Com. v. Stewart, E.

J-S03037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

EDWARD DAMIAN STEWART :

:

Appellant : No. 847 WDA 2021

Appeal from the PCRA Order Entered July 20, 2021

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

No(s): CP-02-CR-0007235-2016

BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 8, 2022

Edward Damian Stewart (Stewart) appeals the order of the Court of

Common Pleas of Allegheny County (PCRA court) denying his petition for post-

conviction relief.1 In 2017, Stewart was found guilty after a jury trial of the

following counts: rape of a child, involuntary deviate sexual intercourse with

a child, unlawful contact with a minor, indecent assault against a person under

the age of 13, endangering the welfare of children, and corruption of a minor.

He was sentenced to an aggregate prison term of 16.5 to 33 years. On appeal,

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* Retired Senior Judge assigned to the Superior Court.

1Stewart’s ineffectiveness claims were raised pursuant to the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

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Stewart argues that the PCRA court erred in finding that his claims of

ineffective assistance of trial counsel have no merit. We affirm.

I.

The underlying facts are gleaned from the certified record. In 2012,

Stewart began residing with his romantic partner, T.H., whose oldest daughter

at the time, K.W., was 11 years old. Shortly after the relationship between

Stewart and T.H. ended in 2015, K.W. confided to a therapist and to her great-

grandmother (B.H.) that Stewart had sexually abused her. The allegations

against Stewart were then passed on to the police and the Commonwealth

filed criminal charges.

At a jury trial in 2017, a number of witnesses testified, including K.W.;

T.H.; B.H.; Detective Daniel Honan, an investigating officer; and Jamie Mesar,

a qualified expert in the fields of child welfare and child sexual abuse. The

central allegation was that from 2012 to 2015, when K.W. was 11 to 14 years

old, Stewart would force her into oral, vaginal and anal intercourse. These

episodes would usually take place when K.W.’s mother was working night

shifts as a hospital nurse.

K.W. testified that Stewart threatened to kill her if she told anyone what

had happened. See Trial Transcript, 2/13/2017, at p. 91. She also recalled

that Stewart had once prefaced a sexual encounter with a particular phrase:

Commonwealth: Other than [Stewart] saying that he wanted to

be with you at [your mother’s house on Dersam Street], did he

ever say anything else to you when these things were happening?

I can ask that a different way if that would help.

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K.W.: I don’t remember.

Commonwealth: I’m sorry, can you say that again?

K.W.: I don’t remember.

Commonwealth: Did he ever say anything to you before these

things would happen? Do you remember if he would say anything

to you before these things would happen at Dersam?

K.W.: Yes.

Commonwealth: What would he say?

K.W.: “You know the routine.”

Commonwealth: Okay. And what did that mean to you?

K.W.: Like I already knew what was going to happen.

Commonwealth: And did he say that to you at Dersam one time

or more than one time?

K.W.: One time.

Commonwealth: I’m sorry?

K.W.: One time.

Trial Transcript, 2/13/2017, at pp. 99-100 (emphasis added).

The above testimony coincided with that of her great-grandmother,

B.H., who described at trial how K.W. had disclosed the abuse to her:

Commonwealth: During the course of your walk [with K.W.], did

[K.W.] say anything to you about Edward Stewart?

B.H.: At first she didn’t. We was walking, and she didn’t say at

first, and then she came over to me and she said, “Grandma,” she

said, “I told [my therapist] that [Stewart] put his hands on me.”

And I stated, “Did he hit you?” And she said, “No, not in that

way.”

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Commonwealth: What happened after she said that?

B.H.: After she said that, I told -- I said, “Sexually, [K.W.]?” She

said, “Yes.” I said, “Well, I’ll tell you what, before you tell me

anything else, I don’t want you to repeat it again.”

So I told her to wait until we all get back in the house, and when

we all get back in the house, everybody that was in the house, I

just want you to tell us all at the same time so you won’t have to

tell me and then repeat it to them.

