Com. v. Huertas, D.

J-S48013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVID HUERTAS :

:

Appellant : No. 605 EDA 2019

Appeal from the PCRA Order Entered February 4, 2019

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

No(s): CP-39-CR-0001251-2015

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.: FILED JANUARY 24, 2020

David Huertas appeals from the February 4, 2019 order denying his

petition for relief under the Pennsylvania Post-Conviction Relief Act, (the

“PCRA”). After careful review and consideration, we affirm.

A jury convicted Appellant of various offenses related to serial sexual

assaults he perpetrated against his minor stepdaughters, L.M. and N.D. The

underlying factual history of this case was well-summarized by a prior panel

of this Court that adjudicated Appellant’s direct appeal:

In the instant case, the testimony at trial revealed that L.M. is a

15 year old girl, with a date of birth [in] May 2000. Additionally,

N.D. is a 13 year old girl, with a date of birth [in] September 2002.

[Appellant] is L.M.’s and N.D.’s stepfather. Appellant was the only

father whom L.M. and N.D. knew, as he had been in their lives

since they were very young.

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* Retired Senior Judge assigned to the Superior Court.

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Starting in the summer of 2011, when L.M. was approximately

eleven (11) years old, Appellant called her into his bedroom and

touched her “in ways that she did not like.” At that time, L.M. was

living at 714 Washington Street, Allentown, Lehigh County,

Pennsylvania. . . . [A]t one time, there were fourteen (14) people

living in the residence.

During the time that L.M. lived at the residence on Washington

Street, Appellant frequently would touch her breasts under and

over her clothes. He also would frequently touch her vagina, both

over and under her clothes. By "touch", L.M. explained that

Appellant would use his hand and his penis to glide over and

penetrate the inside of her vagina. This "touching" would occur

when Appellant was alone with L.M. in his bedroom, and happened

multiple times. Appellant instructed L.M. to do certain things,

such as touch his penis. L.M. testified that Appellant’s penis was

big and hard to the touch. In addition, L.M. explained that she

also "touched" Appellant’s penis with her mouth. This occurred

nearly every time. Even though L.M. did not want to do such

actions, she was afraid to say "no" to her stepfather. She feared

that Appellant would get mad and exhibit an attitude and take his

anger out on everyone around him. L.M. did not report this

"touching" to anyone, because she did not think that anyone

would believe her.

There were times when L.M.'s sister, N.D., was also present. L.M.

witnessed N.D. "touching" Appellant’s penis as to Appellant

instructed her to so do. On November 1, 2013, L.M., N.D. and

their family moved to a residence located at 1739 Hanover

Avenue, Allentown, Lehigh County, Pennsylvania. As on

Washington Street, L.M. and N.D. were living with Appellant, their

mother, their younger sister, and their brother. Appellant’s

mother lived with them on Hanover Avenue as well.

The "touching" continued to occur at the Hanover residence.

Appellant would frequently call L.M. and/or N.D. into his bedroom,

and make L.M. and/or N.D. touch his penis. He would make them

take off their clothes and he would touch L.M.'s breast and butt.

Appellant would glide over and penetrate L.M.'s vagina with his

penis. He would also rub his penis against the outside of N.D.'s

vagina. After he was "satisfied" and ejaculated, he would wipe off

the ejaculation.

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At times, when L.M. was 13 or 14 years old, and N.D. was 11 or

12 years old, Appellant had N.D. hold his penis with her hand while

L.M. put her mouth on Appellant’s penis. Appellant also had N.D.

put her mouth on his penis while L.M. held his penis.

N.D. was also "touched" by Appellant when L.M. was not present.

N.D. specifically recounted that when she was 11 years old,

Appellant "touched" her and had her put his penis in her mouth.

Appellant had instructed her to take off her clothes and he had

pulled his pants down, but not all the way off. Appellant touched

her in her private parts using his hands and his penis. Although

he never penetrated her vagina, he would rub his penis against

her. N.D. testified that she did not want to do such acts, but that

Appellant offered her money to do them.

In November of 2014, N.D. confided in her best friend at school

about the "touching" that was going on with Appellant. She

mentioned it again to this friend in January of 2015. Thereafter,

on February 4, 2015, at approximately 7:39 A.M., L.M. sent her

aunt, Eraka Rivera Cruz, a text message, implying that someone

was "touching" her. When L.M. actually spoke with her aunt on

the telephone, she told her that Appellant had been touching her.

The aunt advised her to inform her mother of same. L.M. took her

aunt's advice and told her mother. That day, both Appellant and

the mother picked L.M. up from school. Appellant took L.M.'s cell

phone when she entered the vehicle. Her mother yelled at her

when they returned home. When N.D. supported her sister's

account of what had been transpiring, her mother yelled at her

and slapped her. The next day, L.M. borrowed a telephone from

her friend at school and called her aunt again. Her aunt notified

the police of what L.M. had confided in her, and subsequent

medical examinations were performed on L.M. and N.D.

