Com. v. Smith R.

J-S41018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RONALD SMITH, :

:

Appellant : No. 3502 EDA 2017

Appeal from the Judgment of Sentence June 15, 2017

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

No(s): CP-09-CR-0004929-2016

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.: FILED AUGUST 23, 2018

Appellant, Ronald Smith, appeals from the judgment of sentence

entered on June 15, 2017, as made final by the denial of Appellant’s post-

sentence motion on September 29, 2017. We sua sponte vacate the trial

court’s June 15, 2017 order, which found Appellant to be a sexually violent

predator (“SVP”), and remand the case to the trial court for the sole purpose

of issuing the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to

Appellant’s tier-based registration obligations under SORNA. However, in all

other respects, we affirm.

The trial court provided us with a comprehensive and well-written

summary of the facts and procedural posture of this case. We thank the trial

court and quote this section of the trial court’s opinion at length:

This case involves numerous instances of Appellant sexually

abusing his two stepdaughters, juveniles S.A. and D.A, over

the course of several years. At the time of trial, S.A. and

____________________________________

* Former Justice specially assigned to the Superior Court.

J-S41018-18

D.A. were tenth and ninth grade students[, respectively]. . .

. [N.T. Trial, 1/10/17, at 5 and 220-221].

The following is a summary of S.A.'s testimony regarding the

assaults against her. The first incident occurred when S.A.

was six years old, and was living in a single room with two

beds at the Neshaminy Inn in Bensalem, Bucks County, with

her mother, two sisters, stepbrother, and the Appellant. [Id.

at 5 and 9-11]. S.A. remembered that she was in

kindergarten because a school bus picked her up at the

Neshaminy Inn during that time. Id. at 10-11. The family

lived in that motel room for just under one year. Appellant

was S.A.'s mother's boyfriend during that time. Id. at 9-11.

S.A. entered the bathroom of the motel room with the

Appellant, and he shut the door and put his penis in her

mouth while she was on her knees. Id. at 14-16.

About one year later, when S.A. was in the first grade, she

and her family moved in with the Appellant's mother. . . . Id.

at 17-18. S.A. and her family would stay in the attic of the

home, but they subsequently moved out in the summer

following her fourth grade year. Id. at 17-20.

The second and third incidents occurred in the basement of

[Appellant’s mother’s] home, while S.A. was in the first or

second grade. [Id. at 25 and 28]. During the first incident,

the Appellant shut the door and put his penis in S.A.'s mouth.

[Id. at 25 and 27]. A few months later, the Appellant took

S.A. into the basement and penetrated her with his penis,

although she was unsure whether the intercourse was anal

or vaginal at the time. [Id. at 28-29]. Subsequently, on three

separate occasions, Appellant forced S.A. to perform oral sex

upon his penis in the master bedroom. Id. at 32-33. Either

before or after these encounters, Appellant told S.A. that he

would "call CPS [Child Protective Services] or hurt mom." Id.

at 35. Although S.A. did not understand the meaning of CPS

at the time, the Appellant explained, "[t]hey would take us

away." Id. at 35. S.A. was afraid that the Appellant would

hurt her mother or have her and D.A. taken away if she

disclosed the sexual abuse. Id. at 36.

On a night towards the end of her stay at [Appellant’s

mother’s house], Appellant drove S.A. to an "abandoned

house" that belonged to his brother on Race Street, Bristol

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Borough, Bucks County. Id. at 40. He took S.A. up to a

room on the second floor, and engaged in anal intercourse

with her on a box spring mattress. Id. at 44-45. At that

time, S.A. knew that the Appellant had penetrated her anus

and that it hurt. Id. at 45-46.

In the summer between S.A.'s fourth and fifth grade year,

she, her family, and the Appellant moved down the street [to

another house on Spruce Street]. Id. at 49. The family lived

in that home for three years, until the October of S.A.'s eighth

grade year; the victims and their younger sister again shared

a bedroom in the attic of the home. [Id. at 51-52 and 56].

During that time, Appellant repeatedly called S.A. into his

bedroom, pulled her head down towards his lap, and forced

her to perform oral sex on his penis. Id. at 53-57. This

occurred over twenty times in that same bedroom. Id. at

54-57. The Appellant would shut the door each time, and

threatened to hurt S.A.'s mother if she disclosed the abuse.

Id.

