Com. v. Smith, N.

J-S28026-25 2026 PA Super 10

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NIKODA RUSSELL SMITH :

:

Appellant : No. 1445 MDA 2024

Appeal from the Judgment of Sentence Entered May 9, 2024

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

No(s): CP-50-CR-0000612-2022

BEFORE: BOWES, J., OLSON, J., and KING, J.

OPINION BY OLSON, J.: FILED: JANUARY 15, 2026

Appellant, Nikoda Russell Smith, appeals from the May 9, 2024

judgment of sentence entered in the Court of Common Pleas of Perry County

after a jury convicted Appellant of aggravated indecent assault – without

complainant’s consent, aggravated indecent assault – complainant

unconscious or unaware, indecent assault – without complainant’s consent,

and indecent assault – complainant unconscious or unaware.1 Appellant was

sentenced to an aggregate term of 25 to 50 years’ incarceration to be followed

by three years’ probation.2 Appellant was also required to register, for the

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1 18 Pa.C.S.A. §§ 3125(a)(1), 3125(a)(4), 3126(a)(1), and 3126(a)(4),

respectively.

2 The trial court imposed separate, but concurrent, sentences of 25 to 50

years’ incarceration for each of Appellant’s four criminal convictions. Although

the trial court stated that “the sentences [] merge with each other for

sentencing purposes,” it is the criminal offenses that merge for sentencing

purposes with a sentence being imposed on only the highest graded offense.

J-S28026-25

remainder of his life, as a Tier III offender under Subchapter H of

Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”),

42 Pa.C.S.A. §§ 9799.10 - 9799.42.3 After careful review, we affirm the

judgment of sentence.

The factual circumstances underlying Appellant’s criminal convictions

are summarized as follows:

[The victim] was a friend of Appellant’s friend, [Walter]

Baumgartner [(“Baumgartner”)], and was attending a party at

[Appellant’s] residence on the night of October 1, 2022, as a guest

of [Baumgartner]. Later in the night, [the victim] fell asleep on

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Sentencing Order, 5/10/24; see also 42 Pa.C.S.A. § 9765 (stating, “No

crimes shall merge for sentencing purposes unless the crimes arise from a

single criminal act and all of the statutory elements of one offense are included

in the statutory elements of the other offense. Where crimes merge for

sentencing purposes, the [trial] court may sentence the defendant only on

the higher graded offense.” (emphasis added)). Merger of sentences occurs,

pursuant to Section 9765, only when the statutory elements of one offense

are included in the statutory elements of another offense and both crimes

arise from a single criminal act. 42 Pa.C.S.A. § 9765; see also

Commonwealth v. Baldwin, 985 A.2d 830, 837 (Pa. 2009). The criminal

offenses for which Appellant was convicted each include an additional element

not found in the other offenses. Therefore, Appellant’s sentences do not

merge pursuant to Section 9765.

Here, in fashioning Appellant’s punishment, the trial court imposed concurrent

sentences, and Appellant has not alleged that his sentences exceeded the trial

court’s statutory authority, posed a risk of double jeopardy, or penalized him

in the absence of evidentiary proof of all elements beyond a reasonable doubt.

Appellant’s term of probation was set to run consecutively to the term of

incarceration. Therefore, Appellant’s lawful, aggregate sentence was 25 to

50 years’ incarceration to be followed by three years’ probation.

3 The trial court found that, based upon the report issued by the Sexual

Offenders Assessment Board, Appellant was not a sexually violent predator.

Trial Court Order, 5/10/24.

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the sofa in the living room of Appellant’s home, along with

[Baumgartner]. At this time, [the victim] testified that she had

been extremely intoxicated. [The victim] testified that while she

was sleeping, her pants had been forcefully pulled down by the

waistband, and she [] felt Appellant swipe his penis from her

vaginal area to her buttock and then subsequently insert[] his

penis into her rectum. [The victim] was able to identify that it

was Appellant who committed the act[,] when it was occurring,

[because] she was able to turn her head to get a glimpse of him[.

A]lso, she testified that Appellant then fell off [] the [sofa] onto

the floor[] and[,] at that time, [Appellant’s wife] entered the living

room yelling at Appellant, asking him why his pants were down.

[The victim] testified that[,] the day after the [episode], she was

experiencing some pain [in] her [buttock area], as well as some

pain when trying to urinate. [The victim] decided to go to [an]

urgent care [clinic] to request a sexual assault kit, a pregnancy

test, a drug test, and [a sexually transmitted infection (“STI”)]

test. She then testified further that the results of those tests

[indicated] that she was suffering from [c]hlamydia and a urinary

tract infection.

Further, the Commonwealth provided the testimony of

[Baumgartner] who testified that[,] on the night of October [1],

2022, he fell asleep alongside [the victim] on the [sofa] at

Appellant[’s residence] after attending a housewarming party. In

the middle of the night, he was awoken by Appellant’s wife[]

yelling at Appellant who was [lying] on the floor with his pants

down. He further testified[] that he was informed by [the victim]

of Appellant’s actions the next day through [textual messaging].

The Commonwealth also provided the testimony of Appellant’s

wife[, who] at times had wavering credibility[. Appellant’s wife]

testified that she came downstairs in the middle of the night to

find Appellant on the living room floor with his pants down below

his waist. [Appellant’s wife] was unsure of how her husband fell

into that position, but she believed that it was due to him [] using

the bathroom, possibly relieving himself on [the couple’s] front

lawn, as he had done in the past.

Trial Court Opinion, 1/21/25, at 3-4 (record citations omitted).

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On October 24, 2023, a jury found Appellant guilty of the

aforementioned criminal acts.4 On May 9, 2024, the trial court sentenced

Appellant, as discussed supra. On May 20, 2024, Appellant filed a timely

post-sentence motion. The trial court denied Appellant’s post-sentence

motion on September 6, 2024.5 This appeal followed.6

Appellant raises the following issues for our review:

[1.] Was the jury’s verdict against the weight of the evidence in

that the Commonwealth failed to present sufficient evidence

as to each element of the crime of indecent assault?

[2.] Did the [trial] court err in allowing Dr. [Richard] Azzaro[

(“Dr. Azzaro”)], Tammy Bimber[,] and the victim to testify

about [the] victim’s medical examinations and diagnosis?

[3.] Did the [trial] court err when it allowed the Commonwealth

to impeach its own witness, namely [Appellant’s wife]?

Appellant’s Brief at 11 (extraneous capitalization omitted).7

Appellant’s first issue raises a claim that the jury’s verdict was against

the weight of the evidence on the ground that “the victim’s testimony was

inconsistent and contradicted the testimony of another Commonwealth

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4 The jury found Appellant not guilty of rape, 18 Pa.C.S.A. § 3121(a)(3), and

sexual assault, 18 Pa.C.S.A. § 3124.1. Verdict, 10/25/23.

5 Appellant’s judgment of sentence was made final by the denial of his

post-sentence motion.

6 Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

7 We note that the Commonwealth did not file an appellate brief in opposition

to Appellant’s claims of error.

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witness, Baumgartner, who was on the [sofa] at the time [Appellant

committed the criminal acts against the victim.]”8 Id. at 16-17.

Appellate review of a weight claim is a review of the exercise of

[the trial court’s] discretion, not of the underlying question of

whether the verdict is against the weight of the evidence. Because

the trial [court] had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration

to the findings and reasons advanced by the trial [court] when

reviewing a trial court’s determination that the verdict is[, or is

not,] against the weight of the evidence. One of the least

assailable reasons for granting or denying a new trial is the [trial]

court’s conviction that the verdict was[,] or was not[,] against the

weight of the evidence and that a new trial should be granted in

the interest of justice.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000); see also

Commonwealth v. Rodriguez, 340 A.3d 334, 349 (Pa. Super. 2025)

(stating, “the function of an appellate court is to review the trial court’s

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8 A claim that the jury, as fact-finder, should have credited one witness’s

testimony over another witness’s testimony goes to the weight, and not the

sufficiency, of the evidence. Commonwealth v. W.H.M., Jr., 932 A.2d 155,

160 (Pa. Super. 2007); see also Commonwealth v. Wilson, 825 A.2d 710,

713-714 (Pa. Super. 2003) (stating, a sufficiency of the evidence claim “does

not include an assessment of the credibility of the testimony offered by the

Commonwealth[; s]uch a claim is more properly characterized as a weight of

the evidence challenge”); Commonwealth v. Gaskins, 692 A.2d 224, 227

(Pa. Super. 1997) (stating, “credibility determinations are made by the

fact[-]finder and [] challenges [to those determinations] go to the weight, and

not the sufficiency, of the evidence”).

Notwithstanding the phrasing of Appellant’s claim as concerning the

sufficiency of the evidence to support each element of indecent assault, we

find Appellant’s claim is more properly construed as a challenge to the weight

of the evidence.

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exercise of discretion based upon a review of the record, rather than to

consider de novo the underlying question of the weight of the evidence”

(citation omitted)). A trial court abuses its discretion “where the course

pursued represents not merely an error of judgment, but where the judgment

is manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias[,] or ill-will.”

