Com. v. Beatty, B.

J-S08031-25 2025 PA Super 96

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRUCE A. BEATTY :

:

Appellant : No. 1982 EDA 2024

Appeal from the PCRA Order Entered July 8, 2024

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0006956-2018

BEFORE: DUBOW, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. 

OPINION BY FORD ELLIOTT, P.J.E.: FILED MAY 5, 2025

Bruce A. Beatty appeals from the order 1 dismissing his timely first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. A jury found him guilty of attempted involuntary deviate

sexual intercourse (“IDSI”) with a child, aggravated indecent assault with a

person less than thirteen years old, aggravated indecent assault of a child,

indecent assault of a person less than thirteen years old, unlawful contact with

a minor, and corruption of minors.2 On collateral review appeal, Beatty asserts

that his counsel was ineffective at four discrete points of his trial. After

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 The docket reflects that delivery of the order dismissing Beatty’s petition was

mailed on July 8, 2024. We have amended the caption accordingly. See

Pa.R.A.P. 108(a)(1), (d)(1).

2 18 Pa.C.S. §§ 901(a), 3125(a)(7), 3125(b), 3126(a)(7), 6318(a)(1),

6301(a)(1)(ii), respectively.

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thorough review, we affirm.

As summarized by this Court in his direct appeal,

S.F., the victim in this case, was eleven years old when the

incidents occurred. [Beatty] was S.F.’s mother’s boyfriend at the

time the assaults occurred. [Beatty] visited S.F.’s home

approximately twice a month. S.F. lived with her brother, 25-year-

old sister, and mother in a four-bedroom home at the time of the

assaults.

A criminal complaint was filed against [Beatty] on August 20,

2018[.] alleging that [Beatty] committed acts of sexual

misconduct against S.F. The Commonwealth charged [Beatty]

with [the above-referenced offenses]. A jury trial commenced on

July 17, 2019.

At trial, S.F. testified that she was currently 13 years old, in eighth

grade and working at a summer camp as a counselor for kids. S.F.

testified that there were three incidents involving [Beatty]. She

stated that the first incident occurred approximately a year prior

to trial. The first incident occurred in her mother’s bedroom when

[Beatty] touched her breast over her bathrobe. [Beatty] moved

her to sit on his lap and touched her breast area.

S.F. testified the second incident also occurred in her mother’s

bedroom when [Beatty] offered to give her a massage, rubbed her

back under her shirt, flipped her over[,] and touched her breasts

with both his hands under her shirt and over her bra. She stated

that [Beatty] began rubbing her vagina under her underwear and

pulled his penis out and put her hand on it. [Beatty] also asked

S.F. to put his penis in her mouth. S.F. testified that [Beatty’s]

penis felt hard and that a clear liquid came out of his penis when

her hand was still on it. S.F. stated that her hand was moving up

and down while her hand was on [Beatty’s] penis. She testified

that the third incident also occurred in her mother’s bedroom. S.F.

stated that her legs were in the air and [Beatty] asked if he could

lick her vagina. S.F. testified that [Beatty] did not lick her vagina

because she had to leave the house.

Commonwealth v. Beatty, 2021 WL 2769854, *1 (Pa. Super., filed July 2,

2021) (unpublished memorandum) (record citations omitted). After a jury

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found Beatty guilty of the above-mentioned offenses, the court sentenced him

to an aggregate ten to twenty years of incarceration. We affirmed his

judgment of sentence, and our Supreme Court denied his petition for

allowance of appeal. See Commonwealth v. Beatty, 271 A.3d 874 (Pa.

2022) (table).

Beatty filed the present petition, his first, on March 3, 2023. After an

evidentiary hearing was held in which his trial counsel testified, the court

denied Beatty’s petition. Beatty timely filed an appeal from the court’s denial

of relief and, after being directed to do so, complied with Pennsylvania Rule

of Appellate Procedure 1925(b).

On appeal, Beatty avers that his trial counsel was ineffective.

Specifically, Beatty raises the following issues for our review:

1. Should trial counsel have objected to testimony that he did not

return a phone call from the affiant and instead was seated

next to counsel at trial because this testimony unfairly

exploited his decision to remain silent in a case in which he did

not testify?

2. Should trial counsel have objected to the prosecutor’s opening

and closing argument, which suggested that the Pennsylvania

Legislature had specific opinions about this case in particular,

that the Legislature wanted the jury to convict, and that the

burden of proof was lower in sexual assault cases than in other

types of criminal cases?