The next assault occurred on a Saturday before Christmas.

S.A. remembered that it was Christmas because the living

room had a Christmas tree and because her mother took her

sisters and stepbrother to "Shop with a Cop." Id. at 67. S.A.

was lying on her stomach in the middle of that living room

floor. After the Appellant locked the front and rear doors to

the home, he engaged in anal intercourse with her. Id. at 68-

71. Appellant reiterated that he would hurt S.A.'s mother if

she disclosed the assault. Id. at 71. An additional incident

occurred one night in the attic while S.A. was sleeping on her

bed. S.A. remembered that it was the night before her

birthday because the Appellant gave her three chocolate eggs

the following morning. Id. at 79. The Appellant lay down

behind her while she was sleeping on her side. Id. at 75. As

she lay on her side, S.A. pretended to sleep while the

Appellant used his hand to rub the area around her vagina

above her clothing. Id. at 75-78.

S.A. also described several incidents that occurred in the

parking lot of Silver Lake Park in Bristol Borough, Bucks

County. On at least five separate occasions, the Appellant

would drive S.A. in his truck to the park during the day and

park away from other cars. Id. at 95. The Appellant would

pull down his pants and force S.A., who was in the passenger

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seat, to bend over the center console and perform oral sex

on his penis. Id. at 91-96. During the same time period, the

Appellant began to abuse S.A.'s younger sister, juvenile D.A,

who also testified at trial. D.A. testified that she was cleaning

her room . . . when the Appellant called her to come down to

his bedroom. Id. at 240. There, Appellant told D.A. to lock

the bedroom door behind her and sit on the bed beside him.

He told her, "just remember that I have guns." [Id. at 240-

241]. Appellant then pulled out his penis, pushed D.A.'s head

onto his lap, and forced her to perform oral sex on his penis.

[Id. at 242].

A second incident with D.A. occurred a few weeks later in the

same bedroom. D.A. was already in the room watching

television when the Appellant walked in and locked the

bedroom door. Id. at 245. Appellant sat next to her on the

bed and said, "you have to do this for me or people you love

are going to get hurt." Id. at 246. He then pulled out his

penis, pushed D.A.'s head onto his lap, and forced her to

perform oral sex on his penis to the point of ejaculation. Id.

The Appellant cleaned up his ejaculate by wiping it on his

pants. Id. D.A. did not disclose these incidents because the

Appellant told her not to do so, and because she was afraid

of him. Id. at 247.

Both victims described an incident when the Appellant abused

them simultaneously. S.A. testified that she and D.A. were

grounded when the Appellant called them into his bedroom,

ostensibly to "unground" them. Id. at 86-87. When she and

her sister arrived in the bedroom, Appellant told one of them

to lock the door and instructed them to sit on either side of

him. Id. at 249. S.A. testified that Appellant was seated on

the bed, while D.A. testified that Appellant sat in a computer

chair between the two sisters. Id. at 88-90, 249. The

Appellant then pulled out his penis and said, "you guys know

what to do." Id. at 250. The Appellant forced both S.A. and

D.A. to perform oral sex on his penis; he forced S.A. to go

first, and then told D.A. to perform the same act after a few

minutes. [Id. at 89-90 and 250]. S.A. testified that the

Appellant sexually abused her and her sister simultaneously

"a little more than three" times, while D.A. testified that this

act occurred only once. [Id. at 91-92, 251 and 257]. S.A.

testified that the two sisters discussed the abuse and

promised each other that they would not disclose it. Id. at

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102. S.A. further stated that the Appellant and her mother

had a "violent relationship" and that she feared that the

Appellant would hurt her mother if she disclosed any abuse.

Id. at 102-103.

The final incident with S.A. occurred on Halloween during her

eighth grade year. She, her sisters and mother were moving

out of the [] Spruce Street home that day because her

mother had ended her relationship with the Appellant. Id. at

98-101. While the rest of the family moved their belongings

into the car, Appellant forced S.A. to perform oral sex on his

penis in the master bedroom. Id. at 98-100.