Commonwealth: So you had like a family meeting when you got

home?

B.H.: Right, when we went back in the house.

Commonwealth: And after this family meeting, did she then

explain what she meant during this family meeting?

B.H.: Yes. At first she was hesitant and she was kind of drawn

back, and then we just told her go ahead, you know, just tell us

what happened, and then after we told her to tell us what

happened, she said that [Stewart] made her take all of her

clothes off, and he told her, “You know what to do,” and

everything and all.

So at that point, we just all broke down, you know, and there

wasn’t nothing else stated until we – I called her therapist, and I

told her she has to come in.

Trial Transcript, 2/13/2017, at pp. 73-75 (emphasis added).

Once K.W.’s allegations were passed on to the police, the case was

assigned to Detective Honan. The officer testified at trial that he had

interviewed K.W. about two weeks after the alleged abuse had first been

reported. As to the content of the interview with K.W., Detective Honan

testified generally that the child had “disclosed to [him] that Edward Stewart

had sexually assaulted her on multiple occasions at multiple locations over like

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a three-year period.” Trial Transcript, 2/13/2017, at p. 160. The officer went

forward with the filing of charges against Stewart based on what K.W. had

told him.

K.W. was also interviewed by Mesar, who worked as a case manager for

UPMC Children’s Hospital Child Advocacy Center. In this role, Mesar would

speak with potential child victims of abuse to gather information and assess

their behavioral responses. Mesar’s qualifications as an expert in the field of

“child sexual abuse, victim disclosure and behavior” were never disputed.

While on the stand, Mesar testified at length about child victims’

memories of abuse:

Commonwealth: And have you had any experience with the topic

of memory of the victim as it pertains to behavior after disclosure?

Mesar: In regards to behavior after disclosure did you say?

Commonwealth: Yes.

Mesar: So, yes. So looking at memory, so we all store our

memories different in our minds. Some of us remember the things

that are very important to us based on dates and that’s how we

remember it. Where some people remember specifically to the

event: -- where it was, what was going on, and then there are

some things that we just block out in our memory.

We can’t recall those things, and partially that’s a coping

mechanism. Or we don’t remember them in details. Especially

when things are done -- if you even think about your daily life, if

someone were to ask you to tell you about something that you do

every day, like brush your teeth, you probably wouldn’t remember

the exact details if it occurs the same way each time because your

memory doesn’t store that way.

So for kids, behavior after disclosure, like they may tell us they

don’t remember and people think that it’s, you know, a coping

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mechanism for kids not to disclose or not to make a statement,

but truly they may not remember the event based on all of those

things.

Commonwealth: And I’m going to ask you a hypothetical question

now. If a victim of sexual abuse as a child, a female who was

approximately age 11 or 12 when the abuse began, approximately

age 14 when she disclosed, if she would when recalling those

incidents not be able to remember the exact number of times she

was anally raped or vaginally raped or forced to perform oral sex,

would that sound any sort of alarm to you?

Mesar: No, it wouldn't sound an alarm. As I said, we don’t

necessarily recall numbers of times. Like I can't tell you how many

times I’ve gone to the store in a week per se, but I know that I

have gone there. I can maybe tell you what I bought there

because those are the things that were important at that time. So

for a child, they may talk about their disclosure in regards to the

acts because that’s when they remember, possibly because it was

painful, possibly because it was something new that occurred, and

that’s how their brain has stored it, and they may want to recall

those numbers of times, but they just can’t do it.

Id. at pp. 147-49.

Mesar’s testimony was relevant because the defense’s theory of

innocence at trial was that K.W. had falsely accused Stewart to take revenge

on him for breaking up with her mother.2 The jury’s verdict, therefore, hinged

on whether it found K.W. credible. The jury was properly instructed that it

could make that credibility determination based on the content of K.W.’s

allegations and the circumstances in which they came to light.

