Com. v. Kane, R.

J-A04020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT

PENNSYLVANIA, : OF PENNSYLVANIA

:

Appellee :

:

v. :

:

ROBERT KANE, :

:

Appellant : No. 2509 EDA 2018

Appeal from the Judgment of Sentence Entered July 19, 2018

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006611-2015

BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 28, 2020

Robert Kane (Appellant) appeals from his judgment of sentence of

15 to 30 years’ imprisonment imposed on July 19, 2018, following his

convictions of rape of a child, involuntary deviate sexual intercourse (IDSI)

with a child, aggravated indecent assault of a child, unlawful contact with a

minor, corruption of minors, endangering the welfare of a child (EWOC), and

indecent assault on a person less than 13 years of age. We affirm.

Appellant is the stepfather of E.S., a minor. From 2011 to 2015,

when E.S. was between the ages of six to ten years old, Appellant sexually

abused E.S. at their home in Philadelphia. Specifically, Appellant placed his

penis in E.S.’s vaginal area, anus, and mouth. He made her swallow his

ejaculated semen on several occasions and placed his finger and tongue on

* Retired Senior Judge assigned to the Superior Court.

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E.S.’s vaginal area. Appellant also showed E.S. pornographic images on his

cell phone depicting naked women performing oral sex on naked men. On

April 8, 2015, a family member contacted the Philadelphia Department of

Human Services (DHS) to report the sexual abuse. DHS investigated the

report, led by the investigating caseworker Jercina Butler. Caseworker

Butler visited the family at their home, and E.S. subsequently disclosed the

abuse at a forensic interview.

On May 21, 2015, Appellant was arrested and charged with the

aforementioned crimes. The trial court granted the Commonwealth’s pretrial

motion to revoke bail on February 12, 2016. Appellant appealed, and this

Court affirmed the order revoking bail. See Commonwealth v. Kane, 179

A.3d 599 (Pa. Super. 2017) (unpublished memorandum).1

Prior to trial, the trial court twice denied Appellant’s motions to

dismiss all charges based upon alleged violations of the speedy trial rule,

Pa.R.Crim.P. 600(A)(2). After several continuances, Appellant’s trial

proceeded before a jury in December 2017. The jury found Appellant guilty

of all charges. After another series of continuances, Appellant was

sentenced on July 19, 2018, to an aggregate sentence of 15 to 30 years of

____________________________________________

1 This Court treated Appellant’s notice of appeal as a petition for review of

the decision of a governmental unit pursuant to Chapter 15 of the

Pennsylvania Rules of Appellate Procedure.

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incarceration, followed by 10 years of probation. Appellant timely filed a

post-sentence motion, which was denied.

This timely filed appeal followed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925. On appeal, Appellant presents three issues.

I. Did the trial court err in denying Appellant’s motions for

dismissal for violation of Pennsylvania Rule of Criminal Procedure

600?

II. Did the Commonwealth deny Appellant his right to due

process by making false statements to the [trial] court and the

Superior Court that Appellant was still living at home after the

sexual allegations between Appellant and E.S. were made

known, thus, resulting in Appellant being denied bail, when the

facts were that he was living with his mother after the

allegations, and a safety assessment was done to show that E.S.

was in no danger?

III. Did the [trial] court err in allowing the [DHS] investigator

to testify concerning the meaning of an “indicated” report?

Appellant’s Brief at 3 (unnecessary articles and capitalization omitted).

Appellant’s first issue challenges the denial of his Rule 600 motions.

“In evaluating Rule [600] issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion.” Commonwealth

v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en banc). “The proper

scope of review ... is limited to the evidence on the record of the Rule [600]

evidentiary hearing, and the findings of the [trial] court.” Id.

The case at issue here was initiated on May 21, 2015; thus, Rule 600

required that the trial commence within 365 days, or before May 20, 2016.

See Pa.R.Crim.P. 600(A)(2)(a). After a series of continuances, Appellant’s

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trial commenced on December 12, 2017. The Rule provides that “periods of

delay at any stage of the proceedings caused by the Commonwealth when

the Commonwealth has failed to exercise due diligence shall be included in

the computation of the time within which trial must commence. Any other

periods of delay shall be excluded from the computation.” Pa.R.Crim.P.

600(C)(1).

