Com. v. Hagleston, K.

J-S30038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KIRK DANIEL HAGLESTON :

:

Appellant : No. 308 MDA 2021

Appeal from the PCRA Order Entered February 8, 2021

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

No(s): CP-31-CR-0000471-2015

BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 25, 2022

Appellant, Kirk Daniel Hagleston,1 appeals from the order denying his

first petition filed under the Post Conviction Relief Act (“PCRA”).2 We affirm.

On January 25, 2017, a jury convicted Appellant of rape of a child,

aggravated indecent assault of a child, and indecent assault of a person less

than thirteen years of age.3 The PCRA court summarized the evidence at trial

as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 While Appellant’s surname is spelled as “Hagelston” in his brief, the

Commonwealth’s brief, the PCRA court’s opinion, as well as this Court’s

opinion resolving Appellant’s direct review, we use the spelling of Appellant’s

surname as it appeared on the docket sheet below.

2 42 Pa.C.S. §§ 9541-9546.

3 18 Pa.C.S. §§ 3121(c), 3125(b), 3126(a)(7).

J-S30038-21

[O]ne night in July 2011, when W.D. was nine years old and while

her mother and siblings were asleep, [Appellant] entered her

room, dragged her downstairs and out the front door to a patio on

the side of the house, tore her clothes off, forced her to the

ground, and raped her. W.D.’s mother, T.D., who was at that time

[Appellant’s] paramour, suspected the very next day that some

sort of assault had occurred based on the changed behavior of

both W.D. and [Appellant]. T.D. took W.D. to see a doctor in

regard to her concerns, and went so far as to contact the police,

but W.D. denied that the rape occurred because she was scared

of [Appellant]. A few years later, in 2015, W.D. disclosed the rape

to a guidance counselor at school [who] reported it to the

appropriate authorities[.]

PCRA Court Opinion, 5/7/21, at 2-3 (record citations omitted).

Among the Commonwealth witnesses at trial was Craig Collison, M.D.,

a pediatrician at Mount Nittany Health and the Medical Director for Centre

County Children’s Advocacy Center. As the PCRA court observed, Dr.

Collison’s testimony was brief and focused on his March 2015 examination of

W.D. Id. at 4. Dr. Collison discussed his relevant experience and

qualifications at the outset of his testimony, including the fact that he was a

board-certified pediatrician with experience examining children who claim to

have experienced sexual abuse and that he had over 150 hours of relevant

training. Id.; see also N.T. (trial), at 116-18. However, Dr. Collison was not

qualified as an expert.

The PCRA court summarized Dr. Collison’s testimony as follows:

1. He conducted a full physical examination of W.D. in March

2015, including a genital exam. The examination was not specific

to the then-allegations against [Appellant], but rather was a

general health examination. [N.T. (trial), at 119-20.]

2. W.D. presented as a healthy thirteen[-]year-old girl in the

middle of her pubertal development, exhibiting no signs of genital

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trauma with an overall normal result. Id. at 121-22, 123, 127,

132.

3. Specifically with regard to W.D.’s hymen, it was “concentric

and didn’t have any lesions or notches, no signs of trauma.” This

is neither indicative nor contraindicative of sexual abuse. It

cannot be determined, based on examination of an individual’s

hymen, whether that individual has been sexually abused, or

whether she has been sexually active. Id. at 124-26.

4. The full scope of his testimony was “within a reasonable

agreement of medical certainty.” Id. at 129.

[5. Defense counsel’s] cross-examination of Dr. Collison was

brief, focusing primarily on his findings regarding W.D.’s hymen

(i.e., that no trauma was observed), and that the examination

produced a normal result. Id. at 130-32.

PCRA Court Opinion, 5/7/21, at 3-4 (some formatting; footnotes omitted).

Relevant to this appeal, Dr. Collison testified as follows on direct

examination regarding what an examination of a hymen reveals about a

patient’s history of sexual abuse:

Q. [] So based on the exam of the hymen, can you say whether

someone’s been sexually abused?

A. No.

Q. And why is that?

A. Like we talked about, sexual activity does not necessarily equal

trauma to the level that would leave a scar or a change in the

hymen long term. Acutely if there are issues with the hymen we

should be able to see that. If somebody’s having bleeding or pain

with that, that is something in a few days after that occurred that

we can see.

