Com. v. Knight, A.

J-S35029-25

2025 PA Super 260

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

AUSTIN JACOB KNIGHT :

:

Appellant : No. 579 MDA 2025

Appeal from the PCRA Order Entered March 31, 2025

In the Court of Common Pleas of Lackawanna County Criminal Division at

No(s): CP-35-CR-0000062-2019

BEFORE: OLSON, J., MURRAY, J., and LANE, J.

OPINION BY MURRAY, J.: FILED: NOVEMBER 17, 2025

Austin Jacob Knight (Appellant) appeals from the order dismissing his

timely first petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

Appellant’s convictions involve sexual offenses against a minor

complainant, R.K. On January 25, 2018, R.K. reported to police that

Appellant, who was 28 years old, had sexually assaulted her on October 31,

2017, when she was 16 years old. On February 25, 2019, the Commonwealth

charged Appellant with one count each of aggravated indecent assault without

consent, sexual assault, indecent assault without consent, unlawful contact

with a minor, and corruption of minors.1 Ryan Barrett, Esquire (trial counsel),

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1 18 Pa.C.S.A §§ 3125(a)(1), 3124.1, 3126(a)(1), 6318(a)(1), 6301(a)(1)(ii).

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represented Appellant. The matter proceeded to a jury trial on October 5,

2020.

A prior panel of this Court summarized R.K.’s trial testimony as follows:

[R.K.] explained that she and Appellant had met in August of 2017

at Skateaway, a skating rink in Wilkes Barre[, Pennsylvania], and

had developed a friendship. Appellant was aware from the outset

that [R.K.] was only 16 years old, and Appellant led [R.K.] to

believe that he was in his early twenties. As time passed,

Appellant garnered [R.K.’s] and [R.K.’s] mother’s trust, and

[R.K.], with her mother’s approval, began to rely on him for

transportation [from] the skating rink. The relationship between

Appellant and [R.K.] soon alienated [R.K.] from her friends,

however, and she became estranged from them.

Eventually, the friendship between [R.K.] and Appellant

evolved into a sexual relationship. [R.K.] testified that this

“confused her” because she “never really had any sexual

knowledge in general[,]” but that she ignored her instincts

because she thought “this is what people do, I shouldn’t be saying

anything. You know, this is normal.” N.T., 10/5/20, at 39. [R.K.]

testified that Appellant kissed her[,] touched and digitally

penetrated her vagina[,] and touched her breasts. She testified

that, by the fall of 2017, she was uncomfortable with Appellant’s

actions, which included the performance of oral sex on her. She

further testified that she told Appellant she did not want him to

perform oral sex on her, but that he would do it anyway. She also

testified that when she expressed feeling uncomfortable in sexual

situations, Appellant would persuade her that he cared about her

and just wanted to “make [her] feel good.” Id. at 40. [R.K.]

testified that, ultimately, she realized that Appellant had been

grooming her for sexual abuse by talking her into thinking a sexual

relationship was what she wanted.

On the night of October 31, 2017, [R.K] went to a haunted

house with Appellant. While the two were standing in line,

Appellant “would press himself up against” [R.K.] with his “penis

[] against [her] butt.” Id. After the haunted house, Appellant

and [R.K.] returned to [R.K.’s] home where, on [R.K.’s] front

porch, Appellant penetrated [R.K.’s] vagina digitally and

performed oral sex on her[,] even though she expressed to

Appellant that she did not want him to. Later, the two retreated

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to [R.K.’s] basement[,] where Appellant’s sexual advances

escalated and culminated in Appellant performing oral sex and

intercourse with [R.K.] against her will. [R.K.] testified that she

“said that I didn’t want to. I said that very firmly that night. It

was the only time that I could say [] without a doubt that I

completely and honestly didn’t want to do anything, and I made

it very clear.” Id. at 46.

Commonwealth v. Knight, 290 A.3d 688, 481 MDA 2021 (Pa. Super. 2022)

(unpublished memorandum at 3-5) (footnotes omitted; record citations

modified).

R.K. testified that the intercourse concluded with Appellant ejaculating

on her stomach. N.T., 10/5/20, at 50. Afterward, R.K. “ran upstairs” and

“grabbed a towel.” Id. She stated, “I decided to wipe off the semen and keep

the towel because at that point I knew I was going to go to law enforcement

because I just couldn’t take it anymore.” Id. R.K. testified she “saved [the

towel] in a plastic bag and kept it until [she] went” to the police. Id.

R.K. did not immediately report the incident, testifying that she had “an

urge to do something, but then I didn’t because I lost the confidence.” Id. at

72. She continued to spend time with Appellant, though she stated their

relationship “deescalated a lot” and she “became very, very distant.” Id. at

51. R.K. testified Appellant took her on an overnight trip to a skating rink in

New York on November 11, 2017, but “nothing sexual happened.” Id. at 52,

70. R.K. testified Appellant lied to her, falsely telling her he had obtained her

mother’s permission to take her on the trip. Id. at 65. R.K. stated she was

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“very distant with [Appellant] on this trip, and I remember him pointing that

out.” Id. at 70.

R.K. also testified that, after the sexual assault, Appellant gave her a

Fender Stratocaster guitar worth $2,000. Id. at 53-54. R.K. stated Appellant

knew she was interested in the guitar, as Appellant had talked about getting

it for himself. Id. at 54. She testified, “[B]ut after the sexual assault and

after I started getting distant, after things are looking weird, all of a sudden

[Appellant] showed up in [the screened front porch of my house,] uninvited[,]

after I told him I could not see him.” Id. R.K. testified Appellant entered the

porch without knocking and left the guitar, then texted her to tell her the

guitar was on the porch. Id.

R.K. testified that she was

nervous because Appellant had begun yelling at her and being

verbally abusive[,] causing [R.K.] to become afraid that Appellant

would hurt her. She testified, however, that she feared cutting

off all contact with Appellant because she “knew the risk.” Id. at

53. [R.K.] … testified that she was also scared of Appellant

because, on one occasion after the rape, Appellant, while

intoxicated, approached [R.K.] and her mother at Skateaway and

pulled out a knife.

[R.K.] testified that she did not tell anyone about the

[assault] until January 2018. She explained that she came

forward because she “was struggling after the main sexual assault

experience. I realized that I was being groomed, and I didn’t

realize how long it was happening, obviously. Looking back on

the situation[,] it made me feel like he was the only one there for

me all of the time, so I felt like I needed to hold onto that, even

though I was going through so much pain from it.” Id. at 59-60.

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Knight, 290 A.3d 688 (unpublished memorandum at 5-6) (footnotes omitted;

record citations modified); see also N.T., 10/5/20, at 51 (R.K.’s testimony

that she did not tell her mother about the assault until the day she told police,

explaining, “I didn’t want my mom to think [less] of me … because I had a

sexual interaction….”).

Officer Jason O’Hora (Officer O’Hora) of the Moosic Borough Police

Department testified that on January 25, 2018, R.K.’s mother called the police

to report that R.K. had been sexually assaulted. N.T., 10/5/20, at 116. Officer

O’Hora conducted a “minimal fact interview” with R.K. at the police station,

and scheduled a forensic interview at the Children’s Advocacy Center for the

following day. Id. On January 26, 2018, Officer O’Hora observed R.K.’s

forensic interview, during which R.K. indicated she had preserved at her

residence a towel she had used to wipe Appellant’s semen off her stomach.

Id. at 119. Later that day, Officer O’Hora went to R.K.’s residence, where she

provided him with a blue and white towel. Id. Officer O’Hora subsequently

submitted the towel to the Pennsylvania State Police (PSP) for testing. Id. at

123. After the towel tested positive for seminal fluid, Officer O’Hora obtained

a sample of Appellant’s DNA via search warrant. Id. at 124. Further PSP

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testing confirmed Appellant’s DNA matched the semen on the towel. Id. at

125.2

Pertinently, the Commonwealth presented expert testimony from Cheryl

Friedman (Nurse Friedman), a certified nurse practitioner and Sexual Assault

Nurse Examiner. Id. at 96. Nurse Friedman testified that she had worked at

the Children’s Advocacy Center since 2014, where she examined children “for

the purpose of diagnosis and treatment of residual abuse.” Id. at 97. Nurse

Friedman indicated she had been involved in “[a]lmost a thousand exams

having to do with sexual abuse….” Id.; see also id. at 98 (trial court

accepting Nurse Friedman’s qualifications as “an expert [witness] in forensic

nurse practitioner with specialties in child sexual abuse….”).

Nurse Friedman testified that, on January 26, 2018, she examined R.K.

at the Children’s Advocacy Center. Id. at 102. Immediately prior to the

exam, R.K. underwent a forensic interview conducted by a trained forensic

interviewer, which Nurse Friedman observed. Id. at 104. Nurse Friedman

then spoke with R.K. and R.K.’s mother to obtain R.K.’s medical history. Id.

at 104-05. Nurse Friedman agreed that, “for the purposes of medical

treatment and diagnosis,” R.K. gave Nurse Friedman “a brief summary of what

____________________________________________

2 Sara Worsnick, a PSP forensic serologist, testified that she tested the towel

submitted by Officer O’Hora, and confirmed the presence of seminal fluid on

the towel. N.T., 10/6/20, at 8-13. Melinda Charley, a PSP forensic scientist,

testified that she conducted DNA testing on a seminal stain from the towel

and a cheek swab from Appellant; she confirmed DNA from the seminal stain

matched Appellant’s DNA. Id. at 29-32.

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brought her to the center that day[.]” Id. at 105. Nurse Friedman then

conducted a “physical and sexual exam” of R.K., including a genital exam. Id.

at 105-06.

