevance to what is now before the Court:

  • 1/19/2021 – MAURER filed an ex parte Application for Authorization to Hire & Pay Retain for Expert.
  • 4/20/2021 – MAURER filed a Notice of Intent to enter a claim of Mental Infirmity.
  • 4/28/2021 – The Commonwealth proffered its response and its Motion to Dismiss MAURER’s Notice of Mental Infirmity.
  • 5/3/2021 – This Court conducted a conference and oral argument on the Commonwealth’s Motion to Dismiss.
  • 7/12/2021 – MAURER proffered a Notice of Mental Infirmity Defense under Pa.R.Crim.P. 568
  • 9/9/2021 – The Commonwealth filed a Motion to Preclude MAURER’s Mental Health Defense/Expert Testimony During Trial.
  • 9/13/2021 – This Court ordered MAURER’s expert to prepare an amended report outlining how the expert diagnosis of PTSD affected her capacity and ability to protect the welfare of the deceased. Thirty days thereafter, the parties were directed to submit legal briefs with respect to the issue of whether the PTSD as outlined in the defense expert report can trigger a diminished capacity defense as a matter of law, or whether the defense expert’s opinion can serve as a defense to the charge of Endangering the Welfare of Minors.
  • 10/11/2021 – MAURER filed Notice of Amended Defense Mental Infirmity Expert Report.
  • 10/27/2021 – After this Court received MAURER’s Amended Mental Infirmity Notice and Expert Report, we responded with an Order that accomplished several things:
  • We directed MAURER to file a Second Amended Notice of Mental Infirmity Defense;
  • We scheduled a so-called Frye Hearing to assess whether the analytical theory proposed by MAURER’s expert had sufficient scientific/psychological support to be admissible; and
  • We appointed Dr. Clarence Watson to render an opinion under Pa.R.Ev. 706 with respect to whether Dr. Jordal’s opinion should be presented to the jury under the Frye
  • 11/8/2021 – MAURER filed her Second Amended Notice of Mental Infirmity Defense.
  • 11/16/2021 – The Commonwealth filed a Motion to Preclude MAURER’s Mental Health Defense/Expert Testimony at Trial.
  • 12/21/2021 – The Court-appointed expert, Dr. Clarence Watson, submitted his report regarding the analytical methodology used by the defense doctor.
  • 1/3/2022 – On this date, MAURER filed another Notice of Amended Defense Mental Infirmity. This additional Amended Notice included another report from Dr. Jordal.  On the same date, Dr. John O’Brien authored a report for the
  • 1/11/2022 – This Court conducted a Hearing regarding the Commonwealth’s Motion to Preclude Testimony. The parties agreed to the submission of twelve exhibits in lieu of live testimony.  Oral argument was thereafter presented by counsel.  All parties were granted leave to file brief legal memorandum in support of their positions within two weeks.
  • 1/14/2022 – After reading all of the reports that were submitted to the Court, the Court decided to solicit another opinion from Dr. Watson. Copies of Dr. Jordal’s updated report and the report of Dr. O’Brien were provided to Dr. Watson.  In addition, information gleaned from the parties at oral argument was also provided.  Watson was asked to submit an amended report to supplement and clarify his initial submission.
  • 1/31/2022 – Dr. Watson forwarded a supplemental report. This report was forwarded to all counsel.
  • 2/1/2022 – All counsel agreed that Dr. Watson’s report could be admitted in evidence without the need for a Factual Hearing. As a result, Dr. Watson’s supplemental report of January 31, 2022 was marked by the Court as Exhibit 13 and made a part of the record of this case.

 

  1. SUMMARY OF CHARGES

On May 26, 2020, police were summoned to the home of MAURER and Scott Schollenberger (hereafter SCHOLLENBERGER) located in Annville, Lebanon County.  Twelve-year old Maxwell Schollenberger was found dead in a second floor bedroom.  Detectives described Maxwell as appearing “malnourished” and with a “bloated abdomen.”  Maxwell was naked and was sprawled across a bed that was covered in feces.

Maxwell’s body was transported to the Lehigh Valley Forensic Center for an autopsy.  Forensic pathologist Dr. Michael W. Johnson conducted an autopsy on June 1, 2020.  Dr. Johnson determined that Maxwell’s body weight was forty-seven point five pounds (47.5 lbs.), which is fifty-three percent (53%) of the expected mean weight of a twelve-year old child.  He also identified extreme muscular atrophy and evidence of blunt force trauma.  Dr. Johnson further opined that Maxwell’s bone development was “delayed” and his skeletal situation suggested “limited weight bearing”.

Dr. Johnson determined Maxwell’s cause of death to be: “Blunt force head trauma complicating starvation/malnutrition.”  Dr. Johnson concluded in his narrative report:

“In my medical opinion, this twelve-year old child, Maxwell Schollenberger, died as a result of blunt force head trauma complicating starvation/malnutrition.  In the context of the Lebanon County investigation, it is my medical opinion that this child’s death was a homicide.”

 

Police commenced an investigation of events surrounding the discovery of Maxwell’s body.  According to investigators, Maxwell’s bedroom was locked from the outside.  Windows in the bedroom were covered with shades and shutters that were taped.  The room was without working lights.  No toys, personal items or other items of furniture were found within the room.  Reportedly, Maxwell had not been seen by a doctor in ten (10) years prior to his death.  Both MAURER and SCHOLLENBERGER acknowledged that they “did not care very well” for Maxwell.  Investigators also learned that Maxwell was not enrolled in any school environment.

Maxwell’s body was also evaluated by Dr. Lori Frasier of the Penn State Hershey Children’s Hospital.  Dr. Frasier is a professor of Pediatrics.  Dr. Frasier focused upon Maxwell’s malnutrition.  She stated that Maxwell’s weight was abnormally low, his bones were “osteopenic”, which means “poorly mineralized”.  Dr. Frasier stated in her report:

“He was clearly provided a limited amount of nutrition that was insufficient to support growth, developmental (sic) of bone, muscle mass and fat.  Nutrition is also important for brain development, and he had a normally developing brain at age three and a half.  Maxwell would have suffered greatly from lack of nutrition with increasing weakness and inability to perform basic tasks.  At some point near the end of his life he would have likely been too weak to move or cry out.  His ability to process food would have been limited.  The more weakened he became, the more difficult it would have been to feed him.  Feeding a malnourished child suddenly would also place them at risk for metabolic derangements of what is called “re-feeding” syndrome.  Re-feeding can cause death, as can metabolic derangements that interfere with heart rhythm.

There is evidence of physical injury to his eye and muscles of his back.  There is evidence of head trauma.  Maxwell would likely have been in pain but unable to move, possible due to his weakened condition.  His severely weakened condition would have contributed substantially to his ability to survive his brain injury.

Maxwell was a child who died of severe malnutrition, neglect and physical abuse.  The emotional suffering also would have been intense.  Living in a locked room in his own feces while members of the family and other children lived a life around him is emotionally abusive and would have caused him psychological distress.  This also placed his physical health and normal childhood development at extreme risk…

In my opinion, seeking medical care for Maxwell at any time prior to his death would have resulted in some chance of his survival.  It should have been clear to any reasonable caregiver that he was deteriorating, starving, unable to walk, or communicate.  At some point, he would have been alive but clearly unconscious.  Failure to seek any medical care at any point in time constitutes egregious medical neglect.” (Dr. Frazier’s report dated April 7, 2021)

 

Based upon the autopsy report, the report of Dr. Frasier, and the District Attorney’s comments at the January 11, 2022 hearing regarding the proposed IPV defense, it is clear that the Commonwealth is proffering several theories of culpability against MAURER:

  • That a caregiver for Maxwell, of whom MAURER was one, caused a blunt force trauma to Maxwell’s head that was the immediate cause of his death;
  • That Maxwell had been the victim of prolonged abuse and neglect that weakened him to the point where death was likely; and
  • That MAURER did not undertake any action for a long period of time to protect Maxwell by providing better care and/or by reporting his abuse to professionals.

It is also clear that MAURER will be required at trial to respond to each of the above claims.

 

III.       INTIMATE PARTNER VIOLENCE (IPV)

MAURER is proffering a defense predicated upon IPV.  MAURER has not provided sworn testimony regarding the details of the abuse she allegedly suffered.  However, MAURER has been interviewed by Dr. Christian Jordal.  A review of Dr. Jordal’s three reports provides information as to what MAURER will claim regarding IPV.

MAURER apparently met SCHOLLENBERGER in 2011 while she was still legally married to her ex-husband.  At the time, MAURER had two children for whom she and her ex-husband shared custody.  Those two older children are now ages 16 and 14.  SCHOLLENBERGER also had two children, one of whom was now-deceased Maxwell.

MAURER reported that she and SCHOLLENBERGER moved in together a few months after their relationship began.  She reported that SCHOLLENBERGER was a frequent drinker who became angry when intoxicated.  Maxwell was SCHOLLENBERGER’s son.  Very shortly after MAURER and SCHOLLENBERGER cohabitated, Maxwell’s mother disappeared from the picture.  According to MAURER, Maxwell’s mom had no contact with her son after 2012.

MAURER and SCHOLLENBERGER had three children of their own.  Those children are now ages 8, 7, and 6.  MAURER stated that her own older children pretty much “stayed away” from SCHOLLENBERGER due in part to his drinking and anger issues.  She also reported that she felt an acute need to protect her young children from SCHOLLENBERGER.

At various times during the relationship, MAURER worked in the retail industry.  At other times, she was unemployed.  SCHOLLENBERGER’s employment was sporadic.  MAURER reported: “He couldn’t hold a job.  His [AWOL] record in the National Guard didn’t allow him to join the Marines.”  Despite the fact that MAURER was the primary breadwinner for the family, SCHOLLENBERGER still required that she perform most duties around the household. Predictably, money became an issue for the Maurer-Schollenberger household.  MAURER complained that SCHOLLENBERGER controlled household finances and decided how and when money should be spent.

MAURER reported that SCHOLLENBERGER became obsessively jealous and controlling.  She stated that SCHOLLENBERGER monitored her phone and social media use.  He reportedly installed cameras inside their home so that he could monitor MAURER’s activities.  She also believed that SCHOLLENBERGER placed a GPS locator in her phone and in her car so that he could keep track of where she was at all times.  At some unknown point in time, SCHOLLENBERGER stopped allowing outsiders into his house.  At or about the same time, he began resisting MAURER’s efforts to obtain medical and health care for the children.  To cement his control, SCHOLLENBERGER started threatening MAURER.  Among the threats were ones directed at MAURER’s children.