Horne, 89 A.3d at 285-286 (citation omitted); see also Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa. 2013) (stating, “[t]he term ‘discretion’ imports

the exercise of judgment, wisdom[,] and skill so as to reach a dispassionate

conclusion within the framework of the law, and is not exercised for the

purpose of giving effect to the will of the [trial court]”). By comparison, “the

role of the trial court is to determine whether, notwithstanding all the

evidence, certain facts are so clearly of greater weight that to ignore them, or

to give them equal weight with all the facts, is to deny justice.” Rodriguez,

340 A.3d at 349 (citation omitted). For an appellant to prevail on a weight of

the evidence claim, “the evidence must be so tenuous, vague[,] and uncertain

that the verdict shocks the conscience of the [trial] court.” Commonwealth

v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (citation and internal

quotation marks omitted), appeal denied, 833 A.2d 143 (Pa. 2003).

In support of his weight of the evidence claim, Appellant argues that the

victim and Baumgartner, “both Commonwealth witnesses, had contradictory

testimony as to the events [on the night of the incident] despite being on the

[sofa] together.” Appellant’s Brief at 23. According to Appellant, the victim

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testified that after Appellant forcefully ripped her pants down and penetrated

her rectum with his penis, she “jolted like really hard” and Appellant fell to the

floor. Id. at 18. The victim stated that the force of Appellant’s penetration

and her “jolt” were so great that it awoke Baumgartner, who, in turn, pushed

Appellant off the victim. Id. at 20-21. The victim further testified that,

afterward, Baumgartner helped her pull up her pants and covered her with a

blanket. Id. at 19.

According to Appellant, Baumgartner, during his trial testimony, denied

that he was awakened by Appellant’s actions and further denied that he

pushed Appellant off the victim, helped her pull up her pants, or covered her

with a blanket. Id. at 21. Baumgartner testified that he awoke only after he

heard Appellant’s wife yelling at Appellant about lying on the floor with his

pants down. Id. at 22. Appellant contends that the victim’s subsequent

textual message to Baumgartner asking him if they engaged in sexual

intercourse the prior evening demonstrates that the victim was “uncertain of

what occurred, if at all, and by whom.” Id. at 22.

In denying the request for a new trial based upon Appellant’s weight of

the evidence claim, the trial court explained

Hearing all the evidence, the jury was free to believe all, part, or

none of [the victim’s] testimony. However, despite differing

testimony by Appellant[’s] wife[ and Baumgartner,] as well as

some inconsistencies in [the victim’s] testimony, none of the

evidence presented by the Commonwealth contradicted human

experience or the laws of nature. Simply put, the jury found [the

victim’s] testimony that Appellant had sexual contact with her

credible, and that testimony clearly proved every element of the

charged crimes. Having had the benefit of observing the victim’s

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demeanor on the witness stand and manner of testifying, the

[trial] court concludes that the jury’s finding of guilt based on that

evidence does not shock one’s sense of justice.

Trial Court Opinion, 1/21/25, at 4 (citations omitted).

Critical to finding Appellant guilty of aggravated indecent assault and

indecent assault was the jury’s determination of witness credibility. 9 In

denying Appellant’s post-sentence motion raising a weight of the evidence

claim, the trial court considered the evidence presented at trial and the

reasonableness of the jury’s credibility determinations. In particular, the trial

court noted that Appellant’s wife’s explanation as to why her husband was

found lying on the floor with his pants down contradicted the victim’s

testimony regarding the same episode. The trial court also noted that the

victim testified that she was able to identify Appellant as the perpetrator

because she was able to turn her head and “catch a glimpse of him.”

Appellant’s assertion that the trial court erred in denying his weight claim

based upon the inconsistencies in the victim’s testimony and the fact that

portions of the victim’s testimony were contradicted by other witnesses,

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9 Although Appellant states, in his first issue, that he is challenging the weight

of the evidence as it relates to his “indecent assault” convictions, his appellate

brief sets forth the argument that his convictions for both aggravated

indecent assault and indecent assault were contrary to the weight of the

evidence. We note that Appellant was charged under two subsections of the

aggravated indecent assault statute and, similarly, two subsections of the

statutory provision defining indecent assault. In substance, Appellant’s

argument challenged the reliability of the victim’s testimony, both as to the

nature of the attack and the identity of the perpetrator. As such, we will

consider Appellant’s claim as a global challenge to the weight of his

aggravated indecent assault and indecent assault convictions.

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namely Appellant’s wife and Baumgartner, invites this Court to do nothing

more than alter the result reached by the fact-finder by reassessing witness

credibility and reweighing the evidence presented at trial, which the trial court,

based upon its observations, found worthy of belief. We decline Appellant’s

invitation since the jury, while passing on the credibility of the witnesses and

weight of the evidence, was free to believe all, part, or none of the evidence.

Commonwealth v. Dunkins, 229 A.3d 622, 634 (Pa. Super. 2020), aff’d,

263 A.3d 247 (Pa. 2021), cert. denied, 142 S.Ct. 1679 (2022). Moreover, we

discern no abuse of discretion in the trial court’s determination that Appellant’s

convictions of aggravated indecent assault (two counts) and indecent assault

(two counts) were not against the weight of the evidence.

In his second issue, Appellant challenges the trial court’s ruling on the

admissibility of certain evidence. “On a challenge to a trial court’s evidentiary

ruling, our standard of review is one of deference.” Commonwealth v.

Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012), appeal denied, 63 A.3d

1244 (Pa. 2013). “The admissibility of evidence is solely within the discretion

of the trial court and will be reversed only if the trial court [] abused its

discretion.” Hernandez, 39 A.3d at 411 (citation omitted).

Appellant asserts that the trial court erred in qualifying Dr. Azzaro as an

expert in victim behavior and dynamics of sexual assault and by admitting, as

evidence, Dr. Azzaro’s written report because the report contained

impermissible assessments as to the victim’s credibility. Appellant’s Brief at

27-28.

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Determining whether a witness may testify as an expert is a

matter within the sound discretion of the trial court, whose

decision will only be reversed for a clear abuse of discretion. In

order to qualify as an expert in a given field, a witness must

possess more expertise than is within the ordinary range of

training, knowledge, intelligence, or experience. The test to be

applied when qualifying a witness to testify as an expert witness

is whether the witness has any reasonable pretension to

specialized knowledge on the subject under investigation.

Yacoub v. Lehigh Valley Med. Assoc., P.C., 805 A.2d 579, 591 (Pa. Super.

2022) (en banc) (citations and quotation marks omitted), appeal denied, 825

A.2d 639 (Pa. 2003). Furthermore, Section 5920 of the Judicial Code states

that, in criminal proceedings related to charges brought under Chapter 31

(sexual offenses) of the crimes code,

a witness may be qualified by the [trial] 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.

42 Pa.C.S.A. § 5920.

In admitting Dr. Azzaro as an expert, the trial court found that Dr.

Azzaro

has been practicing for [35] years and is a clinical social worker

licensed in Pennsylvania[. H]e obtained a doctorate in clinical

social work from the University of Pennsylvania, and he has done

research on behaviors of sexual trauma and victims. Dr. Azzaro

also testified that he has [qualified previously] as an expert in the

field of sexual trauma and victims in other counties in

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Pennsylvania, and has [qualified previously] as an expert in

domestic violence in Maryland.

Trial Court Opinion, 1/21/25, at 6 (extraneous capitalization omitted).

At trial, Dr. Azzaro testified that he was “a licensed clinical social worker

in Pennsylvania [and he has] a doctorate in clinical social work from the

University of Pennsylvania.” N.T., 10/23/23, at 154. Dr. Azzaro has “over 35

years of practice experience working with victims of trauma, all forms of

trauma” but his area of expertise “is focused primarily on sexual trauma and

victims.” Id. Dr. Azzaro “worked with probably [] several hundred to a

thousand victims of sexual violence” including men, women, and children. Id.

Dr. Azzaro stated that he has “done research related to victim behaviors and

sexual assault [and] presented trainings across the country regarding victim

behaviors related to sexual assault.” Id. at 155. Dr. Azzaro also authored a

research dissertation “that talks about victim behavior related to victims of

sexual assault.” Id.

Based upon Dr. Azzaro’s testimony regarding his qualifications and his

extensive and specialized training in victim behaviors related to sexual

assault, we discern no abuse of discretion in the trial court’s decision to admit

Dr. Azzaro as an expert. To the extent that Appellant asserts that Dr. Azzaro

was not qualified as an expert because he did not recognize rape trauma

syndrome as a legitimate diagnosis, we do not find this assertion sufficient to

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disqualify Dr. Azzaro as an expert.10 See James v. Albert Einstein Med.

Ctr., 170 A.3d 1156, 1162 (Pa. Super. 2017) (stating, it is “for the jury to

determine the weight to be given to expert testimony, in light of the

qualifications shown by the expert witness”). Appellant was free to challenge

Dr. Azzaro’s opinions and views regarding rape trauma syndrome on

cross-examination. Furthermore, having explored Dr. Azzaro’s views before

the fact-finder, Appellant was then free to make the case that Dr. Azzaro’s

opinions did not merit belief. In short, Dr. Azzaro’s refusal to recognize rape

trauma syndrome as a legitimate diagnosis did not support his rejection as an

expert witness.

Regarding the admission of Dr. Azzaro’s written report, “[i]t is

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

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10 Rape trauma syndrome has been explained as

one kind of post-traumatic stress disorder. The essential feature

of [a] post-traumatic stress disorder is the development of

characteristic symptoms after a psychologically traumatic incident

that is usually beyond the range of ordinary human experience.