Nurse Friedman testified that she observed “[n]o visible trauma” during

the genital exam. Id. at 107; see also id. at 109 (Nurse Friedman confirming

the genital exam “was normal.”). However, Nurse Friedman stated that she

“would not expect to see any physical findings” because of the length of time

that had passed since the alleged assault. Id. Explaining that genital tissue

heals quickly, Nurse Friedman testified that if R.K. “had trauma to that part of

her body I would have expected it to have healed by the time that I see her.”

Id. at 109-10. Nurse Friedman further agreed that she would not expect to

see physical trauma on the genital exam, even if R.K. had “reported that she

experienced pain during the sexual assault….” Id. at 110.

Significantly, the Commonwealth’s direct examination of Nurse

Friedman concluded with the following exchange:

Q: And based on your training and experience with a large number

of examinations you have conducted in sexual assault cases, do

you have an opinion within a reasonable degree of medical

certainty as to the findings, the medical findings relating to [R.K.]?

A: Yes.

Q: What is it?

A: Sexual assault by her history.

Id. at 110-11 (emphasis added).

Trial counsel began his cross-examination of Nurse Friedman as follows:

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Q: You just stated that your assessment of sexual assault is based

on history. Can you explain that a little bit more?

A: Because of what she talked about during her forensic interview

and because of what she talked about when we … talked together

during the medical history, she tells me a history of sexual assault.

Q: It’s not based on any physical findings, just from her

testimony[?]

A: Correct.

Id. at 111.

Trial counsel further questioned Nurse Friedman regarding the

significance of the lack of physical trauma found during the exam:

Q: I know that you discussed that you would not typically see

signs of injury, but in terms of forced vaginal penetration, is there

anything you would typically see at this point in terms of the time

from the alleged incident?

A: So I wouldn’t expect to see anything since time had passed.

And there are many scientific studies that match that up. That is

what is expected.

Q: So you can’t tell if something did or did not [happen]?

A: Correct, in most cases.

Id. at 112.

On redirect, the Commonwealth asked Nurse Friedman, “[D]oes the lack

of physical injury negate the fact that [R.K.] was sexually assaulted?” Id. at

113. Nurse Friedman responded, “No, absolutely not.” Id. On recross, trial

counsel questioned Nurse Friedman as follows:

Q: You’re stating that your opinion that she has been sexually

assaulted based on—

A: My medical opinion, yes.

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Q: Your medical opinion based on [R.K.’s] statement to you?

A: Yes.

Id. at 113.

The Commonwealth also presented testimony from Janet Bash (Ms.

Bash), who was 24 years old at the time of trial, regarding her previous

relationship with Appellant, which “resulted in Ms. Bash becoming pregnant at

age 16.”3 Knight, 290 A.3d 688 (unpublished memorandum at 2). Ms. Bash

testified

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3 In a pretrial motion in limine, Appellant sought to preclude Ms. Bash’s

testimony under Pa.R.E. 404(b)(1), which prohibits evidence of a defendant’s

prior bad acts “to prove a person’s character” or demonstrate “that on a

particular occasion the person acted in accordance with the character.”

Pa.R.E. 404(b)(1). Rule 404(b)(2) provides that prior bad acts evidence “may

be admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Id. (b)(2). The trial court determined Ms. Bash’s testimony was

admissible under Rule 404(b)(2) because

[t]he similarities between [Appellant’s relationships with Ms.]

Bash and [R.K.] indicate a common plan in which Appellant earned

the trust of naive, socially isolated minor females, initiated daily

communication and regular contact, manipulated them into

inappropriate touching and kissing, evolving into sexual contact,

and eliciting sexual contact through confusion, verbal coercion,

and physical force. Appellant created opportunities for [Ms.] Bash

and [R.K.] to spend periods of time with him encouraging sexual

conduct to occur. Appellant’s daily interactions with [Ms.] Bash

and [R.K.] conditioned the minor females to accept sexual conduct

and be deterred from resisting or reporting the assaults.

Knight, 290 A.3d 688 (unpublished memorandum at 12-13) (quoting Trial

Court Opinion, 3/9/22, at 26-27) (original brackets omitted). On direct

appeal, Appellant challenged the trial court’s admission of Ms. Bash’s

testimony, and this Court affirmed. Id. (unpublished memorandum at 10-

13).

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that at the time she met Appellant[,] she was depressed and did

not have much of a social life. Ms. Bash’s father worked with

Appellant and introduced Appellant to Ms. Bash when she was 13

years old. When she was … 15 years old, her friendship with then-

21-year-old Appellant[] became sexual. Also, around that time,

Appellant moved into Ms. Bash’s family’s home. … Ms. Bash

testified that she requested that Appellant use condoms when

they had intercourse, but Appellant refused, explaining that they

hurt him. Ms. Bash testified that she naively believed Appellant.

She also testified that she felt pressured to have intercourse with

Appellant and to permit him to ejaculate inside her. She testified

that “[s]ometimes he forced” her to [let him] “finish inside. Like

he would hold me down and like pressure me into it or use words”

such as “[i]t would make us closer.” N.T., 10/5/20, at 88. She

also testified that, although he never physically forced her to have

intercourse, she felt pressured because he told her that if she did

not agree, Appellant “would leave or find someone else to do it[.]”

Id. Ms. Bash testified that sometimes she would try to physically

resist Appellant by squirming away during intercourse but

Appellant would pin her down.

Knight, 290 A.3d 688 (unpublished memorandum at 6-7) (footnotes omitted;

record citations modified). Ms. Bash testified that Appellant impregnated her

when she was 16 years old, and she later “gave the baby up for adoption[.]”

N.T., 10/5/20, at 89-90; see also id. at 90 (Ms. Bash testifying that Appellant

proposed marriage to her and she said yes).

Appellant called R.K.’s mother, M.K., to testify as a defense witness.

M.K. testified that, during the relevant period, she was separated from R.K.’s

father. N.T., 10/6/20, at 49. M.K. and R.K. lived with M.K.’s 92-year-old

father, and M.K. worked the night shift at a health care facility. Id. at 50.

During this period, M.K. frequently took R.K. to Skateaway. Id. at 51-

53. M.K. confirmed that she met Appellant there, and that she trusted

Appellant to drive R.K. home from Skateaway occasionally, when M.K. had to

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go to work. Id. at 52-53; see also id. at 55 (M.K. testifying that she was not

concerned about R.K.’s safety with Appellant “[b]ecause [M.K.] trusted they

were just friends.”). M.K. also testified that she was aware that R.K. went to

a haunted house with Appellant and two of R.K.’s other friends. Id. at 56.

However, M.K. testified that Appellant took R.K. on the overnight trip to New

York without M.K.’s awareness or permission, and asserted Appellant lied to

R.K. by telling her he had obtained M.K.’s permission. Id. at 54, 60-61. M.K.

further testified that Appellant lied to her about his age, telling M.K. he was in

his early twenties when he was, in fact, 28 years old. Id. at 59. M.K. testified

that she no longer trusted Appellant to be around R.K. “[b]ecause he raped

her.” Id. at 60.

Testifying in his own defense, Appellant stated that, during the relevant

period, he was an avid roller skater and went to Skateaway frequently. Id.

at 66-67. He indicated he knew the owners of Skateaway, and sometimes

helped out by cleaning up or acting as a floor guard. Id. at 67; see also id.

at 86 (Appellant describing a floor guard as “somebody that enforces the rules,

such as no cell phones on the floor,” etc.). Appellant testified he first met

R.K. at Skateaway when he saw her crying and asked her if she was hurt. Id.

at 68. Appellant testified he also met M.K. at Skateaway, and that M.K. agreed

Appellant could drive R.K. home, which he began to do on a regular basis. Id.

at 69-70. Appellant stated that M.K. “looked fatigued” and “seemed

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appreciative” of his “offer[] to take [R.K.] home should [M.K.] feel tired getting

ready for work.” Id.4

Appellant agreed that he and R.K. attended a haunted house together

with R.K.’s friends. Id. at 70. Appellant testified that the night ended

“[u]neventful[ly.]” Id. at 71. Appellant stated he “took [R.K.] home and

made sure she was okay with the night, checked in with the mother and

grandfather and went about my business.” Id.

Appellant further testified that he and R.K. took an overnight trip to

Albany, New York, to visit a skating rink that “is in the Guinness Book of World

Records[.]” Id. Asked if R.K. had permission to go on the trip, Appellant

answered, “To my knowledge, yes.” Id. Appellant testified he and R.K. stayed

overnight at a hotel and returned home in his vehicle the next day. Id. at 71-

72.

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4 On cross-examination, Appellant initially denied that he offered to give R.K.

rides in order to “g[e]t [M.K.] out of the picture” so he could be alone with

R.K. N.T., 10/6/20, at 80. Upon further questioning, Appellant agreed that

he was alone with R.K. when he gave her rides, and the following exchange

ensued:

Q: So by getting [M.K.] out of the picture you got to spend a little

time with [R.K.]?

A: Yes.

Q: And you did it under the guise of helping out a tired, old single

mom who works midnights?

A: Yes.

Id. at 81.

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Appellant testified that, during this time period, he was employed as a

commercial truck driver and hauled candy for a candy company. Id. at 72.

Appellant stated that he then obtained “a more lucrative position” in the oil

and gas industry, “[h]auling frack sand for frack sites.” Id. at 72-73.