Family members of MAURER expressed concern that SCHOLLENBERGER was “controlling” her.  MAURER denied or minimized the problems of her relationship.  She stated to Dr. Jordal: “I felt like I had to lie or avoid people so things wouldn’t get worse.”  MAURER said to Dr. Jordal: “I would lie to my mother, my aunts about what was going on.  I was scared if they would know what was happening, they would have gotten more involved.  I was afraid he [Scott] would go after them.”

According to MAURER’s attorney, the situation inside MAURER’s household became exponentially worse in 2020 with the advent of COVID-19.  According to MAURER, SCHOLLENBERGER’s drinking increased to the point where he would “drink all day” every day.  MAURER stated that she felt that she had to “walk on eggshells”.  She reported that SCHOLLENBERGER became physically abusive toward his own children and that they started avoiding him as a result.  At one point, MAURER stated that SCHOLLENBERGER shot one of her children with a pellet gun, causing bruising.  MAURER accused SCHOLLENBERGER of physically abusing her.  In addition, MAURER stated that SCHOLLENBERGER would abuse the parties’ dog by punching him and throwing him around.  MAURER stated: “I was on alert.  I didn’t know who he might go after.  I stepped between him and the children.”

Dr. Jordal’s reports chronicle a plethora of purportedly abusive conduct directed at MAURER by SCHOLLENBERGER.  In no particular order of importance, that pattern of abuse included the following:

  • SCHOLLENBERGER would threaten to hurt MAURER’s children to the point where MAURER felt she could not leave her children alone with him.
  • SCHOLLENBERGER would “randomly throw items at me.” At one point, SCHOLLENBERGER threw an armchair that hit MAURER in the knee and caused her injury.
  • SCHOLLENBERGER pushed MAURER into a bathtub while she was pregnant.
  • SCHOLLENBERGER was emotionally abusive. He made MAURER feel as though “I was not smart, worthless and couldn’t do anything right.”  MAURER also stated that SCHOLLENBERGER “would bully me, and make me feel small.”
  • SCHOLLENBERGER was physically abusive. At times, MAURER suffered injuries to her back, shoulder, neck, hand and knee.  She also described “having her hair pulled out”.

As it related to Maxwell, MAURER emphasized throughout this proceeding that she was not a biological parent.  Therefore, she did not feel primarily responsible for providing caregiving for Maxwell.  MAURER stated that she would at times wash Maxwell’s bedding and clean his room.  When she did this, SCHOLLENBERGER would tell MAURER “Stop doing this; he’s old enough.”  MAURER reported to Dr. Jordal: “Scott would snap if I tried to intercede with Max and stated, ‘Worry about your own kids’.”

According to MAURER, Maxwell was not toilet trained.  When MAURER suggested strategies to address this, SCHOLLENBERGER demurred.  At one point, MAURER stated that she suggested that they take Maxwell to Hershey Medical Center.  SCHOLLENBERGER refused.  He again reiterated to MAURER: “You don’t have custody.”  At times, MAURER reported that SCHOLLENBERGER was physically abusive toward Maxwell.

On most days, Maxwell stayed in his room by himself.  According to MAURER, the other children in the household did not interact with Maxwell because “they were scared of Max.”  According to MAURER’s lawyer, things reached the point with Maxwell by 2020 that MAURER had effectively relinquished responsibility for caregiving so that she could prioritize the protection of her own children.

At one point unknown to this Court, Lebanon County Children and Youth Services (CYS) did perform an investigation with respect to Maxwell.  An investigator came to MAURER’s house and spoke with Maxwell.  Nothing was done by CYS to follow up on that visit.  MAURER explained her failure to call police by stating: “CYS did nothing, so why would the cops?”  SCHOLLENBERGER was apparently incensed by the CYS involvement and it made him even more reclusive.  According to MAURER, SCHOLLENBERGER cut off her social media connection with SCHOLLENBERGER’s aunt following the CYS visit because the aunt had offered to help Maxwell.

MAURER stated that she last saw Maxwell alive on the afternoon of Memorial Day when she provided him with food.  When Maxwell was discovered dead, SCHOLLENBERGER left the house to go to the Blue Marsh Lake recreation area.  MAURER thought that he was going to kill himself.  Although the details of what occurred after MAURER and SCHOLLENBERGER learned of Maxwell’s death are not completely clear based upon the record presented to the Court, MAURER did state that SCHOLLENBERGER physically abused her after Maxwell’s death.

 

 

  1. EXPERT OPINIONS

Given the nature of MAURER’s proffered mental health infirmity defense and the Commonwealth’s objection, this Court scheduled a Factual Hearing for January 11, 2022.  In addition, we Court-appointed an independent expert, Dr. Clarence Watson, to render an opinion regarding MAURER’s proposed defense.  One full day was set aside to hear testimony from MAURER’s expert, Dr. Christian Jordal, the Commonwealth’s expert, Dr. John O’Brien and the Court-appointed expert, Dr. Clarence Watson.

Prior to the January 11, 2022 hearing, the parties agreed to stipulate to the admission of all expert reports.  Dr. Jordal’s three reports dated July 12, 2021, October 11, 2021 and January 3, 2022 were admitted in the record as Exhibits 6, 7 and 2.  Dr. O’Brien’s report dated January 3, 2022 was admitted as Exhibit 5.  Dr. Watson’s report dated December 21, 2021 was admitted as Exhibit 3.  Because Dr. Jordal’s third report and Dr. O’Brien’s report were both issued after December 21, 2021, we forwarded both reports to Dr. Watson and asked him to provide a supplemental report.  Dr. Watson issued such a report on January 31, 2022.  We will separately summarize the qualifications and conclusions proffered by each expert.

  1. Christian Jordal

Dr. Christian Jordal (hereafter JORDAL) possesses a PhD in Human Development from Virginia Tech University.  He is a licensed marriage and family therapist in Pennsylvania and he currently serves as Chairman of the Drexel University Department of Counseling and Family Therapy.  In addition, JORDAL serves as a gubernatorially-appointed commissioner on Pennsylvania’s Board of Social Workers, Marriage & Family Therapists and Professional Counselors.

It is clear from JORDAL’s resume that he is not a licensed physician.  Moreover, JORDAL’s resume is silent as it relates to specific training regarding IPV.  That being said, JORDAL’s resume does indicate that he has specific “research interests” in the field of sexual abuse and harassment, and we accept as an axiom that all experienced marriage and family therapists will have encountered and addressed issues secondary to physical and psychological abuse.

As noted above, JORDAL has authored three reports in this case.  If we were to collectively evaluate those three reports, we would summarize them by concluding that JORDAL’s opinions are “not inconsistent, but evolving.”  We will endeavor to explain.

JORDAL’s initial report of July 12, 2021 set forth six pages of background information and one scant paragraph of analysis.  That paragraph set forth the following:

 

 

 

“With a reasonable degree of certainty, it is my opinion the examinee meets criteria for Post-Traumatic Stress Disorder.  The DSM-5 does not include a diagnosis for Intimate Partner Violence, which included physical violence (page 5) and psychological aggression (page 5).  Psychological aggression excluded expressive aggression examples, such as name-calling, and humiliation, as well as coercive control, such as excessive monitoring of whereabouts, and limiting access to transportation, money, friends, and family.”

JORDAL authored a second report on October 11, 2021 that expanded upon the analytical component of his opinion.  In his second report, JORDAL re-affirmed that IPV is not recognized as a diagnosis in the DSM-5.  However, he proceeded at length to describe IPV and its effects on victims of abuse.  Within his narrative, JORDAL cited nine published studies/articles about the effect of IPV on victims and children caught in its orbit.  As it relates to MAURER, JORDAL reached the following conclusions:

  • Individuals impacted by IPV will often hide what they are experiencing from others; MAURER acknowledged that she did this;
  • IPV encompasses psychological aggression such as threats, excessive monitoring, and isolation, all of which were reported to JORDAL by MAURER;
  • Research supports a relationship between IPV and alcohol abuse consistent with the type of alcohol-fueled anger described by MAURER;
  • Individuals impacted by IPV often experience anxiety and depression. According to JORDAL, MAURER was diagnosed for generalized anxiety disorder.
  • JORDAL opined that victims of IPV “may feel limited in their sense of decision-making agency, fear the reaction of partners, and isolate from others.” He opined that these symptoms were present in MAURER.

JORDAL’s third report was authored in preparation for the January 11, 2022 hearing.  In this third opinion, JORDAL once again expanded upon and clarified his previous reports.  JORDAL repeated his belief that MAURER suffered from IPV.  In addition to what was set forth in his second report, JORDAL added that MAURER “historically experienced ‘freezing up’ in response to verbal and/or behavioral actions by Scott.”  He characterized this “freezing up” as “consistent with Post-Traumatic Stress Disorder symptomatology specific to disassociation.”

In his third report, JORDAL linked IPV with a diagnosis of Post-Traumatic Stress Disorder.  JORDAL stated:

“With a reasonable degree of certainty, it is my opinion the examinee meets criteria for Post-Traumatic Stress Disorder, which is attributable to her experience of Intimate Partner Violence in her relationship with Scott which the examinee reports began in 2012, shortly after the formation of her relationship with Scott.  [MAURER] reports that this limited her ability over time to provide the necessary health care for Max, including seeking outside support services, and this contributed to Max’s death.”

 

 

 

 

 

  1. John O’Brien

Dr. O’Brien was hired by the Commonwealth to evaluate JORDAL’s opinions.  Dr. O’Brien’s C.V. was not provided to this Court. However, his letterhead reflects that he has degrees in both medicine and law.

Dr. O’Brien was highly critical of JORDAL’s expertise, evaluative methodology and conclusion.  As it related to expertise, Dr. O’Brien pointed out that JORDAL’s C.V. “does not document any didactic education or training in forensic psychology or any residency, fellowship or internship focused on the application of psychology or any of the disciplines studied by Dr. Jordal to forensic issues or cases.”

As it related to JORDAL’s analysis, Dr. O’Brien opined that JORDAL “fails in both reports to specify which PTSD symptoms Ms. Maurer exhibits and the nature and degree to which her alleged PTSD symptoms or IPV experiences prevented her access to friends, family and support resources and hindered her ability to take proper precautions.”  O’Brien also pointed out that JORDAL’s opinions are silent as it relates to the issue of diminished capacity.