Commonwealth v. Huertas, 178 A.3d 169 (Pa.Super. Sept. 19, 2017)

(unpublished memorandum)

The remaining procedural history of this case was aptly summarized by

the PCRA court as follows:

At the conclusion of a jury trial conducted from December 1,

2015[,] through December 3, 2015, [Appellant] was found guilty

of rape of a child, two (2) counts of involuntary deviate sexual

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

deviate sexual intercourse with a child, aggravated indecent

assault with complainant less than 16 years of age, two (2) counts

of corruption of minors with defendant age 18 or above, and

indecent assault of a person less than 16 years of age. Thereafter,

on April 29, 2016, [the trial court] sentenced [Appellant] to an

aggregate term of state imprisonment of less than sixty (60) years

nor more than one hundred forty (140) years. Thereafter, on May

9, 2016, [Appellant] filed a timely motion for post[-]sentence

relief pursuant to Pennsylvania Rule of Criminal Procedure Rule

720. In his post[-]sentence motion, the Defendant filed a motion

in arrest of judgment challenging both the sufficiency and weight

of the evidence, a motion for new trial based on after-acquired

evidence, and a motion for new trial due to errors in the conduct

of trial.[1] [The trial court] denied Defendant’s motion for post[-

]sentence relief on June 1, 2016. Then, on June 23, 2016, the

Defendant filed a notice of appeal. Subsequently, on September

19, 2017, the Superior Court of Pennsylvania affirmed [the trial

court’s] judgment and sentence.

PCRA Court Opinion, 2/5/19, at 1-2 (unnecessary capitalization omitted).

____________________________________________

1 Appellant preserved an argument that the trial court “committed error by

allowing the Commonwealth’s expert witness to testify that she believed the

victims’ testimony of sexual assault thereby allowing the expert witness to

testify beyond her admissible scope and render an opinion as to the truth of

the victims’ testimony.” Appellant’s Motion for Post-Sentence Relief, 5/9/16,

at ¶ 8. This claim for relief was denied by the trial court. See Trial Court

Opinion, 6/2/16, at 13 (“It was not improper for [Dr. Jenssen] to answer

defense counsel’s direct question and opine that, based on studies and

statistics, she believed the statements made by L.M. and N.D. and took them

at face value.”). This claim was abandoned on direct appeal despite being

included in Appellant’s Rule 1925(b) statement. Compare Appellant’s Rule

1925(b) Statement, 7/19/16, at ¶ 5(c), with Commonwealth v. Huertas,

178 A.3d 169 (Pa.Super. Sept. 19, 2017) (unpublished memorandum). A

similar issue has been raised in this appeal under the auspices of

ineffectiveness. For the purposes of this appeal, Appellant’s claim is not

considered “previously litigated” under the PCRA. See Commonwealth v.

Smith, 995 A.2d 1143, 1150 (Pa. 2005) (“[I]neffectiveness claims are distinct

from claims raised on direct appeal, and must be treated as wholly

independent of underlying claim of error.”).

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On September 10, 2018, Appellant filed a timely, pro se PCRA petition.

The PCRA court appointed counsel to represent Appellant, who prepared and

filed a timely amended PCRA petition. In relevant part, Appellant argued that

“trial counsel rendered ineffective assistance of counsel as a result of his

failure to object to certain portions of Dr. Debra Esernio-Jenssen’s testimony

during direct examination and his failure to properly cross-examined [Dr.

Jenssen].” Appellant’s Amended PCRA Petition, 12/18/18, at ¶ 15. On

January 28, 2019, a PCRA hearing was held at which trial counsel testified and

argument was presented. The PCRA court denied Appellant’s petition on

February 4, 2019, and Appellant filed a timely notice of appeal. Thereafter,

the PCRA court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant timely

complied, and the PCRA court entered its Rule 1925(a) opinion. This case is

now ripe for our review.

Appellant has presented a well-reasoned summary of his claim for relief:

The [PCRA] court erred in failing to find trial counsel ineffective

when trial counsel repeatedly elicited testimony from an expert

witness as to the credibility of witnesses, which bolstered the

witnesses’ credibility and improperly invaded the province of the

jury, and is inadmissible pursuant to 42 Pa.C.S. § 5920(b)(3).

Trial counsel raised no objections to statements from the

[Commonwealth’s expert] testimony which improperly vouched

for and/or bolstered the testimony of witnesses. Trial counsel had

no reasonable strategic basis for his actions and but for counsel’s

actions, a reasonable probability exists that the outcome of the

proceedings would have been different.

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Appellant’s brief at 12. Thus, Appellant is requesting a new trial due to his

trial counsel’s allegedly ineffective assistance.