Appellant testified that his new job involved a hectic work schedule, and he

agreed that “in and around late November 2017,” he had less time to spend

with family and friends, including R.K. Id. at 72, 74. Appellant confirmed

that around “the third week of November” he “pretty much ceased [his]

interactions with [R.K.,]” because he did nothing but “work, eat, sleep, get up

and do it all over again.” Id. at 74. Appellant testified that his lack of contact

with R.K. caused a problem for her. Id. at 76-77. Appellant stated he had

no further contact with R.K. after she called one of his friends in the middle of

the night in early December 2017.5 Id. at 88.

____________________________________________

5 R.K. testified that Appellant yelled at her and then blocked her number, and

this increased her fear that he would hurt her. N.T., 10/5/20, at 55-56; see

also id. at 56 (R.K. testifying that “[t]his was pretty much the peak fear.”).

R.K. called Appellant’s friend, Steven Ashworth (Mr. Ashworth), whom she had

previously met. Id. R.K. testified that she never mentioned the sexual assault

to Mr. Ashworth, but that he “knew of the relationship-type thing that was

going on [between R.K. and Appellant,] where it was an intimate relationship.

He knew this.” Id. at 56, 78. R.K. testified that in the phone call, she told

Mr. Ashworth she and Appellant “were having difficulties in our friendship-type

thing,” and expressed her fears. Id. at 57, 58. According to R.K., Mr.

Ashworth said, “You know you can never go to law enforcement about this,”

and that if R.K. “told anybody about what [she and Appellant] were doing[,

Appellant] could get in a very large amount of trouble.” Id. at 58.

(Footnote Continued Next Page)

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Appellant testified that, in connection with his job as a commercial truck

driver, he kept a “go bag” in his personal vehicle, which he described as “just

a bag of clothing, toiletries, a couple of snacks, things like that.” Id. at 73;

see also id. (Appellant explaining that he kept the bag because, as a truck

driver, “you never know what’s going to happen,” such as getting stuck in a

snowstorm). Appellant confirmed the bag was in his vehicle during his trip to

New York with R.K. Id. at 74.

Appellant denied that he ever made sexual advances toward R.K., or

ever sexually assaulted her. Id. at 74-75. He expressly denied that he ever

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Mr. Ashworth testified as a defense witness. He indicated that R.K.

texted him at 3:00 a.m. on December 1, 2017, while he was working a shift

as a truck driver, and asked if they could talk. N.T., 10/6/20, at 91. He

suggested that R.K. call him because he could not text while driving, and they

proceeded to have a three-hour phone conversation throughout Mr.

Ashworth’s three-hour drive. Id. at 91-92. Mr. Ashworth stated they spent

only “the first 15 minutes” discussing Appellant, and the rest of the time

talking about “anything and everything.” Id. at 92-93. Mr. Ashworth testified

R.K. was trying to reach Appellant and asked if Mr. Ashworth could call

Appellant for her. Id. at 92. Mr. Ashworth testified R.K. never mentioned any

sexual abuse, sexual advances, or negative treatment by Appellant, “[o]ther

than the fact that she thought maybe he was ignoring her because she could

not reach him.” Id. at 93-94. Mr. Ashworth denied having knowledge of any

sexual contact between R.K. and Appellant, and denied that he ever advised

R.K. not to go to the authorities about anything. Id. at 94, 99. On cross-

examination, Mr. Ashworth testified that he saw nothing inappropriate about

having a three-hour conversation with a 16-year-old girl in the middle of the

night, and stated he would see no problem with his own daughter having

similar contact with a 47-year-old man. Id. at 97; see also id. at 90, 95 (at

the time of the phone call, Mr. Ashworth was 47 and married with four

children).

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kissed R.K., touched her breast or vaginal area, performed oral sex on her, or

had intercourse with her. Id. at 75-76.

Appellant did not discuss the semen-stained towel in his direct

testimony. On cross-examination, the following exchange occurred:

Q: So this is [a] giant big mystery as to how your semen ended

up on a towel at [R.K.’s] house; is that correct?

A: It appears so.

Q: What’s your explanation for that?

A: Always having that [] go bag that could have been a sample

out of my truck. I have taken people with me in my truck and I

have personal relations outside that.

Q: So you are accusing [R.K.] of taking a towel out of your [] go

bag in which you ejaculated on?

A: No, I said it’s a possibility.

Q: Well, what other possibility is there, sir? … It was a towel from

[R.K.’s] house, wasn’t it?

A: I can’t identify that.

Q: Okay. Well [R.K.] did?

A: Could have been my towel, ma’am.

Id. at 77-78.

Appellant agreed that he gave R.K. a Fender Stratocaster guitar by

leaving it on her porch. Id. at 77. He testified the guitar’s retail value was

$2,000, but that he got it for $800. Id. at 84. Appellant maintained he

“give[s] a lot of things away,” and once gave “$1,500 worth of skates to

somebody else’s grandchildren.” Id. at 84-85.

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Appellant admitted he began a sexual relationship with Ms. Bash when

she was 16, and impregnated Ms. Bash with a child that was later given up

for adoption. Id. at 82-84; see also id. at 83 (Appellant agreeing that he

asked Ms. Bash to marry him). Appellant testified that Ms. Bash was 17 when

she became pregnant. Id. at 83-84. Appellant denied telling Ms. Bash he did

not want to use condoms, and testified her pregnancy resulted from a broken

condom. Id. at 83.

At the trial’s conclusion, the jury convicted Appellant of all charges. On

January 12, 2021, the trial court imposed an aggregate sentence of 7 to 14

years’ imprisonment.

Appellant filed a direct appeal. On December 19, 2022, we affirmed

Appellant’s judgment of sentence. Knight, 290 A.3d 688 (unpublished

memorandum). Appellant did not seek allowance of appeal in the

Pennsylvania Supreme Court.

On August 24, 2023, acting pro se, Appellant timely filed the instant

PCRA petition, his first. The PCRA court appointed PCRA counsel, who filed an

amended petition on March 5, 2024. The amended petition averred that trial

counsel rendered ineffective assistance by, inter alia, failing to object to Nurse

Friedman’s testimony, specifically her opinion of sexual assault by history. On

August 7, 2024, the PCRA court held an evidentiary hearing, at which trial

counsel and Appellant testified. On March 31, 2025, the PCRA court filed an

opinion and order dismissing the petition.

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Appellant timely appealed. Appellant and the PCRA court have complied

with Pa.R.A.P. 1925. Appellant presents a single issue for our review:

Whether the PCRA court[ erred or abused its discretion when it

denied Appellant’s] claim that trial counsel provided ineffective

assistance for failing to object or otherwise challenge [Nurse

Friedman’s] testimony and opinion of sexual abuse based on

history when there were no physical findings of abuse[,] since

[that testimony and opinion] impermissibly bolstered [R.K.’s]

testimony and was an encroachment upon the province of the jury

…?

Appellant’s Brief at 2.

When reviewing the denial of a PCRA petition, we examine “whether the

PCRA court’s conclusions are supported by the record and free from legal

error.” Commonwealth v. Johnson, 289 A.3d 959, 979 (Pa. 2023) (citation

omitted).

The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record. This Court grants

great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a

contrary holding. In contrast, we review the PCRA court’s legal

conclusions de novo.

Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc)

(citations omitted). A PCRA petitioner “has the burden of persuading [an

appellate c]ourt that the PCRA court erred and that such error requires relief.”

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019); see also

Commonwealth v. Sandusky, 324 A.3d 551, 564 (Pa. Super. 2024) (“We

view the findings of the PCRA court and the evidence of record in a light most

favorable to the prevailing party.”).

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Appellant challenges trial counsel’s effectiveness. A PCRA petitioner

claiming ineffective assistance of counsel

will be granted relief only when he proves, by a preponderance of

the evidence, that his conviction or sentence resulted from the

“[i]neffective assistance of counsel which, in the circumstances of

the particular case, so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken

place.”

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (quoting 42

Pa.C.S.A. § 9543(a)(2)(ii)). “[C]ounsel is presumed to be effective, and the

petitioner bears the burden of proving to the contrary.” Commonwealth v.

Brown, 196 A.3d 130, 150 (Pa. 2018). “As a general and practical matter, it

is more difficult for a defendant to prevail on a claim litigated through the lens

of counsel ineffectiveness, rather than as a preserved claim of trial court

error.” Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.

2014) (citing Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004)).

To overcome the presumption of counsel’s effectiveness, a PCRA

petitioner must plead and prove each of the following three prongs:

(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s action or failure to act; and (3) he

suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability the result

of the proceeding would have been different. Commonwealth v.

Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective

assistance of counsel test from Commonwealth v. Pierce, 527

A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be

deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations

modified). “We need not analyze the prongs of an ineffectiveness claim in any

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particular order. Rather, we may discuss first any prong that an appellant

cannot satisfy under the prevailing law and the applicable facts and

circumstances of the case.” Commonwealth v. Evans, 303 A.3d 175, 182

(Pa. Super. 2023)).

If a petitioner fails to prove any … prong[] [of the

ineffectiveness test], his claim fails. Generally, counsel’s

assistance is deemed constitutionally effective if he chose a

particular course of conduct that had some reasonable basis

designed to effectuate his client’s interests. Where matters of

strategy and tactics are concerned, a finding that a chosen

strategy lacked a reasonable basis is not warranted unless it can

be concluded that an alternative not chosen offered a potential for

success substantially greater than the course actually pursued. To

demonstrate prejudice, the petitioner must show that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different. A

reasonable probability is a probability that is sufficient to

undermine confidence in the outcome of the proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, quotation

marks, and brackets omitted).

Instantly, Appellant argues trial counsel rendered ineffective assistance

by failing to object to Nurse Friedman’s testimony describing her opinion

regarding R.K. as “[s]exual assault by [R.K.’s] history.” Appellant’s Brief at

19 (quoting N.T., 10/5/20, at 111). Appellant asserts this testimony was

inadmissible under Commonwealth v. Maconeghy, 171 A.3d 707 (Pa.