Ultimately, O’Brien opined that JORDAL’s opinion of Post-Traumatic Stress Disorder secondary to IPV is not a legitimate defense in this case.  O’Brien concluded:

 

“In my clinical experience, Post-Traumatic Stress Disorder is only a relevant diagnosis in a diminished capacity context if the criminal defendant is opined to be experiencing and behaviorally reacting to symptoms of Post-Traumatic Stress Disorder such as a flashback which interfere with the defendant’s ability to accurately perceive and react to reality-based events in their immediate environment rather than perceptions caused by the PTSD symptoms.  In such a circumstance, the individual’s ability to formulate and carry out reality-based intentional behaviors could arguably be affected.”

 

  1. Clarence Watson

Dr. Clarence Watson was appointed and paid by the Court to render an independent assessment of whether JORDAL’s analysis could be presented to a jury consistent with the standard for expert testimony articulated in the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  This Court appointed Dr. Watson because of his broad general background in both psychiatric medicine and the law.  Dr. Watson possess a Juris Doctorate from the Villanova University School of Law.  He obtained a Medical Degree from the Thomas Jefferson University in Philadelphia.  After completing his internship and residency, Dr. Watson has served as a clinical psychiatrist in Philadelphia.  He also serves on the faculty of the University of Pennsylvania School of Medicine.  Dr. Watson currently serves as an editor of the American Journal of Psychiatry and the Law.  He has published articles, he has contributed to chapters of sixteen books regarding psychiatry, he has written comments in twenty-four different legal and psychiatric journals and he has made presentations to a wide variety of organizations, including the Pennsylvania Conference of State Trial Judges.  Among the presentations made by Dr. Watson were one in 2020 involving female offenders and homicide, one in 2019 involving criminal competency and mental health defenses, another in 2019 involving familial violence and one in 2018 entitled “Murder, Psychiatry and the Law.”

Dr. Watson began his analysis in this case by emphasizing that IPV is not a medical or psychiatric diagnosis.  Dr. Watson bluntly stated: “There are no scientific research studies indicating that IPV affects a human being’s cognitive ability to form intent.  IPV has not received sufficient support within the psychiatric/psychological community as a medical or psychiatric diagnosis and/or a diagnosis affecting the cognitive ability to form intent.”  In his narrative, Dr. Watson characterized IPV as a “social phenomenon that encompasses behavioral patterns of physical, psychological and sexual abuse by men and by women toward romantic partners of the same or opposite sex.”  He stated that “Research distinguishes IPV from disease states.”  However, Dr. Watson also concluded that “Research does indicate that IPV places victims at risk for a variety of adverse effects, including physical health sequelai, medical conditions, psychological conditions (including PTSD) and social/economic costs.”  That being said, Dr. Watson emphasized that “There are no scientific research studies indicating that IPV is a medical or psychiatric diagnosis that can affect a human being’s cognitive ability to form intent.”

Dr. Watson did not end his analysis with the above.  He also proceeded to evaluate Post-Traumatic Stress Disorder and how that can impact intent.  Dr. Watson stated that PTSD can cause “re-experiencing, avoidance, negative cognitions, and hyper-arousal.”  However, he concludes that these symptoms “do not impair an individual’s perception of reality and awareness of surroundings.”  On the other hand, Dr. Watson concludes that some individuals experiencing PTSD may experience “dissociative reactions”, which he characterized as “flashbacks, or a re-experiencing syndrome where an individual experiences a complete loss of awareness of surroundings.”  Dr. Watson states that these “dissociative states may last a few seconds to several hours or even days, during which components of the traumatic event are relived and the individual behaves as if the event were occurring in the moment.”  Stated differently, Dr. Watson concluded:

“Individuals suffering this PTSD symptom may, at times, lose touch with reality.  Accordingly, it is possible that an individual experiencing a PTSD-related dissociative reaction may suffer a complete loss of awareness of present surroundings that is time limited and effects his/her ability to form intent during that time frame.  While extreme cases may be prolonged as noted above, dissociative episodes are typically brief.”

 

Dr. Watson proceeded to discuss whether JORDAL’s methodology was sufficient to raise a question with respect to whether MAURER suffered from a “dissociative episode” that could trigger a mental health defense in this case.  Dr. Watson concluded that JORDAL “did not include a longitudinal description of Ms. Maurer’s mental health history, including the presence or absence of previous mental health symptoms and the onset, duration and severity of those symptoms.”  Dr. Watson characterized the research publications cited by JORDAL as focusing on IPV and not PTSD and its effects.  Dr. Watson stated that:

“Apart from general stating Ms. Maurer meets the criteria for PTSD in the impression and discussion section, Dr. Jordal does not comment further on the PTSD diagnosis, specific PTSD criteria, the effects of Ms. Maurer’s PTSD symptoms on her behaviors, or the connection between Ms. Maurer’s PTSD diagnosis and her mental health stated related to the charged offenses.”

Because of the deficiencies in JORDAL’s analysis, Dr. Watson concluded: “Dr. Jordal’s evaluative methodology did not provide a clinical connection between Ms. Maurer’s diagnosis of PTSD and a loss of ability to form intent related to her charged offenses.”

Dr. Watson issued a supplemental report on January 31, 2022 primarily to comment upon the January 2022 reports authored by Dr. Jordal and Dr. O’Brien.  In his supplemental report, Dr. Watson commented upon whether Dr. Jordal’s opinion that MAURER “froze up” in response to abuse by SCHOLLENBERGER was sufficient to create a “dissociative reaction” that could rebut the existence of intent.  In setting forth his opinion that it could not, Dr. Watson acknowledged that PTSD could impact intent during brief moments in time and it could impact MAURER’s ability to form a specific intent to kill.  Dr. Watson stated:

 

 

“Generally, there is scientific support for the theory that a “dissociative reaction” secondary to PTSD could impact Ms. Maurer’s ability to form intent at the relevant moment in time of blunt trauma as presented by the Commonwealth.  Also, there is scientific support for the theory that PTSD could have impacted Ms. Maurer’s ability to form the specific intent to kill necessary for a First Degree Murder conviction.” (pages 2 and 3 of report dated January 31, 2022)

The above being acknowledged, Dr. Watson was clear that a subjective experience of “freezing up” is not by itself sufficient to establish a PTSD-related dissociative reaction.  Dr. Watson stated:

“A subjective experience of “freezing up” alone, in the absence of a concurrent subjective experience of reliving a past traumatic event that is not presently happening, is not clinically sufficient to represent a PTSD-dissociative reaction.  In other words, an experience of “freezing-up” alone is not clinically sufficient to establish the presence of a PTSD-dissociative reaction.” (page 3 of report dated January 31, 2022)

Dr. Watson observed that “Dr. Jordal provides no clinical analysis of Ms. Maurer’s symptoms at a specific time while interacting with Maxwell…”  As a result, Dr. Watson concluded that Dr. Jordal’s “evaluative methodology” was insufficient to establish that MAURER’s PTSD prevented her from forming criminal intent. (January 31, 2022 report at page 3).  In addition, Dr. Watson reiterated that PTSD-related dissociative events do not last over a period of weeks, months or years.

 

 

 

  1. LEGAL PRINCIPLES
  2. Mental Health Defenses to Homicide

There are several ways that a defendant’s mental health status can be relevant in a Homicide Trial.  If the mental health status rises to the level of implicating insanity, it can serve as a complete defense to all charges.  If the mental health infirmity does not rise to the level of creating sanity, it can still support a verdict of Guilty-But-Mentally-Ill.  In addition, if a defendant’s mental health implicates diminished capacity, that mental health status can reduce First Degree Murder to Third Degree Murder.  We have found no legal support for MAURER’s contention that Post-Traumatic Stress Disorder (PTSD), by itself, negates an individual’s ability to form any type of criminal intent.  We will discuss each of the principles outlined above in more detail.

  • Insanity Defense

Pennsylvania’s Insanity Defense has been codified at 18 Pa.C.S.A. §315.  In its entirety, that Section reads:

Insanity

  • General Rules – The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense.
  • Definition – For purposes of this section, the phrase “legally insane” means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing or, if the actor did know the quality of the act, he did not know that what he was doing was wrong.”

18 Pa.C.S.A. §315

 

Crimes Code §315 was designed to implement the so-called M’Naghten Test of insanity[2]Commonwealth v. Rabold, 951 A.2d 329 (Pa. 2008).

The M’Naghten Test that was codified in §315 of the Crimes Code has passed constitutional scrutiny.  Clark v. Arizona, 548 U.S. 735, 165 L.Ed. 2d 842 (2006).  Specifically, our nation’s highest court has declared that “A jurisdiction may place the burden of persuasion on a defendant to prove insanity as the applicable law defines it, whether by a preponderance of the evidence or to some more convincing degree…” Id at page 769, citing Leland v. Oregon, 343 U.S. 790, 96 L.Ed. 1302 (1952).  That being said, our Commonwealth’s highest court has specifically declared that §315 “does not remove the burden from the Commonwealth of establishing each element of a substantive criminal offense beyond a reasonable doubt.” Commonwealth v. Rabold, 951 A.2d 329, 344 (Pa. 2008).  Moreover, both Pennsylvania’s highest court and its Superior Court have determined that “neither party has the burden of establishing mental illness; rather the jury must analyze the issue in light of the totality of the evidence presented by both parties.”  Commonwealth v. Sohmer, 546 A.2d 601 (Pa. 1988); Commonwealth v. Andre, supra at page 962.

In order to proffer an insanity defense, a defendant must comply with Pa.R.Crim.P. 568.  That Rule requires a defendant to afford notice to the Commonwealth of his/her intent to “offer at trial the defense of insanity or mental infirmity…”  Pa.R.Crim.P. 568 (a)(1).  The notice is required to contain specific information about the defendant’s alleged mental infirmity.  It must also include a statement about whether the defendant intends to offer “expert evidence” in support of the alleged mental infirmity.  See, Pa.R.Crim.P. 568 (a)(2).  If a defendant fails to file a Notice of Mental Infirmity Defense, the Court may exclude any evidence of the same at trial.  Pa.R.Crim.P. 568 (B).  See also, Commonwealth v. Sasse, 921 A.2d 1229 (Pa. Super. 2007).

When a defendant raises a mental infirmity defense, four possible verdicts exist: (1) Guilty; (2) Not Guilty; (3) Not Guilty by Reason of Insanity; and (4) Guilty But Mentally Ill.  Commonwealth v. Andre, 17 A.3d 951 (Pa. Super. 2011).  It is for the jury to decide among these verdicts based upon all of the evidence presented at trial.