3. Did trial counsel provide ineffective assistance of counsel in

failing to request the inconsistent statement jury instruction

where counsel’s entire defense at trial was that the

complainant made inconsistent statements?

4. Should trial counsel have objected to the improper expert

testimony from a former member of the prosecution team

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regarding the “typical” behavior of alleged sexual assault

victims because the expert was not qualified and the testimony

was irrelevant, unfairly prejudicial, unreliable, and improperly

bolstered the credibility of complainant?

See Appellant’s Brief, at 4-5.3

“We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018). “When supported

by the record, the PCRA court’s credibility determinations are binding on this

Court, but we apply a de novo standard of review to the PCRA court’s legal

conclusions.” Id.

Here, across all four questions presented, Beatty argues that his trial

counsel was ineffective. Arguments of this nature invoke a well-settled

standard of review from this Court:

With respect to claims of ineffective assistance of counsel, counsel

is presumed to be effective, and the petitioner bears the burden

of proving to the contrary. To prevail, the petitioner must plead

and prove, by a preponderance of the evidence, the following

three elements: (1) the underlying claim has arguable merit; (2)

counsel had no reasonable basis for his or her action or inaction;

and (3) the petitioner suffered prejudice as a result of counsel’s

action or inaction. With regard to the second prong (reasonable

basis), “we do not question whether there were other more logical

courses of action which counsel could have pursued; rather, we

must examine whether counsel’s decisions had any reasonable

basis.” We will hold that counsel’s strategy lacked a reasonable

basis only if the petitioner proves that a foregone alternative

“offered a potential for success substantially greater than the

course actually pursued.” Our review of counsel’s performance

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3 The Commonwealth did not file a brief in this case.

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“must be highly deferential.” To establish the third element

(prejudice), the petitioner must show that there is a reasonable

probability that the outcome of the proceedings would have been

different but for counsel’s action or inaction.

Brown, 196 A.3d at 150–51 (internal citations omitted). A failure to satisfy

any of the three prongs is fatal to the petitioner’s claim that counsel was

ineffective. See id. at 151; Commonwealth v. Midgley, 289 A.3d 1111,

1119 (Pa. Super. 2023).

In his first claim, Beatty suggests that his counsel should have objected

to Detective Steven Henze’s testimony, who was the investigating officer on

his case. At trial, the following interaction took place:

Q. After the Mission Kids interview and the statements that you

took, did your investigation take you anywhere else?

A. I tried to make – I called the defendant, who is seated here

today next to counsel.

Q. And beyond that, did you move in any other directions?

A. I filed a criminal complaint against the defendant, yes.

N.T. Jury Trial, 7/18/19, at 179.

Beatty believes that Detective Henze’s comment about the detective’s

pre-arrest attempt to call Beatty was in contravention of his constitutional

right to remain silent and improperly suggested that he was guilty. We

disagree.

At the PCRA hearing, Beatty’s trial counsel testified as follows:

Q. And you did not object?

A. No.

Q. You didn’t move for a mistrial?

A. Nope.

Q. And you didn’t ask for any kind of special cautionary

instruction?

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A. No.

Q. Why not?

A. I mean, looking back at it - a number of reasons. First of all, it

was pre-arrest; it was not post[-]arrest, so it was a pre-arrest

comment. Second of all, it was clearly not elicited by the

[Commonwealth]. It was a “What happened next,” and the

detective said, I tried to call the defendant and I filed a criminal

complaint. Looking at it now, I still wouldn’t have objected.

N.T. PCRA Hearing, 5/21/24 at 12-13.

We are persuaded by the PCRA court’s rationale on this issue and adopt,

in full, its reasons as to why counsel was not ineffective in failing to object to

the detective’s statement:

Contextual and brief references to pre-arrest silence that ”did not

highlight Defendant’s silence as evidence of guilt” are admissible.

Commonwealth v. Adams, 104 A.3d 511, 518 (Pa. 2014)

(plurality). The plurality reasoned that even though “the

prosecution’s second question emphasized Defendant’s refusal to

speak to the detectives[,]” the detective’s testimony was not

intended to imply a tacit admission of guilt, and it was thus

admissible. Id. at 517-518.

Pennsylvania case law makes a clear distinction between pre[-]

and post-arrest silence. See Commonwealth v. Rivera, 296

A.3d 1141, 1149 (Pa. 2023); see also Commonwealth v.