2017), in which our Supreme Court held that “an expert witness may not

express an opinion that a particular complainant was a victim of sexual assault

based upon witness accounts couched as a history, at least in the absence of

physical evidence of abuse.” Maconeghy, 171 A.3d at 712. Appellant argues

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that “Nurse Friedman’s examination of [R.K.] was normal and [Nurse

Friedman] found no evidence of any physical abuse. Her opinion was solely

based on the history that [R.K.] provided to her.” Appellant’s Brief at 20.

Appellant asserts “[t]his is the specific type of testimony that the

[Maconeghy] Court stated was prohibited.” Id. Appellant argues trial

counsel had no reasonable basis for not objecting to Nurse Friedman’s opinion

of “sexual assault by [R.K.’s] history.” Id. at 21. Appellant further maintains

that he suffered prejudice from the improper opinion testimony, arguing the

trial outcome would have been different had the testimony been excluded.

Id. at 26.

The Commonwealth counters that Maconeghy is distinguishable, and

that the instant case is “more akin” to Commonwealth v. Minerd, 753 A.2d

225 (Pa. 2000). Commonwealth Brief at 24. In Minerd, our Supreme Court

held that an expert witness did not improperly bolster the child victims’

credibility, where the expert testified that “the absence of physical trauma

[found in the expert’s exam] did not prove that the [sexual] abuse never

occurred.” Minerd, 753 A.2d at 228. The Commonwealth maintains that,

“like [the expert] in Minerd, [Nurse Friedman] was neither asked for, nor did

she express, any opinion as to whether R.K. was telling the truth about being

sexually abused.” Commonwealth Brief at 24. The Commonwealth further

maintains that, like the expert in Minerd, Nurse Friedman agreed that her

physical exam “was inconclusive as to whether any abuse occurred.” Id.

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Finally, the Commonwealth argues Appellant failed to establish prejudice,

asserting “there is not a reasonable probability that the outcome of the trial

would have been different” had Nurse Friedman’s opinion of sexual abuse by

R.K.’s history “been objected to and excluded” from evidence. Id. at 27.

As our Supreme Court has explained,

[e]xpert testimony generally is admissible to aid the jury when

the subject matter is distinctly related to a science, skill or

occupation which is beyond the knowledge or experience of an

average lay person. Commonwealth v. Counterman, 553 Pa.

370, 719 A.2d 284, 302-03 (citing Commonwealth v. O’Searo,

466 Pa. 224, 352 A.2d 30, 33 (1976)), cert. denied, [528] U.S.

[836], 120 S.[ ]Ct. 97, 145 L.Ed.2d 82 (1999). Conversely, expert

testimony is not admissible where the issue involves a matter of

common knowledge. Id. at 303. In assessing the credibility of a

witness, jurors must rely on their ordinary experiences of life,

common knowledge of the tendencies of human behavior, and

observations of the witness’[s] character and demeanor. Id.

Because the truthfulness of a witness is solely within the

province of the jury, expert testimony cannot be used to

bolster the credibility of witnesses. See id.

Minerd, 753 A.2d at 230 (emphasis added).

Expert testimony in sexual abuse cases is governed by 42 Pa.C.S.A.

§ 5920(b), which provides, in pertinent part:

(b) Qualifications and use of experts.--

(1) In a criminal proceeding subject to this section, [including,

inter alia, sexual offenses,] 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

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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.

42 Pa.C.S.A. § 5920(b)(1)-(3) (emphasis added).

As the parties rely heavily on Minerd and Maconeghy, we examine

those decisions in some detail.

In Minerd, two child victims disclosed that they had been sexually

abused several years earlier by their then-stepfather. Minerd, 753 A.2d at

227-28. Dr. Margaret Carver (Dr. Carver), “a qualified expert in obstetrics

and gynecology,” physically examined the victims following their disclosure.

Id. at 228. At trial,

Dr. Carver testified that she found no evidence of physical trauma

to the girls’ genital or anal areas. According to Dr. Carver, the

absence of physical trauma did not prove that the abuse had never

occurred. She explained that because of the nature of the muscle

that closes the anus, there would have been an adequate time

between when the abuse occurred and the examination for any

damage that had been done to heal. On cross-examination, Dr.

Carver confirmed that she was not stating that the alleged acts

did or did not occur, and agreed that … it could be that “there was

no trauma to the anus or genitals because the acts in fact did not

occur.” Dr. Carver stated that “either way, there was no evidence

of it.”

Id. (record citations omitted).

On appeal, the defendant argued Dr. Carver’s testimony was

inadmissible “because it improperly bolster[ed] the victim[s’] credibility, and

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as such, the prejudicial impact of the testimony outweigh[ed] its probative

value.” Id. at 230. The Minerd Court disagreed:

In this case, Dr. Carver’s testimony was probative of the veracity

of the children. See [Commonwealth v.] Hawk, 709 A.2d

[373,] 377 [(Pa. 1998)] (negative rape kit test results were

probative of defendant’s claim of innocence). However, Dr. Carver

was neither asked for, nor did she express, any opinion as to

whether the children were telling the truth about being sexually

abused. Her testimony only explained the significance of the

results of the physical examination. See [Commonwealth v.]

Johnson, 690 A.2d [274,] 277 [(Pa. Super. 1997) (en banc)].

Moreover, Dr. Carver’s testimony regarding her physical findings

was inconclusive as to whether any abuse had even occurred.

Thus, we do not agree that the expert impermissibly bolstered the

children’s credibility.

Minerd, 753 A.2d at 230.

The defendant also claimed that “the jury may have been unduly

impressed by the expert’s testimony,” asserting “the jury essentially [was]

asked to conclude that the assaults occurred because the expert stated that

there was no physical evidence to prove the assaults, thereby allowing the

Commonwealth to prove its case through ‘non-evidence.’” Id. at 232. The

Minerd Court rejected this claim, stating:

Dr. Carver did not offer only one biased view of the physical

evidence; to the contrary, defense counsel elicited an explanation

which was equally favorable to [the defendant]. Moreover, the

trial judge clearly advised the jury that they were not bound to

accept the expert’s testimony merely because she possessed

special skill or knowledge. The law presumes that the jury follows

the court’s instructions. Commonwealth v. Baez, 554 Pa. 66,

720 A.2d 711, 726-27, cert. denied, 528 U.S. 827, 120 S.[ ]Ct.

78, 145 L.Ed.2d 66 (1999). We fail to see how the jury could have

been unduly influenced under these circumstances.

Minerd, 753 A.2d at 232 (record citation omitted).

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In Maconeghy, a 16-year-old victim disclosed that she had been raped

by her stepfather when she was 11 years old. Maconeghy, 171 A.3d at 708.

At trial, the Commonwealth

adduced testimony from Quentin Thomas Novinger, M.D. [(Dr.

Novinger)], a pediatrician who had evaluated [the victim] to

determine whether she had suffered from sexual abuse. On direct

examination, Dr. Novinger explained that he regularly rendered

consultative services on behalf of the Children’s Advocacy Center

for Northeastern Pennsylvania, and, in this capacity, he had been

engaged to evaluate [the victim]. He indicated that he observed

a forensic interview of [the victim] and collected and reviewed

other historical information, then he conducted a physical

examination. Although Dr. Novinger found no evidence of abuse

in the physical exam, he opined that, outside the first seventy-

two hours after the occurrence of a sexual assault, such an

examination is unlikely to detect evidence of the abuse. Thus,

according to the pediatrician, the fact of abuse can be determined

“[r]eally by history only.”

On cross-examination, the defense repeatedly attempted to

secure a concession that the medical evidence did not support a

determination of abuse, to which Dr. Novinger replied: “The

history she provided to me pretty clearly indicated that she was

sexually abused.” [Dr. Novinger further stated:] “Clearly the

medical encounter[, including the history,] indicated the child had

been victimized.”[] On redirect, the district attorney posed a

series of questions directed toward highlighting that a physical

examination is not conclusive, culminating in the following

interchange:

[Prosecutor]: And when you’re saying that your

examination is normal, you’re not saying that nothing

happened, are you?

[Dr. Novinger]: That’s correct. I really believe

strongly that was my medical conclusion that this child

was victimized.

Id. at 708-09 (record citations omitted).

On appeal, our Supreme Court held

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that an expert witness may not express an opinion that a

particular complainant was a victim of sexual assault based upon

witness accounts couched as a history, at least in the absence of

physical evidence of abuse. We find that such testimony intrudes

into the province of the jury relative to determining credibility.

Such conclusion is consistent with a wide body of decisions in

other jurisdictions. See, e.g., United States v. Charley, 189

F.3d 1251, 1267 n.23 (10th Cir. 1999) (collecting cases); State

v. Buchholtz, 841 N.W.2d 449, 459 (S.D. 2013) (same).

Maconeghy, 171 A.3d at 712; see also id. at 715 (concluding “that expert

testimony opining that a child has been sexually abused—which is predicated

on witness accounts and not physical findings—is inadmissible.”).