 

  • Guilty But Mentally Ill

The legal definitions of “insanity” and “mentally ill” are found in §314 of the Crimes Code.  Those definitions are as follows:

 

“(1) “Mentally Ill” – One who as a result of mental disease or defects, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

 

(2) “Legal Insanity” – At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.”

 

The key discernable difference between the above definitions is that an insane person is “unable” to know right from wrong, while a “mentally ill” person “lacks substantial capacity” to know right from wrong.  This subtle distinction has been the subject of scholarly debate, including a commentary authored by the undersigned and published in the Temple Law Review publication.[3]

Pennsylvania’s Appellate Courts have acknowledged that the distinction between legal insanity and guilty but mentally ill is subtle and difficult to navigate for courts.  See, Commonwealth v. Rabold, 951 A.2d 329 (Pa. 2008); Commonwealth v. Andre, 17 A.3d 951 (Pa. Super. 2011).  In fact, one Pennsylvania Superior Court decision characterized the difference between insanity and mental illness as the difference between people who are merely “sick” and those who are “sick and bad.”  See, Commonwealth v. Trill, 543 A.2d 1106, 1123 (Pa. Super. 1988).

Perhaps because of the definitional confusion that exists between the concepts of “insanity’ and “guilty but mentally ill”, Pennsylvania permits trial judges to advise juries about the impact of their decision.  In Commonwealth v. Mulgrew, 380 A.2d 349 (Pa. 1977), Pennsylvania’s highest court held that a jury can and should be told the practical import of what they are being asked to decide.  Accordingly, each jury deciding the issue of a defendant’s mental health infirmity can be told that the difference between insanity and guilty but mentally ill is that the insane defendant will go free following his mental health treatment, while a guilty but mentally ill defendant will serve a prison sentence following the end of his/her mental health treatment.  See, Pennsylvania’s Suggested Criminal Jury Instructions §5.01A.

In his commentary published by Temple Law School, this jurist wrote:

“Any criminal trial judge who has attempted to explain the legal definitions of insanity and mental illness can relate the quizzical looks given by juries when the legal definitions are read to them.  Almost by magic, these quizzical looks disappear and the proverbial “lightbulb comes on” when the judge explains the import of their verdict.  Suddenly, jurors understand that they are being asked to decide whether the defendant should go free or face incarceration once his mental health treatment ends.  In the parlance of the Superior Court, juries decide whether a “sick” person is also “bad” enough to warrant the punishment of jail.

 

For obvious reasons, no one other than a juror can say exactly what happens inside a jury deliberation room.  However, it would be safe to wager that jurors spend more time talking about where the defendant should end up after his treatment than they do talking about whether he is “unable” or “lacks substantial capacity” to know right from wrong.  Even the President-elect of the APA concludes that: “Juries tend to actually not be applying the objective terms of the insanity standard when they are making these decisions.  They are using their common-sense notion of who should be punished.”

 

Pennsylvania’s Appellate Courts have recognized that “all individuals who are legally insane are also mentally ill.  But the converse of this statement, that all persons who are mentally ill are also legally insane, is false.” Commonwealth v. Trill, supra at page 1128.  Thus, a jury can only find a defendant guilty but mentally ill if they have considered and rejected that defendant’s claim of legal insanity.  Commonwealth v. Andre, 17 A.3d 951 (Pa. Super. 2011).

 

  • Mental Health as Rebutting Criminal Intent

In her Notice of Mental Health Infirmity Defense and at oral argument, MAURER argued that her mental infirmity “negates the mens rea elements of all pending charges.”  (See, Exhibit 2, 8).  Although it is not included specifically in her Notice, MAURER’s lawyer has made it quite clear in emails and in verbal statements to this Court that he also intends to utilize a mental infirmity defense in order to pursue a diminished capacity argument.  While we do not wish to become enmeshed in semantics, we do need to make sure that everyone is on the same page as it relates to whether, how and under what circumstances MAURER’s proffered mental health defense can be employed.

“Under Pennsylvania law, mental illness is not a defense to criminal liability unless the mental illness rises to the level of insanity…”  Commonwealth v. Andrews, 158 A.3d 1260 (Pa. Super. 2017).  In Commonwealth v. Hatfield, 579 A.2d 945 (Pa. Super. 1990), Pennsylvania’s Superior Court noted that evidence of a mental health illness is irrelevant if a defendant does not invoke the insanity defense.  Similarly, only “a person who timely offers a defense of insanity…may be found ‘guilty but mentally ill’”.  See, 18 Pa.C.S.A. §314(A).

To be sure, the concepts of insanity and criminal intent are related.  In fact, our Superior Court has noted that it may be “conceptually difficult to understand” the difference between a proffer of insanity and a claim about lack of intent.  Commonwealth v. Andre, 17 A.3d 951, 961 (Pa. Super. 2011).  This is because: “If a person does not know what he or she is doing, it is hard to conceive how that individual possessed the required mens rea to commit a crime.  In fact, statutory definitions of criminal intent regarding acting intentionally, knowingly, recklessly and negligently foreclose a person from acting in any of those manners when he or she is not conscious at all of what he or she is doing…” Commonwealth v. Andre, supra at page 961.  See also, Powell v. Texas, 392 U.S. 514, 20 L.Ed. 22 (1968) (“Insanity and mens rea concepts are part of a “collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his anti-social deeds.” Id at page 535-536.)

While we acknowledge that there is a “conceptual overlap” between intent and insanity, Pennsylvania’s highest court nevertheless declared in Commonwealth v. Rabold, 951 A.2d 329 (Pa. 2008) that there is a distinction between the two concepts.  While admitting that “distinguishing the intent element of crimes from the insanity defense and guilty-but-mentally-ill verdict may entail some subtlety…”, the Court in Rabold nevertheless declared that negating intent due to a mental infirmity must be analyzed within an insanity paradigm for which the Commonwealth does not bear a burden of producing evidence and proving it beyond a reasonable doubt.  Id at page 342.  The Supreme Court in Rabold cited a decision by the Supreme Court of Illinois that required juries to sequentially decide: (1) Whether the defendant is guilty of the crime charged; (2) Whether the defendant was legally insane; and (3) Whether the defendant suffered from a mental illness that could implicate diminished capacity or a guilty-but-mentally-ill verdict.  See, People v. Lantz, 712 N.E. 2d 314, 320-321 (Ill. 1999).

In 2011, the Pennsylvania Superior Court directly confronted the conundrum created by the related concepts of criminal intent and insanity.  While acknowledging that the concepts of insanity and criminal intent are related, the Superior Court went on to state:

 

Nevertheless, it is possible that an individual has the necessary mens rea when he or she knows what he or she is doing, but does not know that it is wrong.  As an example, a defendant may intend to strike a person and knock that person unconscious, but incorrectly believe, due to a mental deficiency, that he is engaged in a boxing match.  In such a situation, the defendant intends to commit the act; however, he does not believe that the action is wrong.  Nonetheless, as noted supra, trial courts sometimes instruct a jury that it must first determine that the Commonwealth has proven beyond a reasonable doubt the criminal intent element of the crime before addressing the insanity defense.  Such direction by a trial court, although consistent with some statements from this Court in the context of discussing the guilty but mentally ill verdict, is inconsistent with other pronouncements from this Court…

 

Legal insanity does not necessarily eliminate mens rea, although it may; nor, of course, does the Commonwealth’s proof of the mens rea element of the offense eliminate the possibility of the jury concluding that an individual is legally insane and therefore not criminally responsible.”

Commonwealth v. Andre, 17 A.3d 951, 961 (Pa. Super. 2011).

 

The Court in Andre determined that issues implicating the defendant’s mental health should be sequentially considered by a jury.  The Court stated that the following analytical paradigm should be employed:

  • Did the Commonwealth prove that the defendant committed the criminal act?
  • “Once the Commonwealth establishes that the defendant committed the act, the jury must consider whether the Commonwealth has proven the mens rea/criminal intent element of the crime or whether the defendant has proven by a preponderance of the evidence that he did not know what he was doing and therefore could not possess the requisite mens rea.”
  • Should the Commonwealth be unable to prove criminal intent “because the defendant has met his burden regarding the cognitive incapacity aspect of the insanity defense”, then the defendant should adjudicated not guilty by reason of insanity.
  • If the prosecution cannot establish criminal intent irrespective of the insanity defense, then the verdict must be not guilty;
  • Should the defendant establish that he did not know what he was doing was wrong, then the defendant should be found not guilty by virtue of insanity;
  • If the defendant has established a degree of mental illness sufficient to implicate guilty-but-mentally-ill, the jury should find the defendant guilty but mentally ill;
  • If no mental infirmity is established, then the jury can find the defendant guilty.

 

  • Diminished Capacity

A diminished capacity defense is designed to reduce a First Degree Murder to a Third Degree Murder by negating specific intent to kill upon which the former is predicated.  See, Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011).  A diminished capacity defense has been characterized as “extremely limited” and available only to those against whom First Degree Murder is asserted.  See, Commonwealth v. Hutchinson, supra.

Diminished capacity can be predicated upon an alleged mental infirmity.  In order to take advantage of this defense, a defendant must show that his/her cognitive abilities of deliberation and premeditation were so compromised that he/she was unable to form a specific intent to kill.  Commonwealth v. Rainey, 928 A.2d 215 (Pa. 2007).  Susceptibility to “acting impulsively” is not sufficient.  See, Commonwealth v. Vandivner, 962 A.2d 1170 (Pa/ 2009).  Likewise, the mere existence of a personality disorder is likewise insufficient to establish diminished capacity.  Commonwealth v. Bracey, 795 A.2d 935 (Pa. 2001).

A diminished capacity defense to First Degree Murder is available only to defendants who admit that their conduct caused the death of another human being.  See, Commonwealth v. King, 57 A.3d 607 (Pa. 2012).  Moreover, a defendant seeking to invoke diminished capacity must produce evidence “establishing [that she] suffered from one or more mental disorders which prevented [her] from formulating the specific intent to kill.”  See, Commonwealth v. Cuevas, 832 A.2d 388 (Pa. 2003).

