Kristin Tomecek v. Frank Tomecek No. 2012-01996

Civil Action-Law-Sexual Assault-Motion in Limine-Admissibility of Evidence-Statement-Opinion-Veracity of Plaintiff-Abortion-Expert Testimony-Victim Response of Sexual Assault

Plaintiff, who lodged a Complaint against Defendant, her paternal uncle, based upon allegations that he sexually assaulted her over a period of time during her childhood, filed a Motion in Limine seeking to preclude Defendant at trial from introducing statements by Plaintiff’s father regarding her veracity and evidence of a past abortion and to secure a determination regarding admissibility at trial of expert testimony regarding the effects of childhood sexual abuse upon the victim.

1. Pa.R.E. Rule 608(a) provides that a witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness. However, Rule 608(a) further provides that evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Further, Rule 608(a) indicates that opinion testimony about the witness’s character for truthfulness or untruthfulness is not admissible.

2. The assessment of the credibility of a witness is for the finder of fact to determine. It is an encroachment on the province of the jury to permit a witness, even an expert, to offer an opinion as to the credibility of another witness.

3. Statements at a deposition by Defendant that Plaintiff’s father stated in conversations with him that his daughter lies are not admissible pursuant to Rule 608(a), as they constitute the opinion of a witness as to the credibility of another witness.

4. Pa.R.E. Rule 403 providers that the court may exclude relevant evidence if its probative value is outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence.

5. Rule 403 does not require a court to sanitize a trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the evidences and offenses for which the defendant is charged.

6. Plaintiff’s abortion that occurred when she was sixteen (16) years of age appropriately is excluded under Rule 403, as it is not part of the history and natural development of the evidence that constitutes the underlying clams involved in the instant case, it touches upon a highly controversial topic that has the potential to inflame the minds of some jurors such that it could result in a decision made on an improper basis and Defendant may establish Plaintiff’s alleged promiscuity by other means such that evidence of the abortion would be cumulative.

7. An expert should be permitted to testify if he or she has any reasonable pretension to specialized knowledge on the subject, and the jury is to determine the weight to be accorded to such testimony. In determining whether to allow a witness to testify as an expert, the court must determine whether the witness has an opinion related to a subject beyond the knowledge of the average layperson and, if so, whether the witness has the skill and/or experience to give the testimony.

8. Title 42 Pa.C.S. § 5920(b) provides that in a criminal proceeding subject to that Section, a witness may be qualified by the court as an expect if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness’s experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues related to sexual violence that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after assault.

9. Although § 5920 is applicable to only criminal cases, expert testimony might be instrumental to educate the jury on the issues of victim response to sexual abuse in the instant case such that no reason can be foreseen why such expert testimony would not be admitted if it complies with the requirements of Pa.R.E. Rules 702 to 705 regarding expert testimony.

L.C.C.C.P. No. 2012-01996, Opinion by John C. Tylwalk, President Judge, December 21, 2016.

THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION NO. 2012-01996

KRISTIN TOMECEK, Plaintiff

v.

FRANK TOMECEK, Defendant

ORDER OF COURT

AND NOW, this 21st day of December, 2016, upon consideration of Plaintiff’s Motion in Limine, Defendant’s response thereto, the Briefs submitted by the parties, and Oral Argument, it is hereby Ordered as follows:

1. Defendant is precluded from introducing opinion evidence of Plaintiff’s father as to her veracity at trial;

2. Defendant is precluded from introducing evidence of Plaintiff’s abortion at trial;

3. The Court defers ruling on the admissibility of Plaintiff’s contemplated expert opinion regarding the effects of childhood sexual abuse on adult victims in accordance with the accompanying Opinion.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

HARRY FENTON, ESQUIRE FOR KRISTIN TOMECEK

LAW OFFICES OF HARRY FENTON

PEGGY MORCOM, ESQUIRE FOR FRANK TOMECEK

BUZGON DAVIS LAW OFFICES

OPINION, TYLWALK, P.J., DECEMBER 21, 2016.