Appellant focuses on two periods of delay he contends should be

attributable to the Commonwealth: from September 26, 2016, to May 16,

2017, and from May 16, 2017, to December 11, 2017. Appellant’s Brief at

11-14. He claims that the Commonwealth caused the trial to be continued

on September 26, 2016, and again on May 16, 2017, by providing discovery

to the defense twice on the eve of trial. Id. Therefore, Appellant contends

the Commonwealth failed to use due diligence in bringing the case to trial,

and the trial court abused its discretion in twice refusing to grant his motions

to dismiss. Id.

After review of the record, we conclude that Appellant has waived this

issue by failing to ensure that the necessary information for appellate review

was included in the certified record. Appellant claims he filed two motions to

dismiss pursuant to Rule 600(D)(1): one on January 14, 2016, and a second

on August 23, 2017. Only his August 23, 2017 motion appears in the

record. The January 14, 2016 motion to which Appellant refers in his brief

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does not request dismissal based upon Rule 600(D)(1); instead, it is a

motion requesting release on nominal bail pursuant to Rule 600(D)(2).2

Most significantly, Appellant failed to request the transcript of any

evidentiary hearing on the issue. Appellant refers in his brief to “the

evidentiary hearing,” but does not provide a citation to notes of testimony of

such hearing or even a date. Appellant’s Brief at 11. Our review of the

certified record does not reveal notes of testimony from any Rule 600

evidentiary hearing, and Appellant’s notice of appeal does not include a

request to transcribe any such hearing.

“The fundamental tool for appellate review is the official record of the

events that occurred in the trial court.” Commonwealth v. Preston, 904

A.2d 1, 6 (Pa. Super. 2006) (en banc) (citation omitted). The certified

record consists of “original papers and exhibits filed in the lower court, paper

____________________________________________

2 There are two orders denying motions to dismiss in the record: one

docketed on April 26, 2017, and a second docketed on October 23, 2017.

The Commonwealth references a September 26, 2016 defense motion to

dismiss, see Commonwealth’s Brief at 3, but no such motion appears on the

docket or elsewhere in the certified record. It is possible such motion was

oral, as the docket for that date has a notation to list the case for a Rule

600(A) hearing. However, without a transcript of any proceedings that

occurred on September 26, 2016, it is impossible for us to know, and it is

Appellant’s responsibility to provide a specific citation to the place in the

record where the matter referred to appears. See Pa.R.A.P. 2119(c).

Moreover, if Appellant’s motion was oral, such motion was insufficient to

preserve a Rule 600 claim. Commonwealth v. Brock, 61 A.3d 1015, 1020

(Pa. 2013) (“[A] motion to dismiss pursuant to Pa.R.Crim.P. 600 must be

made in writing, and a copy of such motion must be served on the

Commonwealth’s attorney.”).

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copies of legal papers filed with the prothonotary by means of electronic

filing, the transcript of proceedings, if any, and a certified copy of the docket

entries prepared by the clerk of the lower court[.]” Pa.R.A.P. 1921. This

Court cannot consider on appeal any items that are not part of the certified

record. Preston, 904 A.2d at 6. Our rules place the responsibility of

ensuring the record on appeal is complete “squarely upon the appellant and

not upon the appellate courts.” Id. at 7 (citing Pa.R.A.P. 1931).

Specifically, our rules require that an appellant order and pay for any

transcript necessary to permit resolution of the issues the appellant raises

on appeal. See Pa.R.A.P. 1911(a). When an appellant fails to order all

necessary transcripts in compliance with Rule 1911(a), “any claims that

cannot be resolved in the absence of the necessary transcript or transcripts

must be deemed waived for the purpose of appellate review.” Preston, 904

A.2d at 7.

Appellant’s notice of appeal does not attach a request for a transcript.

See Pa.R.A.P. 904(c) (requiring same). Given our standard and scope of

review for Rule 600 issues, we are unable to conduct meaningful review of

Appellant’s Rule 600 claim without the transcript(s) of the evidentiary

hearing(s). Since Appellant failed to request any transcripts, the absence of

the transcript falls squarely on Appellant and is not attributable to any

breakdown in judicial process. Therefore, we deem Appellant’s Rule 600

claim to be waived.

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Appellant’s second issue involves a vague argument surrounding an

alleged violation of his due process rights in relation to his bail. Prior to trial,

the Commonwealth filed a motion to revoke Appellant’s bail. In support of

this motion, the Commonwealth averred that when an investigating

detective arrived at the family’s home, the detective observed Appellant and

children in their underwear. In the instant appeal, Appellant insists the

averment in the motion was false, and the Commonwealth knowingly relied

upon this false statement in support of its motion to revoke bail and in

Appellant’s appeal from the grant of that motion. Appellant claims he was

living with his mother, and not in the family’s home with E.S. Appellant

suggests certain evidence introduced by the Commonwealth at trial

disproves the statement, and contends the Commonwealth violated his due

process rights by allowing him to remain incarcerated prior to trial.

