Commonwealth v. Dunn, R., Aplt.

[J-69-2022] [OISA: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 10 WAP 2022

:

Appellee : Appeal from the Order of the

: Superior Court entered December

: 23, 2020 at No. 176 WDA 2020,

v. : affirming the convictions and

: vacating the Judgment of Sentence

: of the Court of Common Pleas of

RYAN MICHAEL DUNN, : Allegheny County entered

: September 11, 2019 at No. CP-02-

Appellant : CR-0014780-2018, and remanding

:

: ARGUED: October 26, 2022

OPINION IN SUPPORT OF REVERSAL

JUSTICE DONOHUE DECIDED: June 23, 2023

I. Introduction

Today, Justice Mundy’s Opinion in Support of Affirmance (“OISA”) correctly

reaches the inescapable conclusion that Pennsylvania’s mandatory discovery rules apply

when the Commonwealth intends to call child sex abuse experts to testify in criminal trials

pursuant to 42 Pa.C.S. § 5920. Thus, I wholeheartedly agree with the OISA that Rule

573 of the Pennsylvania Rules of Criminal Procedure “applies to Section 5920, and that

the trial court erred as a matter of law in concluding the Commonwealth’s last-minute

disclosure of an expert witness report did not violate [Rule] 573. OISA at 1. The OISA

nevertheless fails to give weight to the prejudice suffered by appellant, Ryan Michael

Dunn (“Dunn”), due to the Commonwealth’s patently late notice of its intent to present the

expert testimony of Jamie Mesar, MSW (“Mesar”) at Dunn’s trial and the vague disclosure

of the expert’s testimony. Instead, it faults Dunn for failing to request a continuance,

which, in the OISA’s view, would have cured any minimal prejudice. I disagree. Dunn

was prejudiced by the Commonwealth’s late notice and vague disclosure and the

prejudice was not minimal. Further, I disagree with the OISA’s conclusion that such

prejudice could have been cured had Dunn requested a continuance. In my view, the

trial court abused its discretion by failing to compel the production of a supplemental

expert report. The prejudice resulting from the Commonwealth’s discovery violation

coupled with the trial court’s failure to afford an appropriate remedy warrants a new trial.

Therefore, contrary to the OISA, I would reverse the judgment of the Superior Court.

II. Pertinent Factual and Procedural History

Briefly, this case concerns allegations of sexual abuse levied against Dunn by his

paramour’s minor daughter (“the Victim”), which lasted from June of 2015 until November

of 2017, but were not reported until September of 2018. Typical of a case involving sexual

offenses against a minor, the only direct evidence of Dunn’s purported sexual abuse

came from the Victim’s testimony. See N.T., 6/6/2019-6/7/2019, at 78-122. To buttress

its case against Dunn, the Commonwealth called Mesar to testify about the wide range

of behaviors exhibited by child sex abuse victims. Additionally, the Commonwealth called

to testify two police officers who handled the investigation into the allegations against

Dunn.1 Dunn testified in his own defense, denying all of the Victim’s allegations, and he

1 Officer Donald Stoner of the Fox Chapel Police Department testified regarding the

Victim’s initial report of abuse, and Detective Ronald Bodnar of the Allegheny County

Police Department primarily testified regarding Dunn’s recorded statement, in which Dunn

denied engaging in any sexual misconduct with the Victim. See N.T., 6/6/2019, at 123-

35 (Stoner); N.T., 6/7/2019, at 371-88 (Bodnar).

[J-69-2022] [OISA: Mundy, J.] - 2

called his mother and sister to testify on his behalf.2 To corroborate the Victim’s

accusations in this clash of credibility, the Commonwealth offered text messages sent

from Dunn to the Victim (“Texts”) which purportedly evidenced consciousness of guilt,

although Dunn never explicitly admitted to sexually abusing the Victim.

Of particular concern here, the Commonwealth did not inform Dunn of its intent to

present Mesar’s expert testimony until the eve of trial. Email from Assistant District

Attorney to Trial Counsel (June 3, 2019, 16:25 EST) (“Please see attached documents. I

inten[d] to call Jaime Mesar as per 42 Pa.C.S. [§] 5920. [3] Please let me know whether

[Dunn] is willing to consider other offers. I’ll see you tomorrow.”). Mesar’s curriculum

vitae and a letter from Mesar to the prosecutor were attached to the email. Mesar’s letter

stated the following:

As per our recent conversation, I am available to provide

information and testimony that may assist a judge and/or jury

in understanding the dynamics of child sexual abuse victims,

their responses to child sexual abuse and the impact of child

sexual abuse on the victims. As an expert witness in the area

of child sexual abuse, I would be prepared to discuss, in

general, the typical ways children disclose abuse, how they

react to child sexual abuse and coping mechanisms they may

use. This report is limited to three areas of relevance for the

requested testimony: Disclosure of abuse and children’s

behaviors regarding disclosure (gradual, delayed and

recanted disclosures), victim behavior at the time of the abuse

and victim behavior after the disclosure.

2 Dunn’s sister and mother testified, inter alia, that Dunn’s home was a chaotic space

lacking privacy due to the presence of seven children and the Victim’s mother’s open-

doors policy. Both women testified that the Victim complained about her lack of privacy

as a result. N.T., 6/10/2019, at 526, 533-34. During closing argument, Dunn’s counsel

argued that, given these conditions, it would have been “impossible” for Dunn to sexually

abuse the Victim “routinely” as alleged without being noticed by other house members.

Id. at 564.

3 Section 5920 permits parties to proffer expert testimony in criminal proceedings

regarding victim behaviors in response to sexual violence. 42 Pa.C.S. § 5920.