Q. Now is that something you would necessarily see years later?

A. No. Again unless it went to the level that we talked about

where it was taken all the way to the base and as it heals, then it

would heal with a notch or a change in it.

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Q. Okay. Is it rare for you to see a victim of sexual abuse with

normal examination?

A. 95 percent of the children that we see that there is an

accusation of sexual abuse have normal exams.

Q. That would be like this exam we’re discussing right now?

A. Correct. So I cannot make any conclusions from the exam and

that’s -- the majority of the time that’s how it goes for us.

* * *

Q. What’s your overall assessment of [W.D.’s] exam?

A. [W.D.] had a normal exam.

Q. And does that preclude the fact abuse may have occurred?

A. No.

N.T. (trial), at 126-28.

The trial court sentenced Appellant to an aggregate term of

imprisonment of 17 to 37 years. Appellant filed a direct appeal, and on August

22, 2018, this Court affirmed his conviction but vacated the imposition of

sexual offender registration requirements and remanded for the trial court to

reassess his registration requirements. Commonwealth v. Hagelston, No.

1515 MDA 2017, 2018 WL 4007500, at *4-5 (Pa. Super. filed Aug. 22, 2018)

(unpublished memorandum). On June 28, 2019, the trial court imposed a

new judgment of sentence.

On March 4, 2020, Appellant filed this timely PCRA petition.4 The PCRA

court held an evidentiary hearing on February 5, 2021. On February 8, 2021,

____________________________________________

4Appellant’s PCRA petition was timely as it was filed within one year of July

29, 2019 the last date upon which he could have filed a direct appeal from his

(Footnote Continued Next Page)

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the court issued an order denying Appellant PCRA relief. This timely appeal

followed.

Appellant raises two issues for our review:

A. Whether trial counsel’s failure to object to Dr. [Collison’s]

testimony was per se ineffective and may not be the foundation

for strategic decision making when Dr. [Collison’s] testimony

effectively invaded the province of the jury in determining

credibility of the minor child in a sexual assault case with no

injuries by testifying that lack of injury does not mean that an

assault did not occur.

B. Whether trial counsel’s failure to object to Dr. [Collison’s]

testimony was per se ineffective and may not be the foundation

for strategic decision making when Dr. [Collison] was not qualified

as an expert and offered an expert opinion contrary to the dictates

of Pa.R.E. 701(c), which explicitly prohibits experts giving expert

opinions under the guise of being lay witnesses.

Appellant’s Brief at 4 (unnecessary capitalization omitted; some formatting).

We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and its legal conclusions

are free of error. Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa.

2020). When supported by the record, the PCRA court’s factual findings and

credibility determinations are binding on this Court, but we review the lower

____________________________________________

June 28, 2019 judgment of sentence. See 42 Pa.C.S. § 9545(b)(1), (3) (PCRA

petition must be timely filed within one year of date judgment becomes final,

which occurs at the expiration of time for seeking direct review if no appeal is

filed); Pa.R.A.P. 903(c)(3) (where no post-sentence motion is filed, notice of

appeal must be filed within 30 days of imposition of judgment of sentence);

see also 1 Pa.C.S. § 1908 (when the last day for a statutory filing deadline

falls on a weekend or holiday, the deadline shall be extended until the next

business day); Pa.R.A.P. 107 (incorporating 1 Pa.C.S. § 1908 with respect to

deadlines set forth in the Rules of Appellate Procedure).

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court’s legal conclusions under a de novo standard of review. Id. Our scope

of review is limited to the findings of the PCRA court and the evidence of

record, which we view in the light most favorable to the Commonwealth, the

party who prevailed below. Id.

In this appeal, Appellant argues that his trial counsel, Michael S.

Gingerich, Esquire, provided ineffective assistance of counsel by failing to

object to the testimony of Dr. Collison. When assessing a claim of ineffective

assistance under the PCRA, we begin our analysis with the presumption that

counsel has rendered effective assistance. Commonwealth v. Reid, 259

A.3d 395, 405 (Pa. 2021). To overcome the presumption, the petitioner must

show that:

(1) the underlying substantive claim has arguable merit; (2)

counsel did not have a reasonable basis for his or her act or

omission; and (3) the petitioner suffered prejudice as a result of

counsel’s deficient performance, that is, a reasonable probability

that but for counsel’s act or omission, the outcome of the

proceeding would have been different.

Id. (citation and quotation marks omitted). The defendant must satisfy all

three prongs of this test to obtain relief under the PCRA. Id.