DiNicola, 866 A.2d 329, 33-37 (Pa. 2005); see also

Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998)

(“Even an explicit reference to silence is not reversible error where

it occurs in a context not likely to suggest to the jury that silence

is the equivalent of a tacit admission of guilt.”).

In Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998),

[our Supreme C]ourt stated that “a mere reference to pre-arrest

silence does not constitute reversible error where the prosecution

does not exploit the defendant’s silence as a tacit admission of

guilt[.”] The Pennsylvania Superior Court has applied Adams to

find no error where the prosecution does not exploit a defendant’s

silence as substantive evidence of guilt. See Commonwealth v.

Sanchez, 2023 WL 5232956, at *3 (Pa. Super.[, filed Aug. 15,]

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2023) (unpublished)[4]; see also Commonwealth v.

Oliemuller, 299 A.3d 920 [(Pa. Super., filed May 23, 2023)

(table)] (unpublished).

Detective Henze never testified whether Beatty remained silent or

not. He only mentioned what he did. Similar to the defendant in

Adams, [Beatty] was not yet charged when Detective Henze

attempted to contact him. The Commonwealth did not highlight or

exploit this testimony. [Beatty’s] first claim of ineffectiveness of

counsel for failure to object to Detective Henze’s testimony is

without merit. Trial counsel had no reasonable basis to object to

the questions posed to Detective Henze or his responses.

PCRA Court Opinion, 8/23/24, at 3-4.

We add that the detective’s testimony does not, by any measure,

“emphasize [Beatty’s] refusal to speak to” the detective. Compare Adams,

104 A.3d at 518 (describing that Adams was a “closer” call than suggested

by Commonwealth “given that the prosecution’s second question emphasized

[d]efendant’s refusal to speak to the detectives despite being aware that they

were law enforcement personnel[]”). Here, there is no indicia that the

detective identified himself as a law enforcement officer to Beatty or, even

more fundamentally, communicated with Beatty. All the record establishes is

that Detective Henze attempted to contact Beatty via a phone call, but nothing

more. As such, given its place in the chronology of the detective’s

investigation, we conclude that the detective’s testimony was “simply utilized

to recount the sequence of the investigation,” id., and did not, therefore,

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4 Non-precedential decisions of this Court filed after May 1, 2019, may be cited

for their persuasive value. See Pa.R.A.P. 126(b)(1-2).

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“unconstitutionally burden [Beatty’s] right against self-incrimination, because

the reference was contextual and brief and did not highlight [his] silence as

evidence of guilt.” Id. Accordingly, counsel was not ineffective for having not

objected to the detective’s testimony.

Next, Beatty contends that the prosecutor misstated the law of 18

Pa.C.S. § 31065 by, inter alia, improperly suggesting that “the Pennsylvania

Legislature had somehow weighed in on this particular case by eliminating any

requirement that a sexual assault complainant’s testimony be corroborated by

other witnesses or evidence.” Appellant’s Brief, at 33.

During the Commonwealth’s opening statement to the jury, the

prosecutor stated as follows:

This is not just the prosecutor talking to you about this either,

preparing you to understand the evidence of this case. The

Pennsylvania Legislature has contemplated this issue. And they

passed a law that applies only to cases involving alleged sexual

assaults and trials in these cases. It is in the form of a jury

instruction. At the end of this trial, the [j]udge is going to talk to

you about that jury instruction, but I want to make sure you

understand it right now as you hear the evidence.

____________________________________________

5 18 Pa.C.S. § 3106 indicates that “[t]he credibility of a complainant of an

offense under this chapter[, sexual offenses,] shall be determined by the same

standard as is the credibility of a complainant of any other crime. The

testimony of a complainant need not be corroborated in prosecutions under

this chapter. No instructions shall be given cautioning the jury to view the

complainant's testimony in any other way than that in which all complainants’

testimony is viewed.” Beatty concedes that while “[h]istorically, courts often

required corroboration of the complainant’s testimony for the Commonwealth

to meet its burden in [sexual assault] cases[,] . . . the legislature . . .

remove[d] any such requirement” through passage of this statute. Appellant’s

Brief, at 35.

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In Pennsylvania[,] the word of the victim alone, if believed by the

twelve of you, is sufficient to convict the defendant of every single

crime that he is charged with. It is simple, but it is clear. And I

want you all to understand that. The word of the victim alone is

sufficient to convict the defendant of every single crime he is

charged with, so says the Pennsylvania Legislature. And pursuant

to the oaths you all took when you agreed to be part of this jury,

I am asking you to apply that law and to uphold your oaths.