[J-69-2022] [OISA: Mundy, J.] - 3

My testimony will be based on my almost twenty years of

experience in child welfare, which includes interviews and

interactions of alleged and confirmed child sexual abuse

victims, my education as a master’s level social worker with a

certificate in child welfare and professional training I have

received over the course of my employment. I have provided

citations of relevant research articles which will further my

testimony (although my testimony will not be limited to this

information) and I have also enclosed a copy of my curriculum

vitae.

Disclosure of abuse and children’s behaviors regarding

disclosure:

• Children who disclose abuse often do not

disclose right away and the disclosure may be

initially tentative and/or gradual over a period of

time.

• Many children who have been victims never

disclose their abuse for a wide variety of

reasons (threats, fear, relationship to the

abuser, unintended consequences of the

disclosure, bribes, shame)

• Denial of the abuse or recantation of the

allegations are not uncommon

Victim behavior at the time of abuse:

• There is no “normal” response for all victims.

Child sexual abuse victims experience a wide

range of emotions and responses

• Some victims (especially young victims and

those who have experienced multiple incidents

of child sexual abuse) may not know they have

been a victim of child sexual abuse

• Child sexual abuse victims may feel helpless

and show accommodating behaviors.

Victim behavior after disclosure[:]

• There is no “standard” response following a

disclosure. Some children display emotional

and behavioral changes and others do not. If a

child does display an emotional/behavioral

change they can vary by intensity and type.

[J-69-2022] [OISA: Mundy, J.] - 4

Others[’] responses to a child’s disclosure

greatly impacts the short term and long term

response of a child sexual abuse victim.

Mesar’s Letter, 5/31/2019, at 1-2 (“Mesar’s Letter”). Mesar’s Letter concluded with

citations to five articles ostensibly supporting her proposed testimony. Id. at 2.

The following morning, Dunn’s trial counsel immediately filed a Motion to Compel

Additional Discovery, Preparation and Disclosure of Expert Witness Report (“Motion to

Compel”), and a separate Motion to Preclude Expert Witness (“Motion to Preclude”). In

the Motion to Compel, Dunn argued that no “expert report has been generated or provided

detailing the substance of the facts to which the expert is expected to testify, the actual

opinions arrived upon by the expert, or the basis or grounds for said opinions[,]” and

requested that the court “compel the preparation and disclosure of an expert report

consistent with the standards provided under Pa.R.Crim.P. 573(B)(2)(b).” Motion to

Compel, 6/4/2019, at 3. In his Motion to Preclude, Dunn asked the court to exclude

Mesar’s testimony based on similar rationale. Motion to Preclude, 6/4/2019, at 2-3.

The trial court held a hearing on the motions where trial counsel reiterated that

Mesar’s Letter provided only “generic and generalized conversation about things that

may not even apply to this matter[,]” and that the late disclosure did not allow Dunn the

opportunity to conduct his own research or consult an expert for “possible rebuttal[,]” in

part because there “might be a divergence of opinions based upon what the proposed

testimony would be.” N.T., 6/4/2019, at 6 (emphasis added). The trial court ultimately

denied Dunn’s Motion to Compel, reasoning that no additional report was required

because the Commonwealth’s disclosure of Mesar’s Letter, “combined with the statute

[J-69-2022] [OISA: Mundy, J.] - 5

under which this expert was testifying, adequately put defense counsel on notice as to

the nature of her testimony.” Trial Court Opinion, 6/24/2020, at 6.

After deliberating for several hours over two days, the jury returned a guilty verdict

on all counts. On September 11, 2019, the trial court sentenced Dunn to an aggregate

term of 214 to 428 months’ incarceration. Dunn then timely filed a notice of appeal to the

Superior Court.

The Superior Court ascertained no abuse of discretion in the trial court’s denying

the Motion to Compel. Commonwealth v. Dunn, 176 WDA 2020, 2020 WL 7682502, at

*5 (Pa. Super. Dec. 23, 2020) (non-precedential decision). The court reasoned that

Section 5920 “has no notice requirement and does not require the production of an expert

report[,]” Dunn, 2020 WL 7682502, at *4, and that Mesar’s Letter nevertheless adequately

apprised Dunn “of the subject matter” of Mesar’s “anticipated testimony[,]” id. at *4 n.5.

III. Parties’ Arguments

Dunn filed a timely petition for allowance of appeal, and we granted review of the

following question:

Are the Superior Court’s holdings that the Commonwealth (1)

need not provide notice to a criminal defendant of its intent to

call an expert witness pursuant to 42 Pa.C.S. § 5920 (relating

to Expert testimony concerning victim responses and

behaviors) and (2) need not prepare and disclose a detailed

expert report irreconcilable with the Superior Court’s decision

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

and this Honorable Court’s decision in Commonwealth v.

Jones, 240 A.3d 881 (Pa. 2020)? Are these same holdings

inconsistent with the Pennsylvania Rules of Criminal

Procedure and the Due Process provisions of the United

States and Pennsylvania Constitutions?

Commonwealth v. Dunn, 274 A.3d 719 (Pa. 2022) (per curiam).