A defendant can rely both upon insanity and diminished capacity because they are related concepts.  See, Commonwealth v. Banks, 521 A.2d 1 (Pa. 1987).  However, Pennsylvania’s highest court has made it perfectly clear that insanity and diminished capacity are separate and distinct defenses.  In Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976), the defendant’s doctor conceded that the defendant was legally sane under the M’Naghten Standard.  Still, the defendant sought to produce expert testimony from the doctor that “he did not possess sufficient mental capacity to form the specific intent required for a conviction of Murder of the First Degree.”  The trial court refused this proffer of evidence and the defendant appealed.  Pennsylvania’s Supreme Court discussed at length the “willful, deliberate and premeditated” state of mind that is required for First Degree Murder.   The Court then distinguished between complete insanity that would serve as a defense to all criminality and diminished capacity which simply focuses on the willful, deliberate and premeditated requirement for First Degree Murder.  The Court stated: “There is no logic in the ‘all or nothing’ assumption underlying so many Court opinions on the subject – that a person is either ‘sane’ and wholly responsible for his acts, or ‘insane’ and wholly irresponsible.” Id at page 920.  The Court expended on this observation in a footnote:

 

 

 

 

 

“The [diminished capacity] concept has been referred to a partial responsibility, diminished responsibility and partial insanity.  Probably, the most accurate label would be ‘diminished capacity’ since the thrust of the doctrine relates to the accused’s ability to perform a specific cognitive process.  Although the terms ‘partial’ and ‘diminished’ responsibility are the common vehicles used by writers and courts to describe the theory we discuss today, they are highly misleading.  They connote that the defendant is somehow not fully responsible for his actions.  In actuality, the defendant is fully responsible, but only for a crime which does not require the elements of premeditation and deliberation.”

Id at Footnote 6.

 

Pennsylvania’s Supreme Court cited a decision from New Mexico that described the diminished capacity defense as authorizing “proof of mental derangement short of insanity as evidence of lack of deliberate or premeditated design.” See, New Mexico v. Padilla, 347 P.2d 312 (N.M. 1959).  Based upon this analysis, the Supreme Court in Walzack declared that exclusion of the defendant’s proffered expert testimony would violate the due process clause of the Pennsylvania Constitution.  The Court stated: “It is inconsistent with fundamental principles of American jurisprudence to preclude an accused from offering relevant and competent evidence to dispute the charge against him.”

The concept articulated in Walzack has been incorporated into Pennsylvania’s Suggested Standard Jury Instructions.  See, Pa.Sug.Std.Crim. Jury Instructions §5.01B.  Moreover, one noted commentator has observed:

“It should also be clearly pointed out that diminished capacity is not an insanity defense that serves to excuse a defendant from all homicide liability whatsoever.  A defendant who successfully defends on the basis of diminished capacity is still liable for homicide, generally Third Degree Murder [and/or other] crimes not involving premeditation and deliberation.”

14 West’s Pennsylvania Practice, Criminal Offenses and Defenses §1:117 (First Degree Murder-Diminished Capacity Defense).

 

Also of note is the fact that diminished capacity focuses on the ability of a defendant to possess “the cognitive function of deliberation and premeditation”.  Commonwealth v. Sasse, 921 A.2d 1229 (Pa. Super. 2007).  Consistent with this precept, the Pennsylvania Supreme Court has noted that an expert who is called regarding diminished capacity can and should be asked about the extent of the defendant’s mental capacity and should not be asked whether the defendant in fact intended to commit a crime.  See, Commonwealth v. Garcia¸ 479 A.2d 473 (Pa. 1984) (Justice Nix, concurring opinion at pg. 480).  See also, Official Comment, Pennsylvania Suggested Standard Criminal Jury Instruction §5.01B.

One other case should be noted regarding diminished capacity. In Commonwealth v. King, supra, the defendant argued in a PCRA context that she could not form the specific intent to kill due to PTSD resulting from “her history of being the victim of sexual abuse and domestic violence.”  Pennsylvania’s Supreme Court responded by stating:

 

“While those circumstances are unfortunate, Appellant does not explain how they could have interfered with her ability to form a specific intent to kill, nor does she identify any witness who might have been helpful in making such a connection or in otherwise establishing a diminished capacity defense.  Furthermore, our own review of the PCRA record does not reveal any expert testimony suggesting that Appellant’s mental and emotional difficulties stemming from her dysfunctional childhood resulted in an inability to form a specific intent to kill.  Thus, Appellant has not demonstrated that any evidence existed at the time of trial that could have supported a defense to First-Degree Murder based on diminished capacity.”

Id at page 623.

 

While the Court in King found that the record was insufficient to establish a diminished capacity defense, it is noteworthy that the Court did not foreclose the possibility that victimization of abuse could impact an individual’s ability to form a specific intent to kill.

 

  1. Historical Use of IPV as a Defense

IPV is the modern moniker for what was for decades referred to as the “Battered Woman Syndrome”.  In this case, MAURER has alleged in her Notice of Mental Health Infirmity that her status as a victim of domestic abuse “negates the mens rea elements of all pending charges.”  While MAURER does not employ the words “insanity” or “diminished capacity” in her Notice, certain things are nevertheless crystal-clear to this Court:

  • It is crystal-clear to this Court that MAURER has endeavored from the outset of this case to portray herself as a victim of abuse by SCHOLLENBERGER;
  • It is crystal-clear that MAURER seeks to argue that the cumulative effect of the abuse perpetrated upon her created a mental infirmity that prevented her from forming any type of intent, including but not limited to a specific intent to kill.
  • Based upon her attorney’s written and verbal arguments, it is also crystal-clear that MAURER seeks to argue that her PTSD caused by SCHOLLENBERGER’s abuse supports a diminished capacity defense.

We have searched diligently for precedential authority that would govern the viability of MAURER’s claims.  We found nothing in Pennsylvania law that would either support or preclude the type of arguments that MAURER seeks to proffer.

The key cases in Pennsylvania regarding the so-called “Battered Woman Syndrome Defense” involve situations where a woman is alleged to have killed her abuser.  In Commonwealth v. Watson, 431 A.2d 949 (Pa. 1981), the defendant shot and killed her husband after he had placed his hands around her neck.  The Court held that the history of the husband’s abusive behavior was relevant and admissible.  Moreover, that history of abuse, coupled with the contemporaneous threats and violence, could be relevant to the question of whether the defendant was acting in self-defense because she believed she was in imminent danger of death or serious bodily injury.  The Court stated:

“Where there has been physical abuse over a long period of time, the circumstances which assist the [trier of fact] in determining the reasonableness of a defendant’s fear of death or serious injury at the time of a killing include the defendant’s familiarity with the victim’s behavior in the past.”

Id at page 952.

 

            In Commonwealth v. Zenyuh, 453 A.2d 338 (Pa. Super. 1982), the defendant stabbed her husband with a kitchen knife shortly after he had beaten her and while he was still enraged.  Under such circumstance, the Court concluded that the husband’s history of violence against the defendant was relevant and admissible. 

            On the other hand, in Commonwealth v. Grove, 526 A.2d 369 (Pa. Super. 1987), the Court upheld a trial judge’s decision to preclude a claim of self-defense by a purported battered woman.  Grove involved a situation where the defendant shot her intoxicated, sleeping husband and then set him on fire.  The Court stated:

While a history of spousal abuse is certainly a factor to be considered in determining whether an accused’s alleged fear of imminent death or serious bodily injury is genuine and reasonable, it does not alter the requirement that the threat of death or serious bodily injury be imminent on the present occasion. Assuming that appellant was genuinely and reasonably afraid of her husband, the fact remains that whatever danger he presented was not imminent on the present occasion as he lay sleeping.”

            Id at page 373.

 

            Perhaps the most explicit case involving the so-called “Battered Woman Defense” is Commonwealth v. Miller, 634 A.2d 614 (Pa. Super. 1993).  In Miller, the defense proffered expert testimony regarding the so-called “Battered Woman Syndrome”.  The testimony was proffered by the defense to explain her decision to stab her husband during an argument.  The trial court excluded the proffer of expert testimony.  Pennsylvania’s Superior Court reversed this decision and stated:

“No case decided in this Commonwealth to this day has stated that expert testimony regarding the Battered Woman Syndrome is inadmissible or admissible as probative evidence of the defendant’s state of mind as it relates to the theory of self-defense.  Given the tenor of the various opinions quoted above, and the reasons given therein, today we hold that such evidence is admissible as probative evidence of the defendant’s state of mind as it relates to a theory of self-defense.  The syndrome does not represent a defense to homicide in and of itself, but rather, is a type of evidence which may be introduced on the question of the reasonable belief requirement of self-defense in cases which involve a history of abuse between the victim and the defendant.”

Id at page 621.

 

The Court proceeded to declare that the proffered expert testimony “was relevant to the appellant’s state of mind” and could “aid the jury in evaluating the defendant’s behavior and state of mind given the abusive environment which existed.” Id at page 622.

Because we did not find any Pennsylvania precedent that expanded the admissibility of IPV or Battered Woman Syndrome evidence to a case similar in nature to the one before this Court, we expanded our research to include other jurisdictions.  We located several cases that warrant mention:

  • Barrington v. State, 98 So. 3d 628 (Fla. App. 2012) – In Barrington, the defendant was charged with Aggravated Manslaughter of a Child.  The allegations were that she failed to provide food, nutrition, supervision, medicine and medical services necessary for the well-being of her three-year old child.  At trial, other children in the household testified that they were beaten by the defendant’s paramour, Kashon Scott.  They also testified that Mr. Scott repeatedly beat and abused the deceased three-year old.  The defendant sought to present evidence that she suffered from Battered Woman Syndrome.  She claimed that Mr. Scott’s abuse prevented her from realizing “exactly what was taking place.”  She sought to use evidence of her victimization to negate the mens rea requirement of the charges filed against her.

The Court analyzed the defendant’s proffered evidence using the so-called Frye standard. (See, Section VC infra).  Even though the trial court recognized that information regarding the Battered Woman Syndrome could conceivably be relevant, the Court excluded the proffered evidence because the defense did not show that its theory had proper scientific medical or psychological support.

Florida’s Intermediate Appellate Court undertook a comprehensive analysis of the law and applicable research-based studies.  It described the culpability of caretakers who are themselves victims of abuse as “an emerging issue”.  Despite finding support for the admissibility of such evidence, the Court felt constrained by Frye.  The Court concluded:

“Ms. Brewington’s proffered evidence was inadmissible because she failed to establish, by a preponderance of the evidence, that the theory that Battered Woman Syndrome can negate mens rea for failing to protect a child has been sufficiently tested and generally accepted by the relevant scientific or psychological community.  Unfortunately, Ms. Brewington failed to meet the exacting Frye standard.  Although this area of the law beckons for further analysis and development in the scientific and legal community, we cannot say, given Florida’s continued adherence to Frye, that the trial court erred.”