Appellant argues that this alleged due process violation should result in the

vacation of his judgment of sentence.

The lone case Appellant cites in support of his argument, Napue v.

Illinois, 360 U.S. 264 (1959), is completely inapposite to both the facts and

procedural posture of Appellant’s case. Moreover, since Appellant has

already been tried and convicted, and is now serving his sentence, we

cannot grant Appellant substantive relief on his pretrial claim that his bail

should not have been revoked, rendering his claim moot. See

Commonwealth v. Dixon, 907 A.2d 468 (Pa. 2006). While sometimes

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appellate courts will decide similar issues based upon the capable-of-

repetition-but-evading-review exception to the mootness doctrine, we

decline to do so here. This Court has determined already that the trial court

did not abuse its discretion in revoking Appellant’s bail. See Kane, supra.

Even assuming arguendo that later evidence at trial conflicted with the facts

the trial court had before it at the bail revocation hearing, this does not

mean the trial court erred in denying Appellant’s bail based on the

information it had before it at the time. No relief is due on Appellant’s

second issue.

We turn now to Appellant’s third issue. Appellant argues that the trial

court erred by allowing the testimony of DHS investigator, Caseworker

Butler, regarding the meaning of an “indicated” report.

We review this issue under the following standard.

The admissibility of evidence is within the sound discretion of the

trial court, and this Court will not reverse a trial court’s decision

concerning admissibility of evidence absent an abuse of the trial

court’s discretion. An abuse of discretion will not be found based

on a mere error of judgment, but rather exists where the court

has reached a conclusion which overrides or misapplies the law,

or where the judgment exercised is manifestly unreasonable, or

the result of partiality, prejudice, bias or ill-will. To the extent

that this case presents a question of law, our standard of review

is de novo, and our scope is plenary.

Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (citations omitted).

By way of background in the instant case, Caseworker Butler, as part

of her role on behalf of DHS on an interdisciplinary team investigating

fatalities, near fatalities, and sexual abuse cases, interviewed E.S.,

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Appellant, and other family members regarding a report of alleged sexual

abuse of E.S. by Appellant at E.S.’s home. Caseworker Butler interviewed

E.S. in her room while Appellant and other family members were downstairs.

E.S. initially denied the allegation to Caseworker Butler, but after

Caseworker Butler left, E.S. disclosed the sexual abuse to her older sister.

E.S. and her sister told their mother, who alerted DHS. E.S. was then

scheduled for a forensic interview at the Philadelphia Children’s Alliance,

where she disclosed the abuse to a forensic interviewer from the Alliance.

Her interview was witnessed behind a one way mirror by a police detective

and a DHS caseworker.

During Caseworker Butler’s testimony, the assistant district attorney

(ADA) questioned Caseworker Butler about the nature of the DHS team, her

years of experience at DHS, and the number of investigations on which she

has worked. Caseworker Butler testified that she had worked for DHS for

10½ years, and over that time, she had conducted thousands of

investigations. The ADA asked her whether children always disclose abuse

when interviewed at their homes. Caseworker Butler responded,

“[s]ometimes you’ll have a child disclose, sometimes not. It depends on the

situation, the environment. That’s the norm for a child not to disclose

especially if we are actually interviewing them in the home where the abuse

actually took place.” N.T., 12/14/2017, at 70.

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Caseworker Butler was shown the report she prepared regarding the

investigation, which later was introduced into evidence as Commonwealth

Exhibit 8.3 The ADA asked Caseworker Butler, “what does it mean if a report

is indicated?” N.T., 12/14/2017, at 71. Appellant’s counsel objected, but

the trial court overruled his objection. Caseworker Butler responded, “When

a report is indicated, the information that I gathered throughout the

investigation states that there was enough evidence to support that the

disclosure made by [E.S.] is true.” Id. (emphasis added).

On appeal, Appellant argues that “[a]llowing the witness to express

that her investigative report contained enough evidence that E.S.’s sexual

allegations were true improperly bolstered the victim’s credibility,”

particularly because there was no physical evidence of abuse. Appellant’s

Brief at 17. Appellant contends that if the investigator simply had read the

statutory definition,4 her response would not have been as problematic. But

____________________________________________

3 Appellant objected to the introduction of the report because it referred to

DHS’s conclusions about E.S.’s credibility. The Commonwealth agreed to

redact any references to E.S.’s credibility from the report, and the trial court

admitted the redacted report. N.T., 12/15/2017, at 17-20. However, the

copy included in the certified record does not have any redactions. Id. at

Commonwealth Exhibit 8.