[J-69-2022] [OISA: Mundy, J.] - 6

In his brief, Dunn concedes that Mesar’s expert testimony “arguably f[e]ll within the

broad, generic categories of potential testimony identified in her letter,” but that none of

Mesar’s “case-specific opinions fairly could have been anticipated therefrom.” Dunn’s

Brief at 46. In this regard, Dunn identifies several parts of Mesar’s testimony that directly

foreshadowed issues involving the Victim’s particular behavior in relation to her

accusations against Dunn. Id. at 43-46. Dunn asserts that “Mesar’s in-court testimony

veered far beyond the platitudes outlined in her letter.” Id. at 46. “In short,” Dunn argues,

“Mesar’s [L]etter failed to meaningfully apprise [him] of the substance of her expert

testimony, which touched upon extremely fact-specific themes and elements of the

prosecution against [] Dunn. Fundamental fairness and the truth-determining process are

frustrated, if not subverted entirely, by this strategy.” Id. at 46-47.

The Commonwealth expends virtually no effort defending its late disclosure of

Mesar’s Letter. As to Dunn’s claim that Mesar’s Letter was too vague, the Commonwealth

argues that “no more was required” under Rule 573. Commonwealth’s Brief at 17. The

bulk of the Commonwealth’s argument focuses on Dunn’s burden on appeal to

demonstrate prejudice. In that vein, the Commonwealth contends that Dunn cannot

establish prejudice given the weight of the evidence supporting the conviction, and that

he “does not reference any expert whom he has uncovered who could refute anything

that Mesar said, and he does not set forth any particular line of cross-examination that he

has now developed that would have augmented the cross-examination that his defense

counsel conducted at trial.” Id. at 26-27 (footnotes omitted).

[J-69-2022] [OISA: Mundy, J.] - 7

IV. Analysis

Initially, I agree with the OISA that “the lack of internal notice requirements” in

Section 5920 does not equate “to no notice requirements[,]” and that Section 5920 is a

substantive rule regarding the admissibility of evidence for which notice is governed by

the pretrial discovery rules set forth in Rule 573. OISA at 17. And while I also agree with

the OISA that the Commonwealth violated its duty to promptly disclose under Rule 573, I

would go farther to hold that Mesar’s Letter lacked the specificity required for admissible

Section 5920 testimony to the extent that the trial court abused its discretion by failing to

grant Dunn’s Motion to Compel a more detailed expert report in compliance with Rule

573(B)(2)(b). Finally, I would conclude that Dunn is entitled to a new trial because he

was prejudiced by the Commonwealth’s unremedied discovery violations.

Section 5920 provides, in pertinent part, as follows:

§ 5920. Expert testimony in certain criminal proceedings

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

[list of applicable offenses]

(b) Qualifications and use of experts.--

(1) In a criminal proceeding subject to this

section, a witness may be qualified by the court

as an expert if the witness has specialized

knowledge beyond that possessed by the

average layperson based on the witness’s

experience with, or specialized training or

education in, criminal justice, behavioral

sciences or victim services issues, related to

sexual violence or domestic violence, that will

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

[J-69-2022] [OISA: Mundy, J.] - 8

violence or domestic violence on victims during

and after being assaulted.

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

testify to facts and opinions regarding specific

types of victim responses and victim behaviors.

(3) The witness’s opinion regarding the

credibility of any other witness, including the

victim, shall not be admissible.

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

under this section may be called by the attorney

for the Commonwealth or the defendant to

provide the expert testimony.

…

42 Pa.C.S. § 5920.

Violation

I agree with the OISA that the Commonwealth violated the discovery rules by

failing to disclose its intent to call Mesar to testify until the eve of Dunn’s trial. Rule 573

requires that, “on request by the defendant, … the Commonwealth shall disclose to the

defendant’s attorney all of the following requested items or information, provided they are

material to the instant case.” Pa.R.Crim.P. 573(B)(1) (emphasis added). The

enumerated items include “any results or reports of scientific tests, expert opinions, and

written or recorded reports of polygraph examinations or other physical or mental

examinations of the defendant that are within the possession or control of the attorney for

the Commonwealth[.]” Pa.R.Crim.P. 573(B)(1)(e). Additionally, Rule 573(D) imposes a

continuing duty on both parties to promptly disclose new evidence or new witnesses.

Pa.R.Crim.P. 573(D) (“If, prior to or during trial, either party discovers additional evidence

or material previously requested or ordered to be disclosed by it, which is subject to

[J-69-2022] [OISA: Mundy, J.] - 9

discovery or inspection under this rule, or the identity of an additional witness or

witnesses, such party shall promptly notify the opposing party or the court of the additional

evidence, material, or witness.”)

Here, if Mesar’s Letter constituted an expert report or opinion, it was discoverable

under Rule 573(B)(1)(e), and therefore also subject to the continuing disclosure

requirements of Rule 573(D). Regardless, even if Mesar’s Letter did not constitute an

expert report or opinion within the meaning of Rule 573(B)(1)(e), and even if it did not

trigger Rule 573(D)’s mandatory disclosure as to “evidence or material previously

requested or ordered to be disclosed by it,” the Commonwealth’s intent to present Mesar’s

testimony would nevertheless trigger Rule 573(D)’s prompt notification requirement for

“the identity of an additional witness or witnesses” discovered prior to trial. Pa.R.Crim.P.

573(D).

However, I would also hold that Mesar’s Letter failed to satisfy the

Commonwealth’s disclosure requirements because it was insufficiently tailored to the

facts of this case. Section 5920 permits a sex abuse expert to testify “regarding specific

types of victim responses and victim behaviors.” 42 Pa.C.S. § 5920(b)(2) (emphasis

added). Furthermore, to be admissible, Section 5920 testimony must be relevant to the

proceedings. Pa.R.E. 402 (“Evidence that is not relevant is not admissible.”). “Evidence

is relevant if: (a) it has any tendency to make a fact more or less probable than it would

be without the evidence; and (b) the fact is of consequence in determining the action.”