Those symptoms typically involve reexperiencing the traumatic

incident; numbing of responsiveness to, or lessened involvement

with, the external world; and a variety of autonomic, dysphoric,

or cognitive symptoms.

Commonwealth v. Pickford, 536 A.2d 1348, 1351 n.2 (Pa. Super. 1987);

see also https://my.clevelandclinic.org/health/diseases/rape-trauma-

syndrome (last visited Dec. 16, 2025) (stating, “Rape trauma syndrome is the

emotional, physical and behavioral response to rape and other forms of sexual

assault. It’s a type of post-traumatic stress disorder [] specific to

non[-]consensual sexual acts.”).

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impermissible, as it encroaches on the province of the jury to make such

determinations.” Commonwealth v. Jones, 240 A.3d 881, 896 (Pa. 2020).

Previously, our Supreme Court, in Commonwealth v. Dunkle, 602 A.2d 830

(Pa. 1992), defined the scope of admissibility for expert testimony in cases

involving sexual assault or sexual abuse and broadly proscribed that all expert

testimony which even purported to touch upon the credibility of a witness,

including expert testimony regarding victim responses and behaviors in the

aftermath of sexual assault, impermissibly interfered with a jury’s province of

determining witness credibility. Id. at 837-838. Originally enacted in 2012,

Section 5920 altered Pennsylvania’s prohibition regarding the admissibility of

expert testimony in cases involving sexual assault or sexual abuse. Section

5920 states, in pertinent part, that once an individual is qualified under

Section 5920(b)(1) as an expert in a criminal proceeding involving, inter alia,

sexual offenses, the expert “may testify to facts and opinions regarding

specific types of victim responses and victim behaviors” but the expert’s

“opinion regarding the credibility of any other witness, including the victim,

shall not be admissible.” 42 Pa.C.S.A. § 5920(b)(2) and (3).

In Jones, our Supreme Court analyzed whether, or not, Section 5920

effectively abrogated its decision in Dunkle, supra. Jones, 240 A.3d at 896.

The Jones Court declined to read its prior holding in Dunkle as being so broad

as to “preclude all expert testimony concerning victim responses and

behaviors to sexual assaults.” Jones, 240 A.3d at 896 (emphasis added).

Rather, the Jones Court held that “[w]hile some testimony on [the topic of

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

impermissibly invading the jury’s province of determining [witness]

credibility,” not all testimony was prohibited. Id. at 896-897. The Jones

Court explained that “a properly qualified expert [under Section 5920(b)(1)]

may testify to facts and opinions regarding specific types of victim responses

and behaviors in certain criminal proceedings involving sexual assaults,

provided [the expert does] not offer opinions regarding the credibility of any

witness, including the victim.” Id. at 897, citing 42 Pa.C.S.A. § 5920(b)(3).

Our Supreme Court went on to state that whether, or not, an expert, properly

qualified under Section 5920(b)(1), offers an opinion regarding the credibility

of a witness must be assessed on a case-by-case basis. Id. at 897.

At trial, Appellant objected to a portion of Dr. Azzaro’s report, which

reads as follows:

Common Issues:

Why do victims stay/go back/continue to communicate

with their offenders?

• A victim’s response to a traumatic event, such as rape,

should not be used as evidence as to whether or not the

rape occurred. When the victim knows her assailant[,] her

experience of the assault can be complicated by pre-existing

love or feelings for the assailant, or even out of fear.

• In some cases, victims try to normalize their experience by

sexually re-engaging or continuing a relationship with the

offender in an attempt to cope with the assault. It is seen

as counterintuitive because the response differs from what

the social and cultural norm expects the victim’s response

to be.

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• Mainstream and pornographic media reinforce cultural

norms that indicate that it is a woman’s “duty” to have sex

with her partner. This notion can mislead female victims

into blaming themselves for the unwanted sexual encounter

or believing they are bad partners because they did not

enjoy sex against their will.

• There is a misperception by many mental health and

criminal justice providers that people who buy and use

drugs cannot be victims of sexual violence.

• The relationship between sexual assault and drug use is

bi-directional. Substance use increases an individual’s risk

of sexual violence. Commonly, victims use drugs or alcohol

as a way of coping with the traumatic experience of sexual

assault.

• When a victim is intoxicated by drugs or alcohol, they are

unable to give consent. This should not be misunderstood

as the cause of the assault.

• Perpetrators often use substances like alcohol or drugs to

incapacitate their victims to help make it easier to sexually

assault them.

• When targeting victims, perpetrators often seek people who

are vulnerable and have less power. These targets include

people with addictions or who use drugs or alcohol.

Perpetrators target such individuals because they are less

likely to report the assault or when they do, they are less

likely to be believed or deemed credible.

• Victims respond to trauma in a variety of individual ways.

It is not uncommon for victims to demonstrate a limited or

full range of emotions. For example, some victims are flat

and constricted during interviews/testimony while the same

victim may express other emotions[,] i.e.[,] sadness and

anger[,] at other times. A common misperception is that

victims should respond in a certain manner.

Commonwealth Exhibit 9 at 2-3 (unpaginated).

Appellant argued, at trial, that Dr. Azzaro’s report “create[ed] the

impression for the jury that these things made the person credible and that’s

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expressly what is not allowed by these types of experts.” N.T., 10/23/23, at

166. The trial court responded that “[w]hat experts can’t do is to say I find

this victim credible or that victim credible.” Id. (emphasis added). The trial

court held that Dr. Azzaro’s report “talk[ed] in generalities” and “generalized

statements” and subsequently overruled Appellant’s objection. Id. at

166-167.

Upon review, we concur with the trial court and the record supports that

Dr. Azzaro’s report, and subsequent testimony regarding the opinions outlined

in his report, spoke in generalized terms regarding misconceptions held by the

general public with regard to a victim’s common responses to, and behavior

associated with, sexual assault. See generally, id. at 164-173; see also

Commonwealth Exhibit 9. For example, regarding the statement in Dr.

Azzaro’s report that “[p]erpetrators target such individuals [(referring to

people with addictions or who use drugs and alcohol)] because they are less

likely to report assault or when they do, they are less likely to be believed or

deemed credible,” Dr. Azzaro explained that

Perpetrators of sexual violence and other forms of violence look

for vulnerability. And one area of vulnerability is getting people

to participate in the use of drugs and alcohol to create such

vulnerability and incapacitate them on two different fronts: one,

to reduce inhibitions and create opportunity, and the second is

also as it pertains to sexual assault. Often times our mantra in

society is that if we are under the influence, then a rape didn’t

occur. So a lot of times perpetrators will play into that narrative

as well.

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N.T., 10/23/23, at 170. Dr. Azzaro did not, at any point during his testimony,

apply his opinions, as outlined in his report, to the sexual assault victim in the

case sub judice. Id. In fact, on cross-examination, Dr. Azzaro testified that

he was unaware of any of the factual allegations of the case sub judice and

that his “testimony [has] nothing to do with what happened in this case[.]”

Id. at 173. Because Dr. Azzaro did not offer an opinion regarding the

credibility of the victim in this case, we discern no error in the trial court’s

decision to overrule Appellant’s objection to the admission of Dr. Azzaro’s

report. See Commonwealth v. Smith, 206 A.3d 551, 562 (Pa. Super. 2019)

(permitting expert testimony where the expert, having never met the victim

or reviewed the records of the case, discussed in general terms victim

responses to sexual assault), appeal denied, 217 A.3d 202 (Pa. 2019); see

also Commonwealth v. Beatty, 335 A.3d 1236, 1250 (Pa. Super. 2025)

(allowing an expert’s opinion where the expert spoke in general terms and

provided the jury with background information regarding the behavior of

victims of sexual assault); Commonwealth v. Cramer, 195 A.3d 594, 608

(Pa. Super. 2018) (stating that, an expert’s general testimony “about the

manner in which victims of sexual abuse respond to an assault” was

permissible because the export did not offer an opinion as to the credibility of

the victim); 42 Pa.C.S.A. § 5920(b).

Next, as part of his second issue, Appellant asserts that the trial court

erred in denying his motion in limine and admitting into evidence the

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laboratory report that revealed the victim tested positive for chlamydia. Id.

at 28-29; see also Commonwealth Exhibit 11.

At the hearing on Appellant’s motion in limine, Appellant argued that

the Confrontation Clause required the Commonwealth to call, as a witness at

trial, the person who analyzed the samples obtained from the victim’s medical

examination and subsequently prepared a report summarizing the laboratory

analysis, or to comply with Pennsylvania Rule of Criminal Procedure 574,

which required the Commonwealth to provide notice, in advance of trial, of its

intent to offer the laboratory report supported by a certification from the

person who performed the analysis and authored the report. Appellant then

asserted that, because the Commonwealth did not intend to call the individual

who analyzed the samples and authored the laboratory report as a witness at

trial and because the Commonwealth did not intend to comply with Rule 574,

admission of the laboratory report violated Appellant’s rights under the

Confrontation Clause. N.T., 10/23/23, at 1-6, 12-13, 16-17, 22-25.

The Commonwealth responded that, because the report did not directly

incriminate Appellant, it neither triggered protections under the Confrontation

Clause nor compelled compliance with Rule 574. Rather, according to the

Commonwealth, the physician’s assistant, who treated the victim at the urgent

care clinic, would testify that she ordered the laboratory analysis and

subsequent report as part of the medical examination of the victim to

determine whether, or not, further treatment for chlamydia was required. As

such, the Commonwealth argued that admission of the laboratory report did

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not violate Appellant’s rights under the Confrontation Clause. Id. at 10-11,

13-15, 22.