Our standard and scope of review in the context of a petition for relief

pursuant to the PCRA is well-established under existing precedent. Our

standard of review is “limited to determining whether the PCRA court’s findings

are supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013). Furthermore, “[o]ur scope of review

is limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the prevailing party at the PCRA court level.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). The PCRA court’s

credibility determinations are binding upon this Court to the extent that they

are supported by the record. See Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (“Spotz I”). However, we will apply a de novo standard of

review with regard to the PCRA court’s legal conclusions. Id.

Section 5920 sets forth the scope of testimony of experts in criminal

proceedings that concern sexual offenses at 18 Pa.C.S. §§ 3101-44, and/or

offenses for which registration is required pursuant to 42 Pa.C.S. §§ 9799.10-

.42. See 42 Pa.C.S. §§ 5920(a)(1)-(2). This statute permits experts to offer

their “opinions regarding specific types of victim responses and victim

behaviors,” but specifically precludes opinions addressing “the credibility of

any other witness, including the victim.” Commonwealth v. Cramer, 195

A.3d 594, 608 (Pa.Super. 2018).

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In pertinent part, § 5920 provides as follows:

(b) Qualifications and use of experts.—

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

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

witness has specialized knowledge beyond that possessed

by the average layperson based on the witness’s experience

with, or specialized training or education in, criminal justice,

behavioral sciences or victim services issues, related to

sexual violence, that will assist the trier of fact in

understanding the dynamics of sexual violence, victim

responses to sexual violence and the impact of sexual

violence on victims during and after being assaulted.

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

and opinions regarding specific types of victim responses

and victim behaviors.

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

other witness, including the victim, shall not be admissible.

42 Pa.C.S. 5920(b).

Instantly, Appellant’s claim relates to testimony adduced by both the

Commonwealth and Appellant’s own trial counsel from Dr. Jenssen, who was

qualified as an expert in the areas of pediatrics and child abuse pediatrics by

the trial court. See N.T. Trial II, 12/2/2015, at 74. In addition to being an

expert in the above-noted fields, Dr. Jenssen also examined L.M. and N.D. on

two separate occasions with the assistance of a nurse practitioner. The

examination commenced with a full history from both victims, followed by a

general physical examination and an ano-genital exam to ascertain whether

there was any physical evidence of sexual abuse. Id. at 75-78.

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In relevant part, Dr. Jenssen’s direct testimony included the following

portions of relevant testimony that were flagged as problematic during oral

argument before the PCRA court, see N.T. PCRA Hearing II, 1/28/19, at 7-14,

and in Appellant’s briefing before this Court, see Appellant’s brief at 8-9. That

testimony began as follows:

Q: When L.M. was giving her history did you notice anything

about her demeanor?

A: Yes.

Q. What did you notice?

A: She was very – she had a very sad affect. She was often

very tearful when she was providing [her] history.

Q: Okay. And what was the history she provided to you?

A: She provided that she had – he knew why she was there,

that she had had [sic] – she was sexually abused by an individual

that she named as David Huertas. I don’t know if I’m saying it

correctly. I can spell it – H-U-E-R-T-A-S. She said he was about

45 years old and he was her stepfather.

Id. at 78-79.

Thereafter, Dr. Jenssen testified that L.M.’s physical exam was

inconclusive and did not disclose any direct physical evidence of sexual abuse.

Nonetheless, Dr. Jenssen opined that L.M.’s history and physical exam were

consistent with the allegations, particularly because such physical evidence

typically does not endure when reporting of abuse is delayed. Id. at 80-82.

Dr. Jenssen’s testimony then continued regarding N.D.’s examination:

Q: Okay. And you got a history from N.D.?

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A: Yes.

Q: What history did N.D. provide you?

A: Well, initially N.D. didn’t even want to talk about it. And

then she kind of just blurted out that [Appellant], her stepfather,

had done inappropriate things to her.

Q: She talked about him touching her bottom with his hands

and that she had to see his penis. But she was very sad and really

did not want to talk about it.

Id. at 83.

Dr. Jenssen also testified that N.D., likewise, exhibited no physical signs

of abuse upon examination. Id. at 84-85. Thereafter, Dr. Jenssen explicitly

addressed N.D.’s seeming reluctance to discuss the allegations:

Q: I want to talk about one of the things you said in your report

specifically with N.D. You said in you report, “Disclosure of sexual

abuse is a process, especially when the abuser is a parent or

stepparent.” Do you remember saying that in your report?

A: Yes.

Q: What do you mean by that?

A: Intra-familial abuse is one of the most devastating things

for a child. We know that based on evidence-based studies,

advanced literature, that more than 50 percent of children that

are abused as children don’t disclose it until they’re adults.

Children are most often sexually abused by people they know,

they love, and they trust. That can be very confusing to a child

when the person who they care about, or other people like or love,

it can be devastating to them in terms of establishing a trusting

relationship with – in future relationships or even with adults.