Pa.R.E. 401 (emphasis added). Finally, Rule 702 provides that an expert may only testify

if “the expert’s scientific, technical, or other specialized knowledge will help the trier of

[J-69-2022] [OISA: Mundy, J.] - 10

fact to understand the evidence or to determine a fact in issue[.]” Pa.R.E. 702(b)

(emphasis added).4

Reading Section 5920 in conjunction with these rules, expert testimony involving

victim responses and victim behaviors must be tailored to the evidence in each individual

case. Section 5920 should not be read as an invitation to lecture to the jury about a

myriad of potential topics that might arise in any case involving sexual abuse; instead, it

is designed to address specific issues stemming from a particular set of facts and

circumstances. Testimony regarding generic victim responses and victim behaviors is

too general to meet Section 5920(b)(2)’s specificity requirement, otherwise the term

“specific” is rendered superfluous in that provision. Furthermore, testimony regarding

particular responses and behaviors by victims is irrelevant if it does not pertain to the facts

specific to the matter before the trial court, and expert testimony is inadmissible if it does

not address “the evidence” or “a fact in issue.” Pa.R.E. 702(b). Under our rules, an expert

is confined to expressing opinions relevant to the matter being tried.

Here, Mesar’s Letter was far too general to meet Section 5920(b)(2)’s specificity

requirements and, because it promised testimony regarding victim responses and victim

behaviors that went well beyond evidence of the Victim’s actual responses and behaviors,

it contained topics that were irrelevant under Rule 401 and outside the scope of Rule 702.

Thus, Mesar’s Letter left Dunn only able to speculate as to the relevant facts and opinions

that Mesar would subsequently provide at trial. Indeed, Mesar’s Letter contained nothing

that narrowed the scope of her proposed testimony to the facts and circumstances of this

4The Superior Court has held that Rule 702 applies to Section 5920 testimony. Cramer,

195 A.3d at 606.

[J-69-2022] [OISA: Mundy, J.] - 11

case, as recognized by the trial court when it stated that Mesar’s Letter “is generic in

nature” and proffered testimony “to explain to jurors the concept of delayed report[ing]

and not specific in any way to the facts of this case.” N.T., 6/4/2020, at 6.5

Thus, in addition to finding that the Commonwealth violated Rule 573(D)’s prompt

disclosure mandate, I also conclude that Mesar’s Letter failed to apprise Dunn of

“specific types of victim responses and victim behaviors” at issue in this case, 42 Pa.C.S.

§ 5920(b)(2) (emphasis added), because it only provided Dunn with notice of generic

victim responses and victim behaviors, much of which was irrelevant and inadmissible in

the circumstances of this case.6,7

5 Dunn’s counsel responded that the court’s description of the proposed expert testimony

was precisely what made it objectionable: “Just for the record, that’s part of my objection

to the introduction of the testimony, that it has really nothing to do with this case and is

generic and generalized conversation about things that may not even apply to this

matter.” N.T., 6/4/2020, at 6. When the court later stated that it was not novel science

that sexual assault victims of all ages do not always promptly report, Dunn’s counsel

asserted that the Victim’s delayed reporting was “not even part of our defense. We have

really no issue with the [delayed] reporting in this case.” Id. at 10.

6 Further highlighting the problem with Mesar’s Letter and the trial court’s embrace of it

is the fact that the Commonwealth called Mesar as its first witness. The testimony was

presented in a vacuum and the only possible purpose for it was to shore up any evidence

that would follow, including the testimony of the Victim. Section 5920(b)(3) specifically

prohibits opinion testimony regarding the credibility of a witness, including the victim.

Allowing generic testimony that validates any and all otherwise anomalous behavior of

sexual abuse victims, offered as a preface to the Commonwealth’s case, serves as an

opinion on the credibility of the testimony to follow.

7 With a sense of precision akin to buckshot, the OISA counters that Mesar’s Letter

“detailed three specific categories she was prepared to discuss at trial” within which

Mesar provided “bullet points setting forth precisely what would be discussed.” OISA at

18-19. It is difficult to conceive of what Mesar was not prepared to discuss with respect

to child sexual assault victims’ behaviors, given the broad and generic platitudes that

constitute Mesar’s Letter. Inverting the nature of this problem, the OISA again transfers

responsibility for the Commonwealth’s discovery violations onto Dunn, stating that “Dunn

was required to lodge a specific objection at trial” to the extent that “Mesar’s testimony

[J-69-2022] [OISA: Mundy, J.] - 12

Remedy

Rule 573 provides a variety of remedies for discovery violations. The trial court

may order a violating party “to permit discovery or inspection, may grant a continuance,

or may prohibit such party from introducing evidence not disclosed, other than testimony

of the defendant, or it may enter such other order as it deems just under the

circumstances.” Pa.R.Crim.P. 573(E). Additionally, regardless of whether a discovery

violation has occurred involving an expert witness, “the court, upon motion, may order

that the expert prepare, and that the attorney for the Commonwealth disclose, a report

stating the subject matter on which the expert is expected to testify; the substance of the

facts to which the expert is expected to testify; and a summary of the expert’s opinions

went beyond that detailed in the letter[.]” Id. at 19. However, I have no dispute with the

general proposition that Dunn was required to object at trial if he sought relief solely from

testimony that exceeded the scope of Mesar’s Letter. The nature of this problem,

however, is that the scope of Mesar’s Letter was so broad and generic that it failed to

narrow the vast array of possible topics that the letter envisaged in such a way as to

provide useful notice to the defense. Dunn’s other arguments aside, the prejudice I am

concerned with had fully materialized when the trial court denied Dunn’s motions to

preclude or compel.