4 The Child Protective Services Law (CPSL) defines “[i]ndicated report” as

a report of child abuse made pursuant to this chapter if an

investigation by the department or county agency determines

that substantial evidence of the alleged abuse by a perpetrator

exists based on any of the following:

(Footnote Continued Next Page)

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since Caseworker Butler referenced the truth of E.S.’s allegations, the jury

could have interpreted her statement as endorsing E.S.’s credibility,

particularly because the Commonwealth took care to point out her

professional experience investigating sexual abuse allegations. Id. at 17-19.

Under longstanding precedent in this Commonwealth, determining

witness credibility “is exclusively the function of jurors.” Commonwealth v.

Maconeghy, 171 A.3d 707, 713 (Pa. 2017). Our Supreme Court has held

“a lay jury is capable of determining whether a witness is lying, and thus

expert testimony is not permissible as to the question of witness credibility.”

Alicia, 92 A.3d at 760. Elaborating further, our Supreme Court stated that

[t]he veracity of a particular witness is a question which must be

answered in reliance on the ordinary experiences of life, common

knowledge of the natural tendencies of human nature, and

observations of the character and demeanor of the witness. As

the phenomenon of lying is within the ordinary capacity of jurors

to assess, the question of a witness’s credibility is reserved

exclusively for the jury.

Id. (citations omitted).

Our Supreme Court has expressed that vouching for the credibility of a

child witness by an expert is of particular concern, noting the “the high

(Footnote Continued) _______________________

(i) Available medical evidence.

(ii) The child protective service investigation.

(iii) An admission of the acts of abuse by the

perpetrator.

23 Pa.C.S. § 6303.

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stakes involved in child sexual assault cases and the potential power and

persuasiveness of testimony by those clothed with the mantle of professional

expertise.” Maconeghy, 171 A.3d at 713. Accordingly, “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”5 because it “intrudes into the

province of the jury relative to determining credibility.” Maconeghy, 171

A.3d at 712; see also 42 Pa.C.S. § 5920(b)(2) (permitting a witness, if such

witness is qualified as an expert, to testify “to facts and opinions regarding

specific types of victim responses and victim behaviors,” but not to the

witness’s “opinion regarding the credibility of any other witness, including

the victim”).6

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5 In her dissent in Maconeghy, Justice Todd pointed out that in child sexual

abuse cases, “the discovery of physical evidence is the exception, rather

than the rule.” Id. at 723-24 (Todd, J., dissenting) (citing Bernd Herrmann,

et al., Physical Examination in Child Sexual Abuse: Approaches and Current

Evidence, Deutsches Arzteblatt International, 692–703, 700 (2014)). Justice

Todd’s observation is consistent with the expert testimony on pediatric and

child abuse provided in this case by Dr. Marcia McColgan. See N.T.,

12/13/2017, at 53 (“The majority of children who have been sexually

abused even when there is penetration have perfectly normal examinations.

Only less than five percent of children who have been sexually abused have

definitive findings that there was previous physical trauma to that area.”).

6 Our Court has explained section 5920 as follows.

In 2012, the General Assembly enacted 42 Pa.C.S. § 5920 as a

statutory rule of evidence permitting qualified experts to testify

in certain criminal proceedings about “the dynamics of sexual

(Footnote Continued Next Page)

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Similarly, “lay witnesses are generally not permitted to opine upon the

credibility of a defendant.”7 Commonwealth v. Yockey, 158 A.3d 1246,

1255 (Pa. Super. 2017). This is particularly the case with a lay witness

testifying in the witness’s professional capacity,8 such as “a police officer in

whose testimony a jury could find an unwarranted appearance of authority

(Footnote Continued) _______________________

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).

Section 5920 permits expert testimony limited to “opinions

regarding specific types of victim responses and victim

behaviors.” 42 Pa.C.S. § 5920(b)(2). S[ubs]ection 5920(b)(3)

specifically precludes an expert witness from opining on “the

credibility of any other witness, including the victim[.]” 42

Pa.C.S. § 5920(b)(3).

Commonwealth v. Cramer, 195 A.3d 594, 608 (Pa. Super. 2018).