Id at page 632.

 

  • Pickle v. State, 635 SE 2d 197 (Ga. App. 2006) – In Pickle, the defendant was convicted of thirteen counts relating to crimes committed against her nine-year old daughter.  Prior to trial, the defendant had filed a Notice of Intent to introduce the defenses of Battered Person Syndrome and coercion through an expert witness.  The trial court excluded the proffered testimony.  Pickle argued on appeal that evidence of her victimization was “probative evidence of her mental state” and could help “explain her conduct and negate any criminal intent on her part.”  She maintained that without expert testimony, a jury would have no way of understanding why she remained with her abusive paramour and why she failed to obtain help for her nine-year old daughter.

The Georgia Appellate Court began its analysis by stating “The Battered Person Syndrome describes a series of common characteristics that appear in persons who are abused physically and psychologically over an extended period of time by a dominant figure in their lives.” Id at page 201.  The Court then acknowledged that the Battered Person Syndrome is most frequently employed in cases where a woman kills her abuser.  That being said, the Court concluded that evidence of the syndrome can be relevant “to explain the actions of victims of crimes who do not leave despite acts of domestic violence perpetrated against them.”  Characterizing a Battered Person Syndrome as “a unique and almost mysterious area of human response and behavior”, the Georgia Appellate Court stated that the trial judge’s decision to exclude such evidence was error.  The Court reasoned that it was for a jury to determine whether Ms. Pickle had the requisite intent and “the only way the jury could know about such a condition [Battered Woman Syndrome] was through expert testimony.”  Despite concluding that the trial court should have admitted the proffered expert testimony, the Court proceeded to declare the error to be harmless.  In reaching its harmless error conclusion, the Court stated:

“In this circumstance, where the victim is a non-aggressor third party, we cannot say that the characteristics of Battered Person Syndrome which may make Pickle act unreasonably are relevant to her justification defense of coercion.  We conclude that, as the reasonableness standard for justification is purely objective, evidence of her subjective cognitive reasoning as it relates to the Battered Person Syndrome is simply not relevant to a justification defense.”

Id at page 206.[4]

 

  • Virger v. State, 824 S.E. 2d 346 (Ga. 2019) – Virger involved a case where two people were charged with the beating death of a thirteen-month old child who was under their care.  The mother of the child alleged that she was the victim of abuse perpetrated by her boyfriend.  The trial court permitted the woman’s testimony regarding several confrontations with Mr. Virger that occurred within days of the child’s death.  The trial court also allowed the jury to hear testimony about threats made by Virger against the woman.  The woman ultimately testified that she was “emotionally unstable when it comes to [Virger]”, and that she was “completely dependent upon him.”

Prior to trial, the woman had filed a Notice of Intent to present expert testimony regarding Battered Person Syndrome and PTSD.  The State filed a Motion In Limine to exclude such expert testimony.  The trial court excluded the proffered expert testimony, holding that evidence of Battered Person Syndrome is only admissible to assist a jury in evaluating a claim of self-defense.  The trial court also determined that evidence of diminished capacity that does not rise to the level of insanity is inadmissible to negate a defendant’s mens rea.

Georgia’s Supreme Court upheld the trial court’s rulings.  In so doing, the Supreme Court overtly “disapproved” the case of State v. Pickle, cited above.  Georgia’s highest court reasoned:

“If Georgia’s long-standing law is to be changed to allow the admission of expert testimony in criminal cases to negate intent or otherwise support a mental capacity defense other than the ones now authorized by statute, that change should come from the General Assembly.”

Id at page 364.

 

  • State v. Mott, 931 P. 2d 1046 (Ariz. 1997) – This case involved the killing of a two and one-half year old child by the boyfriend of the defendant.  In her defense, the defendant proffered expert testimony that implicated the Battered Woman Syndrome.  The expert opined that a battered woman forms a “traumatic bond” to her batterer and does not feel she can safely escape her environment.  Furthermore, the expert concluded that a battered woman is incapable of sensing danger or protecting others from danger.

Arizona’s Supreme Court affirmed the trial court’s decision to exclude the defendant’s proffered evidence.  The Court recognized that Arizona was different than many other states because it did not recognize a diminished capacity defense:

“Because the Legislature has not provided for a diminished capacity defense, we have since consistently refused to allow psychiatric testimony to negate specific intent.  Instead, the Legislature has provided the M’Naghten Test “as the sole standard for criminal responsibility…

Dr. Carp’s testimony was offered to demonstrate that defendant’s mental incapacity negated specific intent.  Her testimony was not admissible for this purpose…Accordingly, we hold that the trial court did not err by precluding Dr. Carp’s testimony regarding the Battered-Woman Syndrome.”

Id at page 1051, 1055.[5]

 

  • Barrett v. State, 675 N.E. 2d 1112 (Ind. App. 1996) – This case involved the death of the defendant’s four-year old child at the hands of her live-in boyfriend.  The defendant proffered a defense predicated upon the Battered Woman Syndrome.  The trial court granted the State’s Motion In Limine seeking to preclude such evidence and an appeal followed.

At trial, the defendant had proffered expert testimony from a Social Worker “to explain how BWS [Battered Woman Syndrome] can affect a person’s state of mind and perception of danger to her dependent.”  The Indiana Court of Appeals declared this evidence to be “relevant and necessary to determine Barrett’s mental state and, therefore, whether she acted knowingly or intentionally in neglecting her dependent.” Id at page 1116.  The Court reasoned that rejecting the proffered testimony denied Barrett “the opportunity to present evidence essential to her defense [that is] mandated by the 6th Amendment to the U.S. Constitution…” Id at page 1117.

 

  • State v. Wyatt, 482 S.E. 2d 147 (W.Va. 1996) – This case involved charges against a woman for child abuse and neglect stemming from her failure to provide needed medical care for a two and one-half year old child.  The mother was charged with Homicide when the child died.  She proffered expert testimony regarding Battered Woman’s Syndrome.  That expert testimony was disallowed by the trial court.

The defendant had proffered a psychologist as an expert witness.  The psychologist proffered an opinion that a battered woman acts out of fear and without freedom of action in the care of the deceased child that would otherwise exist.  The expert was prepared to testify that the defendant suffered from PTSD secondary to her status as a battered woman.  The trial court precluded such evidence.

Because the West Virginia Supreme Court declared that a new trial should be afforded for other grounds, it limited its discussion of Ms. Wyatt’s proffered Battered Woman Syndrome defense.  Without issuing a final decision regarding the proffered evidence, the West Virginia Supreme Court articulated four general precepts:

  • “The principle use of Battered Woman Syndrome testimony has been in the context of self-defense.”  Thus, to admit such evidence in a case involving death of a child would require evidence of “direct connection between the prohibited conduct and the risk of additional domestic violence.”
  • Evidence of Battered Woman Syndrome would have more relevance in a case involving First Degree Murder than it would relating to lesser offenses.
  • Any admission of expert testimony regarding Battered Woman Syndrome “must be preceded by a showing that such evidence is admissible under the standards of [Daubert]”[6]
  • “If the [Daubert] standard is met, expert testimony may tend to establish either the lack of malice, intention, or awareness, and thus negate or tend to negate a necessary element of one or of the other offenses charged.”

 

  • Oregon v. Stevens, 938 P.2d 780 (Or. App. 1997) – This case involved the murder of an eighteen-month old child at the hands of either the defendant or the child’s mother.  During trial, the mother testified without objection that she had been abused by the defendant.  The State then proffered testimony from an expert regarding Battered Woman Syndrome.  This expert described Battered Woman Syndrome as “a subset of Post-Traumatic Stress Disorder.”  The expert concluded that the child’s mother suffered from Battered Woman Syndrome and that this could explain how and why she acted as she did.  The defendant objected to this testimony and argued that it should not have been presented because Battered Woman Syndrome “is not a diagnosable psychological condition.”  The Oregon Court of Appeals disagreed and stated: “[The expert’s] testimony reveals that BWS is an accepted diagnosis within the psychological community and that there is a specific method for diagnosing and treating the syndrome.”  Interestingly, the Court also held that the State’s introduction of evidence regarding Battered Woman Syndrome opened the door for the defendant to provide proof that the child’s mother had also mistreated other children.[7]

 

  • Commonwealth v. Lazarovich, 574 NE 2d 340 (Mass. 1991) – In this case, the defendant and her boyfriend were charged with committing “mayhem” upon a child.  The defendant proffered a Battered Woman Syndrome defense and called an expert psychologist to afford testimony regarding the syndrome.  The expert testified that abused women “respond with depression, with feelings of learned helplessness, feelings of being psychologically trapped in the relationship.”  The expert also explained that many battered women stay in relationships despite being abused.  A question ensued about the relevance of the expert’s testimony.  The defendant argued that evidence of Battered Woman Syndrome was relevant on the issue of whether the defendant exhibited the requisite criminal intent.  The prosecutor argued that the syndrome was relevant only as to the issue of whether the child abuse represented a “joint venture”.  The Judge instructed the jury about why Battered Woman Syndrome is relevant to the joint venture theory proffered by the prosecution.  The Judge also instructed the jury that the syndrome could be considered if: “it is of assistance to you in deciding why the defendant did not leave the husband in this case.”  The Judge declined to tell the jury that BWS could negate intent on all charges.

On appeal, the Massachusetts Supreme Court first noted that admissibility of BWS was not before it; the only issue presented by the appeal involved the judge’s instructions.  The Court stated:

“Even if we assume, for purposes of deciding this case, that the Battered Woman Syndrome constitutes the type of mental impairment which juries may consider when determining whether a defendant formed the requisite specific intent, there was no substantial likelihood of a miscarriage of justice in the circumstances of this case.  The defendant could have chosen to argue alternative defenses.  She could have argued both that she did not hit Laura and that, if she did hit the child, she was incapable of formulating the specific intent to injure her.  The defendant chose, however, to pursue a different trial strategy.  She chose to maintain that she did not strike Laura and that it was her husband who injured the child.  The fact that the defendant might have suffered from the Battered Woman Syndrome and that the syndrome might have impaired the defendant’s ability to form the required specific intent, cannot be claimed to create a substantial risk of miscarriage of justice where it was not relevant to the defendant’s chosen trial strategy.”

Id at page 345.