The Maconeghy Court set forth the following analysis:

The decision in State v. Iban C., 275 Conn. 624, 881 A.2d 1005

(2005), is illustrative and is essentially on all fours with the issue

presented in this case. There, a pediatrician testified in a child

sexual assault case that the complainant manifested no physical

signs of abuse; the physician nevertheless rendered a diagnosis

of abuse based both upon the physical examination and the

complainant’s history developed by an investigative team. See

id. at 1013-14. The Connecticut Supreme Court held that the trial

court had abused its discretion in admitting such testimony,

because the pediatrician’s opinion was inextricably tied to her

belief in the complainant’s veracity. In this regard, the court

reasoned:

[B]y [the pediatrician’s] own admission, her diagnosis

depended on a belief in this same credibility [that was

central to the jurors’ determination] because her

ultimate assessment was based almost entirely on the

history provided by the victim and the victim’s mother

to the investigation team. [The pediatrician’s]

diagnosis of child sexual abuse, therefore, necessarily

endorsed the victim’s credibility, and functioned as an

opinion as to whether the victim’s claims were

truthful.

Id. at 1015. Additionally, the Connecticut court determined that

the opinion evidence “was not helpful to the jury in deciding the

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precise question on which it had to pass.” Id. at 1016-17. The

court proceeded to distinguish the circumstances from cases in

which expert testimony concerning the general characteristics of

sexual assault victims had been permitted, i.e., testimony that did

not specifically link those characteristics to the complainant. See

id. at 1015.

Other courts have variously characterized expert opinions

that children have been sexually assaulted in the absence of

physical evidence as “putting a certificate of veracity on the child’s

testimony,” Buchholtz, 841 N.W.2d at 459; “bolstering

credibility,[”] id. at 458; “merely vouching,” Charley, 189 F.3d

at 1267; and “indirect vouching,” [State v.] Favoccia, 51 A.3d

[1002,] 1025 [(Conn. 2012)]. See generally Buchholtz, 841

N.W.2d at 458 & n.4 (collecting cases for the proposition that

“[m]ost jurisdictions restrict this type of expert testimony, raising

concerns about improper bolstering of credibility and invading the

province of the jury on determining an ultimate issue”). We are

in full agreement with the assessment of these courts in the

relevant regard. Consistent with the Connecticut jurisprudence,

we find no material distinction between direct vouching (e.g., “I

believe the complainant is telling the truth”) and indirect vouching

(e.g., “I conclude that the complainant was sexually assaulted

based upon the history she related.”).

Most courts also recognize the high stakes involved in child

sexual assault cases and the potential power and persuasiveness

of testimony by those clothed with the mantle of professional

expertise. See, e.g., [People v.] Peterson, 537 N.W.2d [857,]

868 [(Mich. 1995)] (reflecting the Michigan Supreme Court’s

appreciation that the risks associated with expert vouching in child

sexual assault cases are exacerbated by “the nature of the offense

and the terrible consequences of a miscalculation” given that,

“[t]o a jury recognizing the awesome dilemma of whom to believe,

an expert will often represent the only seemingly objective source,

offering it a much sought-after hook on which to hang its hat”

(quoting People v. Beckley, 434 Mich. 691, 456 N.W.2d 391,

404 (1990) (plurality))). Accordingly, the courts have attempted

to devise appropriate and necessary limitations, albeit differing in

various respects concerning the appropriate balance to be

stricken.

Maconeghy, 171 A.3d at 712-13 (footnotes omitted).

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The Maconeghy Court distinguished Minerd, stating that

the evidence in Minerd fell within the class of generalized

evidence about victims of sexual assault that is more widely

approved in the courts and was focused on a physical

examination; indeed, the Court specifically noted that the expert

witness “confirmed that she was not stating that the alleged acts

did or did not occur” relative to the complainant.

Id. at 715 (quoting Minerd, 753 A.2d at 228).

Pertinently, this Court has previously applied Minerd and Maconeghy

in non-precedential decisions6 involving challenges to Nurse Friedman’s

testimony, in unrelated child sexual assault cases, regarding her opinion of

“sexual assault by history.”

In Commonwealth v. Wildoner, 981 MDA 2018, 2019 WL 2447057

(Pa. Super. June 11, 2019) (unpublished memorandum), appeal denied, 222

A.3d 378 (Pa. 2019), the defendant argued on direct appeal that the trial court

abused its discretion in admitting Nurse Friedman’s testimony regarding

“sexual assault by history,” where her “physical examination of [the victim]

revealed no evidence of sexual assault.” Id. at *3. Relying on Maconeghy,

the defendant claimed the testimony improperly bolstered the victim’s

credibility. Id. This Court disagreed:

[Nurse] Friedman provided a diagnosis for [the 14-year-old

victim, K.H.,] following an interview and physical exam of “sexual

assault by history.” Neither [Nurse] Friedman’s testimony nor her

report, however, precisely explains the meaning of this diagnosis.

____________________________________________

6 Pursuant to Pa.R.A.P. 126(b), unpublished non-precedential decisions of the

Superior Court filed after May 1, 2019, may be cited for persuasive value.

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At trial, [Nurse] Friedman explained the following with respect to

her diagnosis:

I take into account everything that has happened that

evening—the interview, the forensic interview, that

has taken place, as well as my discussion with [K.H.],

obtaining her medical history and her concerns, as

well as the treatment I provided that evening and the

recommendation for further treatment after she

leaves.

Thus, from what we can discern from [Nurse] Friedman’s

testimony, the diagnosis of “sexual assault by history”

represents nothing more than an expression that K.H.

relayed that she was sexually assaulted, and [Nurse]

Friedman provided and recommended corresponding

treatment. Unlike the expert in Maconeghy, at no point during

her testimony did [Nurse] Friedman express, either implicitly or

explicitly, any kind of opinion or belief that K.H. was sexually

assaulted. Like the expert in Minerd, the Commonwealth did not

ask [Nurse] Friedman to express such an opinion. Indeed, on

cross-examination, when defense counsel asked [Nurse]

Friedman if it was “possible that there were no injuries [discovered

during the physical examination of K.H.] because nothing

happened in the first place[,]” [Nurse] Friedman responded in the

affirmative. Therefore, [Nurse] Friedman’s testimony more

closely resembles that of the expert in Minerd. Consequently, we

conclude that the trial court did not abuse its discretion in

declining to exclude testimony relating to Friedman’s diagnosis of

“sexual assault by history.”

Id. at *4 (record citations omitted; emphasis added).

In Commonwealth v. Sansone (Sansone I), 329 A.3d 604, 2024 WL

4432799 (Pa. Super. Oct. 7, 2024) (unpublished memorandum), vacated

and remanded by 335 A.3d 303 (Pa. 2025), this Court affirmed the PCRA

court’s denial of PCRA relief, where the defendant argued his counsel “was

ineffective for failing to object to [Nurse Friedman’s] testimony regarding her

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diagnosis of sexual abuse by history.” Id. at *1. This Court expressed its

agreement with the PCRA court’s following analysis:

Here, similar to Minerd, [Nurse] Friedman … did not

impermissibly bolster the victim’s credibility. [Nurse Friedman],

following an interview and physical exam[,] diagnosed the victim

with “sexual assault by history.” … At trial, the nurse explained

… that her diagnosis was based on what the victim relayed to her.

Unlike Maconeghy, [Nurse Friedman] was neither asked

for, nor did she express, any opinion as to whether the victim was

telling the truth about being sexually abused. Regarding the

physical examination, [Nurse Friedman’s] testimony was

inconclusive as to whether any abuse had occurred, agreeing with

[defense] counsel that a “normal physical exam does not rule out

the possibility of sexual assault[,] … a normal exam also means

that possibly sexual assault didn’t happen,” and “we don’t know

based on the physical exam whether it happened or didn’t happen

in this case.” [Nurse Friedman’s] testimony only explained the

significance of the results of the physical examination, stating

multiple times that the victim’s exam came back normal.

Id. at *3 (quoting PCRA Court Opinion, 6/28/23, at 3-5) (record citations

omitted).

The Sansone I Court further

stress[ed] that, on cross-examination, defense counsel

thoroughly questioned Nurse Friedman about the 8-year-old

victim’s complete lack of physical injury despite her report that

[the defendant], a 230-pound adult, had raped her. Counsel

expressly asked [Nurse Friedman]:

Q: So if I understand you correctly, you’re saying that

the normal physical exam does not rule out the

possibility of sexual assault?

A: Yes.

Q: Is the opposite true though[,] that a normal exam

also means that possibly sexual assault didn’t

happen?

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A: Yes.

Q: So we don’t know based on the physical exam

whether it happened or didn’t happen in this case?

A: In this case, correct.

Q: Right. So 50 percent it could have happened, 50

percent it didn’t happen?

A: Well, I look back at my history that I’ve obtain[ed]

and I look to see if it’s … clear and consistent. So my

diagnosis is based on the history presented.

Additionally, although Nurse Friedman stated that listening for

clear and consistent information aids in her diagnosis, as noted by

the [PCRA] court, at no point did the nurse say the victim was

telling the truth. Therefore, the jury was made aware that there

was no physical evidence of sexual assault, that Nurse Friedman’s

diagnosis was based on the victim’s history alone, but that, based

on the lack of any physical evidence, it was just as likely that a

sexual assault had not occurred. The nurse never said it was her

medical opinion that a sexual assault definitely occurred. Hence,

she did not improperly bolster the victim’s testimony in the

absence of physical evidence[,] and the jury was free to exercise

its role of weighing all evidence before it.

Id. at *3-4 (record citations omitted).

The Sansone I Court concluded that

the concerns raised by Maconeghy, decided in 2017, were not

present here. Instead, Minerd, decided 17 years earlier, was

more akin to these circumstances. [Therefore], we conclude the

PCRA court properly found there is no underlying merit to the

claim that [defense] counsel was ineffective for failing to object to

[Nurse Friedman’s] testimony as improperly bolstering that of the

victim on the basis of Maconeghy.

Id. at *4.