Appellant first argues that trial counsel was ineffective for failing to

object to Dr. Collison’s testimony that (i) an examination of a hymen does not

show whether sexual abuse occurred; (ii) 95 percent of the children claiming

sexual abuse that he examines have normal gynecological examinations; (iii)

he could not conclude that the victim, W.D., was abused based upon her

examination; and (iv) he also could not rule out that W.D. may have been

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abused. N.T. (trial), at 126-28. Appellant argues that this testimony

constitutes improper bolstering of the victim’s testimony, which our Supreme

Court has ruled is an improper invasion of the jury’s exclusive role to assess

the credibility of witnesses. Appellant contends that trial counsel had no

reasonable basis for not objecting as counsel testified at the PCRA hearing

that Dr. Collison’s testimony “could be read” as bolstering the victim’s

testimony and, if there was legal authority prohibiting bolstering, he “certainly

should have been aware of it.” N.T. (PCRA hearing), at 9. Appellant asserts

that he was prejudiced by trial counsel’s error allowing Dr. Collison to vouch

for W.D.’s credibility, particularly in light of the fact that this case hinged on

whether the jury believed the victim’s otherwise uncorroborated accusation.

Appellant relies principally on our Supreme Court’s decision in

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

the Commonwealth called as a witness a pediatrician, Dr. Novinger, who

examined and interviewed C.S., the alleged victim of sexual abuse by the

defendant. Id. at 708. Dr. Novinger, who was qualified as an expert witness,

testified that no physical signs of abuse were present and that the fact of

abuse could be determined only through patient history. Id. Dr. Novinger

further testified that the “history [the victim] provided to me pretty clearly

indicated that she was sexually abused” and “I really believe strongly that was

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

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This Court vacated the defendant’s conviction based upon Dr. Novinger’s

improper bolstering of the victim’s credibility, and our Supreme Court

affirmed. The 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 relative to determining credibility.

Id. at 712; see also Commonwealth v. Hairston, 249 A.3d 1046, 1069

(Pa. 2021) (“Because issues of credibility are within the exclusive province of

the jury, expert testimony on the issue of a witness’s credibility is prohibited.”)

(internal citation omitted). The Court ruled that an expert witness’s

prohibition on bolstering applied regardless of whether it was “direct vouching

(e.g., ‘I believe the complainant is telling the truth’)” for the victim’s credibility

or “indirect vouching (e.g, ‘I conclude that the complainant was sexually

assaulted based upon the history she related.’).” Maconeghy, 171 A.3d at

713. Furthermore, the Maconeghy Court recognized the additional potential

concern for bolstering the credibility of a child witness in an abuse case, noting

the “the high stakes involved in child sexual assault cases and the potential

power and persuasiveness of testimony by those clothed with the mantle of

professional expertise.” Id.; see also 42 Pa.C.S. § 5920(b)(3) (providing

that an expert witness testifying regarding the dynamics of sexual violence,

victim responses to sexual violence, and the impact on sexual violence on

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victims in sexual abuse cases may not offer an “opinion regarding the

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

While Maconeghy related to bolstering by an expert witness, we note

that, as discussed in more detail below, Dr. Collison was not qualified as an

expert at trial. However, this Court has held that lay witnesses are also

precluded from offering testimony that would bolster a witness’s credibility.

Commonwealth v. Yockey, 158 A.3d 1246, 1255-56 (Pa. Super. 2017);

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

lay witness bolstering is particularly problematic in cases where the lay

witness is testifying in a professional capacity, which could provide an

“‘unwarranted appearance of authority in the subject of credibility,’ something

ordinary jurors are able to assess.” McClure, 144 A.3d at 977 (citation

omitted) (police detective’s testimony that he did not believe defendant-

daycare worker’s explanation for child’s injuries was improper bolstering);

Commonwealth v. Loner, 609 A.2d 1376, 1377 (Pa. Super. 1992) (child

caseworker’s testimony that she believed victim’s report of abuse improperly

bolstered the victim’s veracity).

Addressing this issue, the PCRA court found Appellant’s argument to

lack merit as Dr. Collison’s testimony did not bolster W.D.’s credibility:

Here, Dr. Collison did not testify to bolster W.D.’s credibility.