7 In this case, the opinion was provided regarding the complainant, but

because this is a proverbial “he said/she said” situation, stating the

complainant was credible necessarily means that the defendant was not.

8 We observe that it is easy to blur the lines between an expert and lay

witness when the witness is testifying in a professional capacity. In this

case, there was no mention of the status of Caseworker Butler when she was

testifying at trial. Both parties claim on appeal that Caseworker Butler

testified as a lay witness. Our review of the transcript indicates that

Caseworker Butler switched back and forth between testimony based upon

her personal observations and testimony based upon her professional

experience, suggesting that some of her testimony could fall into specialized

knowledge acquired by experience, training, or education within the meaning

of Pa.R.E. 702. This Court has held that a single witness may testify or offer

opinions in both a lay and expert capacity during the same testimony.

Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa. Super. 2013).

Ultimately, whether Caseworker Butler was testifying as a lay witness or an

expert does not affect our outcome, as our caselaw prohibits either type of

witness bolstered by professional credentials from opining about a victim’s

credibility.

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in the subject of credibility, something ordinary jurors are able to assess.”

Commonwealth v. McClure, 144 A.3d 970, 977 (Pa. Super. 2016) (citation

and quotation marks omitted).

In McClure, a daycare worker was on trial for causing injuries to an

infant in her care. During the trial, a police detective testified over objection

that neither he nor a Children Youth Services (CYS) employee believed the

daycare worker when she had blamed the injuries on a supposed fall at the

daycare. On appeal, the daycare worker argued that the detective should

not have been permitted to express his opinion about whether she had been

telling the truth about the incident. This Court agreed. “[A]llowing him to

express opinions that neither he nor the CYS employee believed [the

daycare worker] is not only irrelevant but also prejudicial. Allowing opinions

on [the daycare worker’s] credibility, despite charging the jury that

determinations of credibility are for the jury, constitutes error that we

cannot consider harmless.” Id. This Court vacated her judgment of

sentence, and remanded for a new trial.

This Court has treated the testimony of a child welfare caseworker in a

similar fashion to the testimony of a police officer. In Commonwealth v.

Loner, 609 A.2d 1376 (Pa. Super. 1992), Loner was on trial for a myriad of

charges related to the alleged sexual abuse of his stepdaughter. The

prosecution presented, over objection, the testimony of a CYS caseworker

who had investigated the child’s allegations on behalf of CYS. The

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caseworker testified that she had interviewed the child to determine whether

“there was any truth to the matter that [Loner] had sexually abused [the

child].” Id. at 1377. She also stated that her interview was an attempt to

“validate” the report of sexual abuse. Id. She provided the child with

anatomically correct dolls so that the child could demonstrate the alleged

sexual acts with the dolls. The caseworker testified that the child used the

dolls in a manner consistent with the child’s prior oral statement. She

testified that following the interview, she told the child’s mother that she

“believed the [child’s] statements.” Id.

On appeal, this Court referenced cases holding that the testimony of

witnesses, “especially that of an expert, which serves to bolster the veracity

of a child sexual abuse victim[,] impermissibly infringes upon the province of

the jury.” Id. This Court determined that the caseworker’s testimony was

offered to “bolster the veracity” of the victim and, therefore, impermissibly

infringed upon the jury’s function of assessing the victim’s credibility. Id.

This Court was particularly bothered by the caseworker’s testimony that she

believed the victim, as it allowed her “personal assessment of the truth” of

the victim’s statements to usurp the jury’s function. Id. This Court

reversed Loner’s judgment of sentence and remanded for a new trial.

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

also involved testimony from a DHS caseworker about an indicated child

abuse report. In Hernandez, on cross-examination, a DHS caseworker

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testified that DHS found a report of child abuse to be indicated, and

explained that it meant that “allegations of the report were found to be

true.” Id. at 1340. She further acknowledged that “[t]he report was

indicated, based on the statement of the child,” but also stated there was

collateral information from the child’s examining physician. Id.

This Court concluded the trial court did not err by permitting the

testimony and distinguished the case from Loner. Unlike Loner, which

involved testimony elicited by the ADA on direct examination, in

Hernandez, the caseworker’s “explanation of the CPSL procedures she had

followed in conducting the DHS investigation were elicited by defense

counsel under hostile questioning” and the “scope … did not go beyond that

which was necessary to explain her method of investigation.” Hernandez,

615 A.2d at 1342. Moreover, unlike Loner, where the social worker

testified that she had undergone specialized training in the area of

interviewing and working with child-victims of abuse, the social worker in

Hernandez “was not qualified as an expert, nor did she offer any testimony

from which the jury could reasonably conclude that she had specialized skills

in dealing with child sexual abuse.” Hernandez, 615 A.2d at 1341-42.