Ultimately, the trial court determined that the laboratory report was

non-testimonial and, thus, did not implicate Appellant’s rights under the

Confrontation Clause. Instead, the trial court stated the report would be

admissible under the business records exception to the rule against hearsay,

as discussed in greater detail infra, so long as the Commonwealth called the

physician’s assistant to testify at trial to support application of the hearsay

exception.11 Id. at 19, 25.

It is well-settled that, in reviewing a trial court’s order granting or

denying a motion in limine, “we apply an evidentiary abuse of discretion

standard of review.”12 Commonwealth v. Stokes, 78 A.3d 644, 654

(Pa. Super. 2013) (stating that, “[t]he admissibility of evidence is a matter

____________________________________________

11 The “business records” exception to the rule against hearsay is formally

referred to as the “records of a regularly conducted activity” exception and is

codified at Pennsylvania Rule of Evidence 803(6). For ease of reference, we

refer to the records of a regularly conducted activity exception as the business

records exception.

12 “Consistent with [Pennsylvania Rule of Evidence] 103(a), a motion in limine

may preserve an objection for appeal without any need to renew the objection

at trial, but only if the trial court definitively rules on the motion.”

Commonwealth v. Reich, 340 A.3d 997, 1008 (Pa. Super. 2025), citing

Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011), appeal

denied, 49 A.3d 441 (Pa. 2012).

Here, as discussed supra, the trial court definitively ruled on Appellant’s

motion in limine regarding the admission of the laboratory report. Therefore,

Appellant preserved his claim of error without the need to renew it at trial.

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directed to the sound discretion of the trial court, and an appellate court may

reverse only upon a showing that the trial court abused that discretion”),

appeal denied, 89 A.3d 661 (Pa. 2014). Whether, or not, the admission of

evidence violates the Confrontation Clause, however, raises a question of law

for which our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Brown, 185 A.3d 316, 324 (Pa. 2018).

The Confrontation Clause of the Sixth Amendment, made

applicable to the States via the Fourteenth Amendment, provides

that in all criminal prosecutions, the accused shall enjoy the right

to be confronted with the witnesses against him [or her]. In

[Crawford v. Washington, 541 U.S. 36, 51 (2004)], the [United

States Supreme] Court held that the Sixth Amendment

guarantees a defendant’s right to confront those who bear

testimony against him [or her], and defined “testimony” as “a

solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” The Confrontation Clause, the

High Court explained, prohibits out-of-court testimonial

statements by a witness unless the witness is unavailable and the

defendant had a prior opportunity for cross-examination.

Commonwealth v. Yohe, 79 A.3d 520, 530-531 (Pa. 2013) (citations, some

quotation marks, brackets, ellipsis, and footnotes omitted). Article I,

Section 9 of the Pennsylvania Constitution provides similar protections by

guaranteeing that, in all criminal prosecutions, the accused has a right “to be

confronted with the witnesses against him [or her].”13 PA. CONST. art. I, § 9;

____________________________________________

13 Appellant has not asserted that the Pennsylvania Constitution affords him

greater protections with respect to the right to confrontation than those

protections provided by the United States Constitution. As such, our analysis

is the same under both the United States Constitution and Pennsylvania

Constitution. Commonwealth v. Weeden, 304 A.3d 333, 344 n.18 (Pa.

2023).

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see also Yohe, 79 A.3d at 531 n.10. The ultimate goal of the protection

afforded by the Confrontation Clause “is to ensure reliability of evidence, but

[the protection] is a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be assessed in a

particular manner by testing in the crucible of cross-examination.” Brown,

185 A.3d at 326 (original quotation marks omitted), quoting Melendez-Diaz

v. Massachusetts, 557 U.S. 305, 317 (2009).

Prior to the decision in Crawford, supra, “the United States Supreme

Court was of the view the Confrontation Clause did not bar the admission of

out-of-court statements that fell within a firmly rooted exception to the

hearsay rule or that bore a particularized guarantee of trustworthiness.”

Brown, 185 A.3d at 324, citing Crawford, 541 U.S. at 40 and Ohio v.

Roberts, 448 U.S. 56, 66 (1980); see also Commonwealth v. Carter, 932

A.2d 1261, 1265 n.3 (Pa. 2007). “In Crawford, however, the [High] Court

sought to align its Confrontation Clause analysis with the original intent of the

framers [of the United States Constitution] who, according to the [High] Court,

were concerned about abuses of the civil-law mode of criminal procedure.”14

Brown, 185 A.3d at 324. The Crawford Court, confronted with the

admissibility of a witness’s recorded statement to police, determined that the

____________________________________________

14 “The primary object of the Confrontation Clause was to prevent depositions

or ex parte affidavits, such as sometimes admitted in civil cases, being used

against [a defendant in criminal cases] in lieu of a personal examination and

cross-examination of the witness[.]” Weeden, 304 A.3d at 335 (Wecht, J.

concurring), quoting Mattox v. United States, 156 U.S. 237 (1895).

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framers “would not have permitted the admission of testimonial statements

of a witness who did not appear at trial, and held that such statements could

be admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.” Id. (original

quotation marks omitted), citing Crawford, 541 U.S. at 59, 62 (stating,

“[w]here testimonial statements are involved, we do not think the [f]ramers

meant to leave the Sixth Amendment’s protection to the vagaries of the rules

of evidence, much less to amorphous notions of ‘reliability’”). Thus, Crawford

refocused Confrontation Clause jurisprudence and declared that the

introduction of extra-judicial statements of a “testimonial” nature implicated

Confrontation Clause protection. See Weeden, 304 A.3d at 357 (Wecht, J.

concurring).

In cases decided after Crawford, the High Court held that out-of-court

statements are “‘testimonial,’ and thus subject to Confrontation Clause

restraints, when their ‘primary purpose’ is to establish or prove past events

for purposes of proof at a criminal trial.” Brown, 185 A.3d at 325, citing

Davis v. Washington, 547 U.S. 813, 822 (2006) (stating that, a statement

is testimonial when, viewed objectively, “the primary purpose of the

[statement] is to establish or prove past events potentially relevant to later

criminal prosecution”). The Crawford Court, however left “for another day

any effort to spell out a comprehensive definition of ‘testimonial’

[statements.]” Crawford, 541 U.S. at 68 (stating that, the term “testimonial”

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“at a minimum” applies to “prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and to police interrogations”).

Several years later, the United States Supreme Court, in

Melendez-Diaz, supra, considered whether “certificates reporting the

forensic analysis of the composition and quantity of substances seized from

the defendant,” such as cocaine, were “testimonial” and, thus, subject to

Confrontation Clause constraints. Brown, 185 A.3d at 325. The

Melendez-Diaz Court held that forensic “certificates are functionally identical

to live, in-court testimony, doing precisely what a witness does on direct

examination[] and[,] thus[,] were ‘testimonial’ in nature. Moreover, the

[High] Court held [that] admission of the certificates of analysis without the

author’s live testimony violated the Confrontation Clause because the

certificates fell into the core class of testimonial statements identified in

Crawford.” Id. (original quotation marks, citations, and original brackets

omitted), citing Melendez-Diaz, 557 U.S. at 310-311. In extending the reach

of testimonial evidence to include written statements, such as certificates of

analysis, the Melendez-Diaz Court noted that, “[s]ignificantly, the

certificates of analysis were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available

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for use at a later trial[.]”15 Brown, 185 A.3d at 325 (original quotation marks

omitted), citing Melendez-Diaz, 557 U.S. at 311.

In [Bullcoming v. New Mexico, 564 U.S. 547 (2011)], decided

two years after Melendez-Diaz, the High Court reviewed the

admissibility of a [blood alcohol content (“BAC”)] report authored

and signed by a non-testifying analyst. The report was introduced

at trial for the substantive purpose of proving the truth of the

matter asserted by its out-of-court author, namely, that the

defendant had a [certain] BAC level[,] which was the central

question at the defendant’s trial, and was dispositive of his guilt.

The report was introduced through the testimony of a surrogate

analyst. The New Mexico Supreme Court held [that] the

surrogate[’]s testimony was adequate to satisfy the requirements

of the Confrontation Clause. The issue before the High Court was

“whether the Confrontation Clause permits the prosecution to

introduce a forensic laboratory report containing a testimonial

certification - made for the purpose of proving a particular

fact - through the in-court testimony of a scientist who did not

sign the certification or perform or observe the test reported in

the certification.” Bullcoming, 564 U.S. at 652[.] The High Court

ruled [that] the Confrontation Clause precludes such practice,

holding [that] “the Clause does not tolerate dispensing with

confrontation simply because [a] court believes that questioning

one witness about another’s testimonial statements provides a fair

enough opportunity for cross-examination.” Id. at 662[.]

Brown, 185 A.3d at 326. In emphasizing the High Court’s reasoning for

finding that the BAC report was testimonial in nature, Justice Sotomayor, in

her concurring opinion in Bullcoming, supra, “noted the BAC report had a

____________________________________________

15 The Melendez-Diaz Court found that although the documents were

identified as “certificates” under Massachusetts law, they were “quite plainly

affidavits” in that they were “declarations of facts written down and sworn to

by the declarant before an officer authorized to administer oaths.”