Furthermore, it is no excuse that “experts testifying in this area must avoid encroaching

on the jury’s province of commenting on witness credibility.” Id. An expert witness can

surely comment on a victim’s behaviors without reaching specific conclusions about

credibility, as expert witnesses routinely do in our courts despite a global ban on experts’

direct commentary on the credibility of witnesses. Moreover, it strains credulity to believe

that a jury will distinguish between the Commonwealth’s asking hypotheticals of an expert

that directly track the specific behaviors of a victim of sexual violence versus the

Commonwealth’s directly asking the expert about the specific behaviors of that victim.

Rule 5920 does not forbid an expert’s discussion of a specific victim’s behaviors; it

explicitly permits them. 42 Pa.C.S. § 5920(b)(2) (“If qualified as an expert, the witness

may testify to facts and opinions regarding specific types of victim responses and victim

behaviors.”). That this charade has become common practice, see OISA at 18 (stating

“Section 5920 experts generally abstain from reviewing specific facts” in the cases in

which the testify), does not justify its continuation on the false pretense that an expert’s

opinion about the victim’s behaviors is identical to an “opinion regarding the credibility” of

that victim. 42 Pa.C.S. § 5920(b)(3).

[J-69-2022] [OISA: Mundy, J.] - 13

and the grounds for each opinion.” Pa.R.Crim.P. 573(B)(2)(b). Here, Dunn requested

the exclusion of Mesar’s testimony in his Motion to Preclude pursuant to Rule 573(E), and

he separately requested a supplemental expert report in his Motion to Compel pursuant

to Rule 573(B)(2)(b).

In assessing the trial court’s failure to afford any relief for the Commonwealth’s

discovery violation, the OISA emphasizes that Dunn “never explicitly requested a

continuance, which is generally ‘deemed sufficient to eradicate possible prejudice and

enable the defendant to assimilate new information.’” OISA at 22 (quoting

Commonwealth v. Rosa, 609 A.2d 200, 204 (Pa. Super. 1992)). The OISA further

declines to view Dunn’s Motion to Compel “as an effective request for a continuance,

particularly in light of the fact that the Commonwealth did provide an expert report

detailing the substance of its proposed testimony under Section 5920.” Id. at 23. The

OISA then concludes that “the majority” of Dunn’s proposed preparations ostensibly

precluded by the Commonwealth’s discovery violation could have been remedied had he

requested a continuance. Id. at 23. I disagree.

I acknowledge that Dunn did not include a request for a continuance in his written

motions, but the record reveals that the trial court denied a continuance, or at least

thought it had done so.8 Nevertheless, Dunn does not maintain that the trial court erred

8 While addressing the Commonwealth’s late disclosure of Mesar’s testimony at the

pretrial hearing, trial counsel stated: “I think my client has the right to confront this witness

as well as any other, and we would have appreciated the opportunity to conduct our own

research and consult with our own expert.” N.T., 6/4/2019, at 6. Despite the use of the

past tense, trial counsel’s statement might be interpreted as request for additional time to

conduct research and consult an expert. At least the Commonwealth thought so, see id.

at 8 (“[T]he Commonwealth would ask the [c]ourt to deny the defendant's request for

additional time to prepare for discovery purposes.”), as did the trial court, see Trial Court

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in failing to grant a continuance to the defense, focusing instead on the trial court’s failure

to grant his Motion to Compel. However, I disagree with the OISA that a continuance

would have adequately remedied the prejudice incurred by Dunn, and I question a rule

that places the burden on the defendant to mitigate the Commonwealth’s violation of the

discovery rules and then penalizes him for not doing so. Nonetheless, as discussed

above, Mesar’s Letter was too vague to adequately apprise Dunn of the specifics of

Mesar’s proposed Section 5920 testimony, and the prejudice he incurred from that

inadequacy could only have been cured by a more detailed report, i.e., a real expert

report.

As to the trial court’s denial of Dunn’s Motion to Compel, the OISA summarily

rejects Dunn’s argument, stating: “Because the Commonwealth provided Dunn with an

expert witness report, the trial court did not abuse its discretion in denying Dunn’s motion

to compel the production of one.” OISA at 18 n.8. This mischaracterizes the nature of

Dunn’s request and the procedural history of this case.9

Opinion, 6/24/2020, at 6 (stating “counsel sought additional time to rebut or undermine

[Mesar’s] testimony”).

9 Although the OISA now concludes that Mesar’s Letter was an expert report “for purposes

of Section 5920[,]” OISA at 18, the document itself did not purport to be an expert report,

nor did the prosecutor indicate in her email to defense counsel that the Commonwealth

was disclosing an expert report. Nevertheless, Dunn argued in his Motion to Compel that

“[n]o expert report has been generated or provided detailing the substance of the facts

to which the expert is expected to testify, the actual opinions arrived upon by the

expert, or the basis or grounds for said opinions.” Motion to Compel, ¶ 4 (emphasis

added). The OISA waves away Dunn’s request by declaring that an expert report had

been provided, ignoring that Dunn was clearly requesting the production of an expert

report that was compliant with Rule 573, and that he implicitly, but no less obviously,

argued that Mesar’s Letter did not meet that standard. Id. ¶ 5. If the OISA now contends

that Mesar’s Letter was an expert report all along, it should at least treat Dunn’s Motion

to Compel as a request for a supplemental expert report. To treat it solely as a motion to

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I would reach the opposite conclusion, and instead find that the trial court abused

its discretion by failing to grant Dunn’s Motion to Compel because supplementation of

Mesar’s Letter was necessary to comply with the specificity requirement of Section

5920(b)(2).10 While Mesar’s Letter broadly identified the subject matter of Mesar’s

proposed testimony, it lacked the specificity required under Section 5920(b)(2) which

comports with Rules 401(b) and 702(b). Accordingly, contrary to the OISA, I would find

that the trial court abused its discretion by failing to grant Dunn’s Motion to Compel in

accordance with Rule 573(B)(2)(b).