N.T. Jury Trial, 7/17/19, at 26-27. In his closing statement, the prosecutor

reemphasized that the testimony of a complainant, standing alone, could

satisfy the Commonwealth’s burden in sexual assault cases. See id., 7/18/19,

at 239. Nevertheless, the prosecutor went on to say that: (1) the complainant

should be believed; (2) Beatty should be found guilty based solely on the

complainant’s testimony; and (3) the aforementioned “law” “only applies to

sex crimes. The legislature contemplated this. They know the reality of these

cases.” Id.

Distilled down, Beatty is arguing that the Commonwealth improperly

emphasized the Pennsylvania Legislature’s role in assigning the burden of

proof in sexual assault cases, leading to a misstatement of the law. In

particular, Beatty takes umbrage with what he contends was the prosecutor’s

implicit assertion that the law regarding a single complainant applies only to

cases alleging sexual assault.

The PCRA court found Beatty’s assertion unmeritorious, first by

highlighting a recent unpublished decision of this Court:

In Commonwealth v. Russell, [2023 WL 315610] (Pa. Super.[,

filed Jan. 19,] 2023) [unpublished memorandum], . . . the [C]ourt

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addressed prosecutorial comments on 18 Pa.C.S. § 3106 and

found no prosecutorial misconduct occurred. In Russell, the

appellant alleged the trial court erred by allowing the prosecution

to state that the testimony of a single witness, if believed by a

jury, was sufficient to support a conviction. Russell, [2023 WL

315610,] *2. The [C]ourt found “[t]his is a correct statement of

the law that, if believed by the fact finder, ‘even the

uncorroborated testimony of a single witness may alone be

sufficient to convict a defendant.’” Commonwealth v. Gilliam,

249 A.3d 257, 268 (Pa. Super. 2021) (citation omitted); see also

18 Pa.C.S.[] § 3106 (providing that a complainant’s testimony

need not be corroborated in a prosecution for a sex offense).”

[Russell, 2023 WL 315610, *2.] The Russell [C]ourt found that

even if the appellant had not waived his claim, the reference to 18

Pa.C.S. § 3106 was a correct statement of the law. [Russell, 2023

WL 315610,] *2.

Similarly, in the present case, the prosecution made a correct

statement of the law. The statute in question specifically and

explicitly states that it applies to offenses “under this chapter.”

18 Pa.C.S. § 3106 (emphasis added). The offenses in Title 18,

Chapter 31 are only sex offenses. Further, as in Russell, the trial

court advised the jury that the statements and arguments of the

attorneys are not evidence. N.T.[ Jury Trial, 7/17/19,] at 15.

Attorney [Abigail] Leeds[, Beatty’s trial counsel,] testified that she

did not object to the prosecutor’s statements because they were

an accurate statement of the law. Attorney Leeds did not have a

reasonable basis to object to the prosecutor’s statements.

Even if this [c]ourt were to credit [Beatty’s] interpretation of the

prosecution’s argument, his claim is still without arguable merit.

As in Russell, the trial court instructed the jury that the

statements and arguments of the attorneys are not evidence.

N.T.[ Jury Trial, 7/17/19,] at 15 (“You should consider the

statements and arguments of counsel carefully even though they

are not binding upon you and are not evidence. So[,] what the

lawyers say is not evidence.”). As in Russell, the trial court here

instructed the jury that the statements and arguments of the

attorneys are not the law. N.T.[ Jury Trial, 7/18/19,] at 15

(“Neither the opening statements nor the closing arguments of

counsel constitute the law you will apply in this case, nor are they

part of the evidence and should not be considered as such.”). See

also Commonwealth v. Philistin, 53 A.3d 1, 18 (Pa. 2012)

(finding trial counsel was not ineffective for not further objecting

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to the closing argument because the law presumes the jury will

follow the instructions of the court[]).

PCRA Court Opinion, 8/23/24, at 5-6.

Given that, under our jurisprudence, other criminal acts may be proven

through the testimony of a single, uncorroborated complainant, the

prosecutor’s statement highlighting that the single-complainant law only

applies to sex-related crimes is, taken in isolation, somewhat confusing, if not

circular. Nevertheless, Section 3106, the single-complainant law at issue,

applies exclusively to Title 18, Chapter 31 of Pennsylvania’s Consolidated

Statutes, which is titled “Sexual Offenses.” Having been written by the

Pennsylvania Legislature specifically in regard to sexual offenses, that section

clearly states, “[t]he testimony of a complainant need not be corroborated in

prosecutions under this chapter.” 18 Pa.C.S. § 3106.