Melendez-Diaz, 557 U.S. at 310 (brackets omitted). As affidavits, the

documents took on the persona of statements that an objective person could

reasonably believe would be available for use at a later trial. Id. at 311.

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primary purpose of creating an out-of-court substitute for trial testimony and

opined the formality of the BAC report further suggests its evidentiary

purpose.”16 Brown, 185 A.3d at 326 (original quotation marks omitted),

citing Bullcoming, 564 U.S. at 670 (Sotomayer, J. concurring).

Shortly after Bullcoming, the High Court decided Williams v.

Illinois, [567 U.S. 50 (2012)], a divided opinion in which the

[High] Court sought to further refine its articulation of the primary

purpose test under the alternate factual scenario envisioned only

hypothetically in Bullcoming by Justice Sotomayor.[17] Williams

involved a rape prosecution in which an expert testified she

obtained a [deoxyribonucleic acid (“DNA”)] profile report from an

independent [laboratory] based on a semen specimen taken from

a vaginal swab of the [assault] victim. The [DNA profile] report

was not introduced into evidence. The expert testified she

compared the DNA profile contained in the [] report to the

defendant’s recorded DNA profile and concluded it was a match.

The defendant challenged the expert’s testimony which relied

upon the [DNA profile] report on the basis [that reference to the

report] without testimony from its author violated the

Confrontation Clause.

____________________________________________

16 Justice Sotomayor explained that the absence of notarization is not

dispositive of the “formality” of a statement. Rather, the fact that an analyst

is asked to sign his or her name and certify to both the results and the

statements made within the document is sufficient to deem the document a

formal statement. Bullcoming, 564 U.S. at 671 (Sotomayer, J. concurring).

17 As discussed supra, the High Court in Bullcoming held that the BAC report,

which was admitted as evidence at trial, was testimonial in nature

because its primary purpose was to establish an element of the crime. In her

concurring opinion, Justice Sotomayer stated that the High Court “would

[have] face[d] a different question [regarding] the constitutionality of allowing

an expert witness to discuss others’ testimonial statements if the testimonial

statements were not themselves admitted as evidence.” Bullcoming,

564 U.S. at 673 (emphasis added) (Sotomayer, J. concurring). As discussed

infra, the Williams Court confronted the alternative scenario envisioned in

Justice Sotomayer’s remarks. Williams, 567 U.S. at 67.

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Brown, 185 A.3d at 327 (emphasis added). The plurality opinion in Williams

held that the DNA profile “report was itself non-testimonial, and thus beyond

the reach of the Confrontation Clause, because the report did not identify the

defendant, was not inherently inculpatory, and was created before any

suspect was identified.”18 Id. (original quotation marks omitted), citing

Williams, 567 U.S. at 58. Justice Thomas, while agreeing with the other four

members of the High Court that the DNA profile did not violate the

Confrontation Clause, differed in his reasoning because he believed the

“statements lacked the requisite ‘formality and solemnity’ to be considered

‘testimonial’ for purposes of the Confrontation Clause.” Williams, 567 U.S.

at 104, citing Michigan v. Bryant, 562 U.S. 344 (2011). The dissent would

have held that the DNA profile report was testimonial in nature and “the

independent [laboratory] analyst who prepared the DNA profile report, to

which the defendant’s DNA sample was compared, was a witness against the

defendant whom the defendant had a right to confront.”19 Brown, 185 A.3d

at 327-328, citing Williams, 567 U.S. at 123 (stating that, “the [DNA] report

was made to establish some fact in a criminal proceeding” (original quotation

marks omitted) (Kagan, J. dissenting)) and 125. Due to the plurality

____________________________________________

18 The plurality opinion was authored by Justice Alito and was joined by Chief

Justice Roberts, Justice Kennedy and Justice Breyer. Justice Thomas

concurred in the judgment.

19 The dissent was authored by Justice Kagan and joined by Justice Scalia,

Justice Ginsberg, and Justice Sotomayor.

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composition of the Williams decision, it never attained the status of binding

precedent. Yohe, 79 A.3d at 536 (stating, “[w]hen a fragmented [High] Court

decides a case and no single legal rationale explaining the results garners a

majority, then ‘the holding of the [High] Court may be viewed as that position

taken by those [Justices] who concurred in the judgments on the narrowest

grounds.’” (quoting Marks v. United States, 430 U.S. 188, 193 (1977)); see

also Justin Pidot, Tie Votes in the Supreme Court, 101 Minn. L. Rev. 245, 245

(2016) (stating, “[s]ince at least 1792, the [High] Court has followed the rule

that where the Justices are evenly divided, the lower court’s decision is

affirmed, and the Supreme Court’s order has no precedential effect”).

In light of the non-precedential value of the Williams decision, our

Supreme Court, in subsequent decisions, returned to its own jurisprudence

and the “primary purpose test” under Crawford, Melendez-Diaz, and

Bullcoming for determining whether a statement is testimonial or

non-testimonial. See Weeden, 304 A.3d at 350 n.23 (stating, “[w]hile[]

Williams arguably invoked a new primary purpose test[,] this innovation was

endorsed by only a plurality of the [High] Court; accordingly, we will adhere

to the primary purpose test set out in the [High] Court’s decisions spanning

from Crawford to Bullcoming”).

[In Yohe, supra, our Supreme Court] addressed whether the

admission of a toxicology report in a [driving under the influence

(“DUI”)] case violated the defendant’s rights under the

Confrontation Clause[. In Yohe, the] defendant’s blood sample

was tested three times by several analysts from one [laboratory]

using two different methods, as per routine [laboratory] practice.

Dr. Blum, a toxicologist, and the assistant [laboratory] director

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responsible for the [laboratory’s] quality assurance controls,

received the raw data from the analysts who performed the tests,

reviewed the demographic information, verified the appropriate

tests were conducted, evaluated the chain of custody, and

compared the individual test results to arrive at a BAC result which

he set forth in a toxicology report summarizing the test results.

Yohe, 79 A.3d at 523-[5]24. Dr. Blum signed the report

electronically, certifying its content and his own participatory role

in reviewing the data and ensuring its accuracy. Id. at 524. At

Yohe’s trial, the report showing his BAC [] was admitted into

evidence through Dr. Blum’s expert testimony. Yohe objected to

the admission of the report and to Dr. Blum’s testimony on the

basis they violated his right to confrontation because the specific

[laboratory] technicians who actually performed the tests did not

testify. The objections were overruled, and Yohe was convicted

of DUI and sentenced. On post-sentence motions, however, the

trial court held the toxicology report was a testimonial statement

requiring production at trial of the analysts who actually

performed the underlying tests so that the defendant could

confront them. Id. at 525-[5]26. The Commonwealth appealed

to [this Court], arguing Dr. Blum was[,] in fact[,] the analyst who

derived the actual BAC result from his comparison of the readings

of the underlying tests conducted under differing methods. [This

Court] agreed Dr. Blum (rather than the original [laboratory]

technicians) was the witness the defendant had a right to

confront, and reversed the grant of a new trial.

On appeal, [our Supreme] Court analyzed the relevant precedent

from the High Court, viewing “with caution” the “fragmented”

decision in Williams where there was no single rationale to

explain the result which garnered a majority. [Id.] at 536. [The

Yohe] Court noted the narrowest ground for the decision in

Williams was the conclusion that the DNA profile report from the

independent [laboratory] was not testimonial. However, four

Justices disagreed with that conclusion and the remaining Justices

could not agree about why the report was not testimonial. Thus,

[the Yohe] Court considered whether Dr. Blum’s toxicology report

was testimonial by comparing it to “the facts of the testimonial

statements considered in Melendez-Diaz and Bullcoming,” id.

at 537, and easily concluded the toxicology report was

testimonial. Id. The Yohe Court then considered whether Dr.

Blum was the appropriate analyst to appear at trial for purposes

of protecting Yohe’s rights under the Confrontation Clause. [Our

Supreme] Court noted Dr. Blum had extensive supervisory

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involvement in utilizing the information supplied by his

subordinates and highlighted his unique role as the only individual

who engaged in the critical comparative analysis of the results of

the various tests performed to determine the defendant’s actual

BAC. Id. at 540. The Yohe Court surmised the facts

distinguished the case from Bullcoming where the surrogate

witness had no opinion concerning the defendant’s BAC, “rather

the testifying witness merely read the analyst’s report into

evidence and offered no independent opinion about the

defendant’s blood alcohol levels.” Id. at 541, citing Bullcoming,

564 U.S. at 662[.] Thus, the Yohe Court determined the

defendant’s rights under the Confrontation Clause were not

violated because the “author” of the toxicology report was the

analyst who testified at trial and was available for

cross-examination. [Yohe, 79 A.3d at 541.]

Brown, 185 A.3d at 328-329 (original brackets omitted).

In Brown, our Supreme Court considered “whether the challenged

autopsy report - presented without accompanying testimony by its

author[ - ]was testimonial in nature such that Brown’s Sixth Amendment right

to confront the witnesses against him was violated by its admission at trial.”

Id. at 329. Our Supreme Court recognized

cases from a number of jurisdictions hold autopsy reports are

non-testimonial because they are not created primarily for

presentation in a criminal trial and thus, the admission of the

report without the supporting testimony of its author in criminal

trials does not raise Confrontation Clause concerns. Pennsylvania

law[, however,] requires the preparation of autopsy reports in all

cases of sudden, violent, and suspicious deaths, or deaths by

other than natural causes, and in such cases, the autopsy and

subsequent report are designed to determine whether the death

occurred as the result of a criminal act. Moreover, the law requires

the coroner or medical examiner charged with conducting and

reporting the results of such autopsies to consult and advise the

local district attorney to the extent practicable.