The victims eventually disclosed the abuse shortly after

moving out of [the Spruce Street home]. S.A., a ninth-grader

at the time, was at the Oxford Valley Mall in Bucks County

with her mother, sisters, stepbrother, and Tasha Davis, a

family friend and neighbor. Id. at 103-105. Ms. Davis

testified that she had previously observed S.A. fidget with her

sweatshirt, suck her thumb, and become "very agitated"

when anyone would speak about the Appellant in her

presence. Id. at 260-261. When the Appellant telephoned

S.A.'s mother at the Oxford Valley Mall, Ms. Davis observed

that S.A. became angry while listening to the conversation.

This observation "raised a really big red flag" for Ms. Davis,

and prompted her to invite S.A. to her apartment to speak

privately. Id. at 262-264. Ms. Davis expressed her suspicions

to S.A., and asked her if she had ever been touched by

anyone. [Id. at 106-107 and 264]. At first, S.A. did not want

to disclose the abuse because she promised her sister that

she would not, but she eventually disclosed to Ms. Davis that

the Appellant had abused her. [Id. at 106-107 and 265-266].

S.A. cried and shook during the approximately one-and-one-

half hour conversation. [Id. at 108 and 266].

With S.A.'s permission, Ms. Davis invited S.A.'s mother to the

apartment, followed by D.A. Id. at 268-269. After disclosing

the abuse to her mother, S.A. told D.A. that it was "okay to

say something now [be]cause it's already out." Id. at 112.

At first, D.A. said that nothing happened to her. Id. at 269.

After Ms. Davis repeatedly questioned her about whether the

Appellant had touched her, D.A. finally disclosed that he did.

Id. at 254. Ms. Davis testified that D.A. was only able to

discuss the abuse a few months after that initial conversation,

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and that her affect was "very flat" throughout those

conversations. Id. at 269-270. Both victims testified that

they were afraid to disclose the abuse and had difficulty

discussing the incidents. [Id. at 109-111, 113, and 255].

Following this disclosure, Detective William Davis of the

Bristol Borough Police Department referred the victims for

interviews at the Children's Advocacy Center in Fairless Hills,

Bucks County. Id. at 133. Detective Davis subsequently

obtained permission from S.A. to perform a "cellphone

takeover," in which he would portray himself as S.A. and,

using her cellphone, contact the Appellant via text message

to elicit a conversation. Id. at 135. On May 17, 2016, and

June 9, 2017, Detective Davis used S.A.'s cellphone to

contact the Appellant by text message and attempted to elicit

a conversation regarding the sexual abuse. Screenshots of

the text messages were admitted into evidence. Id. at 135-

157.

Following the initial cellphone takeover, Detective Davis,

along with Lieutenant Robert Gorman of the Bucks County

Detectives, attempted to use S.A.'s cellphone to place a

recorded phone call to the Appellant. Id. at 212. On May 17,

2016, S.A. placed a recorded phone call to the Appellant. [Id.

at 218-219; Commonwealth Exhibit 38]. In response to a

discussion regarding a doctor's visit for her sister, S.A. said,

"You know what you did though." Id. The Appellant

responded, "I don't remember what you're talking about,"

and told S.A. that he would call her back. Id. Before he hung

up, the Appellant said, "they're setting me up for the kill." Id.

When the Appellant failed to return her call, S.A. attempted

to place three additional phone calls to the Appellant over the

next several weeks, but they went unanswered. Id. at 213-

215.

Bristol Township Detective Timothy Fuhrmann subsequently

obtained a search warrant to extract logical data, including

text messages, from the Appellant's cellphone. Id. at 175-

178. On October 21, 2016, Detective Fuhrmann conducted

the extraction and downloaded the cellphone's data. Id. at

191. Using search terms based on S.A.'s first name, Detective

Fuhrmann searched for all voice and text communications

between Appellant and S.A. on the cellphone; the extraction

report did not yield any text message communications

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between Appellant and S.A. on either May 17, 2016, or June

9, 2016. [Id. at 185-186 and 191-193]. Detective Fuhrmann

testified that, in light of the previously conducted cellphone

takeover, the absence of these text messages on those dates

indicated that the cellphone operator deleted the text

messages. Id. at 194.

...

Bristol Borough Police arrested and charged Appellant on

June 13, 2016. On January 9, 2017, [the trial c]ourt

entertained pre-trial motions regarding the admissibility of

expert testimony. On January 7, 2017, Appellant moved to

preclude expert testimony offered by the Commonwealth

regarding child sex abuse. Specifically, Appellant

acknowledged that the Commonwealth intended to call this

expert for two purposes: first, to offer medical testimony,

and, second, to offer testimony regarding a child's behavior

in response to sexual abuse. [N.T. Hearing, 1/9/17, at 10-

11]. Appellant affirmed that he was not seeking to preclude

the expert's medical testimony as part of his pre-trial motion.