While his testimony was of limited probative value, it was

essentially necessary for the Commonwealth to present it so as to

negate doubts that might arise in the minds of jurors if no

discussion was made regarding W.D.’s physical condition (i.e., the

misconception that rape will always result in permanent genital

injury resulting in the inference that no evidence of injury means

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no evidence of rape), and to avoid the appearance of attempting

to hide exculpatory evidence were [Appellant] to call Dr. Collison

as witness [. A]ny bolstering effect Dr. Collison’s testimony might

have had was intrinsically tied to the jury’s credibility

determination regarding W.D.’s testimony. Had they found her

not credible, the lack of physical injury would support that finding,

rather than contradict it.

PCRA Court Opinion, 5/7/21, at 10. The PCRA court further distinguished

Maconeghy:

[I]n no way did Dr. Collison’s testimony mirror that of the

Maconeghy witness. He did not examine W.D. with the specific

intent of determining whether she had been sexually assaulted;

did not observe a forensic interview with her; did not refer in any

way to the medical history he obtained from her and did not in

any manner, offer an opinion as to whether she had been sexually

assaulted. In fact, Dr. Collison was very careful in his testimony

to make clear, repeatedly, that a normal examination was not

conclusive evidence either way regarding the occurrence or

nonoccurrence of sexual assault. His testimony is thus

permissible under Maconeghy, rather than barred by it

Id. at 9.

We agree with the PCRA court that Dr. Collison’s testimony was not

prohibited “bolstering” of W.D.’s testimony. In particular, we find support in

our Supreme Court’s decision in Commonwealth v. Minerd, 753 A.2d 225

(Pa. 2000). In Minerd, the Commonwealth presented the testimony of Dr.

Carver, an expert in obstetrics and gynecology, who performed a physical

examination of the two sexual assault minor victims:

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

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

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

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

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

between when the abuse occurred and the examination for any

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

Carver confirmed that she was not stating that the alleged acts

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

was no trauma to the anus or genitals because the acts in fact did

not occur.” Dr. Carver stated that “either way, there was no

evidence of it.”

Id. at 228 (record citations omitted). The Court rejected the defendant’s

argument that the expert’s testimony bolstered the victims’ reports of abuse:

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

of the children. However, Dr. Carver was neither asked for, nor

did she express, any opinion as to whether the children were

telling the truth about being sexually abused. Her testimony only

explained the significance of the results of the physical

examination. Moreover, Dr. Carver's testimony regarding her

physical findings was inconclusive as to whether any abuse had

even occurred. Thus, we do not agree that the expert

impermissibly bolstered the children’s credibility.

Id. at 230 (internal citations omitted).

In Maconeghy, the Court distinguished its earlier decision, noting that

the expert’s testimony did not infringe on the jury’s authority to assess the

credibility of the witnesses:

[T]he evidence in Minerd fell within the class of generalized

evidence about victims of sexual assault that is more widely

approved in the courts and was focused on a physical

examination; indeed, the Court specifically noted that the expert

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

did or did not occur” relative to the complainant.

Maconeghy, 171 A.3d at 715 (quoting Minerd, 753 A.2d at 228) (emphasis

omitted).

Here, the relevant testimony is nearly identical to Minerd. Dr. Collison

did not testify that he believed W.D.’s allegation that Appellant had abused

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her. Instead, like Dr. Carver in Minerd¸ Dr. Collison merely described his

physical examination of W.D. and stated that the normal examination neither

confirmed nor negated the abuse allegations. N.T. (trial), at 126-28; cf.

Minerd, 753 A.2d at 228, 230. While Dr. Collison’s testimony was relevant

to the jury’s evaluation of W.D.’s account as the PCRA court explained, PCRA

Court Opinion, 5/7/21, at 10,5 it did not bolster the credibility of W.D.’s

testimony that Appellant sexually abused her when she was nine-years old.

While we note that Dr. Collison did not testify as an expert as was the case in

Maconeghy and Minerd, we do not find this fact determinative as the rule

against bolstering a witness’s credibility applies equally if it comes from a lay

witness as from an expert. See Yockey, 158 A.3d at 1255-56; McClure, 144

A.3d at 977. Accordingly, Appellant is entitled to no relief on his first claim of

ineffective assistance of counsel. See Minerd, 753 A.2d at 230; see also

Commonwealth v. Callahan, No. 1381 EDA 2020, 2021 WL 4119559, at *3

(Pa. Super. filed September 9, 2021) (unpublished memorandum) (counsel

____________________________________________

5 The Minerd Court explained as follows the relevance of the medical expert’s

testimony regarding the inconclusive nature of the negative results of the

victims’ physical exams:

Since the children alleged that the abuse occurred several years ago,

there was no recent physical evidence. Given this passage of time, Dr.