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Id. (citation omitted). The Brown Court concluded that an autopsy report is

testimonial because

the primary purpose for preparation of an autopsy report under

these circumstances is to establish or prove past events

potentially relevant to a later criminal prosecution and that any

person creating the report would reasonably believe it would be

available for use at a later criminal trial.

Id. The Brown Court further explained that “[b]ecause the autopsy report []

was testimonial in nature, under the Crawford, Melendez–Diaz,

Bullcoming[,] and Yohe precedents, the report could properly be introduced

into evidence without [the author’s] accompanying testimony only if [its

author] was unavailable and Brown had a prior opportunity to cross-examine

[the author].” Id. (original quotation marks and citation omitted). Since

Brown had no prior opportunity to cross-examine the author of the autopsy

report, the Brown Court held that the admission of the report into evidence

was error. Id.

To date, much has been decided in Pennsylvania with regard to whether

BAC reports within DUI cases should be viewed as testimonial statements that

implicate Confrontation Clause protections. Despite this, whether a laboratory

report that contains the results of a STI test performed on a victim of sexual

assault qualifies as a testimonial statement appears to be an issue of first

impression for Pennsylvania courts.

Under Crawford, Yohe, and their progeny, we are able to glean that

when a laboratory report is generated for the primary purpose of medical

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diagnosis and treatment, the laboratory report reflecting test results is

non-testimonial and, therefore, is not subject to the protections of the

Confrontation Clause. See, e.g., Commonwealth v. Banko, 268 A.3d 484,

492 (Pa. Super. 2022) (finding that the BAC test results were obtained for the

primary purpose of medical treatment after the defendant was transported to

the hospital following the automobile accident because the defendant reported

to be diabetic and complaining of pain; the test results were not obtained to

establish or prove past events relevant to a later criminal prosecution), appeal

denied, 279 A.3d 1176 (Pa. 2022); see also Commonwealth v.

McCullough, 324 A.3d 582, 587 (Pa. Super. 2024) (finding that medical

records containing objective information regarding the procedures performed

and the victim’s responses to treatment were not testimonial because they

were not created for the primary purpose of future litigation);

Commonwealth v. Dougan, 317 A.3d 619, 2024 WL 1267674, at *6

(Pa. Super. filed Mar. 26, 2024) (unpublished memorandum) (finding that

because the BAC test results were obtained for the primary purpose of medical

treatment and not at the request of law enforcement, the test results were

non-testimonial). In some instances, however, a laboratory report is

testimonial in nature and, therefore, subject to the protections of the

Confrontation Clause when medical tests are performed on patients and the

laboratory report reflecting the test results is subsequently generated for the

primary purpose of proving elements of a crime in contemplation of criminal

prosecution. See, e.g., Commonwealth v. Barton-Martin, 5 A.3d 363, 368

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(Pa. Super. 2010), appeal denied, 30 A.3d 486 (Pa. 2011) (finding that BAC

test results obtained for the primary purpose of establishing an element of the

crime were testimonial); see also Commonwealth v. Kearns, 332 A.3d

1267, 2024 WL 5245135, at *7 (Pa. Super. filed Dec. 30, 2024) (unpublished

memorandum) (finding that because the defendant was taken to the hospital

for the primary purpose of developing evidence of his prior drug use, the test

results were testimonial), appeal denied, ___ A.3d ___, 2025 WL 2527393

(Pa. filed Sept. 3, 2025) (slip copy).

In the case sub judice, whether, or not, the laboratory report containing

the victim’s STI test results (Commonwealth Exhibit 11) is testimonial in

nature requires us to examine the primary purpose for which the laboratory

report was generated. Brown, 185 A.3d at 329, relying on Crawford,

supra, Melendez-Diaz, supra, Bullcoming, supra, and Yohe, supra. If

the primary purpose of the laboratory report reflecting the victim’s STI test

results was to prove past events potentially relevant to a later criminal

prosecution, then the laboratory report is testimonial in nature and subject to

the protections of the Confrontation Clause. Conversely, if the laboratory

report reflecting the victim’s STI test results was primarily generated for

medical treatment purposes, then the laboratory report is non-testimonial

and, therefore, is not subject to the protections of the Confrontation Clause.

Based upon a review of the record presently before us, we find that the

primary purpose of the laboratory report showing the victim’s STI test results

was to determine whether a medical condition existed and, if so, to allow the

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physician’s assistant to prescribe a necessary course of medical treatment.

The facts in the case sub judice show (1) that the victim stated that she knew

the perpetrator of the sexual assault and the STI test results were not used

for identification (unlike, for example, a DNA test); (2) the victim expressed

no interest in prosecution but, instead, sought treatment at the urgent care

clinic to determine her medical condition, i.e., was she pregnant, had she been

drugged, or was she infected with an STI; and (3) the STI test was conducted

at the request of a physician’s assistant by a medical laboratory and not a

criminal forensic facility. As such, the laboratory report was not created for

the primary purpose of proving past events relevant to a later criminal

prosecution for sexual assault crimes and, therefore, was non-testimonial in

nature. The fact that the Commonwealth later attempted to link Appellant to

the perpetration of the sexual assault against the victim by establishing,

through use of the laboratory report, that both Appellant and the victim tested

positive for chlamydia does not change the non-testimonial nature of the

evidence. Rather, we examine the circumstances under which the statement

was prepared to determine the primary purpose of the statement, without

regard for the ultimate use to which the statement is later put.

In reaching our conclusion that a laboratory report showing the STI test

results of the victim in the case sub judice is non-testimonial in nature because

it was generated for the primary purpose of medical treatment and not in

contemplation of future criminal prosecution, we are persuaded by the

decisions of other state courts that were faced with similar circumstances and

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tasked with determining whether, or not, statements made during a sexual

assault examination were testimonial in nature.20

In State v. Burke, 478 P.3d 1096 (Wash. 2021) (en banc), cert. denied,

142 S.Ct. 182 (2021), the Washington Supreme Court analyzed whether, or

not, statements a victim made to a sexual assault nurse examiner during the

course of a sexual assault examination were testimonial in nature.21 In Burke

the victim sought treatment in the emergency room of a hospital after she

was raped in a nearby park. Burke, 478 P.3d at 1102-1103. As part of the

examination, the sexual assault nurse examiner recorded verbatim certain

information provided by the victim as part of the patient history which

included, inter alia, the victim’s description of the location of the assault and

the assailant’s appearance, as well as the victim’s answers to specific

questions about penetration, ejaculation, contraception, her position during

the assault, strangulation, grasping, grabbing, or holding, and the victim’s

level of pain. Id. at 1103. The sexual assault nurse examiner stated that the

answers provided by the victim “guid[ed] her to look for injuries as well as

evidence.” Id. Burke objected that the admission of the victim’s statements

____________________________________________

20 “This Court may cite to the decisions of other states for persuasive

authority.” Commonwealth v. Rosendary, 313 A.3d 236, 244 n.9

(Pa. Super. 2024) (citation omitted).

21The Washington Supreme Court explained that “[s]exual assault nurse

examiners are medical professionals with specialized evidence-collecting skills

and training that supplement their medical training.” Burke, 478 P.3d at

1109.

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vis-à-vis the sexual assault nurse examiner’s trial testimony violated his right

to confront the victim because the victim’s statements were testimonial.22 Id.

at 1106. The Washington Supreme Court, applying the primary purpose test

under Crawford, held that

[w]ith the exception of one statement describing the assailant[,]

the primary purpose of [the victim’s] statements during the sexual

assault exam[ination] was to receive medical care. Thus, the

statements were non[-]testimonial and their admission did not

violate the [C]onfrontation [C]lause.

Id. at 1112. In reaching its conclusion, the Burke Court recognized that while

the victim’s statements served both forensic and medical purposes, the

Confrontation Clause “requires [courts] to identify a singular dominant

purpose to determine whether statements are testimonial.” Id. at 1108

(emphasis added), relying on Davis, 547 U.S. at 822. The Burke Court

explained that “[t]he role of the person the declarant is speaking to is

significant to determining the primary purpose of a statement” and that,

although a sexual assault nurse examiner “shares features with both medical

providers [(duty to provide medical care)] and law enforcement [(duty to

collect evidence)], sexual assault nurse examiners are not “principally charged

with uncovering and prosecuting criminal behavior.” Burke, 478 P.3d at

____________________________________________

22 From our review of Burke, supra, we glean that the sexual assault victim

did not testify in the criminal trial against Burke. See generally, Burke, 478

P.3d at 1102-1106. As such, the victim’s statements describing the sexual

assault were admitted solely through the medical examination report and

testimony of the sexual assault nurse examiner. Id. at 1105.