Id. at 11.

In response, the Commonwealth argued that the expert

witness would testify regarding victim responses and

reactions to sexual assault pursuant to [42 Pa.C.S.A. § 5920.

Id. 12-13 and 15]. Appellant argued that [the trial court]

should exclude the testimony because it would improperly

bolster the Commonwealth witness' credibility, because the

proffered testimony was not specialized knowledge requiring

an expert opinion, and because the testimony would be more

prejudicial than probative. Id. at 11. The Commonwealth

responded that the expert would limit her testimony to

whether certain general behaviors of victims are consistent

with sexual assault. Id. at 15-17. [The trial court]

subsequently denied Appellant's motion. Id. at 17.

At trial, the Commonwealth offered the expert testimony of

Dr. Maria McColgan, a child abuse pediatrician. [N.T. Trial,

1/11/17, at 11-12]. Dr. McColgan testified that she was

certified as a child abuse pediatrician and general pediatrician

by the American Board of Pediatrics since 2009, and that she

personally performed 300 to 400 child sexual abuse

examinations per year. Id. at 13, 21. Dr. McColgan further

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testified that she oversaw several thousand other child sexual

abuse examinations performed by other doctors, nurses and

nurse practitioners over the course of her career. Id. She

described her teaching and publishing experience, and stated

that she testified as an expert witness in over 300 cases in

various Pennsylvania county courts. Id. at 14-15. Finally,

Dr. McColgan testified that, in addition to observing and

performing frequent child abuse examinations, she received

a significant amount of training in the dynamics of sexual

abuse, children's responses to sexual abuse, and the impact

of sexual abuse on children. Id. at 25-26. [The trial court]

subsequently received Dr. McColgan as an expert in child

abuse pediatrics, general pediatrics, the dynamics of sexual

violence, and victim responses to sexual abuse. Id.

Dr. McColgan first testified to administering a comprehensive

physical examination of each child, including a genital

examination, at the Child Protection Program at St.

Christopher's Hospital in Philadelphia. Id. at 28-32. There,

Dr. McColgan supervised Elizabeth Grund, the nurse

practitioner that performed the physical examinations, and

subsequently reviewed Ms. Grund's report. Id. at 31. Dr.

McColgan testified that both physical examinations were

"normal," meaning that neither examination yielded any

evidence of injury or scarring to the genitals, anus, or mouth.

Id. at 32-36. Specifically, based on D.A.'s allegations of

performing oral sex three separate times, Dr. McColgan

testified that she would not expect to see any physical

injuries during the examination due to the delay in disclosure

and the physical characteristics of the mouth:

MS. VAUGHAN: Now, Doctor, I think we began discussing

[D.A.]. [D.A.] has been here and testified that on three

separate occasions she was required by [Appellant] to

perform oral sex on him. Based on that information,

would you expect [D.A.] to have any physical injuries?

DR. MCCOLGAN: No.

MS. VAUGHAN: And why is that?

DR. MCCOLGAN: Because several reasons. First of all, oral

penetration doesn't typically lead to physical trauma. It

can lead to other forms of trauma, but not typically

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physical trauma. And with oral penetration, sometimes

we can see petechia[,] which are little teeny, tiny bruises

to the back of the mouth, but even if they are there they

would go away within hours to days. Anybody who knows

that any injury inside of your cheek, if you have injury, it

typically heals really, really quickly. You can actually, you

know, bite the inside of your cheek pretty significantly,

and within a couple days it heals without any signs of

scarring. That's because of the type of tissue that it is.

And so in these children's case, the disclosure of sexual

abuse, there was a delay in the time between the last

episode of sexual abuse and the examinations, and so any

injury that might have been there, even though it's pretty

unlikely that there would have been injury from oral

penetration would have healed in that time frame.

Id. at 36-37. Additionally, in light of S.A.'s allegation that the

Appellant either anally or vaginally penetrated her with his

penis when she was approximately ten years old, Dr.