Sometimes there is implicit or explicit, like with both of these girls,

pressure not to disclose. Sometimes there’s threats, like for L.M.,

that she – [Appellant] would beat them if she told. And sometimes

or older children they understand or they’re fearful of what the

consequences of their disclosure will bring. You know, in this case,

it’s their stepfather. Their mother was very much in love with this

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man who was very kind to her. Or their relationship with him, it’s

still a parent figure.

Id. at 85-86. Dr. Jenssen then discussed the delayed reporting in this case,

and expressed concern regarding L.M. and N.D.’s mother, who did not believe

the allegations against Appellant:

Q: Also, going back to your statement that disclosure of sexual

abuse is a process, and maybe this is just my interpretation, but

tell me if I’m interpreting this correctly. Sometimes when they

disclose they don’t disclose everything right away.

A: Oh, that’s very typical. In fact, not only is that so typical

for adolescents, that’s even very typical for adults who disclose

sexual abuse that happened to them as a child. They test the

waters. They test, like, is this a trustworthy person that I’m

disclosing to? Are they going to believe me? They just give a

little bit, you know, to test the waters. It was very clear to me,

in my experience when I was talking with N.D., I felt that she was

not yet ready to give her full disclosure. It was too painful for her.

I felt that her sister was more forthright with what was going on.

....

In this particular case, what they disclosed about their mother was

very concerning to me, as I’m a provider and my responsibility is

to ensure the safety and well-being – not only the physical safety

and well-being but the emotional safety and well-being of the child

– and I felt their mother reacted by not believing them, hitting

them, and then just denying as if anything happened. And as a

result of that they were not brought to medical attention until, you

know, sometime after the disclosure.

Id. at 88-89 (emphasis added). Dr. Jenssen concluded her direct testimony

by stating that all of her opinions recited above were rendered “to a reasonable

degree of medical certainty.” Id. at 89.

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Appellant’s trial counsel then engaged in the following line of questioning

while cross-examining Dr. Jenssen concerning the truthfulness of the

allegations made by L.M. and N.D. during their examinations:

Q: When you say her mother had concerns, did you speak with

her mother?

A: I don’t recall speaking with her mother. So I’m assuming it

was arranged through the social worker or somebody that works

in my office.

Q: Okay. So, then, you’re also assuming that the girls’ mother

hit them, or beat them, or did whatever it is that they told you

she did.

A: They told us she did.

Q: When they – they told you that.

A: That is correct.

Q: That there was – you didn’t inquire of the mother if this

happened.

A: I think that they are both bright, you know, 12 and 14

year olds. I think they could speak for themselves.

Q: You didn’t inquire of the mother if she did that, right?

A: Why would I?

Q: Well, you are coming in here today and you’re telling

these people that you’ve been told something. And you’re

telling these people that obviously these children are

telling you the truth. That’s what you’re telling them.

A: Yes.

....

Q: You just take what they tell you at face value.

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A: When I am doing a medical evaluation and speaking to a

child we ask the questions in an open-ended way. I am not saying

to the child, “Did your mother hit you?” This was information that

they provided freely to me. So yes, in this particular case, I

believe what they were telling me.

Q: You just accepted what they told you.

A: Yes, other than what I said before about N.D. I felt that she

was holding back, which, it’s not me. It’s what scientific studies

have shown. Evidence based medicine have shown that disclosure

is so delayed and such a difficult process because society doesn’t

want to believe children. This is why children delay until adulthood

to disclose their childhood abuse. Sexual abuse is very common.

About ten percent of the population is sexually abused and yet the

majority wait until adulthood. It is because the people – the

reason why they don’t disclose is for just this, is because they

don’t feel that somebody is going to believe them.

....

Q: Okay. And is it your position to the jury that no child has

ever lied about being abused, sexually abused?

....

A: It is my position, and what is published in the

literature, that very few children lie about sexual abuse,

less than four percent.

Q: Okay.

A: And most of the circumstances are involved with children

who come from divorced or separation – ongoing divorce or

separation. That’s what’s in the medical literature.

Q: I asked – I simply asked you for your opinion, what you

were telling the jury.

A: Yes. And that’s where – my opinion is based on my

knowledge of, you know, and my ongoing knowledge of what’s in

the medical literature.

Q: Okay.

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A: So it is extremely unusual for children to lie, less than

four percent in published studies.

Q: May I continue?

A: Yes, please.

* * *

Q: Okay. The second examination of L.M. says that her mother

is better now. Do you recall that?

A: Yes.

Q: She seems to care now?

A: That’s what the child said.

Q: Do you remember that?

A: Yes.

Q: And, so, do you believe, since everything else that the

children told you you believe, you believe that as well[?]

A: I believe what the child was telling me, yes.

Q: Okay. So after the second examination everything between

mother and daughter was better now, right? They were the

words.

A: Whatever words exactly I put in my note. I don’t remember

specifically other than that she did say that things were better

with her mother.

Q: And she – her mom seems to care now.

A: That’s what she said.

Id. at 96-102 (emphasis added).