 

It is obvious from the above that different courts have reacted in different ways when testimony such as that proffered by MAURER was proposed.  As we searched for something that could synthesize the state of the law regarding this topic, we located a comprehensive article in the Journal of Juvenile Law.  That article concluded with the following:

 

 

 

 

“Clearly, admission of evidence of battering and its effects will not relieve a battered woman from criminal liability when the fact-finder determines that she actively participated in the abuse of a child.  It also will not automatically, and might not completely, relieve a battered woman from criminal liability when she fails to protect her child from the abuse of another.  It should be admitted, however, when relevant to the issue of whether or not the passive parent actually formed a culpable mental state that is an element of the charged offense.

 

Effects of battering evidence will help the trier of fact understand the circumstances surrounding the abuse.  It will also help the trier of fact to determine the existence and extent of the “passive” parent’s participation in the abuse, the extent of the passive parent’s attempts to protect the child, and the extent to which the actions of the direct abuser prevented the passive parent from doing so.  This will help ensure the focus is more appropriately placed on the parent or caretaker having the greater culpability for the violence: the parent who directly inflicted the injuries on the child, and who prevented the “passive” parent from intervening on the child’s behalf.”

Kathy Garcia, “Battered Women and Battered Children: Admissibility of Evidence of Battering and Its Effects to Determine the mens rea of a Battered Woman Facing Criminal Charges for Failing to Protect a Child From Abuse, 24 J.Juv.L. 101 (2004).

 

 

 

  1. Expert Testimony

One role of a trial court is to serve as gatekeeper with respect to proffered expert testimony.  This requires a court to evaluate two questions: (1) Is the expert qualified to render the type of opinion proffered?; and (2) Is the expert’s analytical paradigm generally accepted within his/her field of experience?  See, Pa.R.Ev. 702; Grady v. Frito-Lay Inc., 839 A.2d 1038 (Pa. 2003).  Both of the above questions have been implicated in this case.  We will address them separately.

  • Expert Qualifications

Pa.R.Ev. 702 requires that a proffered expert witness must possess “scientific, technical or other specialized knowledge beyond that possessed by the average layperson.”  It is the job of the trial court to determine whether a proffered expert possesses the qualifications needed to render an opinion.  Risperdal Litigation W.C. v. Janssen Pharmaceuticals, Inc., 174 A.3d 1110 (Pa. Super. 2017).  A determination of expert status is typically left to the discretion of the trial court and will be reversed only if there is clear abuse of discretion.  Commonwealth v. Wenzel, 248 A.3d 540 (Pa. Super. 2021).

“[T]he standard for evaluating the qualifications of an expert witness under Pennsylvania law is a liberal one.” James v. Albert Einstein Medical Center, 170 A.3d 1157 (Pa. Super. 2017).  The most oft-cited test “is whether the witness has any reasonable pretention to specialized knowledge on the subject under investigation.”  B.K. ex rel S.K. v. Chambersburg Hospital, 834 A.2d 1178, 1182 (Pa. Super. 2003).  (emphasis in original).  Provided that an expert possesses such specialized knowledge, “he may testify and the weight to be given to such testimony is for the trier of fact to determine.” B.K., supra at page 1182.

An expert can be qualified based upon his/her formal education.  See, e.g. Vernon v. Stash, 532 A.2d 441 (Pa. Super. 1987).  An expert witness can also be qualified based upon his/her practical experience; formal education or training is not a prerequisite.  Commonwealth v. Clemat, 218 A.3d 944 (Pa. Super. 2019); Commonwealth v. Auker, 681 A.2d 1305 (Pa. 1996).  Most frequently, an expert’s qualifications are derived from a combination of education, training and experience.  Commonwealth v. Smith, 206 A.3d 551 (Pa. Super. 2019); Estate of Fabian, 222 A.3d 1143 (Pa. Super. 2019).

We have found few cases where the testimony of a psychologist about PTSD was at stake.  That being acknowledged, it is clear that psychologists have been qualified to testify as experts in a wide variety of contexts.  For example, in Simmons v. Mullen, 331 A.2d 892 (Pa. Super. 1974), the court permitted a psychologist to testify about an organic brain injury.  (“It is not essential that an expert witness be a medical practitioner to testify on organic problems.  Non-medical persons have been permitted to testify within their specialized knowledge.” Id at page 898.)  In Kravinsky v. Glover, 396 A.2d 1349 (Pa. Super. 1979), a clinical psychologist was permitted to testify as an expert “on diagnosis, prognosis and causation of emotional disturbance…”  In Commonwealth v. Bourgeon, 654 A.2d 555 (Pa. Super. 1994), a psychologist was qualified as an expert witness regarding the inability of a child to testify as a result of trauma.  In Commonwealth v. Pearsall, 534 A.2d 166 (Pa. Super. 1987), a psychologist was similarly qualified to provide testimony regarding a child sexual assault victim’s mental and verbal capacity to communicate information.  Moreover, by statute, Pennsylvania has authorized psychologists to render an opinion with respect to whether a criminal defendant can or should be classified as a sexually violent predator under Megan’s Law.  See, 42 Pa.C.S.A. §9799.35.  The breadth by which psychologists have been permitted to render expert opinions was perhaps best summarized by an annotation published in the ALR 5th.  There, the annotator concluded: “In recent years, the courts have permitted psychologists to testify regarding mental condition or competence in a variety of areas including competency to stand trial, criminal responsibility, and the existence and etiology of many types of mental conditions or diseases.” Seena K. Foster, J.D., “Qualification of Non-Medical Psychologists to Testify as to Mental Condition or Competency”, 72 A.L.R. 5th 529 (1999).

 

  • Is the expert’s analytical paradigm generally accepted within his/her field of experience?

 

Pa.R.Ev. 702 also requires a court to evaluate whether a proffered expert’s methodology “is general accepted in the relevant field.”  This test has come to be known as the “Frye Test” because it was predicated upon the famous case of Frye v. United States, 293 F.1013 (D.C. 1923).  By retaining the traditional Frye approach to screening expert methodology, Pennsylvania has explicitly rejected the more modern Federal approach to such testimony derived from Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

The key case in Pennsylvania regarding the so-called Frye Test is Grady v. Frito-Lay Inc., 839 A.2d 1038 (Pa. 2003).  In Grady, Pennsylvania’s highest court articulated its reasons for selecting the Frye Test rather than the one articulated in Daubert:

“After careful consideration, we conclude that the Frye Rule will continue to be applied in Pennsylvania.  In our view, Frye’s “general acceptance” test is a proven and workable rule, which when faithfully followed, fairly serves its purpose of assisting the courts in determining when scientific evidence is reliable and should be admitted…

 

We also believe that the Frye Test, which is premised on a rule – that of ‘general acceptance’ – is more likely to yield uniform, objective and predictable results among the courts, than is the application of the Daubert Standard, which calls for a balancing of several factors.  Moreover, the decisions of individual judges, whose backgrounds in science may vary widely, will be similarly guided by the consensus that exists in the scientific community on such matters.

 

Thus, we are persuaded of the wisdom and efficacy of Frye’s ‘general acceptance’ rule, and we hold that it will continue to control in Pennsylvania.”

Id at page 1044-1045.

 

Not all expert testimony triggers a Frye analysis.  Strange v. Janssen Pharmaceuticals Inc., 179 A.3d 45 (Pa. Super. 2018).  A party seeking to exclude proffered testimony must persuade the court that the scientific evidence is “novel” by demonstrating that there is a legitimate dispute regarding the reliability of the expert’s conclusions.  See, Commonwealth v. Powell, 171 A.3d 294 (Pa. Super. 2017).  “A trial court is not required to conduct a Frye Hearing any time a party seeks to introduce scientific evidence.  Rather, a hearing is warranted only when the trial court has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.” Commonwealth v. Bonnett, 239 A.3d 1096 (Pa. Super. 2020).

When a challenge to proffered expert testimony is submitted, the party opposing the scientific evidence bears the initial burden of demonstrating that the proffered testimony is predicated upon “novel scientific evidence, i.e., ‘that there is a legitimate dispute regarding the reliability of the expert’s conclusions.’” Commonwealth v. Bonnett, supra at page 1102, citing Commonwealth v. Safka, 95 A.3d 304, 307 (Pa. Super. 2014).  Once the objecting party has identified some legitimate dispute regarding the propriety of the science, “then the proponent of the scientific evidence must show that the expert’s methodology has general acceptance in the relevant scientific community despite the legitimate dispute.” Commonwealth v. Bonnett, supra at page 1103, also citing Safka, supra at page 307.

The role of the trial court when implementing the Frye Test has been described as follows:

 

 

“Whether we refer to the role of the trial court in a Frye contest as that of a ‘gatekeeper’ is not consequential.  What is of consequence is the role that the trial court plays during Frye proceedings.  A careful review of our prior Frye decisions makes clear that it is the trial court’s proper function to ensure that the expert has applied a generally accepted scientific methodology to reach his or her scientific conclusions.  To fulfill this function, the trial court must be guided by scientists in the relevant field, including the experts retained by the parties in the case and any other evidence of general acceptance presented by the parties. (e.g., textbooks).  Conversely, trial courts may not question the merits of the expert’s scientific theories, techniques or conclusions, and it is no part of a trial court’s function to assess whether it considers those theories, techniques and/or conclusions to be accurate or reliable based upon the available facts and data.  As is plainly set forth in Rule 702(c), the trial court’s role is strictly limited to determining whether ‘the expert’s methodology is generally accepted in the relevant field.’ Pa.R.Ev. 702(c).  The trial court may consider only whether the expert applies methodologies generally accepted in the relevant field, and may not go further to attempt to determine whether it agrees with the expert’s application of those methodologies or whether the expert’s conclusions have sufficient factual support.  Those are questions for the jury to decide.  Walsh Estate v. BASF Corporation, 234 A.3d 446, 448-449 (Pa. 2020).”