The above cases make clear that a witness who has specialized

expertise in dealing with child sexual-abuse victims cannot opine on the

veracity of the victim. In its Rule 1925(a) opinion, the trial court does not

refer to such cases, and simply reasoned that Caseworker Butler was

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permitted to opine on the ultimate issue in the case, citing Huggins, supra.

It further justified the admission of Caseworker Butler’s testimony as an

explanation of DHS procedure that “was relevant to the trajectory of DHS

involvement in the case.” Trial Court Opinion, 2/21/2019, at 6-7.

The trial court’s reliance upon Huggins is misplaced. As referenced

supra, Huggins held that the same witness could offer both lay and expert

testimony. Specifically, a state drug enforcement agent could testify as an

expert regarding drug jargon used during an intercepted telephone call and

as a lay witness regarding the facts of the investigation and the agent’s

opinion as to the identity of the speaker on the call. In rendering its holding,

this Court examined various Rules of Evidence, including Pennsylvania Rule

of Evidence 704,9 and observed that Rule 704 “clearly permits both expert

and lay opinion testimony on issues that ultimately must be decided by the

trier of fact, in this case, the jury.” Huggins, 68 A.3d at 967.

However, Huggins did not address opinions regarding victim

credibility, an area that is entrusted solely to the jury. See Maconeghy,

171 A.3d at 712-13; Alicia, 92 A.3d at 760; McClure, 144 A.3d at 977;

Loner, 609 A.2d at 1377; see also 42 Pa.C.S. § 5920(b)(2). Together,

these cases establish that a Commonwealth witness backed by professional

credentials relating to sexual abuse, no matter whether the witness is

____________________________________________

9Rule 704 provides that “[a]n opinion is not objectionable just because it

embraces an ultimate issue.” Pa.R.E. 704.

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testifying in a lay capacity, expert capacity, or both, may not offer an

opinion about the credibility of a victim whom the witness encountered in

her professional capacity.

Here, Caseworker Butler did not offer an opinion directly about the

veracity of E.S. Instead, by testifying that the indicated DHS report meant

that Caseworker Butler had gathered enough supportive evidence to

demonstrate that E.S.’s disclosure was true, Caseworker Butler indirectly

vouched for E.S.’s credibility.

The Commonwealth argues in its brief that “mark[ing the] report as

‘[i]ndicated’ was merely an expression that E.S. relayed to [Caseworker]

Butler that [E.S.] was sexually assaulted, and that [Caseworker] Butler

recommended further investigation.” Commonwealth’s Brief at 12. This is a

distortion of Caseworker Butler’s answer at trial. She went beyond just

stating she recommended further investigation; instead, she testified that

DHS had determined that E.S.’s allegations were true. Moreover, she did so

after a series of questions designed to demonstrate her expertise. The

ADA’s soliciting of details about Caseworker Butler’s background, followed by

a question asking about the meaning of the indicated report, suggests that

the Commonwealth wanted the jury to know DHS vouched for E.S.’s

credibility, making this case more akin to Loner than Hernandez. We

agree with Appellant that the ADA’s questions about Caseworker Butler’s

expertise combined with Caseworker Butler’s mention of the truth in relation

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to E.S.’s allegations is what renders the admission of her testimony an abuse

of discretion.

Furthermore, while the trial court points to a secondary purpose in

providing the caseworker’s testimony – that is, explaining the trajectory of

DHS involvement in the case – the trial court did not instruct the jury that it

may only consider the testimony for that purpose. Trial Court Opinion,

2/21/2019, at 6-7.

Moreover, its justification is based on a flawed premise. Specifically,

the trial court contends that Caseworker Butler’s testimony explained DHS

procedure, which, according to the trial court, was an interview of a

complainant at home, followed by a determination by the caseworker “as to

whether that initial interview supports or ‘indicates’ further investigation.”

Id. at 6.

Similarly, the Commonwealth argues Caseworker Butler’s comment

simply described a procedural step that had to take place for a

sexual abuse investigation to proceed, as it did in this case. See

23 Pa. C.S. § 6303(a) (defining an ‘indicated report’ as ‘a report

of child abuse made pursuant to this chapter if an investigation

by the department or county agency determines that substantial

evidence of the alleged abuse by a perpetrator exists based on …

the child protective service investigation’).

Commonwealth’s Brief at 12.