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Based on the foregoing testimony, Appellant avers that trial counsel’s

decision not to object under § 5920 to Dr. Jenssen’s testimony regarding the

credibility of L.M. and N.D. on both direct and cross examination, coupled with

trial counsel’s strange decision to adduce additional testimony along the same

lines, constitutes ineffective assistance of counsel under the PCRA.

To prevail in a PCRA proceeding upon a claim of ineffectiveness of

counsel, i.e., to establish that such assistance so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place, Appellant must establish: (1) that the claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her action

or inaction; and (3) that, but for the errors and omissions of counsel, there is

a reasonable probability that the outcome of the proceedings would have been

different. 2 See Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).3

As a general proposition, “[c]ounsel is presumed to be effective and [the

appellant] has the burden of proving otherwise.” Commonwealth v. Rivers,

786 A.2d 923, 927 (Pa. 2001). Finally, “[f]ailure to meet any prong of the

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2 See 42 Pa.C.S. § 9543(a)(2)(ii), regarding eligibility for relief from

ineffective assistance of counsel.

3 This standard derives from the holdings in Strickland v. Washington, 466

U.S. 668 (1984), and Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

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test will defeat an ineffectiveness claim.” Commonwealth v. Wright, 961

A.2d 119, 149 (Pa. 2008).

The lynchpin of Appellant’s argument is Commonwealth v.

Maconeghy, 171 A.3d 707 (Pa. 2017), wherein our Supreme Court affirmed

our conclusion that expert testimony addressing the credibility of minor

victims in a similar context was improperly admitted under § 5920.4

Maconeghy, however, had not yet been decided when Appellant’s trial took

place, which significantly undercuts Appellant’s heavy reliance upon that

precedent. See Appellant’s brief at 16-24 (drawing numerous parallels

between the instant case and Maconeghy). Furthermore, Appellant’s claim

sounds in the context of ineffective assistance of counsel rather than trial court

error, and he “must demonstrate that counsel was incompetent under the law

____________________________________________

4 In Maconeghy, the defendant was convicted of sexually assaulting his

stepdaughter. Id. at 708. In addition to other testimony, the Commonwealth

presented expert testimony from a physician, who conducted a review of the

victim’s medical history and a physical examination. Id. The physician

discovered no physical evidence of abuse. During cross examination, defense

counsel “repeatedly attempted to secure a concession that the medical

evidence did not support a determination of abuse.” Id. In response, the

physician replied: “The history she provided to me pretty clearly indicated that

she was sexually abused.” Id. The physician also opined that his “medical

encounter” with the child “indicated the child had been victimized.” Id.

Finally, on redirect, the physician stated: “I really strongly believe that was

my medical conclusion that this child was victimized.” Id. Based upon this

testimony, our Supreme Court held that “an expert witness may not express

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

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

evidence of abuse. We find that such testimony intrudes into the province of

the jury . . . .” Id. at 779.

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in existence at the time of trial.” Commonwealth v. Gribble, 863 A.2d 455,

464 (Pa. 2004). It is practically axiomatic under Pennsylvania law that

“[c]ounsel cannot be deemed ineffective for failing to predict developments or

changes in the law.” Id. The Supreme Court’s guidance in Maconeghy was

simply not available to Appellant’s counsel (or, indeed, to anyone) at the time

of trial, and we cannot evaluate counsel’s actions in the light of that precedent.

This is not altogether fatal to Appellant’s claims, as Appellant also relies

upon § 5920(b)(3)’s independent prohibition against the admission of

credibility opinions by experts in cases such as this one. Additionally, relevant

precedent from both this Court and the Pennsylvania Supreme Court that was

operative at the time of Appellant’s trial also suggests such a prohibition is

also recognized at Pennsylvania’s common law. See Commonwealth v.

Seese, 517 A.2d 920, 922 (Pa. 1986) (“[I]t was error to admit expert

testimony as to the credibility of . . . the crime victim. . . . That testimony

was necessar[ily] prejudicial to the appellant due to the fact that the

prosecution relied primarily upon the perceived veracity of the victim to

establish its case.”); see also Commonwealth v. Hernandez, 615 A.2d

1337, 1340 (Pa.Super. 1992) (“We are mindful that the admissibility of expert

testimony in child abuse cases must be evaluated cautiously in order to

prevent encroachment upon the jury’s function by the unfair enhancement of

a child victim’s credibility.”). Appellant’s claim for relief will have to find

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purchase solely within the confines of § 5920 and the case law interpreting it

that existed at the time of his trial. See Gribble, supra at 464.