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Following Sansone I, the defendant sought allowance of appeal to our

Supreme Court. The Supreme Court granted allowance of appeal and vacated

the Sansone I decision in the following order:

AND NOW, this 18th day of March, 2025, Petition for Allowance of

Appeal is GRANTED. Further, the decision of the Superior Court

is VACATED and the case is REMANDED for the Superior Court to

reassess Petitioner’s ineffectiveness claim. See Commonwealth

v. Maconeghy, 642 Pa. 770, 171 A.3d 707, 713, 715 (2017)

(holding “that expert testimony opining that a child has been

sexually abused–which is predicated on witness accounts and not

physical findings–is inadmissible” and acknowledging “no material

distinction between direct vouching (e.g., ‘I believe the

complainant is telling the truth’) and indirect vouching (e.g., ‘I

conclude that the complainant was sexually assaulted based upon

the history she related.’”)).

Commonwealth v. Sansone, 335 A.3d 303 (Pa. 2025).

On remand, in a non-precedential decision, this Court granted PCRA

relief and awarded the defendant a new trial, reasoning as follows:

Pursuant to [Maconeghy], and in light of the undisputed fact that

[Nurse Friedman] relied on “sexual assault by history,” not on

physical findings, for her diagnosis that the victim in this matter

was sexually assaulted, we conclude [the defendant’s] claim has

merit. [Defense] counsel should have objected to [Nurse

Friedman’s] testimony that the victim was sexually abused based

only on the history the victim related to her. In fact, counsel

admitted as much at the PCRA hearing.

We also conclude that the second prong of the

ineffectiveness test, lack of a reasonable basis, has been met. At

the PCRA hearing, trial counsel could not adequately explain why

he did not object, offering only that he might have been focused

on the fact that there was no physical evidence.

Finally, again based on Maconeghy, we are constrained to

conclude [the defendant] was prejudiced by counsel’s failure to

object to this inadmissible testimony. See Maconeghy, 171 A.3d

at 775-76 (noting, “[g]iven its determination that the [expert’s]

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testimony was inadmissible, … the [Superior Court] panel

concluded that it was constrained to award a new trial” because

the expert’s testimony he believed child was victimized based only

on her report to him where physical evidence was inconclusive

would cause jury to defer to expert rather than assess victim's

credibility on its own) (citation omitted); see also

Commonwealth v. Maconeghy, 2015 WL 7078462, unpublished

memorandum, at *5 (Pa. Super. June 12, 2015).

Commonwealth v. Sansone (Sansone II), 341 A.3d 84, 2025 WL 1330497,

*2 (Pa. Super. May 7, 2025) (unpublished memorandum).

Instantly, Appellant argues his case “is identical to Sansone,” and urges

us to adopt Sansone II’s reasoning. Appellant’s Brief at 29; see also id. at

21-23, 24-25. The Commonwealth counters that Sansone II is non-

precedential and non-binding, and further asserts it is unpersuasive.

Commonwealth Brief at 18. Rather, the Commonwealth maintains this Court

“had it right the first time” in Sansone I, and argues we should be persuaded

by Sansone I’s reasoning, even though the Supreme Court vacated that

decision. Id.; see also id. at 18-22. The Commonwealth further maintains

Wildoner is analogous and persuasive. Id. at 22-23.

Here, the PCRA court determined Appellant’s underlying claim that

Nurse Friedman’s opinion was inadmissible lacked arguable merit. PCRA Court

Opinion, 3/31/25, at 15. Relying heavily on the reasoning of Sansone I,7 the

____________________________________________

7 Though filed thirteen days after the Supreme Court entered its order in

Sansone, the PCRA court’s opinion does not evince an awareness that

Sansone I had been vacated. See generally, PCRA Court Opinion, 3/31/25.

The Sansone II decision (filed May 7, 2025) had not yet been issued.

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PCRA court opined that Nurse Friedman’s testimony in the instant case was

akin to Minerd and did not run afoul of Maconeghy. See id. at 12-15

(discussing Sansone I); see also id. at 12, 13-14 (citing Wildoner, supra).

Our review discloses Nurse Friedman’s testimony shares many

similarities with Dr. Carver’s testimony in Minerd. Nurse Friedman testified

that her genital exam of R.K. revealed no physical trauma, but that she would

expect any trauma to have healed due to the length of time since the alleged

assault. N.T., 10/5/20, at 107-10; see also Minerd, 753 A.2d at 228 (“Dr.

Carver testified that she found no evidence of physical trauma,” but “explained

that … there would have been an adequate time between when the abuse

occurred and the examination for any damage that had been done to heal.”).

Nurse Friedman also testified that the lack of physical trauma did not mean

the alleged assault did not occur. N.T., 10/5/20, at 113; see also Minerd,

753 A.2d at 228 (“According to Dr. Carver, the absence of physical trauma did

not prove that the abuse had never occurred.”). On cross-examination, Nurse

Friedman agreed with trial counsel that she “can’t tell if something did or did

not [happen.]” N.T., 10/5/20, at 112; see also Minerd, 753 A.2d at 228

(“On cross-examination, Dr. Carver confirmed that she was not stating that

the alleged acts did or did not occur, and agreed that … it could be that ‘there

was no trauma to the anus or genitals because the acts in fact did not

occur.’”); id. at 230 (“Dr. Carver’s testimony regarding her physical findings

was inconclusive as to whether any abuse had even occurred.”). Nurse

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Friedman confirmed that her opinion of sexual assault by history was “based

on [R.K.’s] statement” to her, N.T., 10/5/20, at 113, but she “was neither

asked for, nor did she express, any opinion” specifically as to whether

R.K. was “telling the truth about being sexually abused.” Minerd, 753

A.2d at 230 (emphasis added).

However, while Dr. Carver’s testimony “only explained the significance

of the results of the physical examination,” id. at 230, Nurse Friedman

ventured beyond explaining the significance of her physical exam when, at the

conclusion of her testimony on direct examination, she offered the opinion of

“[s]exual assault by [R.K.’s] history.” N.T., 10/5/20, at 111. That opinion—

the specific testimony Appellant challenges—does not clearly fall within

Minerd’s ambit.

Turning to Maconeghy, our review discloses the testimony of Nurse

Friedman and Dr. Novinger share some similarities. Dr. Novinger “found no

evidence of abuse in the physical exam,” but “opined that, outside the first

seventy-two hours after the occurrence of a sexual assault, such an

examination is unlikely to detect evidence of the abuse.” Maconeghy, 171

A.3d at 708. “Thus, according to [Dr. Novinger], the fact of abuse can be

determined ‘really by history only.’” Id. Though Nurse Friedman did not

affirmatively state that abuse can be determined by history only, her

testimony implied as much when she gave her opinion of sexual assault by

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history, after conceding her exam revealed no physical findings. See N.T.,

10/5/20, at 111.

However, Nurse Friedman’s testimony stopped short of the opinion

expressed by Dr. Novinger in significant respects. Dr. Novinger testified that

“[t]he history [the victim] provided to me pretty clearly indicated that she

was sexually abused.” Maconeghy, 171 A.3d at 708 (emphasis added).

Dr. Novinger further stated, “Clearly the medical encounter[, including the

history,] indicated the child had been victimized.” Id. (brackets and

bracketed language in original; emphasis added). Dr. Novinger’s testimony

“culminat[ed]” in his statement, “I really believe strongly that was my

medical conclusion that this child was victimized.” Id. (emphasis

added). Unlike Dr. Novinger, Nurse Friedman never directly commented on

the quality of the history R.K. provided, nor did she state she believed in the

history’s veracity. Rather, Nurse Friedman explained her opinion of sexual

assault by history as follows: “Because of what [R.K.] talked about during her

forensic interview and because of what she talked about when we … talked

together during the medical history, she tells me a history of sexual

assault.” Id. at 111 (emphasis added).

Given Nurse Friedman’s use of language substantially more neutral than

Dr. Novinger’s, her testimony in this case could arguably bear the innocuous

interpretation given to her similar testimony in Wildoner:

[F]rom what we can discern from [Nurse] Friedman’s testimony,

the diagnosis of “sexual assault by history” represents nothing

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more than an expression that [the victim] relayed that she was

sexually assaulted, and [Nurse] Friedman provided and

recommended corresponding treatment.

Wildoner, 2019 WL 2447057, *4 (unpublished memorandum). However, we

observe that, in the instant case, Nurse Friedman’s opinion of “[s]exual assault

by [R.K.’s] history” was presented as “an opinion within a reasonable degree

of medical certainty as to the … medical findings relating to [R.K.]” N.T.,

10/5/20, at 110-11; see also id. at 113 (Nurse Friedman describing sexual

assault by history as “[m]y medical opinion.”).8 Regarding the admissibility

of this testimony, we do not find Wildoner’s application of Maconeghy

persuasive.

We reiterate Maconeghy’s holding that “an expert witness may not

express an opinion that a particular complainant was a victim of sexual assault

based upon witness accounts couched as a history, at least in the absence of

physical evidence of abuse.” Maconeghy, 171 A.3d at 712. The Maconeghy

Court “f[ou]nd no material distinction between direct vouching (e.g., ‘I believe

the complainant is telling the truth’) and indirect vouching (e.g., ‘I conclude

that the complainant was sexually assaulted based upon the history she

related.’).” Id. at 713. While Dr. Novinger’s testimony in Maconeghy

____________________________________________

8 It is unclear whether similar language was also used at trial in Wildoner or

Sansone, as those decisions describe “sexual assault by history” as Nurse

Friedman’s “diagnosis” rather than her “opinion” or “medical opinion.” See

Wildoner, 2019 WL 2447057, *4; Sansone I, 2024 WL 4432799, *4;

Sansone II, 2025 WL 1330497, *2. For our present purposes, we discern no

material difference between these terms.