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2 Mesar also conducted a forensic interview with K.W. and testified to those

facts, but that portion of the testimony is not at issue in the present appeal.

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At the conclusion of the trial, Stewart was found guilty of six offenses

and he was sentenced to an aggregate prison term of 16.5 to 33 years.

Stewart’s post-sentence motions were denied, and he did not timely file a

direct appeal. A direct appeal nunc pro tunc was granted, and this Court

affirmed the judgment of sentence in Commonwealth v. Stewart, 1877

WDA 2017 (Pa. Super. March 5, 2019) (unpublished memorandum).

Stewart timely filed a pro se post-conviction petition in 2020, and he

was appointed PCRA counsel who filed an amended petition on his behalf. See

Amended PCRA Petition, 9/6/2020. In this amended petition, Stewart

asserted that his trial counsel had been ineffective in failing to object to

inadmissible hearsay and prior inconsistent statements introduced through

the testimony of B.H. and Detective Honan. Stewart maintained that the

statements K.W. made to those witnesses were used to improperly bolster

K.W.’s credibility.

The second of Stewart’s two ineffectiveness claims was that his trial

counsel failed to object to Mesar’s testimony concerning how victims of child

abuse form and recall memories of their experiences. Stewart relied on the

limited scope of 42 Pa.C.S. § 5920, which permits expert witnesses to opine

on “specific types of victim responses and victim behaviors.” Under Stewart’s

interpretation of that statute, Mesar’s discussion of memory did not relate to

a victim’s “response” or “behavior,” and his trial counsel performed

ineffectively by not challenging the admissibility of such testimony.

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The PCRA court summarily denied Stewart’s ineffectiveness claims,

finding that they have no underlying merit. As to the hearsay/prior consistent

statement claim, the PCRA court found that trial counsel could not have been

ineffective in failing to object because the subject testimony was not hearsay,

as it was admitted for a purpose other than to prove the truth of the matter

asserted. As to Mesar’s disputed testimony, the PCRA court likewise found

that an objection would have been futile because the witness had testified

within the scope of the applicable evidentiary rules.3

Stewart now raises two appellate issues for our consideration:

1. Was trial counsel ineffective in failing to object to hearsay

testimony that further acted as prior consistent statements of the

complainant, which would have the natural impact of improperly

bolstering the complainant’s credibility?

2. Was trial counsel ineffective in failing to object to portions of

expert witness Jamie Mesar’s testimony that went beyond the

scope of the authorization provided by 42 Pa.C.S. § 5920(b)(2)?

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3 The PCRA court presented the reasons for its ruling in a Rule 907 Notice of

Intent to Dismiss Stewart’s petition for post-conviction relief. See Rule 907

Notice, 6/16/2021 at 1-4; see also Pa.R.Crim.P. 907 (outlining procedure for

dismissing a PCRA petition without a hearing). The PCRA court permissibly

relied on this notice in lieu of entering a separate 1925(a) opinion. See PCRA

Court Order, 7/20/2021, at 1; Pa.R.A.P. 1925(a)(1) (a separate opinion

setting forth reasons for the appealed order is not necessary if the appellate

court has been directed to the place in the record where those reasons may

be found).

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Appellant’s Brief, at 3.4

II.

Stewart’s first ineffectiveness claim concerns the testimony of B.H. and

Detective Honan. Specifically, Stewart contends that his trial counsel was

ineffective in failing to object to portions of their testimony relaying K.W.’s

out-of-court statements, especially her claim that Stewart once told her, “You

know what to do,” suggesting a long-term pattern of sexual abuse. Stewart

categorizes the statements of these witnesses as hearsay and prior consistent

statements which would have been excluded from the evidence at trial had

his counsel timely objected to them.