Evaluating the arguable merit of Appellant’s claims in the proper

temporal posture, it appears that much of the complained-of testimony was

specifically permitted pursuant to the “safe harbor” afforded by the statute,

which collectively provides that “the witness may testify to facts and opinions

regarding specific types of victim responses and victim behaviors” such as “the

dynamics of sexual violence, victim responses to sexual violence[,] and the

impact of sexual violence on victims during and after being assaulted.” 42

Pa.C.S. §§ 5920(b)(1)-(2). Upon close inspection, Dr. Jenssen’s testimony

during her direct examination by the Commonwealth appears to fall entirely

within this category of permissible testimony. In relevant part, Dr. Jenssen

shared her expert knowledge to explain the lack of physical evidence of sexual

assault in this case, and delineate typical behaviors exhibited by minor victims

of interfamilial abuse such as delayed reporting and reluctant disclosure. See

N.T. Trial II, 12/2/2015, at 78-89. Although Dr. Jenssen certainly discussed

her expert opinions and relevant professional sources in the context of her

experiences examining L.M. and N.D., such testimony appears5 to be

____________________________________________

5 This Court has concluded that § 5920’s remit distinguishes a number of

precedents concerning the admissibility of expert testimony, including

Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992) (“Not only is there

no need for testimony about the reasons children may not come forward, but

permitting it would infringe upon the jury’s right to determine credibility.”

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admissible under § 5920(b)(2). See 42 Pa.C.S. § 5920(b)(2) (allowing

testimony regarding “specific types of victim responses and behaviors”).

Overall, Dr. Jenssen’s direct testimony never explicitly addressed whether or

not the complained-of sexual assaults in this case actually ever took place,

and expressed no opinion regarding the overall truthfulness of L.M. or N.D.

As such, Appellant’s claims regarding trial counsel’s failure to object to Dr.

Jenssen’s direct testimony are without arguable merit.6 See Commonwealth

v. Carter, 111 A.3d 1221, 1223 (Pa.Super. 2015) (concluding that expert

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(emphasis in original)) and Commonwealth v. Balodis, 747 A.2d 341, 345-

46 (Pa. 2000) (relying upon Dunkle to disapprove of expert testimony

regarding the “general characteristics of child victims of sexual abuse”). See

Commonwealth v. Carter, 111 A.3d 1221, 1224 (Pa.Super. 2015). Our

Supreme Court has agreed with this general conclusion, see Commonwealth

v. Olivo, 127 A.3d 769, 780-81 (Pa. 2015) (adjudicating the constitutionality

of § 5920 under Art. V, § 10(c) of the Pennsylvania Constitution), but has

declined to specifically delineate the extent to which such prior precedent

continues to constitute “good” law. See Commonwealth v. Maconeghy,

171 A.3d 707, 776 n.2 (Pa. 2017) (“The decisions in at least Dunkle and

Balodis are impacted by the enactment of Section 5920 of the Judicial Code

. . . . It is beyond the scope of this opinion to discuss the specific effect of the

statute on these cases.”).

6 This Court has recently suggested a more-stringent “best practice” under

§ 5920 that would potentially render Dr. Jenssen’s testimony in this case

objectionable due to her direct familiarity with the underlying allegations: “The

Commonwealth did not provide [the expert witness] with a factual account of

the allegations against Appellant, and she testified without knowing anything

about the allegations, the [v]ictim, or [the appellant] in order to comply with

Section 5920.” Commonwealth v. Cramer, 195 A.3d 594, 608 (Pa.Super.

2018). Instantly, Cramer is inapplicable in evaluating trial counsel’s

effectiveness, as it post-dates Appellant’s trial. See Commonwealth v.

Gribble, 863 A.2d 455, 464 (Pa. 2004) (“Counsel cannot be deemed

ineffective for failing to predict developments or changes in the law.”).

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testimony regarding delayed reporting in child sexual assault victims was

admissible under § 5920 where the expert “did not testify regarding this victim

specifically or whether or not the alleged incidents actually occurred”); see

also Commonwealth v. Hernandez, 615 A.2d 1337, 1344 (Pa.Super. 1992)

(“[D]efense counsel cannot be deemed ineffective for not raising a meritless

objection.”).

We must conclude, however, that Appellant has established arguable

merit with respect to significant portions of trial counsel’s cross-examination

of Dr. Jenssen, which undeniably adduced testimony directly speaking to the

credibility of L.M. and N.D. Although Dr. Jenssen never explicitly stated

whether or not she personally believed that a sexual assault had taken place

in this case,7 she repeatedly stated that she “believed” what L.M. and N.D.

told her during their examinations and also vouched for them as “bright”

children that were capable of speaking for themselves. See N.T. Trial II,

12/2/15, at 96-102. Facially, this testimony falls within the ambit of the

statutory and common law prohibitions against experts offering credibility

opinions in their testimony and would likely be inadmissible given a timely

objection. See 42 Pa.C.S. § 5920(b)(3); see also Seese, supra at 922.

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7 Although Dr. Jenssen spoke, generally, to the credibility of L.M. and N.D.,

her statements of belief are explicitly limited to whether or not she had taken

their accounts of their mother striking them at “face value.” As such, she

never explicitly addressed whether or not she believed the allegations of

sexual abuse.