Although the prosecutor’s language was, at certain points, imprecise,

we are unable to find any obvious or prejudicial misstatement of the law,

either in the form of erroneous burden shifting or mischaracterization of

evidentiary thresholds. Further, we do not see any improper emphasis from

the prosecutor establishing that the Pennsylvania Legislature had a

particularized interest in prosecuting Beatty. Finally, the court’s disclaimer of

the prosecutor’s opening and closing statements, wherein it indicated that his

words were not evidence, provides further repudiation of both any substantive

merit to the claim that counsel was ineffective for having not objected during

the prosecution’s opening and closing statements and, too, that Beatty

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suffered any resulting prejudice. See Commonwealth v. Stokes, 839 A.2d

226, 230 (Pa. 2003) (“A jury is presumed to follow the court’s instructions.”).

As such, we conclude counsel was not ineffective on this basis.

In his third ineffectiveness claim, Beatty contends that his trial counsel

failed to request an inconsistent statement jury instruction pursuant to

standard instruction 4.08A. That instruction reads:

1. You have heard evidence that a witness, [name of witness],

made a statement on an earlier occasion that was inconsistent

with [his] [her] present testimony.

2. You may consider this evidence for one purpose only, to help

you judge the credibility and weight of the testimony given by

the witness at this trial. You may not regard evidence of an

earlier inconsistent statement as proof of the truth of anything

said in that statement.[6]

[3. When you judge the credibility and weight of testimony, you

are deciding whether you believe the testimony and how

important you think it is.]

Pa. SSJI (Crim) § 4.08A (some brackets in original).

When reviewing a trial court’s jury instructions, the following principles

apply:

[O]ur scope of review is to determine whether the trial court

committed a clear abuse of discretion or an error of law which

controlled the outcome of the case. A jury charge will be deemed

erroneous only if the charge as a whole is inadequate, not clear or

has a tendency to mislead or confuse, rather than clarify, a

material issue. A charge is considered adequate unless the jury

was palpably misled by what the trial judge said or there is an

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6 There are alternative instructions at this enumeration, but we utilize the one

contained in Beatty’s brief. See Appellant’s Brief, at 40.

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omission which is tantamount to fundamental error.

Commonwealth v. Barker, 963 A.2d 495, 507 (Pa. Super. 2008) (citation

omitted).

In addition,

we must review the jury charge as a whole to determine if it is fair

and complete. A trial court has wide discretion in phrasing its jury

instructions, and can choose its own words as long as the law is

clearly, adequately, and accurately presented to the jury for its

consideration. The trial court commits an abuse of discretion only

when there is an inaccurate statement of the law.

Id. (citation omitted).

Beatty claims that, because “the entire defense was centered on

pointing out that the complainant’s statements and testimony were

inconsistent,” Appellant’s Brief, at 42, his trial counsel had no reasonable basis

for the failure to request standard instruction 4.08A. To prove his point, Beatty

suggests that trial counsel “argued that nothing corroborated the

[complainant’s] testimony – there were no other witnesses, there was no DNA

or other forensic evidence, there was no electronic evidence, and the

complainant’s behavior had not changed at school.” Id. In addition, counsel

“argued that the complainant could not keep her story straight both in terms

of the details of the alleged assaults, whether penetration had actually

occurred, and whether there were two incidents or three.” Id. Beatty asserts

that, predicated on his counsel’s arguments at trial, an inconsistent statement

instruction could have “assisted the jury in evaluating the weight and

credibility of testimony.” Id. at 42-43.

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At the close of trial, the court did not give an instruction regarding prior

inconsistent statements, nor did Beatty request one. Instead, during the

relevant part of the jury instructions, the court explained the jury’s function

in evaluating credibility as follows:

A duty which accompanies that of judging the facts is the duty of

appraising and evaluating credibility; that is, the believability of

witnesses whom you have heard testify from the witness stand

during the course of this trial. You cannot find facts based largely

upon oral testimony without determining whom you will believe

and whom you will not believe. You have the sole responsibility of

deciding whether the testimony of any witness in this case is

truthful and accurate and is to be believed or disbelieved in whole

or in part. In doing so, you should use your understanding of

human nature and your common sense.