Carver’s testimony was relevant to explain to the jurors the absence of

physical trauma. Without such an explanation, jurors may improperly

draw a negative inference against the Commonwealth, based upon a

layperson’s untutored assumptions, and rely upon that inference in

rendering a verdict.

753 A.2d at 231.

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was not ineffective for failing to object to medical expert’s testimony that child

victim’s vaginal examination was consistent with sexual abuse even though

no physical trauma was detected as such testimony was permissible under

Minerd).6

In his second issue, Appellant argues that trial counsel was ineffective

for failing to object to Dr. Collison’s offering of expert opinions during his

testimony without him ever being qualified as an expert by the trial court.

Appellant asserts that Dr. Collison’s testimony bore the hallmarks of being

that of an expert witness—including by detailing his credentials, his

description of a general gynecological exam, his discussion of results in other

patients who allege abuse, and his statement that his testimony was given

within a reasonable degree of medical certainty. N.T. (trial), at 116-18, 120,

122-29. Appellant argues that, as a non-expert, he was barred under the

Pennsylvania Rules of Evidence from offering an opinion based upon scientific,

technical, or other specialized knowledge, and trial counsel should have

objected on this ground. Appellant contends that trial counsel had no

reasonable basis for not objecting to this testimony and that if counsel had

objected there was a reasonable probability that the outcome of the trial would

have had a different result.

____________________________________________

6Although Callahan is an unreported decision, we cite to it for its persuasive

value. See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed

after May 1, 2019 may be cited for their persuasive value).

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Pursuant to Pennsylvania Rule of Evidence 701, a witness not testifying

as an expert is permitted to offer an opinion that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

Pa.R.E. 701. Rule 702, relating to testimony by expert witnesses, states as

follows:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the

relevant field.

Pa.R.E. 702.

Expert testimony is “permitted only as an aid to the jury when the

subject matter is distinctly related to a science, skill, or occupation beyond

the knowledge or experience of the average layman.” Commonwealth v.

Jones, 240 A.3d 881, 890 (Pa. 2020) (citation omitted). While the expert is

not required to use “magic words” in stating her opinion, “the expert must

base the substance of her opinion on a reasonable degree of certainty instead

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of mere speculation.” Commonwealth v. Yocolano, 169 A.3d 47, 61 (Pa.

Super. 2017) (quoting Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa.

Super. 2015)). “[T]he standard for qualifying as an expert is a liberal one and

the witness need only have any reasonable pretension to specialized

knowledge on the subject matter under investigation and the weight to be

given to the expert’s testimony is for the factfinder.” Jones, 240 A.3d at 890

(internal quotation marks and citation omitted). “It is the job of the trial court

to assess the expert’s testimony to determine whether the expert’s testimony

reflects the application of expertise or strays into matters of common

knowledge.” Yocolano, 169 A.3d at 60 (quoting Nobles v. Staples, Inc.,

150 A.3d 110, 114 (Pa. Super. 2016)).

We further note that “the rules governing expert and lay testimony do

not preclude a single witness from testifying, or offering opinions, in the

capacity as both a lay and an expert witness on matters that may embrace

the ultimate issues to be decided by the fact-finder.” Id. at 62; see also

Jones, 240 A.3d at 890; Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa.

Super. 2013). However, where the same witness testifies in a dual capacity

as a fact and expert witness, the proponent of the witness should make clear

which testimony is based upon expert knowledge and which is based upon

personal perception and the trial court should ensure that “the jury is properly

instructed to avoid confusion.” Jones, 240 A.3d at 890; Yocolano, 169 A.3d

at 62; Huggins, 68 A.3d at 973-74.

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Like the PCRA court, we assume for the purposes of our analysis that

Appellant has shown arguable merit and a lack of reasonable basis for trial

counsel’s failure to object to Dr. Collison’s unqualified opinion testimony.

First, it is clear that Dr. Collison offered opinion testimony—most notably that

a “normal” genital examination of a child is not inconsistent with past sexual

abuse—and that, in formulating his opinion, he applied his scientific, technical,

and other specialized knowledge. N.T. (trial), at 116-18, 126-28. While Dr.