Prejudice

The OISA correctly notes that “discovery violations do not automatically entitle an

appellant to a new trial; the appellant must demonstrate that the violation resulted in

prejudice. Commonwealth v. Counterman, 719 A.2d 284, 298 (Pa. 1998).” OISA at 22.

As noted above, the OISA believes that most of the prejudice alleged by Dunn could have

been cured by a continuance. Id. at 23. From there, the OISA addresses the “several

broad themes”11 that comprise Dunn’s prejudice argument, concluding that these

compel production of an expert report, despite the arguments made therein, is to elevate

the form of the Motion to Compel over its substance while simultaneously purporting to

elevate substance over form with respect to Mesar’s Letter.

10 I believe the trial court abused its discretion in failing to grant the Motion to Compel,

and that Dunn was prejudiced by its denial to a degree that warrants a new trial. However,

that prejudice could have also been avoided had the trial court granted Dunn’s Motion to

Preclude Mesar’s testimony.

11 The OISA notes that Dunn

claims that the Commonwealth’s last-minute notice prevented

him from conducting independent research, developing a

comprehensive cross-examination, making a knowing and

[J-69-2022] [OISA: Mundy, J.] - 16

“concerns may very well be true” but are nonetheless “insufficient to demonstrate the

degree of prejudice necessary to warrant a new trial[,]” again citing Counterman.12 Id. at

22. “Beyond this,” the OISA opines, Dunn cannot prove prejudice anyway. Id. at 24

(stating “the incriminating nature of the facts in this case do not lend themselves to a

finding of prejudice”). The OISA then summarizes the Texts, construing them as so

overwhelmingly inculpatory that “it is difficult to conclude Mesar’s expert testimony

prejudiced Dunn in any way[.]” Id. at 25.

First, I reject the OISA’s conclusion that the prejudice incurred by Dunn due to the

late and generic disclosures in Mesar’s Letter could have been substantially cured had

intelligent decision about whether to hire his own expert,

making a robust pretrial challenge to admission of the

testimony, and reflecting on how the testimony would bear

upon all of the other evidence presented at trial. He

additionally argues that his last-minute trial preparation was

derailed in light of the Commonwealth’s tardy disclosure.

OISA at 22.

12 In Counterman, the defendant was sentenced to death for killing his children by means

of arson. Counterman’s wife initially gave police a statement corroborating Counterman’s

claim that he was asleep when the fire began (although she recanted that statement at

trial). Counterman also made an inculpatory statement to a social worker regarding

insurance coverage. On appeal, Counterman challenged the late disclosure of these

statements “during the course of the trial.” Counterman, 719 A.2d at 297. Although this

Court agreed that the Commonwealth violated the discovery rules, and that the

prosecutor had violated the rules of professional responsibility with his gamesmanship,

the Court nevertheless concluded that Counterman had failed to demonstrate prejudice

because 1) he only made generalized allegations that the late disclosures impeded his

cross-examination of the Commonwealth’s expert witnesses and his approach to voir dire

and 2) because Counterman was permitted to admit the exculpatory statement through

his wife and to cross-examine her about it. Id. at 298. Thus, the Counterman Court

concluded that Counterman was not entitled to relief because “his ability to present the

evidence in issue was not impaired by the late disclosure.” Id. The Counterman Court

did not specify why Counterman had not been prejudiced by the late disclosure of his

inculpatory statement.

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he requested a continuance. I cannot discern how more time studying the generalities

set forth in Mesar’s two-page letter could have led Dunn’s counsel to better anticipate any

case-specific opinions subsequently offered during her testimony. I would conclude that

the trial court abused its discretion by denying Dunn’s Motion to Compel, and I would

analyze prejudice in this case by accounting for not only the impact of the

Commonwealth’s eleventh-hour disclosure in temporal terms (for which a continuance is

generally an appropriate remedy), but also the substantial gap between the generalities

contained in Mesar’s Letter and the specificity required by the statute and rules governing

expert testimony.

Second, taken together, the lateness and vagueness of the Commonwealth’s

disclosure invariably affected trial counsel’s strategy in this case and, thus, the

unavoidable effect of these unremedied discovery violations was to deny Dunn a fair

trial.13 I would conclude that Dunn has adequately demonstrated prejudice that could

13 This Court has applied several different modes of ascertaining whether prejudice

resulting from discovery violations is sufficient to warrant relief. In Commonwealth v.

Chambers, 599 A.2d 630 (Pa. 1991), where the Commonwealth failed to disclose an

inculpatory pre-trial statement by the defendant, this Court stated that a mistrial based on

that discovery violation was only required if the “unavoidable effect is to deprive

appellant of a fair trial.” Id. at 637 (emphasis added). In Commonwealth v. Jones, 668

A.2d 491 (Pa. 1995), where the Commonwealth failed to disclose the identity of certain

witnesses prior to trial, this Court concluded that Jones was not entitled to relief because

he failed to develop an argument as to how a “more timely disclosure would have

affected his trial strategy[.]” Id. at 513 (emphasis added). We applied an outcome-

determinative test in Commonwealth v. Small, 741 A.2d 666, 677 (Pa. 1999) (holding that

the Commonwealth’s failure to produce evidence pertaining to unrecorded conversations

was meritless because, inter alia, the appellant failed “to show how this evidence, even if

produced, would have caused a different outcome”). In Commonwealth v. Poplawski, 130

A.3d 697 (Pa. 2015), this Court applied different standards to similar discovery violations.