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resembles direct vouching, in our view, Nurse Friedman’s instant testimony

amounts to indirect vouching.

We acknowledge that Nurse Friedman’s testimony was perhaps a shade

less direct than Maconeghy’s example of indirect vouching, id., and might

sustain the innocuous interpretation Wildoner gave to similar testimony. In

reaching its interpretation, however, the Wildoner Court remarked that

“[n]either Nurse Friedman’s testimony nor her report … precisely explains the

meaning of [her] diagnosis” of sexual assault by history. Wildoner, 2019 WL

2447057, *4. We agree with Wildoner to the extent that, in both Wildoner

and the instant case, Nurse Friedman never directly or explicitly stated what

her opinion of sexual assault by history meant, beyond merely reflecting the

fact that the victim relayed to her a history of sexual assault. But Wildoner’s

analysis on this point suggests that Nurse Friedman’s imprecision was a point

in her favor when compared with Dr. Novinger’s more direct vouching. We do

not fully agree. While Nurse Friedman’s imprecision may render her testimony

less prejudicial than Dr. Novinger’s,9 it cuts against her on the more basic

question of whether the opinion—regardless of its prejudicial value—aids the

jury.

____________________________________________

9 We discuss more fully below whether and to what extent Nurse Friedman’s

opinion testimony may have prejudiced Appellant.

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Though Nurse Friedman may testify to the simple fact that R.K. relayed

to her a history of sexual assault, we fail to see how presenting such

information as a “medical opinion” or “diagnosis” aids the jury. In other

words, if Nurse Friedman’s opinion of sexual assault by history was nothing

more than a confirmation that R.K. relayed a history of sexual assault to Nurse

Friedman, then the language couching that information as “an opinion within

a reasonable degree of medical certainty as to the … medical findings relating

to [R.K.],” N.T., 10/5/20, at 110, was extraneous, and therefore “not helpful

to the jury in deciding the precise question on which it had to pass.”

Maconeghy, 171 A.3d at 712 (quoting Iban C., 881 A.2d at 1016-17). As

such, the opinion was not admissible as expert testimony.

Because Maconeghy dealt with direct vouching, its views on indirect

vouching could be considered dicta. See Commonwealth v. Borrin, 80 A.3d

1219, 1224 n.10 (Pa. 2013) (“In every case, what is actually decided is the

law applicable to the particular facts; all other conclusions are but obiter

dicta.” (citation and brackets omitted)); Commonwealth v. Jackson, 111

A.3d 1187, 1190 (Pa. Super. 2015) (citing Borrin and stating dicta “is not

binding”). In any event, we agree with the Maconeghy Court’s reasoning on

indirect vouching. See Maconeghy, 171 A.3d at 712-13. Though Nurse

Friedman never stated that her opinion of sexual assault by history involved

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her assessment of R.K.’s credibility,10 her opinion ran the risk, to a minor

degree, of “putting a certificate of veracity on the child’s testimony,” id. at

713 (quoting Buchholtz, 841 N.W.2d at 459), by a witness “clothed with the

mantle of professional expertise.” Id. Thus, though Nurse Friedman’s

testimony may be less problematic than Dr. Novinger’s (and resemble in many

respects Dr. Carver’s admissible testimony in Minerd), it is nevertheless

inadmissible under Maconeghy’s reasoning.

Based on the foregoing, we conclude that Appellant’s underlying claim

regarding the inadmissibility of Nurse Friedman’s opinion testimony has

____________________________________________

10 Nurse Friedman’s instant testimony avoided commentary on the quality of

the victim’s history more successfully than her testimony in Sansone, where

she stated: “I look back at my history that I’ve obtain[ed,] and I look to see

if it’s … clear and consistent. So my diagnosis is based on the history

presented.” Sansone I, 2024 WL 4432799, *4.

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arguable merit. Moreover, in light of the above analysis, trial counsel’s

proffered basis for not objecting to the testimony was unreasonable.11, 12

However, our inquiry does not end here. Appellant’s ineffectiveness

claim does not merit relief unless he can establish the third and final prong of

the ineffectiveness test: prejudice. To establish prejudice, Appellant must

prove actual prejudice, that is, a reasonable probability that, but

for counsel’s lapse, the result of the … proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 694

____________________________________________

11 As the PCRA court observed, trial counsel testified at the PCRA evidentiary

hearing

that he did not object to [Nurse Friedman’s] testimony, even given

the … holding in Maconeghy, because the defense was that there

was no sexual contact with R.K., and the fact that there was no

sexual trauma present [in the physical exam] helped the defense.

[N.T., 8/7/24,] at 26-34. [Trial counsel] testified that he did not

believe that [Nurse] Friedman’s determination of sexual assault

based on history bolstered the victim’s testimony. Id. at 34. He

testified that he was aware of [Nurse] Friedman’s findings before

the trial, and that she was going to testify that there were no

physical findings of abuse, and that allowing her testimony was

an agreed upon defense trial strategy. Id. at 44.

PCRA Court Opinion, 3/31/25, at 15. Trial counsel’s rationale appears to

presume that Nurse Friedman’s opinion of sexual assault by history could not

be excluded under Maconeghy. Nurse Friedman’s broader testimony

regarding her physical findings was clearly admissible, and trial counsel’s

reasonable belief that this testimony helped the defense did not require him

to also acquiesce to the admission of her opinion of sexual assault by history.

Trial counsel did not assert that particular opinion helped the defense, and he

articulated no reasonable basis for failing to lodge an objection.

12 We observe that, in light of our determination below that Appellant failed to

establish the prejudice prong of the ineffectiveness test, our consideration of

the first two prongs is not strictly necessary to our disposition. However, as

the admissibility of Nurse Friedman’s opinion testimony is a close question,

we deemed a thorough examination of its admissibility essential to our

consideration of its prejudicial effect.

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(1984). “In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence

before the judge or jury…. Moreover, a verdict or conclusion only

weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support.”

Id. at 695-96 (emphasis added). Ultimately, a reviewing court

must question the reliability of the proceedings and ask whether

“the result of the particular proceeding [was] unreliable because

of a breakdown in the adversarial process that our system counts

on to produce just results.” Id. at 696.

Commonwealth v. Lesko, 15 A.3d 345, 383 (Pa. 2011) (emphasis in

original; citations modified); see also Commonwealth v. Collins, 957 A.2d

237, 244 (Pa. 2008) (“A reasonable probability is a probability that is sufficient

to undermine confidence in the outcome of the proceeding.” (citing

Strickland, 466 U.S. at 694)).

As our Supreme Court has observed,

the test for prejudice in the ineffectiveness context is more

exacting than the test for harmless error, and the burden of proof

is on the defendant, not the Commonwealth. … [The harmless

error] standard … is a lesser standard than the Pierce prejudice

standard, which requires the defendant to show that counsel’s

conduct had an actual adverse effect on the outcome of the

proceedings. This distinction appropriately arises from the

difference between a direct attack on error occurring at trial and

a collateral attack on the stewardship of counsel.

Spotz, 84 A.3d at 315 (citations and quotation marks omitted).

Instantly, Appellant asserts he was prejudiced “for the same reason” as

the defendant in Sansone. Appellant’s Brief at 24 (citing Sansone II, 2025

WL 1330497 at *2). Appellant argues trial counsel’s failure to object to Nurse

Friedman’s opinion testimony “allowed the jury to hear an expert testify that

[R.K.] was telling the truth about being sexually assaulted.” Id. at 26.

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Appellant maintains he was prejudiced because “[t]he outcome of the trial

would have been different had the impermissible testimony from [Nurse

Friedman] bolstering [R.K.’s] testimony … been omitted[,] as it should have

been.” Id. at 25.

Appellant argues “the evidence in this case was not overwhelming.” Id.

at 25. He notes that while R.K. testified Appellant sexually assaulted her, he

denied the allegation, and there were no eyewitnesses to the alleged assault.

Id. Appellant contends that “[s]ince credibility was significant, and perhaps

the primary … factor in this case, had [Nurse Friedman’s] opinion been

properly excluded[,] there is a reasonable probability that the outcome would

[have] be[en] different.” Id. at 26-27.

Regarding the towel stained with his semen, Appellant notes that R.K.

did not provide the towel to police until three months after the alleged

incident. Id. at 25. Appellant argues R.K. “claimed she used the towel to

clean herself after [Appellant] assaulted her,” and “testified she saved it in

order to bring it to law enforcement.” Id. (emphasis added). Appellant

asserts that he “denied ever having sexual encounters with” R.K., but “never

denied he was with [R.K.] or that he was at her home, or even that he drove

her in his vehicle.” Id. at 26. Apart from what may be inferred from this lone

assertion, Appellant’s brief makes no attempt to discuss or defend the

suggestion he made at trial, i.e., that R.K. could have stolen the towel from

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his bag.13 Nevertheless, Appellant maintains that, “[e]ven with the towel, this

case still came down to credibility.” Id. at 26.

The Commonwealth counters that Appellant failed to demonstrate

prejudice, highlighting evidence such as “the towel containing [Appellant’s]

DNA,” Ms. Bash’s testimony that Appellant had a sexual relationship with her

“very similar to the one he had with R.K.,” and “the expensive gifts [Appellant]

gave R.K.” Commonwealth Brief at 26-27. The Commonwealth argues that,

in light of this evidence, “there is not a reasonable probability that the

outcome of the trial would have been different if the words [Nurse] Friedman

uttered, ‘sexual assault by [R.K.’s] history,’ had been objected to and

excluded.” Id. at 27.