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1108, relying on Ohio v. Clark, 576 U.S. 237, 249 (2015). A sexual assault

nurse examiner’s “specialized evidence-collecting skills and training that

supplement their medical training” “does not transform a class of medical

professionals into agents of the police[.]” Burke, 478 P.3d at 1109. As such,

the Burke Court reasoned that the victim’s statements to the nurse, as

contained in the medical examination report, were “significantly less likely to

be testimonial than [if the] statements [had been] given to law enforcement

officers[] because medical personnel are not principally charged with

uncovering and prosecuting criminal behavior.” Id. at 1110 (citation and

original quotation marks omitted). The Burke Court found that

[m]ost of [the victim’s] statements had either two purposes

(medical and forensic) or an exclusive medical purpose. For

example, questions about contraception and ejaculation indicated

whether and where DNA evidence might be collected, but they

were also necessary to determine whether the patient needed

medication to treat [STIs] or prevent pregnancy. Additionally,

while the possibility of strangulation and the patient’s position

during the assault indicated the degree of force (which would bear

on what crime the perpetrator could be charged with), that

information also revealed where the patient had additional injuries

that needed treatment.

Id. at 1111. Therefore, the Burke Court held that, with the exception of the

victim’s statement regarding the description of the assailant (because it did

not “provide guidance for medical treatment”), the victim’s remaining

statements provided in the context of the sexual assault examination had the

primary purpose of guiding medical treatment and were “not to provide an

out-of-court substitute for trial testimony.” Id. at 1112. Consequently, the

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“statements were non[-]testimonial and their admission did not violate the

[C]onfrontation [C]lause.” Id.

A similar conclusion was reached by the Supreme Court of Virginia in

Sanders v. Commonwealth, 711 S.E.2d 213 (Va. 2011), which held that a

laboratory report created for medical diagnosis and treatment purposes was

non-testimonial and did not implicate the Confrontation Clause. Id. at 220.

In Sanders, Sanders argued that allowing a doctor “to state the conclusion of

the unknown laboratory technician as expressed in [a] laboratory report

indicating that the [child-victim] had contracted chlamydia violated his right

to confront and cross-examine” the laboratory technician who authored the

report. Id. at 216. Sanders asserted that because the child-victim had been

“referred” to the doctor based on allegations of sexual abuse and the doctor

knew about the alleged sexual abuse allegations from the victim’s mother and

the police prior to examining the child-victim, “an objective person could

reasonably expect that the test results provided to the doctor would be used

in a later criminal prosecution.” Id. at 217. The Commonwealth responded

that the primary purpose of the laboratory testing, and the subsequent

reporting of the test results, was for medical treatment and not to prove past

events potentially relevant to later criminal prosecution. Id.

Ultimately, the Virginia Supreme Court held that the laboratory report,

and by extension the doctor’s testimony regarding the contents of the report,

did not violate Sanders’ rights under the Confrontation Clause. Id. at 220. In

reaching its conclusion, the Sanders Court focused on whether, or not, the

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laboratory report “was created for medical treatment purposes or forensic

investigation purposes.”23 Id. at 218. The Sanders Court concluded that the

doctor’s “medical examination of [the child-victim] served a dual purpose: (1)

to gather forensic information to investigate and potentially prosecute a

defendant for the alleged offenses and (2) to obtain information necessary for

medical diagnosis and treatment of the victim.” Id. at 219. A test for

chlamydia, the Sanders Court explained, “is a diagnostic test used to

determine whether a ‘medical condition’ exists. The test determines whether

the individual has the infection, but that, unlike a DNA test, the test does not

provide information identifying the source of the infection.”24 Id. As such,

the primary purpose of the laboratory report reflecting the results of the STI

test, according to the Sanders Court, “was for medical treatment purposes

as it was created to permit [the doctor] to medically diagnose and treat [the

child-victim] for [chlamydia]” and, therefore, was non-testimonial. Id. “The

fact that the Commonwealth sought [later] to use the laboratory report in a

criminal prosecution does not change its non[-]testimonial character. In order

to determine if a statement is testimonial, the statement must be evaluated

____________________________________________

23 The “laboratory report in question was never admitted into evidence at

trial.” Sanders, 717 S.E.2d at 218.

24 A person contracts chlamydia “by having vaginal, anal, or oral sex without

a condom with someone who has the infection.”

https://www.cdc.gov/chlamydia/about/index.html (last visited Dec. 16,

2025). Also, “[a] pregnant woman with chlamydia can give the infection to

her baby during childbirth.” Id.

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as to whether the statement was made under circumstances which would lead

an objective witness reasonably to believe that the statement would be

available for use at a later trial.” Id. at 219 (original quotation marks

omitted), citing Crawford, 541 U.S. at 52. The Sanders Court found that,

in objectively evaluating the circumstances under which the laboratory report

regarding the child-victim’s STI test results was prepared, “there is no basis

presented for concluding that the ‘primary purpose’ of [conducting the

analysis or preparing the report] would reasonably have been understood by

the laboratory technicians [] to be the development of a statement for use at

trial.” Id. at 219-220.

The record [] reflects that the independent laboratory performed

the testing after receiving the samples from the [medical

treatment] clinic. [U]nlike a crime laboratory testing for narcotics

or DNA, there are any number of typically non-prosecutorial

reasons to test urine and vaginal discharge, such as for infections

arising from both consensual sexual and non[-]sexual exposure to

pathogens. Thus, under these circumstances, a laboratory

technician would not have reason to believe or suspect that the

results of his or her testing would be used in a later trial.

Id. at 220.

In the case sub judice, the physician’s assistant who examined the

victim testified that, on October 2, 2022, the victim presented herself to the

urgent care clinic due to a “concern for a sexual assault” and a need “to be

tested and treated.” N.T., 10/23/23, at 177; see also Commonwealth Exhibit

10 (stating, “[p]atient is a [] female [] who presents complaining of dysuria[

and] rectal pain after being a victim of sexual assault last evening”). The

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physician’s assistant also stated in the progress notes from the medical

examination that the victim “knows who the perpetrator was and [that she] is

interested in drug screening [and] STI screening.” Commonwealth Exhibit 10.

The victim informed the physician’s assistant that “[s]he is not interested in

involving the police or pressing charges.” Id.

The physician’s assistant testified that, based upon the victim’s

complaint of “pain with urination and rectal pain,” the victim “was given a

[urinalysis test], a urine pregnancy test[,] and then also screened for STIs.”

N.T., 10/23/23, at 177. The physician’s assistant stated that, preliminarily,

the “urine sample showed the presence of leukocytes and nitrites, which is

typical with a bladder infection” so she treated the victim for “what looked like

a bladder infection.” Id. The physician’s assistant also stated that she

“empirically treated for gonorrhea[, a type of STI,] with an injection of

ceftriaxone, which is an antibiotic.” Id. at 178. The physician’s assistant

explained that she treated for gonorrhea without knowing the results of the

STI tests because “if [a person tests] positive [for gonorrhea], it requires a

repeat office visit to get the injection of medicine[.]” Id. The victim was also

“prescribed some steroid cream that she could apply rectally to help with

discomfort there.” Id. The physician’s assistant stated that, as part of the

medical evaluation, the victim’s urine sample was sent to a laboratory for

further analysis. Id. at 179. As part of the care and treatment plan, the

physician’s assistant stated that she would “alter [the] treatment plan

depending on [the] STI screening results.” Commonwealth Exhibit 10.

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The physician’s assistant testified that the results of the victim’s

urinalysis were made a part of the patient’s medical records and that the

results showed, inter alia, that she tested positive for chlamydia and a bladder

infection but tested negative for gonorrhea. N.T., 10/23/23, at 179-180; see

also Commonwealth Exhibits 11 and 12. Based upon the positive test result

for chlamydia, the physician’s assistant prescribed additional antibiotics to

treat the STI. N.T., 10/23/23, at 180.

Under these circumstances, the primary purpose of the STI test and the

subsequent laboratory report confirming the results of that test was for

medical diagnosis and, if necessary, follow-up treatment. As the physician’s

assistant stated in her progress notes, the victim already knew the identity of

the perpetrator and did not wish to involve law enforcement. Instead, the

victim sought treatment for the pain and discomfort she was experiencing and

due to a concern that she may have contracted a STI or become pregnant.

Unlike DNA tests which may be used to identify a particular person, tests for

gonorrhea, chlamydia, and pregnancy are regularly used to diagnose a

person’s medical condition regardless of whether the medical inquiry is the

result of a sexual assault or because the person had unprotected sexual

contact with a person whose medical status is unknown. There is no basis in

the record upon which to conclude, when viewed objectively, that the

laboratory technician understood that these routine tests were being

requested for any reason other than for routine medical diagnosis. As such,

we conclude that the laboratory report that identified the victim as having

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tested positive for chlamydia (Commonwealth Exhibit 11) was non-testimonial

and, therefore, did not implicate Appellant’s rights under the Confrontation

Clause.

When a statement is non-testimonial in nature, as is the laboratory

report in the case sub judice, “the admissibility of a statement is the concern

of state and federal rules of evidence, not the Confrontation Clause.”25

Commonwealth v. Allshouse, 36 A.3d 163, 174 (Pa. 2012), quoting

Bryant, 562 U.S. at 359; see also Crawford, 541 U.S. at 68 (stating,

“[w]here non[-]testimonial hearsay is at issue, it is wholly consistent with the

Framers’ design to afford the States flexibility in their development of hearsay

law”).