Poplawski was convicted of murdering three police officers during an ambush. The

Poplawski Court considered, inter alia, whether he was prejudiced when the medical

examiner offered an opinion as to the order of wounds that had not been discussed in the

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have been completely ameliorated had the trial court simply granted Dunn’s Motion to

Compel (or his Motion to Preclude). Trial counsel had virtually no time to prepare to

cross-examine an expert witness and, more importantly, even the most thorough and

lengthy preparations could not have equipped counsel to anticipate Mesar’s specific

opinions because of the vagueness of Mesar’s Letter.14

medical examiner’s report. Id. at 718. Applying some variation of a harmless error test,

we held that Poplawski could not demonstrate prejudice because the “uncontradicted

evidence admitted elsewhere during trial overwhelmingly established” that he had fired

the fatal shot. Id. at 719. Elsewhere in the same opinion, addressing a similar discovery

violation, we held that relief was not warranted because Poplawski failed to explain how

the alleged discovery violation “would have created a reasonable possibility of a

different outcome.” Id. at 721 (emphasis added).

While this Court clearly has applied different prejudice tests for discovery violations in

different cases, and even different prejudice tests to address similar discovery violations

within the same case, it has never provided an explanation for this lack of uniformity. In

my view, it remains the case that the denial of a fair trial is prejudice warranting the grant

of a new trial. My view is reinforced in Counterman, upon which the OISA relies. See

OISA at 22. Citing Chambers, the Counterman Court stated that a mistrial is warranted

“when a discovery violation is of such a nature as to deprive the defendant of a fair trial.”

Counterman, 719 A.2d at 298. The OISA also cites to the Superior Court’s decision in

Commonwealth v. Causey, 833 A.2d 165 (Pa. Super. 2003), which does not explicitly

state the “denial of a fair trial” standard but, nevertheless, also cites to Chambers

approvingly. Id. at 171.

14 I further observe that in Chambers and Jones, both cited by the OISA for the

proposition that the failure to request a continuance weighs against a finding of prejudice,

see OISA at 22, this Court was addressing discovery violations significantly more

diminutive in scope and involving the Commonwealth’s failure to disclose evidence of

which the defendants should have been aware. Chambers concerned an undisclosed

statement by the defendant indicating that he had been involved in unrelated illegal

activity “at some point in the evening following the murder” for which he was on trial.

Chambers, 599 A.2d 637. In Jones, the Commonwealth failed to disclose its intent to call

a hotel employee witness it proffered to authenticate a hotel registration form filled out by

Jones’ co-defendant, where Jones was already “aware of the hotel stay and could have

interviewed” the witness himself. Jones, 668 A.2d at 513. Neither of those cases

addressed circumstances similar to those here, where the Commonwealth failed to

provide adequate notice of its intent to call an expert witness (who would subsequently

provide a substantial amount of unanticipated testimony), nor did those cases involve the

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Although the Commonwealth contends that Dunn fails to establish how he would

have rebutted Mesar’s testimony had he been given more time to prepare,15 that

argument focuses too much on the lateness of the Commonwealth’s disclosure of Mesar’s

Letter, and too little on the inadequate disclosure that it provided. Dunn was prejudiced

because he was deprived of the opportunity to make a reasonable, calculated decision

as to whether it was worthwhile to obtain an expert to either rebut Mesar’s testimony or

to aid the defense in minimizing any negative effects Mesar’s testimony would have in

this clash-of-credibility case. Because Mesar’s Letter was too vague to enable counsel

to anticipate the specific opinions Mesar ultimately offered at trial, Dunn was unfairly

deprived of that opportunity, and a continuance without a supplemental report would have

been meaningless. The inability to prepare for cross-examination of an expert witness

and to prepare a strategy to address the testimony affects the fairness of the proceedings.

As Dunn succinctly explains, he “was deprived of the opportunity to meet the

government’s evidence and develop his trial strategy.” Dunn’s Reply Brief at 5.

Third, the OISA appeals to the notion that the weight of the evidence of Dunn’s

guilt was so great that it rendered any discovery violation involving Mesar’s Letter and

proposed testimony insignificant by comparison. I disagree. While I generally agree that

the Texts were inculpative, I am less convinced than the OISA as to what extent, and to

which crimes, they implicated his guilt. In the Texts, Dunn told the Victim that he did not

vagueness problem associated with the Commonwealth’s disclosure in this case that

failed to comply with the specificity required of an expert’s report.

15 The Commonwealth contends that the trial court could not have abused its discretion

in failing to offer a remedy because Dunn “has never offered anything” contrary to the

opinions “to which Mesar would be testifying.” Commonwealth’s Brief at 45.

[J-69-2022] [OISA: Mundy, J.] - 20

know he had been abusing her, that he loved her, that she was too young, that he was

wrong, that he did not want to hurt her, that he felt guilt and shame, and he further

admitted that he was going to prison. OISA at 24-25 (quoting N.T., 6/6/2019, at 183-87).

It would be reasonable for the jury to infer Dunn’s consciousness of guilt of something

from the Texts, and so it is certainly fair to assume they tended to bolster the Victim’s

credibility and simultaneously undermined the credibility of Dunn’s denials.