The justification offered by the trial court and the Commonwealth is

not based on the record or the law. The ADA never asked Caseworker Butler

to explain the steps of the investigation following the interview at the home.

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Moreover, under the CPSL, the designation of “indicated” is one of the

potential dispositions of the CPSL investigation, not the starting point. See

23 Pa.C.S. § 6338 (requiring the county agency to change the status to

indicated in the statewide database of child abuse perpetrators after the

county agency determines that a report of child abuse is indicated).

While the CPSL establishes joint investigative teams between county

agencies and law enforcement officials for some reports of child abuse, see

23 Pa.C.S. § 6334.1(2), (3), such teams exist “to avoid duplication of fact-

finding efforts and interviews to minimize the trauma to the child.” 23

Pa.C.S. § 6365(c). Although DHS and the police may work together during

an investigation to streamline the process, the CPSL does not make the

police’s filing of criminal charges contingent upon DHS’s conclusion that a

report of child abuse should be indicated. Similarly, it does not make DHS’s

finding that a child abuse report is indicated conditioned upon the filing of

criminal charges.10 While the investigations overlap, each investigation

serves a different ultimate purpose: police investigate to determine whether

a crime was committed, whereas DHS investigates to determine whether it

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10 We do note, however, that the CPSL does provide for a disposition of a

“founded” report, a disposition that DHS must enter if there is a “judicial

adjudication,” such as a criminal verdict of guilt, which is “based on a finding

that a child who is a subject of the report has been abused and the

adjudication involves the same factual circumstances involved in the

allegation of child abuse.” 23 Pa.C.S. § 6303(a).

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should administratively designate a report of child abuse as indicated, which

triggers inclusion in the statewide database of child abuse perpetrators.11

Since DHS’s CPSL investigation overlapped with the criminal

investigation, some explanation from DHS regarding the investigation and

the factual findings it developed could be relevant. But the trial court’s

blanket conclusion that the entire trajectory of DHS’s investigation had

probative value in Appellant’s criminal case is not sufficient to establish

relevance pursuant to Pa.R.E. 401.

Furthermore, to the extent that DHS’s involvement had relevance, the

trial court offered only a conclusory statement that the probative value

outweighed any danger of unfair prejudice to Appellant or confusion of

issues, without any explanation or analysis. See Trial Court Opinion,

2/21/2019, at 6-7. Given the impermissible opinion testimony discussed

supra, we fail to see how the probative value outweighed the unfair

prejudice. See Pa.R.E. 403. Additionally, the standard DHS uses to find a

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11 As our Supreme Court has explained,

[a] finding [by DHS] that a person has committed child abuse

results in the inclusion of the actor in a statewide database, [23

Pa.C.S.] §§ 6331, 6338(a), the purpose of which is to protect

children from further abuse. Inclusion on the statewide

database impacts a person’s ability to obtain certain kinds of

employment, housing, and participate in certain volunteer

activities. See 23 Pa.C.S. §§ 6344, 6344.1, 6344.2.

Interest of L.J.B., 199 A.3d 868, 870 (Pa. 2018) (footnote and citation

omitted).

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report of child abuse indicated under the CPSL is substantial evidence,12

which is less onerous than the beyond-a-reasonable-doubt burden the

Commonwealth carries at a criminal trial. Considering the differences in

evidentiary standards, confusion of the issues was likely.

Based on the foregoing, we conclude that the trial court abused its

discretion by permitting Caseworker Butler to opine on the credibility of E.S.

during her testimony. Appellant argues that admission of this testimony

constitutes reversible error, requiring a new trial. Appellant’s Brief at 19.

However, because Appellant did not avail himself of the trial court’s offer to

provide a curative instruction, Appellant has waived his request for a new

trial.

Our review of the record reveals the following. After Caseworker

Butler testified regarding the indicated report, defense counsel requested a

sidebar, which was held off the record. N.T., 12/14/2017, at 72. Following

sidebar, the trial court announced that Appellant’s objection was preserved,

but it was overruled for now with the opportunity for defense counsel to

state his specific grounds for objection after his cross-examination. Id.

After cross-examination, and outside the presence of the jury, the trial court

heard further arguments by counsel. Appellant’s counsel argued that the

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12 The CPSL defines substantial evidence as “evidence which outweighs

inconsistent evidence and which a reasonable person would accept as

adequate to support a conclusion.” 23 Pa. C.S. § 6303(a).