____________________________________________

25 To the extent that Appellant asserts that the Commonwealth violated Rule

574 by failing to attach proper certification to the laboratory report in lieu of

expert testimony, we find this argument moot in light of our decision that the

laboratory report was non-testimonial and did not implicate the Confrontation

Clause. Rule 574 provides a notice and demand mechanism by which the

Commonwealth may introduce a forensic laboratory report that constitutes

testimonial evidence without calling as a witness at trial the person who

authored the report as a means of satisfying the defendant’s rights under the

Confrontation Clause. Pa.R.Crim.P. 570 Comment (stating, “This rule was

adopted in 2014 to address the issues raised by the [United States] Supreme

Court’s decision in Melendez-Diaz[, supra,] that held that the 6th

Amendment confrontation right precluded presentation of laboratory reports

without a live witness testifying in the trial. In Melendez-Diaz, the [High]

Court noted with approval the use of ‘notice and demand’ procedures as a

means of permitting routine laboratory reports to be admitted without the

expense of supporting the admission by live expert testimony while

protecting a defendant’s confrontation rights. This rule provides a

“notice and demand” procedure for Pennsylvania.” (emphasis added;

formatting modified)).

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Here, the trial court found that the laboratory report was admissible

under the business records exception to the rule against hearsay provided that

the physician’s assistant testified. N.T., 10/23/23, at 19, 25; see also Pa.R.E.

803(6).

Hearsay “is an out-of-court statement offered to prove the truth of the

matter asserted in the statement.” Commonwealth v. Laich, 777 A.2d

1057, 1060 (Pa. 2001); see also Pa.R.E. 801(c)(1) and (2). A hearsay

statement is not admissible unless the proffered statement falls within an

established hearsay exception. Commonwealth v. Fitzpatrick, 25 A.3d

452, 471 (Pa. 2021); see also Pa.R.E. 802.

Pennsylvania Rule of Evidence 803(6), commonly referred to as the

“business records exception,” states that, regardless of whether the declarant

is available as a witness, “[a] record (which includes a memorandum, report,

or data compilation in any form) of an act, event[,] or condition” is excludable

from the rule against hearsay if:

(A) the record was made at or near the time by - or from

information transmitted by - someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a “business”, which term includes business, institution,

association, profession, occupation, and calling of every kind,

whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification that

complies with Rule 902(11) or (12) or with a statute permitting

certification; and

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(E) the opponent does not show that the source of information or

other circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6). For purpose of the business records exception, a “qualified

person” is an individual who is able to “provide sufficient information relating

to the preparation and maintenance of the records to justify a presumption of

trustworthiness[.]” Keystone Dedicated Logistics, LLC v. JGB Enter.,

Inc., 77 A.3d 1, 13 (Pa. Super. 2013) (original quotation marks and citation

omitted); see also In re Indyk’s Est., 413 A.2d 371, 373 (Pa. 1979).

It is well-established that “[m]edical records are admissible under the

hearsay rules as evidence of facts contained therein but not as evidence of

medical opinion or diagnosis.” Folger Ex Rel. Folger v. Dugan, 876 A.2d

1049, 1055 (Pa. Super. 2005), relying on Commonwealth v. Green, 380

A.2d 798, 799-801 (Pa. Super. 1977), appeal denied, 897 A.2d 458 (Pa.

2006). This Court in Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super.

1993), appeal denied, 630 A.2d 446 (Pa. 1994), explained that the

justification for allowing medical records to be admitted as an exception to the

rule against hearsay was because “the manner in which hospital records are

maintained carries safeguards at least as substantial as the guarantees of

reliability of the records of business establishments and []these recorded facts

are routinely used to make decisions upon which the health and life of the

patient depend.” Xiong, 630 A.2d at 453 (citation and original quotation

marks omitted).

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“In general, when the record reveals what is or is not present in the

patient, or that a test occurred, the record reflects facts.” Folger, 876 A.2d

at 1056. “On the other hand, when the record reflects what the presence or

absence of something means, the record more likely reflects a medical

diagnosis or opinion.” Id. (footnote omitted).

In Folger, this Court held that a medical report reflecting a positive

result for the presence of herpes in a patient’s spinal fluid was a “fact” because

the test results revealed what was, or was not, present in the patient. Id. at

1056-1057. Similarly, this Court in Commonwealth v. Nieves, 582 A.2d

341 (Pa. Super. 1990), appeal denied, 600 A.2d 952 (Pa. 1991), held that a

medical report showing positive test results for gonorrhea was properly

admitted into evidence under the business records exception to the hearsay

rule. Nieves, 582 A.2d at 344.

Here, the physician’s assistant testified that, as part of her medical

evaluation of the victim, she ordered several tests, including a urinalysis, a

urine pregnancy test, and a STI test for, inter alia, chlamydia. N.T., 10/23/23,

at 178-179. The physician’s assistant explained that the laboratory report

reflecting the STI test results had the victim’s name and the date the test was

performed marked at the top of the report. Id. at 179; see also

Commonwealth Exhibit 11. The physician’s assistant stated that the report

indicated that the victim tested positive for chlamydia. N.T., 10/23/23, at

179; see also Commonwealth Exhibit 11 (indicating that the bacteria causing

chlamydia (chlamydia trachomitis) was detected in the analysis of the victim’s

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urine sample). Upon receiving the laboratory report, and the results contained

therein, the physician’s assistant testified that she prescribed antibiotics to

treat the victim’s chlamydia infection. N.T., 10/23/23, at 180.

Based upon a review of the record, we discern no error or abuse of

discretion in the trial court’s decision to admit the laboratory report reflecting

the victim’s positive test rest for chlamydia (Commonwealth Exhibit 11) into

evidence. The report contained only a medical fact, namely that the bacteria

which caused chlamydia was present in the victim’s urine. Folger, 876 A.2d

at 1056; see also Nieves, 582 A.2d at 344. Moreover, the physician’s

assistant provided sufficient information regarding preparation of the

laboratory report to justify the presumption of trustworthiness, and Appellant

provided no evidence to overcome this presumption. As such, the laboratory

report was properly admitted into evidence under the business records

exception to the rule against hearsay.26 See Pa.R.E. 803(6).

____________________________________________

26 To the extent that Appellant asserts that the trial court erred in permitting

the sexual assault nurse examiner and Appellant’s wife from referring to the

laboratory report results which showed that the victim tested positive for

chlamydia on the grounds that the test results constituted hearsay, we find

this argument to be of no avail. See Appellant’s Brief at 28-29 (stating, “any

use of the [STI test] results was hearsay”). As discussed supra, the laboratory

report showing the positive test result was properly admitted under the

business records exception to the rule against hearsay. Moreover, Appellant’s

motion in limine preserved his challenge to the admission of the laboratory

report without further objection. The motion in limine, however, did not object

to testimony that was potentially being offered by the Commonwealth’s

witnesses. Therefore, in order to preserve a particular objection to the

testimony of a witness, such as the sexual assault nurse examiner or

Appellant’s wife, Appellant needed to lodge a specific objection on the record

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In his final issue, Appellant claims that the trial court erred when it

permitted the Commonwealth to impeach its own witness, namely Appellant’s

wife. Appellant’s Brief at 31-32.

Pennsylvania Rule of Evidence 607 states as follows:

Rule 607. Who May Impeach a Witness, Evidence to

Impeach a Witness

(a) Who May Impeach a Witness. Any party, including the

party that called the witness, may attack the witness’s credibility.

(b) Evidence to Impeach a Witness. The credibility of a

witness may be impeached by any evidence relevant to that issue,

except as otherwise provided by statute or these rules.

Pa.R.E. 607.

On cross-examination, Appellant’s counsel asked Appellant’s wife if she

told law enforcement, during an interview after the incident, that she would

not lie for her husband, to which Appellant’s wife responded “Yes. I told them

[(referring to the law enforcement officers)] that I would not lie for him. It

would put my kids in jeopardy.” N.T., 10/24/23, at 99. On re-direct, the

Commonwealth asked Appellant’s wife, “Just to clarify, you wouldn’t lie for

your husband?” Id. at 100. Appellant’s wife responded, “No. I would not.”

____________________________________________

at the time of the testimony. A review of the notes of testimony demonstrates

that when the sexual assault nurse examiner and Appellant’s wife testified

about the victim testing positive for chlamydia, Appellant failed to lodge a

specific objection to the testimony. See Commonwealth v. McGriff, 160

A.3d 863, 866-868 (Pa. Super. 2017) (finding that, although McGriff lodged

an anticipatory objection in his motion in limine, he failed to make a specific

objection at the time the testimony was offered at trial), appeal denied, 176

A.3d 853 (Pa. 2017).

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Id. Over objection by Appellant’s counsel, the Commonwealth then played

an audio recording in which Appellant’s wife was heard stating that she “would

do whatever it takes” to help her husband. Id. at 103. Appellant’s wife, when

asked if she heard the statement she made in the recording, stated “Yes, but

I do not mean that.” Id.

As the trial court noted, and we concur, Appellant’s counsel questioned

Appellant’s wife “regarding [her willingness to lie] for her husband[] and[,

therefore[,] opened the door for [] further questions regarding her

[willingness to undertake such conduct].” Trial Court Opinion, 1/21/25, at 8.

The Commonwealth did not move to impeach its witness until after she stated

that she would not lie for Appellant. Once Appellant’s counsel elicited this

testimony through his cross-examination, and Appellant’s wife offered her

response, Rule 607 permitted the Commonwealth to impeach its own witness.

Therefore, we discern no error or abuse of discretion in the trial court’s

decision to allow the Commonwealth to conduct redirect examination to

impeach Appellant’s wife during her trial testimony.

For the reasons set forth herein, we affirm Appellant’s judgment of

sentence.

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 1/15/2026

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