“To prevail on a claim of ineffective assistance of counsel, a petitioner

must overcome the presumption that counsel is effective by establishing [by

a preponderance of the evidence] all of the following three elements: (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis

for his or her action or inaction; and (3) the petitioner suffered prejudice

because of counsel’s ineffectiveness.” Commonwealth v. Chmiel, 30 A.3d

1111, 1127–28 (Pa. 2011) (citing Commonwealth v. Pierce, 527 A.2d 973,

975-76 (Pa. 1987)). “Counsel cannot be found ineffective for failing to pursue

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4This Court must affirm an order denying PCRA relief as long as the order is

supported by evidence in the certified record and free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005).

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a baseless or meritless claim.” Commonwealth v. Poplawski, 852 A.2d

323, 327 (Pa. Super. 2004).

Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered “in evidence to prove the truth of the

matter asserted.” Pa.R.E. 801(c). “Hearsay testimony is per se inadmissible

in this Commonwealth, except as provided in the Pennsylvania Rules of

Evidence, by other rules prescribed by the Pennsylvania Supreme Court, or by

statute.” Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super.

2002).

However, “evidence that would constitute inadmissible hearsay if

offered for one purpose may be admitted for another purpose[.]”

Commonwealth v. Underwood, 500 A.2d 820, 822 (Pa. Super. 1985). For

example, “an out-of-court statement offered to explain a course of conduct is

not hearsay.” Commonwealth v. Cruz, 414 A.2d 1032, 1035 (Pa. 1980).

“[C]ertain out-of-court statements offered to explain the course of police

conduct are admissible on the basis that they are offered not for the truth of

the matters asserted but rather to show the information upon which police

acted.” Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995).

Similarly, while the hearsay rule would preclude a prior consistent

statement from being used as substantive evidence, such a statement may be

admissible “as rebuttal or rehabilitation.” Commonwealth v. Bond, 190

A.3d 664, 668 (Pa. Super. 2018). To be used in this manner, “the opposing

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party [must be] given an opportunity to cross-examine the witness about the

statement and the statement is offered to rebut an express or implied charge

of . . . fabrication, bias, improper influence or motive, or faulty memory and

the statement was made before that which has been charged existed or

arose[.]” Pa.R.E. 613(c)(1).

In the present case, we find that Stewart’s trial counsel could not have

been ineffective because the underlying legal claim has no arguable merit.

Although the disputed testimony would not be admissible as prior inconsistent

statements,5 B.H. and Detective Honan both briefly recounted what K.W. said

in order to explain their own courses of conduct. This was relevant because

K.W. came forward about three years after the abuse had begun, and

Stewart’s defense was that the child had fabricated the accusations to retaliate

against Stewart for breaking up with K.W.’s mother. What the child told these

witnesses and how she told them was introduced to establish the timeline of

events, not the truth of the matter asserted. Accordingly, the testimony was

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5 At trial, Stewart asserted that K.W.’s motive to fabricate her accusations

stemmed from his decision to break up with K.W.’s mother. Since that motive

preceded the statements, they would not serve as rehabilitation or rebuttal

evidence for the purposes of Pa.R.E. 613(c)(1), which would require the

statements to be made “before that which has been charged existed or

arose[.]”

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not inadmissible hearsay. See Commonwealth v. Rega, 933 A.2d 997,

1017 (Pa. 2007).6

Further, both witnesses, as well as K.W., were available for cross-

examination. Neither B.H. nor Detective Honan vouched for K.W.’s credibility

or otherwise suggested that the events described by K.W. actually occurred

merely because the child said they did.7 Under the circumstances, there was

no meritorious basis on which trial counsel could have objected to the subject

portions of the witnesses’ testimony. Thus, the PCRA court did not err in ruling

that there is no legal merit to the underlying claim of ineffectiveness.

____________________________________________

6 As to testimony relaying to K.W.’s claim that Stewart said, “You know what

to do,” shortly before an episode of sexual abuse occurred, the statement is

not hearsay. Whether K.W., in fact, “knew what to do” has little to no

relevance in this case. The statement is significant, rather, because of its

subtext. There would have been an implicit understanding between the

speaker and the listener that something was about to happen that had

happened regularly before. The statement was, therefore, admissible and

probative as to whether K.W. had been subjected to years of sexual abuse as

she had alleged.