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testimony infringed upon the jury’s role to decide the ultimate issue of

credibility in this case, emphasizing that even doctors and psychiatrists are

not permitted to opine on such matters. Id. at 78-79. The trial court again

overruled the objection, adding “[i]f you’d like a curative instruction for a

limited instruction is probably actually more appropriately made.” Id. at 79-

80. Defense counsel did not request a curative instruction following the trial

court’s offer, and no further mention was made on the record, including at

the two charging conferences. See id.; N.T., 12/15/2017, at 4-14, 99-103.

The trial court provided the standard jury instruction on credibility at the

conclusion of the case, to which both counsel had no objection at the

charging conferences. N.T., 12/15/2017, at 5, 99, 148-51. The instruction,

inter alia, informed the jury it was the sole judge of credibility of the

witnesses in the case. Id. at 148-51.

“Even if witness testimony causes prejudice, adequate instructions

may be able to cure the error.” Commonwealth v. Ramos, __ A.3d __,

2020 WL 1873251 at *2 (Pa. Super. 2020). The alternative is to declare a

mistrial, which is “an extreme remedy that is appropriate only where the

incident upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by preventing

the jury from weighing and rendering a true verdict.” Commonwealth v.

Leap, 222 A.3d 386, 392 (Pa. Super. 2019) (citation and quotation marks

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omitted). “When a trial court gives adequate cautionary instructions to the

jury, it is not necessary for the court to declare a mistrial.” Id.

For example, in Hernandez, after a DHS caseworker testified during

cross-examination about the meaning of an indicated report, the trial judge

gave a cautionary instruction to the jury immediately following

the statements in question. This instruction correctly informed

the jury that [the caseworker,] in performing her job, made

certain evaluations and reached certain conclusions separate and

apart from the jury’s function. The instruction specifically

warned that only the jury was the factfinder in the case, and it

“must not and may not accept any standard adopted by DHS.”

This instruction [was] sufficient to cure any possible prejudice

that may have resulted from [the caseworker’s] comments.

Hernandez, 615 A.2d at 1341 (citations omitted); see also Leap, 222 A.3d

at 392 (holding that appropriate curative instructions to the jury could

overcome error of admission of expert testimony bolstering the victim’s

credibility).13

Here, Appellant neither requested a curative instruction nor requested

a mistrial. Typically, once an objection to testimony has been overruled,

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13 The Commonwealth urges us to find that the instruction provided during

the jury charge overcame any prejudice, rendering the admission of

Caseworker Butler’s testimony to be harmless error. Commonwealth’s Brief

at 12-13. We are not convinced that this single general instruction during

the jury charge overcame the prejudice to Appellant. In a similar situation,

where a police officer shared his and the CYS caseworker’s opinions that the

defendant was not telling the truth about injuries to his child, this Court

rejected the notion that a general credibility instruction during the end-of-

the-case charge was adequate. See McClure, 144 A.3d at (“Allowing

opinions on [a defendant’s] credibility, despite charging the jury that

determinations of credibility are for the jury, constitutes error that we

cannot consider harmless.”).

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failing to request a curative instruction or mistrial does not result in waiver

for appellate review. Commonwealth v. McGeth, 622 A.2d 940, 943 (Pa.

Super. 1993). This is because the trial judge has signaled that the

testimony was proper by overruling the objection, rendering a motion for

mistrial or curative instructions to “be an exercise in futility.” Id. (citing

Commonwealth v. Maloney, 365 A.2d 1237, 1242 (Pa. 1976)).

However, in the instant case, notwithstanding its ruling on Appellant’s

objection, the trial court specifically offered to provide a curative or limiting

instruction, but Appellant did not avail himself of the trial court’s offer. We

find this offer and failure to respond to be significant. See Commonwealth

v. Johnson, 668 A.2d 97, 104 (Pa. 1995) (holding that where the trial court

denied a motion for a mistrial following testimony defense counsel alleged

was problematic, but defense counsel did not respond to the trial court’s

offer to give a curative instruction, appellant could not claim prejudice from

the trial court’s failure to provide an instruction on appeal); c.f. McGeth,

(emphasizing that the trial court overruled the objection then sua sponte

indicated that there was no need for curative instructions). We conclude

that since Appellant had been provided with the opportunity to cure the

prejudice from Caseworker Butler’s testimony, but Appellant failed to take

advantage of this opportunity, Appellant has waived for appeal his request

for a new trial.

Accordingly, we affirm Appellant’s judgment of sentence.

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Judgment of sentence affirmed.

Judge Colins joins this memorandum.

President Judge Panella concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/28/20

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