McColgan again testified that she would not expect to see any

physical injuries for the same reasons:

MS. VAUGHAN: Now, [S.A.] has been here, Doctor, and

testified that as to one instance when she was at best ten

years old to anal or vaginal intercourse, she couldn't tell

because she didn't know I think what was happening.

Would you expect any injury based on that report?

DR. MCCOLGAN: No.

MS. VAUGHAN: And why is that?

DR. MCCOLGAN: Again, the majority of children who have

been sexually abused, even when there's vagina or anal

penetration, have normal examinations, and that's for a

long list of reasons.

The first, as we already mentioned, is the delay in

disclosure and the subsequent delay in the time the

medical examination is done since the last time anything

occurred. I already explained to you that the tissues of

the genital structures and the anus are similar to the

tissues of inside of your cheek. If there is any injury at

all, it heals very quickly, and oftentimes, the vast majority

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of the times, without any scar at all. So that plays a big

role in why the exam would be perfectly normal.

Second of all, the tissues of the anus are meant to stretch

significantly. That's how we pass a stool. Anybody who

has seen a small two year old, for example, go to the

bathroom and you look in the toilet and go, oh my God,

how could that possibly have come out of him, but if you

look at their anus, you know, two minutes later there's no

injury. Those tissues are meant to stretch. It's designed

to stretch. If something can come out without injury, then

something can go in without significant injury.

The tissues of the genital structures, in [S.A.]'s case she

got her period when she was about 12 years old, which

means that when she was ten she probably was already

starting to go through puberty, and so as you already

heard, if she didn't know if it was in the anus or the

vagina, it's -- that's not uncommon in that age group.

Children will say in and not exactly know where it goes.

And, in fact, most adult women don't really know, you

know, their genital anatomy very well unless you've

actually looked down there so that's not surprising that

she may not know where it went, she just knows that

something – that it was down there. Oftentimes, too,

when a child says it was in, there's types of sex called

vulvar coitus and gluteal coitus. That's where the male

rubs their penis in between the labia majora and labia

minora, and it may go through the hymen somewhat but

maybe not all the way through the hymen like adult sex

or it may be rubbed in between the butt cheeks and go

into the anus either partially or fully, but to that child it's

still in. It's still in their genito-anal structures. And so for

all of those reasons we wouldn't expect to see any

findings.

And, furthermore, once you start to go through puberty,

as I said earlier, the hymen becomes sort of more

stretchy, kind of like a scrunchy, and you wouldn't

necessarily see injury even if there was penetration.

Id. at 41-44. Dr. McColgan noted that, generally, she only

finds injury in less than five percent of cases of anal or vaginal

penetration of a child. Id. at 44.

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In conclusion, Dr. McColgan opined that the results of S.A.'s

physical examination were consistent with her allegation that

Appellant anally penetrated her three times prior to the age

of twelve:

MS. VAUGHAN: And so could you tell us, to a reasonable

degree of medical certainty, if [S.A.]'s report that she was

forced to have anal sex with the defendant three times

prior to the age of 12 is consistent with her physical

examination?

DR. MCCOLGAN: Yes, it's completely consistent.

Id. at 44-45. She further opined that the results of D.A.'s

physical examination were consistent with her allegation that

Appellant forced her to perform oral sex on him:

MS. VAUGHAN: Doctor, if we could move to-well, does the

lack of physical injury on [D.A.], I think that's where we

started, mean that she was not forced to have oral sex

with the defendant?

DR. MCCOLGAN: No

MS. VAUGHAN: And so is the lack of physical injury

consistent with her account of what happened to a degree

of reasonable medical certainty?

DR. MCCOLGAN: Yes, of course.

Id. at 40-41. On cross-examination, Dr. McColgan testified

that the absence of injury to both victims was also consistent

with "nothing ever happening:"

MS. JANNETTI: Okay. And essentially you are aware-one

moment, Your Honor that the allegation would be that

there was multiple instances of anal intercourse; is that

correct, with [S.A.]?

DR. MCCOLGAN: Yes.

MS. JANNETTI: And that she experienced bleeding and

pain as a result. Is that correct?

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DR. MCCOLGAN: Yes.

MS. JANNETTI: And it's your testimony that the absence

of that injury basically means nothing?

DR. MCCOLGAN: No, I didn't say it basically means

nothing.

MS. JANNETTI: Well, if I can just clarify for myself, you're

saying that it could mean that the-it's consistent with

what she's saying?