All of us understand and appreciate the frailty of humankind

precludes absolute accuracy in the recitation of past events. The

human mind does not always perfectly record things seen or

words spoken. It may be that the witness did not have an

adequate opportunity to observe or sufficient motivation or

capacity to recall those things about which he or she has testified.

On the other hand, a witness’s recollection of those things that

have transpired in the past may be out of harmony with the truth

by reason of a bias or prejudice.

You will take this into account in determining whether the

testimony of any witness who appeared before you is truthful and

accurate and is to be believed or disbelieved in whole or in part.

You will likewise consider the interests that the witness has in the

outcome of the case, if any, and whether or not that tended, either

consciously or unconsciously, to color the testimony of the

witness.

You also will consider the demeanor of the witness on the stand

and how that witness comported himself or herself before you. In

that regard, you will take into account the small, indefinable

nuance that all of us consider daily in determining the honesty,

candor, truthfulness, and reliability of those persons we encounter

during the course of our lifetime, like the spontaneous gesture of

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the lifting of an eyebrow, intonation of the voice, flash of the eye,

or a facial expression.

Members of the jury, there is barely a day that passes in your life

that you do not apply these measures against others in making an

assessment of the honesty, candor, and reliability. You will do

precisely the same in the jury room when you come to analyze

the credibility of any witness who has testified in this matter.

You should consider whether the witness’s testimony was affected

by any physical or mental condition.

You should consider the witness’s intelligence and ability to

observe and be informed about the matters to which he or she

testified.

You should consider the ability of the witness to remember the

events about which he or she testified.

You should consider whether the witness was positive and certain

or hesitant and doubtful in his or her testimony.

You should consider whether the witness testified frankly and

fairly or whether he or she showed favoritism or bias in one way

or in any way.

And you should consider whether and to what extent the witness’s

testimony is supported by or contradicted by evidence in the case

which you do believe.

These are mere suggestions of things to consider. Obviously[,]

there are other considerations you can use in evaluating the

credibility of a witness, and these are for you to determine. You

must judge the truthfulness and accuracy of all of the witnesses.

N.T. Jury Trial, 7/18/19, at 259-62.

In the subsequent PCRA hearing, trial counsel indicated that she was

aware of jury instruction 4.08A. See N.T. PCRA Hearing, 5/21/24, at 37. Trial

counsel provided reasons as to why she did not request this instruction. First,

she testified that “sometimes you tend to lose the attention of a jury when

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you request every single possible applicable instruction.” Id. at 38. Second,

counsel requested a credibility instruction, which was given and “goes in-

depth into evaluating the credibility of witnesses[.]” Id. at 38-39. Third, and

most importantly, counsel stated that there was a reason “very specific to this

case” as to why she did not request the instruction. Id. at 39. In particular:

The major prior inconsistent statement – which I did argue – I

argued extensively in my closing argument – was with regard to

penetration.

I have been an attorney at this point for almost 20 years. I’ve had

many jury trials. I was watching the jury very closely when the

victim was explaining why she changed her answer on penetration

with regard to, you know, initially believing it had to be more of a

full-on penetration as opposed to penetration of the labia by

fingertip. I did not want to add in another jury instruction that

would have another 10 to 15 minutes where specifically, my

concern was, the jury would be sitting there picturing penetration,

digital penetration, of a 13-year-old. That was a very significant

concern for me.

They were clearly uncomfortable with that conversation. They

were uncomfortable with the thought of the penetration. And

because the – that was my opinion. And because the credibility

instruction covered everything with regards to credibility

extensively, I didn’t want to add another 10 to 15 minutes that I

thought would focus them specifically on that image. That was a

real concern for me.

Id. at 39-40. As discussed by trial counsel, S.F. had originally said that

“penetration did not occur,” but “[a]fter being explained what the legal

definition of penetration was . . . she did change her answer to say there was

penetration.” Id. at 40-41. Trial counsel emphasized this inconsistency “pretty

significantly[.]” Id. at 41. Nevertheless, while the credibility instruction

contained nothing regarding inconsistent statements, in counsel’s mind,

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credibility, and an instruction thereon, was the important instruction to have

read to the jury. See id. at 43.

In determining that trial counsel was not ineffective for failing to request

an inconsistent jury instruction, the PCRA court found that “the jury

instructions were clear, adequate, and accurate, [requiring] no further charge

. . . for the jury to ascertain the credibility of the witnesses.” PCRA Court

Opinion, 8/23/24, at 8.