7 Stewart argues in his brief that B.H.’s reiteration of the phrase, “You know

what to do,” was especially prejudicial because the prosecutor repeated the

line to the jury, using it to demonize Stewart and improperly bolster K.W.’s

credibility. However, the underlying merit of the ineffectiveness claim

concerns whether trial counsel failed to object to testimony that was, as a

matter of law, inadmissible. Once admitted, the prosecutor had wide latitude

in commenting on the evidence to the jury. See e.g., Commonwealth v.

Spotz, 18 A.3d 244, 288 (Pa. 2011) (“A prosecutor may make fair comment

on the admitted evidence and may provide fair rebuttal to defense

arguments”). The prosecutor’s comment on the evidence had no retroactive

bearing on whether that evidence was admissible in the first place.

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III.

Stewart’s second ineffectiveness claim is that his counsel failed to object

to improper testimony by the Commonwealth’s expert witness, Jamie Mesar.

According to Stewart, this testimony went beyond the permissible scope of 42

Pa.C.S. § 5920(b)(2), which governs the qualifications and use of experts in

certain criminal proceedings, including those relating to sexual abuse. Again,

as with Stewart’s first asserted ground of ineffectiveness, we find that the

PCRA court did not err because there is no merit to the underlying legal claim.

Section 5920(b)(2) allows a qualified expert to opine on “types of victim

responses and victim behaviors.” 42 Pa.C.S. § 5920(b)(2). Conversely, the

statute prohibits experts from giving an “opinion regarding the credibility of

any other witness, including the victim[.]” Id. at § 5920(b)(3). The stated

use of experts under the statute is to “assist the trier of fact in understanding

the dynamics of sexual violence or domestic violence, victim responses to

sexual violence or domestic violence and the impact of sexual violence or

domestic violence on victims during and after being assaulted.” Id. at

§ 5920(b)(1).

In this case, the Commonwealth elicited testimony from a qualified

expert, Mesar, concerning how victims of sexual abuse might create, store

and access memories of those events. Mesar explained in pertinent part that

the development and accessibility of traumatic memories can vary to a broad

extent, causing some victims to delay their reporting of those events or even

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forget them entirely. Stewart argues that such testimony goes beyond the

permissible scope of Section 5920(b)(1) because memory function is not the

type of “response” or “behavior” that is contemplated by the law.

However, the record shows that the substance of Mesar’s disputed

testimony was that victims can respond or behave in a variety of different

ways after being sexually assaulted. She relied on her expertise to explain,

hypothetically, why a victim might report instances of abuse either

immediately or long after their occurrence, depending on a host of

psychological factors. We find nothing in the language of Section 5920(b)(1)

or in any other relevant authority suggesting that such reasons for the timing

of a victim’s reporting of abuse cannot be discussed by a qualified expert in

that field.

We note further that Mesar did not opine specifically on K.W.’s

credibility, presume to know what happened in K.W.’s case, or otherwise

invade the province of the jury. As the jury necessarily had to assess the

credibility of allegations lodged years after the fact, Mesar’s testimony would

have been a valid consideration falling squarely within the scope of Section

5920(b)(1). See generally Commonwealth v. Carter, 111 A.3d 1221,

1223 (Pa. Super. 2015) (holding that expert’s testimony was “clearly

admissible” because the witness had “expounded upon some of the reasons

why a child sexual abuse victim may delay in reporting” but did “not testify

regarding this victim specifically or whether or not the alleged incidents

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actually occurred” nor “offer any opinion regarding the victim’s credibility.”).

Thus, Stewart’s trial counsel could not have been ineffective for failing to

object to such testimony, and the order denying his amended PCRA petition

must stand.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/08/2022

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