DR. MCCOLGAN: Yes.

MS. JANNETTI: But it could also be consistent with

nothing ever happening?

DR. MCCOLGAN: Yes.

Id. at 55-56. Finally, Dr. McColgan testified that sexual abuse

with anal penetration could be one of the causes, among

many, of S.A.'s reported constipation prior to the age of 12.

Id. at 46.

Regarding victim responses to sexual abuse, Dr. McColgan

testified generally that the majority of children delay

disclosure of abuse, and described several reasons for this

delay, including fear, embarrassment, and guilt. Id. 37-39.

She also testified that, "more than 90 percent of the time,"

the abuser is well known to the child victim, which results in

the child continuing to see or visit their abuser even after an

assault. Id. at 38-40, 46-47. She opined that the above

factor further contributes to a child's delayed disclosure. Id.

at 38-40. Dr. McColgan also testified that it was common for

child victims to engage in piecemeal disclosures of abuse over

time, and noted that she has seen "every range of emotional

affect" in child victims when confronted with disclosure,

including outright denial. Id. at 47-50.

The Commonwealth additionally offered the testimony of

Lieutenant Gorman regarding his role in diagraming and

photographing the interiors of the . . . homes [where the

abuse occurred. N.T. Trial, 1/9/17, at 57-58]. Both victims'

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recollections of the then-existing furniture and appearances

of the rooms in which the abuse occurred were consistent

with the various diagrams and photographs taken by

Lieutenant Gorman. [Id. at 66, 68, 74, 80, 82-83, and 90;

N.T. Trial, 1/10/17, at 21, 36-40, 61-65, 69, 81-83, 85, 227-

230, and 233-238].

Appellant offered the expert testimony of Dr. William L.

Manion, a forensic pathologist. [N.T. Trial, 1/11/17, at 61-

65]. Dr. Manion[] testified that the majority of his experience

involved performing autopsies on deceased adults and

children, and that he has not physically examined a living

child since his pediatric rotation in medical school. Id. at 73-

74. He opined that he would expect to see some kind of

injury, scarring or laceration of some kind in nearly every

case of child sexual abuse involving anal penetration of the

child. [Id. at 77-79 and 88-89].

Finally, Appellant's daughter testified on his behalf. She

resided with the Appellant and two victims in the same room

at the Neshaminy Inn [and the Spruce Street houses] during

the same period of time the victims described. Id. at 96-100.

She testified that she did not witness or otherwise have

knowledge of any inappropriate behavior between Appellant

and the two victims during that time. Id.

After a three-day trial, a jury found Appellant guilty of the

following crimes: three counts of rape of a child, seven

counts of involuntary deviate sexual intercourse with a child

less than 13 years of age, involuntary deviate sexual

intercourse with a person less than 16 years of age, indecent

assault of a person less than 13 years of age, and indecent

assault of a person less than 16 years of age.[1] On June 15,

2017, [the trial] court sentenced Appellant to an aggregate

[term of] 30 to 80 years' incarceration. [Further, that same

day, the trial court determined that “the Commonwealth has

met its burden in establishing that [Appellant] does meet the

criteria to be classified as a sexually violent predator.” N.T.

Sentencing, 6/15/17, at 57]. Appellant filed a timely Motion

____________________________________________

1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3123(a)(7), 3126(a)(7), and 3126(a)(8),

respectively.

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to Reconsider Sentence on June 23, 2017, which [the trial]

court denied after a hearing on September 29, 2017.

Appellant filed a timely notice of appeal to the Superior Court

on October 26, 2017.

Trial Court Opinion, 3/23/18, at 1-14 (internal footnotes and some internal

capitalization omitted).

Appellant raises one claim on appeal:

Was it an error to admit testimony by the Commonwealth’s

expert which improperly bolstered the testimony of the

victims and was premised on the expert’s apparent

acceptance of the children’s report[?]

Appellant’s Brief at 5.

“The admission of evidence is committed to the sound discretion of the

trial court and an appellate court may reverse only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. McFadden, 156

A.3d 299, 309 (Pa. Super. 2017) (internal quotations and citations omitted).

This standard of review is a narrow one. Commonwealth v. Mendez, 74

A.3d 256, 260 (Pa. Super. 2013) (citation omitted). Our case law holds that

“[a]n abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id.