Although, given the facts of this case, there is some merit to the

contention that an inconsistent statement instruction should have been

requested, we find that, in light of counsel’s explanation as to why she did not

request that instruction, Beatty has failed to prove that “an alternative not

chosen offered a potential for success substantially greater than the course

actually pursued.” Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009);

see also Brown, 196 A.3d at 150–51. In counsel’s own words, it was a

double-edged sword bringing up, again, the concept of penetration, which

would have lasted several minutes, when she had observed the jury display

discomfort at the first mention of this topic. While the jury, having not received

an inconsistent statement instruction, found Beatty guilty of the charges

against him, it is not evident that the instruction’s inclusion would have offered

“substantially greater” success. See id. As such, counsel had a reasonable

basis for not seeking this instruction and was, therefore, not ineffective. See

Commonwealth v. Lawrence, 165 A.3d 34, 44 (Pa. Super. 2017) (“whether

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to request additional points for charge is one of the tactical decisions ‘within

the exclusive province of counsel’ … [and w]e should not invade that province

and declare counsel ineffective if any reasonable basis for counsel’s decision

existed at the time of trial”) (citations omitted).

In his fourth ineffectiveness claim, Beatty argues that trial counsel failed

to object to improper expert testimony. Beatty contends that although the

witness “claimed not to have seen the file” in this case, she ultimately testified

that everything mentioned by the complainant “was indicative of an actual

sexual assault happening.” Appellant’s Brief, at 44. “Thus, for each key point

that the [expert] made, the complainant testified to exactly the same thing.”

Id. at 45. In effect, such testimony “amounted to the improper bolstering of

the complainant’s credibility[.]” Id. at 45-46. In summary, Beatty argues that

the testimony was: (1) irrelevant; (2) not “really” expert testimony;7 and (3)

an improper bolster of the complainant’s credibility. 8 See id. at 46.

“It is well-settled that expert testimony on the issue of a witness’s

credibility is impermissible, as it encroaches on the province of the jury to

make such determinations.” Commonwealth v. Jones, 240 A.3d 881, 896

____________________________________________

7 Beatty states that the expert “worked hand in hand with the prosecution

given that the majority of her experience came from working for Mission Kids,

which was the agency in question in this case[.]” Appellant’s Brief, at 52.

8 Beatty concedes, however, that the expert “did not specifically say that the

complainant was credible[.]” Appellant’s Brief, at 52.

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(Pa. 2020). Nevertheless, “[w]hile some [expert] testimony [concerning

victim responses and behaviors to sexual assaults] may be prohibited for

impermissibly invading the jury’s province of determining credibility, [not] all

testimony will. Whether or not this prohibition has been violated must instead

be assessed on a case[-]by[-]case basis.” Id. at 896-97. Moreover, “a

properly qualified expert may testify to facts and opinions regarding specific

types of victim responses and behaviors in certain criminal proceedings

involving sexual assaults, provided experts do not offer opinions regarding the

credibility of any witness, including the victim.” Id. (discussing 42 Pa.C.S. §

5920, which implicates use of expert testimony in criminal proceedings

involving sexual offenses).

The now complained-of expert in this matter, Dr. Johanna Crocetto,

testified as to the varied responses of child sexual assault victims, as follows:

Q: That brings me to my next question here: How common is it

for a child to immediately disclose they have been sexually

assaulted?

A: The process of disclosure for a child is really complicated and

so different for every child. Some children do tell right away. Some

children wait. And when they wait, they often have really good

reasons to wait.

What we know is that often with sexual assaults, a perpetrator will

threaten the child in some way, either a threat of violence or will

actually commit violence and threaten continued violence, or a

threat of all those consequences I talked about before: No one will

believe you, where are you going to live, your family is going to

be homeless, things like that.

And so[,] since the child is younger and really understanding these

things, is more compromised, they really do believe – they’re

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more likely to believe those threats.

In addition, because they have often a relationship with the

perpetrator or a loved one has a relationship with a perpetrator,

they’re hesitant to tell because they’re worried about the impact

or being believed.

It is often delayed and a little compromised, that correct process

of disclosure.

Q: So[,] what if the child is exposed to the person on a regular

basis; for example, if the child is sexually assaulted by the

offender, and then they have to see them repeatedly afterwards

but not on an assaultive basis but more on a normal basis? What

impact does that have on a child?