Regarding the prejudice prong of the ineffectiveness test, the PCRA

court rejected Appellant’s claim:

[E]ven if [Appellant] could establish that [Nurse] Friedman’s

testimony improperly bolstered [R.K.’s] testimony under

Maconeghy, [trial] counsel’s failure to object to [Nurse

Friedman’s] testimony did not prejudice [Appellant], and there is

not a reasonable probability that the outcome of the trial would

have been different had the court excluded her testimony. Unlike

child sexual assault cases where there are no eyewitnesses and

the only evidence is the defendant’s word against the child’s, there

was physical evidence to corroborate the child’s testimony here.

The Commonwealth introduced a towel into evidence that was

provided to [police] by R.K., and she testified that she used it to

clean herself after [Appellant] assaulted her. The towel tested

positive for seminal fluid that positively matched [Appellant’s]

DNA. Thus, even if [Nurse] Friedman’s testimony had been

excluded, there was corroborating evidence of a sexual interaction

____________________________________________

13 Appellant does not dispute that his semen was on the towel.

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between R.K and [Appellant], and [Appellant] has not

demonstrated that the outcome of the trial would have been

different here.

PCRA Court Opinion, 3/31/25, at 15-16.

Our review of the totality of the evidence suggests that, although Nurse

Friedman’s opinion testimony was inadmissible as set forth above, Appellant

established no prejudice resulting from its admission. Contrary to Appellant’s

argument, the jury did not “hear an expert testify that [R.K.] was telling the

truth about being sexually assaulted.” Appellant’s Brief at 26. Rather, Nurse

Friedman gave an opinion of “[s]exual assault by [R.K.’s] history” that was,

at worst, ambiguous as to whether it included Nurse Friedman’s own

assessment of the R.K.’s credibility. The potential prejudicial impact of this

testimony was mitigated on cross-examination, by Nurse Friedman’s

concession that her opinion was not based on physical findings, and that she

“can’t tell if something did or did not [happen].” N.T., 10/5/20, at 111-12;

see also Minerd, 753 A.2d at 232 (noting “defense counsel elicited an

explanation [of the physical evidence] which was equally favorable to [the

defendant].”).14

____________________________________________

14 The trial court instructed the jury that “[t]he credibility of the witnesses is

entirely for you to determine.” N.T., 10/6/20, at 150; see also id. at 156

(court’s instruction regarding the jury’s province to determine the “credibility

of the alleged victim”). After instructing the jury regarding expert witnesses,

the court advised:

(Footnote Continued Next Page)

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Regarding Appellant’s assertion that he was prejudiced for the same

reason as the defendant in Sansone II, we do not find Sansone II

persuasive on the prejudice question. Sansone II’s brief prejudice analysis

consisted solely of the statement that, “based on Maconeghy, we are

constrained to conclude [the defendant] was prejudiced by counsel’s failure to

object to [Nurse Friedman’s] inadmissible testimony.” Sansone II, 2025 WL

1330497, *2. We observe that Maconeghy was a direct rather than collateral

appeal, and therefore involved the lesser harmless error standard. An

ineffectiveness claim involves the “more exacting” Strickland/Pierce test of

actual prejudice, which requires consideration of the totality of the evidence.

Spotz, 84 A.3d at 315. Sansone II does not appear to have applied this

test, and we disagree with its conclusion that Maconeghy, by itself, can

dictate a finding of prejudice in the PCRA/ineffectiveness context. 15 In sum,

____________________________________________

Remember though you, the jury, are the sole judges of the

credibility and the weight of all of the testimony. The fact that the

lawyers and I may have referred to certain witnesses as experts,

and that the witnesses may have special knowledge or skill does

not mean that their testimony and opinions are right.

Id. at 155-56; see also Minerd, 753 A.2d at 232 (determining jury could not

have been “unduly influenced” by expert’s testimony in part because trial

court “clearly advised” the jury that it “was not bound to accept the expert’s

testimony merely because she possessed special skill or knowledge.”).

15 We further observe that neither Sansone I nor Sansone II sets forth a

detailed recitation of the trial evidence, and Sansone’s facts do not appear

analogous to the unique facts of the instant case. We note that the jury in

Sansone acquitted the defendant of the more serious sexual offenses and

(Footnote Continued Next Page)

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Sansone II does not support Appellant’s argument that prejudice resulted

from Nurse Friedman’s opinion testimony.

Rather, the unique facts of the instant case support the PCRA court’s

conclusion that Nurse Friedman’s opinion testimony had no decisive impact on

the outcome of Appellant’s trial. The Maconeghy Court observed that, “[t]o

a jury recognizing the awesome dilemma of whom to believe, an expert will

often represent the only seemingly objective source, offering it a much

sought-after hook on which to hang its hat[.]” Maconeghy, 171 A.3d at 713

(quoting Peterson, 537 N.W.2d at 868). While this may often be the case,

the instant jury had other, more significant “hook[s] on which to hang its hat,”

id., including Appellant’s admission to a prior sexual relationship with the 16-

year-old Ms. Bash and—most significantly—R.K.’s possession of a towel

stained with Appellant’s semen.

We observe that Appellant’s brief neglects to mention Ms. Bash’s

testimony or Appellant’s admission to having had a sexual relationship with

her when she was 16. In asserting the trial’s outcome would have been

different had Nurse Friedman’s opinion been excluded, Appellant fails to

acknowledge the impact of Ms. Bash’s evidence. Our review suggests that

____________________________________________

convicted him only of offenses that did not require actual sexual contact. See

Sansone I, 2024 WL 4432799, *1.

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Ms. Bash’s testimony, the core of which Appellant conceded was true, strongly

corroborated R.K.’s testimony.16

Finally, we disagree with Appellant’s assertion that the towel’s

provenance is simply a matter of credibility. Our review of the evidence

discloses that Appellant presented contradictory theories regarding R.K.’s

purported motive and opportunity. Compare N.T., 10/6/20, at 73-74

(Appellant testifying he kept a “go bag” in his vehicle, and that he had the bag

during his trip to New York with R.K.), 78 (Appellant testifying that the semen-

stained towel “could have” come from the bag in his vehicle), 72 (Appellant

agreeing that “[d]uring th[e] time period” of the New York trip, he was still

employed with the candy company), with id. at 74 (Appellant testifying he

“stopped interacting with” R.K. “[t]oward the third week of November”

because of his new job hauling frack sand), 77 (Appellant testifying that his

lack of interaction with R.K. because of his new job caused a problem for her);

see also Knight, 290 A.3d 688 (unpublished memorandum at 8) (observing

Appellant “posited that [R.K.] had felt abandoned by him when he took a new

job, which resulted in him having less time for her. He concluded that this

caused [R.K.] to become angry with him and to fabricate the sexual assault

____________________________________________

16 We further observe that M.K., whom Appellant called to testify as a defense

witness, corroborated R.K.’s testimony that Appellant lied about his age and

lied about obtaining M.K.’s permission to take R.K. on the New York trip. N.T.,

10/6/20, at 54, 59-61. M.K. further testified that she no longer trusted

Appellant “because he raped” R.K. Id. at 60.

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allegation. Appellant’s counsel reiterated these themes during his closing

argument.”). Appellant points to no evidence that R.K. had any access to his

belongings after he claims she became upset with him.

At trial, Appellant baldly asserted it “[c]ould have been my towel,” but

he never affirmatively testified that his bag contained a towel, much less one

stained with his semen. See N.T., 10/6/20, at 73-74, 77-78. He also never

testified that he had a blue and white towel like the one R.K. produced, or that

he had any towel that went missing. Id. Though Appellant indicated his bag

was in the vehicle he used to give R.K. rides, including to New York, he never

testified R.K. was ever alone with the bag. Id.

Appellant does not dispute that his semen was on the towel, but he

identifies no coherent explanation for this fact that is consistent with his denial

that any sexual activity occurred. While we recognize that the Commonwealth

bore the burden of proof and Appellant did not have to prove any theory, our

review of the evidence discloses that the towel was not simply a credibility

issue on which Nurse Friedman’s opinion could have tipped the balance in

R.K.’s favor.17

____________________________________________

17 The trial evidence indicated that, at the time Nurse Friedman examined R.K.

and formed her opinion, the towel had not yet been turned over to police, and

PSP testing had not yet confirmed the towel was stained with Appellant’s

semen. See N.T., 10/5/20, at 102, 119-25; N.T., 10/6/20, at 8, 29.

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For these reasons, we cannot conclude the PCRA court abused its

discretion in determining Appellant failed to establish a reasonable probability

that his trial would have had a different outcome had Nurse Friedman’s opinion

testimony been excluded. Our review of the totality of the evidence suggests

the instant outcome is not one “weakly supported by the record,” such that it

is “more likely to be affected by errors,” but rather is more akin to “one with

overwhelming record support.” Lesko, 15 A.3d at 383 (quoting Strickland,

466 U.S. at 696). The admission of Nurse Friedman’s opinion testimony,

though improper, was not “sufficient to undermine confidence in the outcome

of the proceeding.” Collins, 957 A.2d at 244 (citing Strickland, 466 U.S. at

694); see also Commonwealth v. Huertas, 605 EDA 2019, 2020 WL

408887 (Pa. Super. 2020) (unpublished memorandum) (holding PCRA

petitioner’s claim had arguable merit where pediatric expert witness testified

she believed child victims were telling the truth about sexual assault, though

her exam showed no physical evidence; but petitioner failed to demonstrate

actual prejudice, as expert’s improper testimony was not of sufficient

magnitude to undermine confidence in the verdict). As Appellant failed to

establish actual prejudice, his ineffectiveness claim merits no relief.

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Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/17/2025

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