# Commonwealth v. Johnson > Superior Court of Pennsylvania · February 17, 1997 · 456 Pa. Super. 251 URL: https://www.frixlaw.com/law-library/cases/9702779 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant v. Glenn A. JOHNSON - **Court:** Superior Court of Pennsylvania - **Decided:** February 17, 1997 - **Citations:** 456 Pa. Super. 251; 690 A.2d 274; 1997 Pa. Super. LEXIS 242 - **Precedential status:** Published - **Opinion:** Dissent by Cirillo - **Judges:** Cavanaugh, Cirillo, Popovich, Johnson, Hudock, Elliott, Saylor, Eakin, Schiller - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9702779 ## Opinion text CIRILLO, President Judge Emeritus, dissenting. Because I believe that the trial court properly excluded the Commonwealth’s expert medical testimony regarding the absence of physical trauma to the victim, I respectfully dissent. It is generally known that expert testimony is only admissible where the formation of opinion on a subject requires knowledge, information, or skill beyond that possessed by an ordinary juror. See Commonwealth v. Simmons, 541 Pa. 211 , 662 A.2d 621 (1995); see also Commonwealth v. Probst, 398 Pa.Super. 44 , 580 A.2d 832 (1990) (purpose of expert testimony is to aid jury in understanding matters beyond average layperson’s knowledge or experience). An expert may not testify to matters that involve common knowledge, Commonwealth v. Dunkle, 529 Pa. 168 , 602 A.2d 830 (1992), or where the admission of such testimony will cause confusion or prejudice. Commonwealth v. Montavo, 439 Pa.Super. 216 , 653 A.2d 700 (1995). Furthermore, expert witnesses may not testify to matters which will cause the jury to abdicate its fact-finding responsibility and defer to the assessment of the expert. Commonwealth v. Brown, 408 Pa.Super. 246 , 596 A.2d 840 (1991) (citing Commonwealth v. Carter, 403 Pa.Super. 615 , 589 A.2d 1133 (1991)). In Commonwealth v. McCleery, 439 Pa.Super. 378 , 654 A.2d 566 (1995), our court held that an expert’s testimony regarding *258 the significance of the presence or absence of physical trauma in child sexual abuse cases was inadmissible because the prejudicial impact of the testimony clearly outweighed the probative value. In McCleery , the Commonwealth first introduced such testimony on direct examination in an effort to bolster the credibility of the victim. Our court found that the testimony effectively invaded the province of the jury “by encouraging them to abdicate their responsibility to ascertain the facts.” Id. at 384 , 654 A.2d at 569 . Similarly, in Commonwealth v. Garcia, 403 Pa.Super. 280 , 588 A.2d 951 (1991) (en banc), our court found that an expert’s testimony regarding the behavioral patterns of a sexually abused victim is inadmissible when offered to explain the conduct of the victim in a case because it also tended to bolster the victim’s testimony and usurp the jury’s fact-finding role. While I concede that there is a significant distinction between the type of evidence offered by the expert witnesses in Garcia and the present case, 1 unlike the majority, I do not believe that this distinction should compel different results. Both areas of testimony invade the jury’s role and bolster the credibility of the witness/victim which is impermissible. Accordingly, I do not agree with the far-reaching effects of the majority’s decision to overrule Garcia and McCleery . Furthermore, the majority has compounded error by relying upon Commonwealth v. Hernandez, 420 Pa.Super. 1 , 615 A.2d 1337 (1992), and broadly concluding that “this subject is appropriate for expert testimony because the physical condition of a sexual assault is not a matter that is typically within the knowledge of average jurors.” In Hernandez , our court stated: *259 It follows that a pediatrician ..., qualified as a medical expert, may testify that the physical facts observed and reported by the treating physician were consistent with the allegation of anal sodomy set forth in the history of the child. The medical history of a patient is customarily relied upon in practicing medicine. Consequently, it is not error for the expert to testify on cross-examination that his opinion assumes the truthfulness of the history supplied by the victim. Id. at 14 , 615 A.2d at 1843 . Instantly, the majority fails to recognize the following critical facts. The victim’s criminal affidavit and complaint alleges ten acts of anal intercourse performed by the defendant over a three month period in 1993. The record reveals that the victim had never been physically examined by medical personnel prior to the Commonwealth expert’s examination conducted on August 2, 1995 — well over one year after the alleged instances of sexual assault. In essence, there was no prior history taken of the victim until the expert report in 1995. This, therefore, is not a situation like Hernandez where the expert testified on cross-examination in order to corroborate the truthfulness of a prior history supplied by the victim. The expert was not needed in order to prove consistency with established facts in the case. Although cases have held that a physician may testify that physical facts he or she observes are consistent with sexual trauma, in Hernandez, supra, our court admitted such testimony on cross-examination and with respect to positive physical findings of rape trauma. Presently, the expert’s evidence reveals a lack of any physical trauma to the victim. The findings in the expert’s report were made nearly two years after the alleged assault. As a result, the jury may have reasonably concluded, without the aid of expert testimony, that an assault occurred because the trauma may have healed over this significant period of time. While the majority notes that lay persons may not realize that lack of physical trauma is still consistent with sexual *260 abuse, the testimony’s probative value is clearly outweighed by its prejudicial effect — especially in light of the fact that the Commonwealth solicitously attempted to admit this evidence on direct examination. I am careful to distinguish this case from instances where the Commonwealth seeks to admit an expert’s findings after the defense has asserted that evidence of physical trauma is an element that must be proven in an assault case. In such cases, expert testimony regarding physical trauma may be properly offered as rebuttal evidence. Presently, however, the jury had no context in which to place the expert testimony — creating a situation that clearly would have served to confuse or prejudice the jury. Montavo, supra. Based upon these critical fact-based distinctions and in keeping with the time-honored tradition of preserving the province of the jury, I would affirm the trial court. SCHILLER, J., joins. . In Garcia the expert testified to psychological and behavioral issues of sexually abused children. See Garcia, 403 Pa.Super. 280 , 588 A.2d 951 (1991) (en banc)) see also Commonwealth v. Dunkle, 529 Pa. 168 , 602 A.2d 830 (1992) (expert testimony concerning typical behavior patterns exhibited by sexually abused children was not probative, and, therefore, not admissible at trial). By contrast, the present case involves expert testimony regarding physical or scientific results of sexually abused children. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702779. Public record. Not legal advice.