 

 

  1. ANALYSIS AND CONCLUSION

What have we concluded from all of the above?  First and foremost, we have concluded that the issue now before this Court is complicated.  We must consider the nature of the charges, the nature of the Commonwealth’s theories of culpability, the nature of MAURER’s mental infirmity defenses, the scientific/psychological support for the theories proffered by the defense, the time frame implicated by the charges, and we must consider what other courts/judges have done when presented with an IPV-based defense.  When faced with such a multi-faceted analytical necessity, we have always found it useful to break down our decision into easier to articulate component parts.  Therefore, we will list the conclusions we have reached based upon everything outlined above:

  • Given all of the issues that will be debated at trial, and especially given that the Commonwealth has proffered charges of Conspiracy, MAURER will be able, with or without expert testimony, to outline her perception about the abusive nature of her relationship with SCHOLLENBERGER. Such evidence will be directly relevant to the question of whether the Commonwealth can prove that an agreement existed between MAURER and SCHOLLENBERGER.
  • While Jordal’s qualifications are objectively less than those of Dr. Watson and Dr. O’Brien, his experience and expertise are sufficient under Pennsylvania’s liberal standard of qualifying experts to enable him to describe and render an opinion regarding domestic abuse-related PTSD.
  • In order for any expert to render any opinion, that expert’s analytical methodology must pass the scrutiny required by a so-called Frye To be admitted as evidence, an expert’s analytical methodology must be generally accepted by the relevant scientific community.
  • As it relates to MAURER’s effort to use her mental health infirmity defense to negate intent, we found the analysis of Dr. Clarence Watson to be the most persuasive. Watson has impressive credentials and he was appointed by the Court to render an independent opinion governed only by scientific truth.
  • As it relates to MAURER’s effort to use her mental health infirmity defense to negate intent, this Court is required to employ an insanity defense paradigm whereby the burden of production is upon the defendant to establish evidence that would satisfy the M’Naghten Test that Pennsylvania employs.
  • According to Dr. Watson, there is scientific support for the theory that PTSD can impact an individual’s ability to form intent at a precise moment in time. However, there is no scientific support for the theory that PTSD can prevent an individual from forming intent over a period of time measured in weeks or months.
  • To the extent that the Commonwealth charges MAURER with causing or facilitating blunt force trauma to Maxwell at a specific moment in time, there is scientific support for the theory that PTSD could have affected MAURER’s ability to form intent at the point in time when the trauma was inflicted.
  • To the extent that the Commonwealth charges MAURER based upon the allegation that she abused, neglected and/or failed to protect Maxwell over a long period of time, there is insufficient scientific support for the theory that PTSD could prevent an individual from forming intent over such an extended period of time.
  • The questions of insanity and diminished capacity are different: an individual can be legally sane for purposes of most crimes, including Third Degree Murder, but nonetheless lack the capacity to form specific intent to kill and premeditation required for First Degree Murder.
  • A defendant who acknowledges culpability for an act causing the death of another can claim that a mental health infirmity diminishes his/her capacity to form a specific intent to kill.  The diminished capacity test does not require the same level of proof as would be required to support an insanity defense.  Moreover, a person claiming diminished capacity cannot be constitutionally prevented from providing psychiatric evidence to a jury in support of his/her claim.

 

As we contemplated all of the above conclusions, we reached several decisions about how the above-referenced case should be tried.  Those decisions are as follows:

  • Evidence of Abuse

The jury in this case will hear MAURER’s allegations about abuse by SCHOLLENBERGER.  Regardless of what expert testimony is or is not offered, SCHOLLENBERGER’s alleged abusive conduct will be relevant to many issues that will be contested at trial.  Foremost among these issues is conspiracy.  To convict both MAURER and SCHOLLENBERGER of conspiracy, the Commonwealth will have to prove an agreement.  Testimony that one of the alleged co-conspirators was abused will be relevant to the question of whether that co-conspirator voluntarily entered into an agreement.

 

  • PTSD as Negating Intent

We cannot endorse MAURER’s theory that her PTSD negates intent as to all pending criminal charges.  Implicit in this argument is the assumption that the Commonwealth will have to disprove the impact of PTSD as it strives to prove intent beyond a reasonable doubt within its case-in-chief.  This theory is contrary to established Pennsylvania law that requires us to analyze a mental health infirmity defense using an insanity paradigm.  At trial, MAURER will have the burden of production related to PTSD and it will be addressed during the defense case-in-chief and in rebuttal.  Simply stated, MAURER’s alleged PTSD will not be a component of the Commonwealth’s case-in-chief.

We will not allow Dr. Jordal to render an opinion that MAURER’s PTSD rendered her incapable of forming intent during the entire duration of time when Maxwell was abused and/or neglected.  There is simply no scientific support for the theory that PTSD can impact a person’s ability to form intent over such an extended period of time.

On the other hand, scientific support does exist for the theory that PTSD can temporarily impact a person’s ability to form intent during a “dissociative event of limited duration.”  This is important because the Commonwealth has alleged that Maxwell died as a result of both prolonged abuse and a discreet traumatic event.  If in fact a jury determines that the latter was the cause of death, it is theoretically possible that the same jury could determine that PTSD prevented MAURER from having criminal intent at the time the trauma was inflicted to Maxwell.

At this point, there is quite a bit that we do not know about the trauma suffered by Maxwell.  We do not know who inflicted the trauma upon Maxwell.  We do not know who was present when the trauma was inflicted.  We do not know what was said by whom during the traumatic event.  We do not even know specifically when the trauma was inflicted.  It is certainly conceivable that a jury could determine that MAURER was involved in one way or another with the trauma that was inflicted upon Maxwell.  If in fact MAURER was suffering from a “dissociative event” due to PTSD at the time trauma was inflicted upon Maxwell, that could serve as a viable defense.  At this point, our lack of knowledge prevents us from rendering any final decision regarding the use of PTSD to support an insanity defense as it relates to the time when Maxwell suffered blunt force trauma.

 

 

 

  • Diminished Capacity

Pennsylvania’s highest court has made it perfectly clear that diminished capacity is separate and distinct from insanity.  While both defenses rely upon a defendant’s mental health infirmity, and while similar evidence may be relevant to each defense, the standards governing each are very different.  In fact, as highlighted in Commonwealth v. Walzack, supra, an individual can be legally sane and yet still be able to take advantage of a diminished capacity argument.

As we read Pennsylvania’s Appellate cases pertaining to diminished capacity, we very clearly gleaned that we should err on the side of caution by allowing a jury to consider all relevant evidence of diminished capacity.  Moreover, we believe that suffering from domestic abuse contemporaneous with a homicidal event could, even absent expert testimony, fall within the category of circumstances that would give rise to a diminished capacity argument.  After all, if a jury determines that conduct of an abused domestic partner was driven by terror about further abuse, such terror could and should be relevant to negate premeditation and/or a specific intent to kill.

Having concluded that diminished capacity secondary to IPV-related PTSD can be a viable defense, we turn to the question of whether and to what extent Dr. Jordal can testify about his opinions.  Our decisions regarding this question must reflect our belief that Dr. Jordal can provide relevant information regarding IPV/PTSD and how it affects its victims.  However, our decisions must respect our conclusion based upon Frye that PTSD cannot scientifically be used to negate intent over an extended period of time.  Finally, our decisions must be constrained by our belief that experts testifying about diminished capacity should focus their remarks upon the defendant’s mental capacity and not upon the question of whether he/she did or did not form a specific intent to kill.[8]

Consistent with the above, we will permit Dr. Jordal to testify about MAURER’s IPV-related PTSD.  However, we will place limits on that testimony.  Our decisions regarding his testimony are as follows:

  • Jordal can generally describe PTSD, its diagnostic criteria and its symptoms.
  • Jordal can opine that IPV can lead to PTSD and he can provide information about how the two concepts are linked.
  • Jordal can opine that he believes MAURER suffered from IPV-related PTSD.
  • Jordal cannot provide an opinion that MAURER was unable to form intent during the entire period of time when Maxwell was abused.

Together with lay testimony and perhaps testimony from MAURER herself, the above testimony from Dr. Jordal will provide the jury with sufficient information to evaluate MAURER’s mental capacity to form a specific intent to kill.  Moreover, we will instruct the jury that a multitude of factors can be considered when assessing whether a defendant possessed the specific intent to kill.  Included within that multitude of factors would be diminished capacity due to drug use, diminished capacity due to alcohol intoxication, diminished capacity due to a mental infirmity, and diminished capacity due to fear caused by physical abuse.  We will also tell the jury that such factors will not necessarily negate the intent needed for them to determine Third Degree Murder.[9]

As with many aspects of Pennsylvania law regarding mental health capacity, the above decisions reflect subtleties that exist within the law.  That being said, we also need to acknowledge that from a very visceral perspective, this Court believes that alleged abuse of MAURER by SCHOLLENBERGER must be made known to jury and considered by it when it renders the weighty decision about whether MAURER can be found guilty of First Degree Murder.  Stated differently, no jury evaluating the facts of this case could possibly discern the truth about whether MAURER possessed specific intent to kill without having full knowledge about MAURER’s role and place in the MAURER/SCHOLLENBERGER household during the time when Maxwell was allegedly abused and/or neglected.

We will enter an Order today consistent with the above.  We fully expect that our decision today will trigger additional more detailed evidentiary issues that will have to be addressed in due course.  However, we believe that the Opinion outlined above should afford all counsel with a framework within which they can prepare for trial.

 

[1] This is the language used by counsel at oral argument on January 11, 2022.

[2] The M’Naghten Rule was named after the ancient English case of Regina v. M’Naghten, 8 Eng. Rep. 718 (1843), where the Court held: “Jurors ought to be told…that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, as to not know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” Id at page 722.

[3] See, Bradford H. Charles, “Pennsylvania’s Definitions of Insanity and Mental Illness: A Distinction With a Difference?” 12 Temple Political & Civil Rights Law Review 265 (Spring 2003). This commentary was cited and quoted by Pennsylvania’s Supreme Court in Commonwealth v. Rabold, 951 A.2d 329 (Pa. 2008).

[4] We also wish to take note of the fact that Pickle was later disapproved by the Georgia Supreme Court in Virger v. State, 824 SE 2d 346 (Ga. 2019).

[5] The decision of the Arizona Supreme Court was subsequently overturned by a Federal Court in Mott v. Stewart, 2002 WL31017646 (D.C. Ariz. 2002).

[6] The Daubert Standard is based upon the United States Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) relating to viability of proffered expert testimony.  Daubert is different in some ways than the Frye test utilized in Pennsylvania, but the process for determining whether expert testimony should be admitted under the Daubert Standard and/or the Frye Standard is identical.

[7] The decision of the Oregon Appellate Court was affirmed in part and reversed in part by the Oregon Supreme Court in State v. Stevens, 970 P.2d 215 (Or. 1998).  The Supreme Court held that the defendant had failed to preserve his challenge to BWS evidence, but in so doing the Court also recognized that evidence of BWS was admissible to explain the reaction by the defendant’s girlfriend to the murder of her child.

[8] See, Commonwealth v. Garcia, supra and Official Comment to Pa. Sug. Standard Jury Instuction §5.01B

[9] However, those factors could be considered by a jury when reducing First Degree Murder to Third Degree Murder.

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