Collison also testified as a fact witness regarding his examination of W.D., this

does not alter the fact that the trial court did not qualify him as an expert or

properly instruct the jury on its evaluation of Dr. Collison’s expert opinions.

See Jones, 240 A.3d at 891 (police detective’s testimony regarding common

behavior of victim of sexual abuse that drew upon his specialized training and

experience was improperly admitted where detective was not qualified as

expert). Furthermore, while trial counsel testified at the PCRA hearing that

he viewed Dr. Collison’s testimony as “helpful” or at least “not [] harmful to

[Appellant’s] case” because Dr. Collison testified that there were no injuries

to the victim’s hymen which may have run counter to the jury’s expectations,

N.T. (PCRA hearing), at 6-8, trial counsel did not offer any explanation of why

he did not at least insist that Dr. Collison’s opinions be offered in his capacity

as a medical expert and with the appropriate jury instruction.

Turning to the prejudice prong of the ineffective assistance standard,

however, we find no error in the PCRA court’s determination that Appellant

did not prove a reasonable probability that, but for trial counsel’s lack of an

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objection to Dr. Collison’s unqualified opinion testimony, Appellant’s trial

would have resulted in a different outcome. Reid, 259 A.3d at 405. Initially,

Appellant does not argue that Dr. Collison lacked the appropriate scientific or

technical expertise, that his testimony was not helpful to the trier of fact, or

that his opinion was not generally accepted in his field. See Pa.R.E. 702. In

other words, there is no claim that the trial court would not have qualified Dr.

Collison as an expert and therefore he would not have been permitted to opine

as to how the results of W.D.’s examination compare to those of other children

who allege sexual abuse.7 Cf. Yocolano, 169 A.3d at 63 (trial court abused

its discretion by permitting opinion testimony by doctor and nurse that victim’s

wounds were consistent with ligature and strangulation marks without

assessing whether the witnesses had specialized knowledge on the causation

of such wounds that would have allowed them to testify as experts on the

subject). Moreover, Appellant has not articulated how Dr. Collison’s opinions,

whether given as a lay or expert witness, were harmful to Appellant’s defense

____________________________________________

7 Indeed, we observe that similar expert testimony to that of Dr. Collison has

been allowed in other child sexual abuse cases. See, e.g., Minerd, 753 A.2d

at 228, 230-31 (obstetrician and gynecologist who examined child sexual

abuse victims was permitted to offer expert opinion that absence of physical

trauma did not prove that abuse had not occurred); Callahan, 2021 WL

4119559, at *1, 3 (court properly allowed expert testimony by nurse

specializing in sexual assault cases that normal vaginal examination of child

victim was consistent with sexual abuse because large majority of such cases

present no physical evidence); Commonwealth v. Bishop, 742 A.2d 178,

185 (Pa. Super. 1999) (trial counsel not ineffective for failing to object to

expert testimony of treating pediatrician that scar tissue in child victim’s

vagina was consistent with an old injury from sexual abuse).

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that the incident of sexual abuse did not occur, particularly in light of Dr.

Collison’s testimony that W.D.’s examination revealed no sign of genital

trauma and the examination was consistent with a finding that no sexual

abuse occurred. N.T. (trial), at 126-27, 131-32.

Furthermore, as the PCRA court observed, the next witness to testify at

trial after Dr. Collison was admitted as an expert on the behavior of child

sexual abuse victims, and the trial court did provide the appropriate expert

witness instruction to the jury at the outset of her testimony. N.T. (trial), at

139-40. The trial court additionally instructed the jury as to its consideration

of expert witness testimony as part of the jury charge and this latter

instruction was not specifically tailored to any particular expert. Id. at 228-

29. Therefore, while the jury was not instructed specifically as to Dr. Collison’s

testimony, the jurors were made aware that they were not bound by the

testimony of a witness with specialized knowledge, skill, and training and were

free to determine the weight to be afforded to the expert opinion. See PCRA

Court Opinion, 5/7/21, at 11; see also Huggins, 68 A.3d at 973-74.

We therefore conclude that the PCRA court’s determination that

Appellant did not establish prejudice on his second ineffective assistance of

counsel claim is supported by the record and free of legal error. As Appellant

was not entitled to relief on either of his PCRA claims, we affirm the PCRA

court’s denial of Appellant’s petition.

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J-S30038-21

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/2022

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