Appellant claims that the trial erred when it permitted the

Commonwealth’s expert, Dr. Maria McColgan, to testify: 1) that the “lack of

physical injury is consistent with [both S.A. and D.A.’s] account[s] of what

happened” and 2) “that it is common for there to be a delay in the reporting

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of sexual abuse and the reasons why various victims may delay their

disclosures.” Appellant’s Brief at 14-15. We will consider Appellant’s two

sub-claims in the order presented above.

First, Appellant claims, the trial court erred when it allowed Dr.

McColgan to testify that the “lack of physical injury is consistent with [both

S.A. and D.A.’s] account[s] of what happened.” Appellant’s Brief at 14. The

trial court found this claim waived, as Appellant failed to raise the issue in his

pre-trial motion and Appellant did not object to Dr. McColgan’s testimony at

trial. See Trial Court Opinion, 3/23/18, at 20. We agree that Appellant has

waived this claim on appeal.

Pursuant to Pennsylvania Rule of Appellate Procedure 302, “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). With respect to evidentiary rulings, “[e]rror may

not be predicated upon a ruling that admits [ ] evidence unless . . . a timely

objection, motion to strike[,] or motion in limine appears of record, stating

the specific ground of objection, if the specific ground was not apparent from

the context.” Pa.R.E. 103(a)(1).

Appellant’s motion in limine requested that the trial court preclude any

testimony from the Commonwealth’s expert that dealt with “victim responses

to sexual abuse and the impact of sexual abuse on victims during and after

being assaulted.” Appellant’s Pre-Trial Motion, 1/5/17, at 1. Appellant

claimed that this testimony was inadmissible for a number of reasons,

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including that it would “improperly bolster the credibility of the

Commonwealth’s witnesses.” Id. at 2.

On January 9, 2017, the trial court heard oral argument on Appellant’s

motion in limine and, at the beginning of the argument, Appellant’s counsel

clarified the scope of her objection. Counsel declared:

Your Honor . . . , [i]t’s my understanding that the

Commonwealth’s expert would be called for two purposes:

one for medical testimony, which is not a part of this

motion, but we are seeking to exclude her testimony

regarding the child’s behavior in response to sexual

abuse. We believe that this improperly bolsters the

credibility of the Commonwealth’s witness, specifically the

victims that would be testifying in this case.

N.T. Oral Argument, 1/9/17, at 10-11 (emphasis added).

The trial court denied Appellant’s motion, but informed Appellant’s

counsel that, “if you think the [questions] are beyond what the expert can

opine under the current state of the law, you’ll object.” Id. at 15.

As noted, during trial, Dr. McColgan testified that she reviewed the

reports from S.A. and D.A.’s medical examinations and testified that both S.A.

and D.A. had “normal” genital examination results. N.T. Trial, 1/11/17, at 31.

Further, Dr. McColgan testified that “the lack of physical injury [was]

consistent with [both S.A. and D.A.’s] account[s] of what happened.” Id. at

40-41 and 44-45. Appellant did not object to any of this testimony. See id.

Therefore, since Appellant failed to object to Dr. McColgan’s testimony

that “the lack of physical injury [was] consistent with [both S.A. and D.A.’s]

account[s] of what happened” and, since Appellant’s motion in limine did not

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encompass Dr. McColgan’s medical testimony, but was limited to her

testimony regarding victim “behavior in response to sexual abuse,” Appellant

waived any claim that the trial court erred in permitting Dr. McColgan to testify

that the “lack of physical injury is consistent with [both S.A. and D.A.’s]

account[s] of what happened.” Appellant’s Brief at 14; see also Pa.R.E.

103(a)(1).

Next, Appellant claims that the trial court erred when it allowed Dr.

McColgan to testify “that it is common for there to be a delay in the reporting

of sexual abuse and the reasons why various victims may delay their

disclosures.” Appellant’s Brief at 14-15. Appellant claims that this testimony

was inadmissible because it “indirectly vouch[ed] for the reports of the

victims” and “improperly invaded [] the jury’s province to determine the

credibility of the Commonwealth’s witnesses.” Id. Appellant’s claim fails.

42 Pa.C.S.A. § 5920, entitled “expert testimony in certain criminal

proceedings,” provides:

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

(1) A criminal proceeding for an offense for which

registration is required under Subchapter H of Chapter 97

(relating to registration of sexual offenders).