A: Oh, it can be confusing for a child because although the sexual

assault occurs, which is associated with fear and often shame and

so many other ones of those complicated emotions, at the same

time they might also develop a kind and loving relationship with

the perpetrator as well.

And if they’re spending a lot of time with the child, that pretty

much means often that the perpetrator is often spending time with

the family. So[,] the child is watching their caregivers or their

siblings or their family members and loved ones become close and

form a relationship with that child as well.

When a sexual assault occurs, it is an enormous betrayal which

can really impact the child’s ability to cope. But then the child also

understands that telling what happened is going to be – may be

experienced by the family as a betrayal as well, so it can really

delay and, again, complicate the decision to disclose.

Q: What if the offender is somebody that’s in a close relationship

with the child’s family? More specifically, what if the offender is

somebody in a relationship with the child’s mother or somebody

close to her in that sense? Would that impact the situation?

A: I would say so. What I have heard from the children I have

worked with and the caregivers that I've worked with is that

children may fear that they’re not going to be believed because

everyone else is experiencing the perpetrator as a very kind and

loving person.

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In addition, they may worry about their caregiver who loves and

care for this person that has committed this sexual assault. They

worry if I tell – if it is my mom, I am worried that my mom is

going to emotionally really struggle, and the child takes on the

responsibility of what that would be like.

And, again, if the family and the child are emotionally, financially,

physically, in any way reliant on that person, they’re going to be

more hesitant to tell.

N.T. Jury Trial, 7/17/19, at 46-49. Trial counsel did not have any concerns

about Dr. Crocetto’s testimony. See N.T., PCRA Hearing, 5/21/24, at 43.

As alluded to above, expert testimony for sexual offenses is governed

by 42 Pa.C.S. § 5920(b), which provides as follows:

(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 or domestic violence,

that will assist the trier of fact in understanding the dynamics of

sexual violence or domestic violence, victim responses to sexual

violence or domestic violence and the impact of sexual violence or

domestic 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. § 5920(b).

The PCRA court found that Dr. Crocetto’s testimony did not violate any

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of the precepts set forth in subsection 5920(b):

[Doctor] Crocetto testified that she did not know any of the facts

of the case or any of the alleged conduct. She only knew the

general idea that the case involved a sexual assault of a child.

[Doctor] Crocetto never met with the victim or any members of

her family. She also testified that she has no opinion with regards

to this specific case, whether the victim is being truthful or not, or

whether the disclosure patterns that she discussed were

applicable to the victim. [Doctor] Crocetto never offered an

opinion regarding the victim’s credibility. [Beatty’s] claim of

ineffective assistance of counsel for failure to object to the

admission of expert witness [Dr.] Crocetto’s testimony lacks

merit.

PCRA Court Opinion, 8/23/24, at 12-13 (record citations omitted).

After our thorough review of the trial testimony, we agree that nothing

that Dr. Crocetto testified to ran afoul of Subsection 5920(b). Doctor Crocetto

spoke in general terms,9 providing background information to the jury about

the behavior of children who have experienced sexual assault, and did not

opine on S.F.’s credibility. Other than what can only be described as innuendo

from Beatty suggesting, inter alia, that Dr. Crocetto was not qualified to be

____________________________________________

9 Beatty argues, somewhat contradictorily, that when Dr. Crocetto would

opine, generally, about the behavior of children, “it was not helpful to the

jury.” Appellant’s Brief, at 46. In Beatty’s words, Dr. Crocetto’s testimony

“provided the jury with conclusory statements on subjects which the jurors

would be well equipped to consider on their own. For example, it likely does

not come as a surprise to anyone that children are dependent on and possibly

afraid of adults, or that children do not always resist abuse.” Id. At a

minimum, Beatty reads these highlighted pieces of Dr. Crocetto’s testimony

in isolation and further provides no authority to demonstrate, as a matter of

law, that these concepts are wholly within the realm of a layperson’s

understanding.

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deemed an expert given her bias as a result of her previous employment at

Mission Kids, see Appellant’s Brief, at 43, Beatty has failed to provide a cogent

argument that her testimony impermissibly invaded the province of the jury

as the arbiter of credibility determinations. As such, trial counsel was not

ineffective for failing to object to this expert’s qualification as such and her

testimony, and Beatty is due no relief.

Having determined that Beatty’s trial counsel was not ineffective, we

affirm the PCRA court’s order dismissing his PCRA petition.

Order affirmed.

Date: 5/5/2025

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