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Consequently, we must assess whether Appellant’s claim satisfies the

remaining two prongs of the ineffectiveness standard.

Although we have serious concerns regarding the strategic basis of trial

counsel’s actions, we need not make a determination regarding that prong of

the Strickland test for ineffectiveness.8 Ultimately, Appellant’s claim fails

because he has not established prejudice as it is defined in the context of

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8 The learned Concurrence has suggested that Appellant’s trial counsel had a

reasonable strategic basis for his actions. The PCRA court reached the same

conclusion, construing trial counsel’s line of questioning as an attempt “to

prove that she believed the allegedly abused children regardless of the

inconsistencies in their testimony . . . .” PCRA Court Opinion, 2/5/19, at 11.

We respectfully disagree and take a much dimmer view of trial counsel’s

questionable decision to adduce testimony: (1) that he knew at the time of

trial would be inadmissible, see N.T. PCRA Hearing II, 1/28/19, at 15-16; (2)

that he knew at the time of trial would lead to Dr. Jenssen bolstering the

victim’s credibility to the detriment of his client, id. at 17-19; (3) without a

proper foundation to actually impeach Dr. Jenssen’s credibility, id. at 21-22;

and (4) without seeking any curative instruction from the trial court when this

attempt at impeachment predictably faltered. Id. at 20. Any utility or

advantage that might have been gained by impeaching Dr. Jenssen was

undercut by these significant deficiencies in trial counsel’s strategy. As such,

Appellant’s trial counsel should have either declined to pursue such a fraught

strategy altogether, sought curative instructions, or elicited bias testimony

from Dr. Jenssen with reference to the “thousands” of exams that she had

conducted over the course of her career. See N.T. Trial II, 12/2/15, at 73.

Even allowing that trial counsel possessed some strategic intent in this case,

his plan was not reasonably calculated or executed. See Commonwealth v.

Rounds, 542 A.2d 997, 999 (Pa. 1988) (opining in the context of expert

opinion offered regarding the veracity of minor sexual assault victims that

“[t]here is no reason that can be offered for permitting the damaging opinion

of [the expert] to be admitted”). As such, I cannot join in the Concurrence’s

suggestion that trial counsel had a reasonable strategic basis for his actions.

Such a conclusion is belied by trial counsel’s own testimony.

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these ineffectiveness claims under the PCRA. The central thesis of Appellant’s

argument concerning prejudice is as follows:

Because the opinion, vouching for L.M.’s and N.D.’s credibility,

came from a highly qualified and experienced child abuse

pediatrician, and was buttressed with statements claiming

scientific and statistical studies supported the opinion, there was

substantial risk of prejudice for the Appellant. A jury could

easily be overly impressed or swayed by the opinions of

experts such as [Dr. Jenssen], particularly when surrounded with

the hallmarks of the scientific method.

Appellant’s brief at 23-24 (emphasis added).

Appellant’s argument regarding prejudice has misconstrued the

extraordinary burden of establishing prejudice under the PCRA. Although

Appellant has recited an arguably correct standard of review for this question,

Appellant’s application claims that the “risk of prejudice,” or the mere potential

that the jury could have been “impressed or swayed” by Dr. Jenssen’s

testimony, is sufficient to establish prejudice. This claim erroneously asserts

that trial counsel’s actions were prejudicial under the “harmless error”

standard. See Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978)

(“[A]n error cannot be held harmless unless the appellate court determines

that the error could not have contributed to the verdict. Whenever there is a

reasonable possibility that an error might have contributed to the conviction,

the error is not harmless.”). By contrast, ineffectiveness claims under the

PCRA requires the affirmative demonstration of actual prejudice. See

Strickland v. Washington, 466 U.S. 668, 686 (1984) (“The benchmark for

judging any claim of ineffectiveness must be whether counsel’s conduct so

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undermined the proper functioning of the adversarial process that the trial

court cannot be relied on as having produced a just result.”). In sum,

Appellant’s discussion inappropriately conflates “harmless error” with the

more-exacting “actual prejudice” standard that is applicable under the

PCRA.9/10

Our Supreme Court clearly delineated this distinction in

Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014) (“Spotz II”):

[T]he test for prejudice in the ineffectiveness context is more

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

is on the defendant, not the Commonwealth. As a general and

practical matter, it is more difficult for a defendant to prevail on a

claim litigated through the lens of counsel ineffectiveness, rather

than as a preserved claim of trial court error. . . .

A defendant raising a claim of ineffective assistance of counsel is

required to show actual prejudice; that is, that counsel’s

ineffectiveness was of such magnitude that it could have

reasonably had an adverse effect on the outcome of the

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9 This is a critical distinction because the precedent relied upon by Appellant

that resulted in the grant of a new trial uniformly arises in the context of

claims of trial court error on appeal, as opposed to collateral review. See

Commonwealth v. Maconeghy, 171 A.3d 707, 710 (Pa. 2017).