(2) A criminal proceeding for an offense under 18 Pa.C.S.

Ch. 31 (relating to sexual offenses).

(b) Qualifications and use of experts.--

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

witness may be qualified by the court as an expert if the

witness has specialized knowledge beyond that possessed

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by the average layperson based on the witness's

experience with, or specialized training or education in,

criminal justice, behavioral sciences or victim services

issues, related to sexual violence, that will assist the trier

of fact in understanding the dynamics of sexual violence,

victim responses to sexual violence and the impact of

sexual violence on victims during and after being

assaulted.

(2) If qualified as an expert, the witness may testify

to facts and opinions regarding specific types of

victim responses and victim behaviors.

(3) The witness's opinion regarding the credibility of any

other witness, including the victim, shall not be

admissible.

(4) A witness qualified by the court as an expert under

this section may be called by the attorney for the

Commonwealth or the defendant to provide the expert

testimony.

42 Pa.C.S.A. § 5920 (internal footnote omitted) (emphasis added).

The trial court accepted Dr. McColgan as an expert in “child abuse

pediatrics, general pediatrics, and the dynamics of sexual violence and victim

responses to sexual abuse.” N.T. Trial, 1/11/17, at 26. Further, as the trial

court explained, Section 5920 expressly allowed Dr. McColgan to testify “that

it is common for there to be a delay in the reporting of sexual abuse and the

reasons why various victims may delay their disclosures” because Dr.

McColgan “testified generally regarding common child victim responses to

sexual abuse” and she “did not testify regarding any specific victim responses

exhibited by S.A. or D.A. in this case.” Trial Court Opinion, 3/23/18, at 18-

19. Therefore, in accordance with Section 5920(b)(2) and (3), since Dr.

McColgan “testif[ied] to facts and opinions regarding specific types of victim

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responses and victim behaviors” – and did not provide an “opinion regarding

the credibility of . . . the victim[s]” – Dr. McColgan’s expert testimony was

admissible and the trial court did not err in denying Appellant’s motion in

limine.

Before concluding our analysis, however, we are constrained to sua

sponte2 raise the legality of Appellant’s designation as an SVP under the Sex

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§

9799.10-9799.41. A recent panel of this Court recognized:

In [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)],

our Supreme Court held that the registration requirements

under SORNA constitute criminal punishment. Id. at 1218.

In light of Muniz, this Court determined: “Under Apprendi

v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United

States, 570 U.S. 99 (2013) a factual finding, such as whether

a defendant has a mental abnormality or personality disorder

that makes him . . . likely to engage in predatory sexually

violent offenses, that increases the length of registration

must be found beyond a reasonable doubt by the chosen

fact–finder.” Commonwealth v. Butler, 173 A.3d 1212,

1217 (Pa. Super. 2017) (internal quotations and citations

omitted). The Butler Court further held “section

9799.24(e)(3) of SORNA violates the federal and state

constitutions because it increases the criminal penalty to

which a defendant is exposed without the chosen fact–finder

making the necessary factual findings beyond a reasonable

doubt.” Id. at 1218. The Court therefore concluded that trial

courts no longer can designate convicted defendants as SVPs

or hold SVP hearings “until our General Assembly enacts a

constitutional designation mechanism.” Id. The Butler Court

directed trial courts to apply only the applicable tier–based

registration period, as those periods apply based on the

____________________________________________

2 See Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)

(addressing legality of SVP status sua sponte).

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conviction itself, and not due to any additional fact not found,

under SORNA's procedures, by the fact–finder. The Court

ultimately reversed the order finding the defendant to be an

SVP and remanded to the trial court for the sole purpose of

issuing appropriate notice of the defendant's tier–based

registration period. Id.

Commonwealth v. Golson, ___ A.3d ___, 2018 WL 2473514, at *7 (Pa.

Super. 2018) (some internal corrections omitted).

Here, the trial court designated Appellant an SVP on June 15, 2017.

N.T. Sentencing, 6/15/17, at 57. In light of Butler and our Supreme Court’s

decision in Muniz, as summarized above, we are constrained to vacate the

portion of the trial court’s order of June 15, 2017 designating Appellant as an

SVP. We remand the case to the trial court for the sole purpose of issuing the

appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s tier-based

registration obligations under SORNA.

Judgment of sentence affirmed in part, SVP designation vacated. Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/18

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