However, the Texts did not contain explicit admissions or other direct evidence of

Dunn’s guilt as to specific crimes. To reach a conviction, the jury still had to believe the

Victim’s testimony and disbelieve Dunn’s testimony. Thus, at its core, Dunn’s prosecution

was still primarily a clash of credibility between the accused and the accuser, and the

Texts only served to buttress the Victim’s credibility in that battle. How much or how little

the Texts affected this clash of credibility is clearly a question for a jury, not an appellate

court.16 As damaging as the Texts might have been in the jury’s eyes as a practical

matter, Dunn did not admit to committing any of the sexual offenses for which he was

convicted. As such, the Texts were only indirect evidence of Dunn’s guilt, requiring the

jury to make inferences that his messages to the Victim undermined his credibility and

buoyed hers.

This is particularly important since the OISA appears to be applying a variation of

the harmless error doctrine, albeit with the burden ostensibly flipped to Dunn.

Harmless error exists if the state proves either: (1) the error

did not prejudice the defendant or the prejudice was de

minimis; or (2) the erroneously admitted evidence was merely

cumulative of other untainted evidence which was

16 “The law is well settled that it is the exclusive province of the trier of facts to pass upon

the credibility of witnesses and the weight to be accorded their testimony.”

Commonwealth v. Garvin, 293 A.2d. 33, 39 (Pa. 1972).

[J-69-2022] [OISA: Mundy, J.] - 21

substantially similar to the erroneously admitted evidence; or

(3) the properly admitted and uncontradicted evidence of

guilt was so overwhelming and the prejudicial effect of the

error was so insignificant by comparison that the error could

not have contributed to the verdict.

Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018) (citation omitted) (emphasis in

original). Despite this Court’s recent recognition that appellate courts may, in limited

circumstances, invoke the harmless error doctrine sua sponte, see Commonwealth v.

Hamlett, 234 A.3d 486 (Pa. 2020), it remains the general rule that the “Commonwealth

bears the burden of proving that the error was harmless beyond a reasonable doubt.”

Commonwealth v. Holt, 273 A.3d 514, 540 (Pa. 2022), cert. denied sub nom., Holt v.

Pennsylvania, 143 S. Ct. 380 (2022). However, as discussed above, I acknowledge that

without providing a principled reason on for doing so, this Court has previously engaged

in similar, quasi-harmless error analysis when determining whether prejudice stemming

from discovery violations warrants relief. See Poplawski, 130 A.3d at 719.

Regardless, when applying the third prong of the harmless error test, “the properly

admitted evidence of guilt must be uncontradicted for error to be held harmless beyond

a reasonable doubt.” Commonwealth v. Williams, 573 A.2d 536, 539 (Pa. 1990)

(emphasis added); accord Poplawski, 130 A.3d at 719 (stating the “uncontradicted

evidence admitted elsewhere during trial overwhelmingly established…”) (emphasis

added). Here, the Victim’s accusations of sexual abuse were directly contradicted by

Dunn’s testimony, as were the inculpatory inferences stemming from the Texts. As

implausible as Dunn’s explanations for those Texts might seem to the OISA and this

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Author, harmless error analysis is simply inapplicable in the circumstances of this case

because there was no “uncontradicted” evidence of guilt.17

Thus, I respectfully disagree with the OISA’s application of a modified harmless

error analysis and its conclusion the Commonwealth’s discovery violation could not have

prejudiced Dunn to any significant degree because of the weight of the evidence against

him. To the contrary, because this was still a clash-of-credibility case, the

Commonwealth’s violation of the discovery rules, coupled with the trial court’s failure to

provide an appropriate remedy including a supplemental expert report, affected trial

counsel’s strategy to an extent that compromised the fairness of the proceedings, thereby

undermining confidence in the jury’s verdict.

V. Conclusion

In sum, I agree with the OISA that the trial court erred 1) in failing to recognize that

Section 5920 testimony is subject to the discovery rules set forth in Rule 573, and 2) by

failing to hold that the Commonwealth violated the prompt disclosure requirements of

Rule 573 by not disclosing its intent to call an expert witness until the eve of trial.

However, I would also conclude that the trial court abused its discretion by denying Dunn’s

Motion to Compel an expert report in compliance with Rule 573(B)(2)(b), because Mesar’s

Letter was too generic to meet the specificity requirements of Section 5920(b)(2), which

comports with Rules 401(b) and 702(b). Furthermore, I would find that Dunn was

17The OISA responds that I am merely critiquing “precedent, as opposed to” the OISA’s

“application of the law,” OISA at 26 n.12, but I do not dispute that this Court previously

applied a harmless error test to address discovery violations. However, our precedent

also dictates that that the harmless error test only applies when the uncontradicted

evidence of guilt is overwhelming. Williams, 573 A.2d at 539; Poplawski, 130 A.3d at

719. The OISA has no answer for that precedent other than to simply ignore it.

[J-69-2022] [OISA: Mundy, J.] - 23

prejudiced by the Commonwealth’s violation of the discovery rules which was perpetuated

by the trial court’s denial of Dunn’s Motion to Compel. Consequently, I would hold that

Dunn is entitled to a new trial where he can adequately prepare to confront the

Commonwealth’s expert. Moreover, while the OISA applies a type of harmless error

analysis to conclude that Dunn was not prejudiced, its conclusion is wrong because there

was no uncontradicted evidence of guilt in the trial. Accordingly, I would reverse the

judgment of the Superior Court and remand for a new trial.

Justices Dougherty and Wecht join this opinion in support of reversal.

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