10 The learned Concurrence suggests that we have committed an error by

correctly reciting the standard for establishing prejudice under the PCRA for a

claim of ineffective assistance of counsel, and then applying that standard to

Appellant’s arguments of record. We respectfully disagree. Our conclusion

that Appellant has not sustained his burden of demonstrating “actual

prejudice” is not the product of some mistake in law, but the natural

consequence of Appellant presenting insufficient evidence to establish such.

While we commend the learned Concurrence for its solicitude concerning the

heavy burden posed by such a standard, we are bound by well-established

precedent in this area of law. See Commonwealth v. Williams, 9 A.3d 613,

619 n.7 (Pa. 2010) (“[I]t is more difficult to obtain relief on collateral review

because Strickland places a heavier burden on the defendant.”).

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proceedings. This standard is different from the harmless error

analysis that is typically applied when determining whether the

trial court erred in taking or failing to take certain action. . . . [The

harmless error standard] places the burden on the Commonwealth

to show that the error did not contribute to the verdict beyond a

reasonable doubt, is a lesser standard than the Pierce prejudice

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

conduct had an actual adverse effect on the outcome of the

proceedings. This distinction appropriately arises from the

difference between a direct attack on error occurring at trial and

a collateral attack on the stewardship of counsel. In a collateral

attack, we first presume that counsel is effective, and that not

every error by counsel can or will result in a constitutional violation

of a defendant’s Sixth Amendment right to counsel.

Id. at 315. Instantly, Appellant’s averments concerning prejudice are

unavailing as a result of this distinction, as Appellant’s claims regarding

prejudice are confined to unapplied speculation regarding how Dr. Jenssen’s

testimony might have impacted the proceedings below. This Court has

rejected such arguments, concluding that “[u]nsupported speculation does not

establish reasonable probability” that the outcome of the proceedings would

have been different. Commonwealth v. Charleston, 94 A.3d 1012, 1026

(Pa.Super. 2014).

“In making [a prejudice] determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence before the

judge or jury . . . .” Commonwealth v. Lesko, 15 A.3d 345, 383 (Pa. 2011)

(emphasis in original).11 Instantly, the Commonwealth’s case rested largely

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11 The learned Concurrence has also averred that we have impermissibly

conflated sufficiency of the evidence with actual prejudice. However, our

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upon testimonials from L.M. and N.D. that were uncorroborated by physical

evidence, but Appellant was unsuccessful in eliciting significant inconsistencies

or falsities in their respective testimonies. See N.T. Trial I, 12/1/15, at 64-

102 (cross-examination of L.M.); see also N.T. Trial II, 12/2/15, at 39-58

(cross-examination of N.D.). At best, Appellant raised a question regarding

whether Appellant’s bedroom door had a lock. Compare N.T. Trial I, 12/1/15,

at 69-70 (L.M. testifying that Appellant would lock the door to the bedroom

when the assaults took place) with N.T. Trial III, 12/3/15, at 28-29

(testimony that the bedroom could not be locked, but was held close by a

large container filled with coins). Although uncorroborated with physical

evidence, the victim testimonials in this case also remained uncontroverted at

the close of the proceedings. As such, it seems clear that the discrepancy that

resulted from trial counsel’s erroneous cross-examination of Dr. Jenssen was

not of a sufficient magnitude to undermine confidence in the jury’s verdict

based upon the arguments advanced by Appellant. Accord Spotz, supra at

315; cf. Commonwealth v. Sparks, 539 A.2d 887, 890 (Pa.Super. 1988)

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discussion of the totality of the evidence presented at trial is commanded by

the relevant precedent of our Supreme Court. See Commonwealth v.

Lesko, 15 A.3d 345, 383 (Pa. 2011). The point of this evidentiary review is

not to establish that the Commonwealth’s case was legally “sufficient,” but to

ascertain whether trial counsel’s error had a palpable effect upon the outcome

of the proceeding such that it constitutes “actual prejudice.” Based upon our

review of the totality of the evidence, we conclude that it did not. Tellingly,

the Concurrence does not explicitly opine regarding whether or not it would

conclude that “actual prejudice” resulted in this controversy.

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(“The Commonwealth’s evidence was not overwhelming, and the

contradictions and inadequacies therein, if pointed out to the jury, may well

have created reasonable doubt as to whether appellant had committed the

crimes with which he was charged.”).

In totality, Appellant has failed to demonstrate actual prejudice with

respect to the arguable bolstering of L.M.’s and N.D.’s respective credibility by

Dr. Jenssen’s testimony during cross-examination by Appellant’s trial counsel.

As such, Appellant’s claim for relief must fail.12

Order affirmed.

Judge Shogan joins the memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/24/20

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12 Although we affirm on a separate basis from that originally espoused by

the PCRA court, “[t]his Court may affirm a PCRA court’s decision on any

grounds if the record supports it.” Commonwealth v. Ford, 44 A.3d 1190,

1194 (Pa.Super. 2012).

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