Defendant is Plaintiff’s paternal uncle. The Complaint alleges that Defendant sexually assaulted her over a period of time when she was approximately eight years old. Plaintiff has filed a Motion in Limine seeking to preclude Defendant from introducing statements made by Plaintiff’s father regarding her veracity, evidence of Plaintiff having undergone an abortion, and seeking an advance determination of whether expert testimony regarding the effects of childhood sexual abuse on the victim will be admissible in the trial of this matter. Both parties have filed Briefs, we have had the benefit of Oral Argument, and the matter is now before us for disposition.

Statements of Plaintiff’s Father

Plaintiff explains that during Defendant’s deposition, he disclosed that he had several conversations with Plaintiff’s father regarding Plaintiff’s allegations. Defendant claims that Plaintiff’s father stated that “his daughter lies” during those conversations. Plaintiff argues that in making this statement, her father was rendering a subjective opinion as to her credibility as a witness and that this is an improper invasion of the province of the jury. She points out that this is not the proper method for impeaching a witness’s credibility, but was merely a gratuitous statement made in casual conversation.

Defendant argues that this statement constitutes testimony of Plaintiff’s reputation for being a liar which should be permitted in his anticipated attack on Plaintiff’s credibility under Pa.R.E. 608:

(a) Reputation Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Opinion testimony about the witness’s character for truthfulness or untruthfulness is not admissible.

(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness’ conduct; however,

(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.

Pa.R.E. 608.

We agree with Plaintiff that testimony regarding her father’s statements will be inadmissible at trial. These statements do not constitute reputation evidence within the scope of Rule 608 and are solely the opinion of a witness as to the credibility of another witness. Although any testimony offered by Plaintiff at trial may be subject to impeachment by appropriate means, this evidence is not an acceptable way to do so. The assessment of the credibility of witnesses is for the fact finder to determine. Adonizio Bros., Inc. v. Commonwealth, Dept. of Transp. Bd. of Review, 529 A.2d 59 (Pa. Commw. 1987), appeal denied 541 A.2d 1138 (Pa. 1988). It is an encroachment on the province of the jury to permit a witness, even an expert, to offer an opinion of the credibility of another witness. Commonwealth v. Seese, 517 A.2d 920 (Pa. 1986). We will grant Plaintiff’s Motion in Limine as to this evidence.

Plaintiff’s Abortion

During Plaintiff’s deposition, she disclosed that she had an abortion when she was sixteen years old. Plaintiff has filed a Motion in Limine seeking to preclude this information from the trial in this matter. She argues that this type of information has the potential to inflame the minds of some jurors and could possibly preclude her from having a fair trial. She further argues that this evidence is irrelevant as there is no evidence of any problems associated with it and that the prejudicial effect of its admission would outweigh any probative value under Pa.R.E. 403.

Defendant counters that Plaintiff’s sexual history, including her abortion, is relevant because Plaintiff will have to prove that she sustained damages and injuries, which would necessarily include the physical and mental conditions she suffered as a result of the alleged sexual abuse. Defendant argues that the abortion is relevant to the issue of a causal link to such alleged damages, as the injuries could have equally been caused by the abortion and would thereby negate and/or mitigate the damages alleged to have occurred as the result of his alleged conduct. Defendant disclaims any unfair prejudice, noting that Plaintiff plans to testify that she has suffered a variety of problems throughout her life which have necessitated her seeking psychological treatment.

Pennsylvania Rule of Evidence 403 provides:

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Pa.R.E. 403.

This Rule, providing for exclusion of relevant evidence if its probative value is outweighed by potential prejudice, does not require a court to sanitize a trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged.   Smith v. Morrison, 47 A.3d 131, 137 (Pa. Super. 2012) (citations omitted), appeal denied 57 A.3d 71 (Pa. 2012). However, the trial court must ensure that proffered evidence does not confuse the issues before the jury, Antonini v. West Beaver Area School District, 874 A.2d 679 (Pa. Commw. 2005), and is not merely cumulative of other evidence presented. Flenke v. Huntington, 111 A.3d 1197 (Pa. Super. 2015). Under this Rule,

[e]vidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact. Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice. “Unfair prejudice” supporting exclusion of relevant evidence means a tendency to suggest decision on an improper basis or divert the jury’s attention away from its duty of weighing the evidence impartially.” “The function of the trial court is to balance the alleged prejudicial effect of the evidence against its probative value … .”

Id.

Plaintiff’s abortion occurred eight years after the incidents alleged in this lawsuit and is unconnected to any acts allegedly perpetrated by Defendant. However, Defendant indicates that he will introduce evidence of Plaintiff’s sexual promiscuity, including the fact of her abortion at the age of sixteen, in order to negate any causal link between his alleged acts and her subsequent psychological problems. We believe that this evidence should be excluded under Rule 403. Plaintiff’s abortion is not a part of the history and natural development of the events which constitute underlying claims involved in this litigation. Moreover, it touches upon a highly controversial topic which we agree has the potential to inflame the minds of some jurors such that their decision could be made on an improper basis. Its admission could undoubtedly result in unfair prejudice to Plaintiff. In addition, Defendant is able to establish Plaintiff’s promiscuity by other means, and evidence of her abortion would be merely cumulative of that evidence. Thus, we will grant Plaintiff’s Motion in Limine and order that such evidence is precluded at trial.

Expert Testimony Regarding Adult Effect of Childhood Sexual Abuse

Plaintiff also seeks an advance ruling that she will be permitted to introduce expert testimony to the effect that (1) it is a known phenomena that victims of childhood sexual abuse commonly do not make immediate complaints, and (2) certain symptoms and after-effects of childhood sexual abuse manifest themselves throughout adulthood. Plaintiff explains that she will likely testify that she did not make immediate complaints of this abuse, but has suffered problems through her life which required psychological treatment and wishes to use this expert testimony to demonstrate damages.

An expert should be permitted to testify if he has any reasonable pretension to specialized knowledge on the subject and the jury is to determine the weight to be accorded the testimony. Kuisis v. Baldwin-Lima-Hamilton Corporation, 319 A.2d 914, 924 (Pa. 1974). The court must determine whether (1) the witness has an opinion related to a subject beyond the knowledge of average laymen and, if so, (2) does the witness have the skill/experience to give the testimony. McDaniel v. Merck, 533 A.2d 436 (Pa. Super. 1986).

Plaintiff refers to 42 Pa.C.S.A. §5920:

§ 5920. Expert testimony in certain criminal proceedings

(a) Scope.–This section applies to all of the following:

(1) A criminal proceeding for an offense for which registration is required under Subchapter H of Chapter 97 (relating to registration of sexual offenders).

(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31 (relating to sexual offenses).

(b) Qualifications and use of experts.—

(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness’s experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.

(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.

(3) The witness’s opinion regarding the credibility of any other witness, including the victim, shall not be admissible.

(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.

42 Pa.C.S.A. §5920. Plaintiff asks the Court to determine whether an expert may testify in this civil matter in accordance with this statute.

Although 42 Pa.C.S.A. §5920 is only applicable to criminal cases, we recognize the possibility that expert testimony of this nature might be instrumental to educate the jury on the issues of victim response to sexual abuse in this matter. Therefore, we see no reason why such an opinion would not be admitted if the usual guidelines for expert testimony in civil actions are followed. However, we must stop short of rendering a definitive directive that the opinion contemplated by Plaintiff will be admissible and defer issuing a final ruling until an expert report is produced and we determine the opinion to be in compliance with Pa.R.E. 702-705 regarding expert opinions.

1) Plaintiff explains that due to limited funds, she will retain such an expert only if such testimony is deemed admissible.