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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL L. LINDSTROM,
Appellant No. 1828 WDA 2014
Appeal from the Judgment of Sentence of October 24, 2014
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000085-2014
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 2, 2015
Appellant, Michael L. Lindstrom, appeals from the judgment of
sentence entered on October 24, 2014. We affirm.
The factual background of this case is as follows. On February 28,
2014, two-year-old D.D. (“Victim”) was living with Appellant’s girlfriend, N.J.
(“Mother”). Appellant watched Victim while Mother went to the grocery
store. Upon returning home, Mother noticed new bruising on Victim’s face
and head. Mother and Appellant eventually transported Victim to Warren
General Hospital. At the hospital, Mother asked Victim who had caused his
injuries. Victim twice responded that Appellant had caused the injuries.
Victim was later questioned by a forensics interviewer; however, no usable
evidence was gathered from that interview.
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The relevant procedural history of this case is as follows. Appellant
was charged via criminal information with simple assault,1 endangering the
welfare of a child,2 and harassment.3 On September 30, 2014, Appellant
filed a motion in limine seeking to preclude physician’s assistant Matthew
Minarik (“Minarik”) from testifying regarding causation. On October 3, 2014,
the Commonwealth filed a motion in limine pursuant to the Tender Years
Hearsay Act (“TYHA”), 42 Pa.C.S.A. § 5985.1. On October 6, 2014, the trial
court denied Appellant’s motion in limine. After the requisite in camera
hearing, on October 7, 2014, the trial court granted the Commonwealth’s
motion in limine. A one-day jury trial occurred on October 9, 2014.
Appellant was found guilty of endangering the welfare of a child and
harassment. On October 24, 2014, Appellant was sentenced to an
aggregate term of one to three years’ imprisonment. This timely appeal
followed.4
Appellant raises two issues for our review:
1
18 Pa.C.S.A. § 2701(a)(1).
2
18 Pa.C.S.A. § 4304(a)(1).
3
18 Pa.C.S.A. § 2709(a)(1).
4
On October 28, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 17, 2014, Appellant filed his concise
statement. On December 29, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.
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1. Did the trial court err in permitting physician’s assistant
Matthew Minarik to testify at trial regarding medical
causation, as he lacked the specialized scientific knowledge
to render an expert opinion in that area?
2. Did the trial court err in admitting the hearsay statements of
the alleged victim, as they were testimonial in nature and did
not have adequate indicia of reliability?
Appellant’s Brief at 7.
In his first issue, Appellant contends that the trial court erred by
admitting Minarik as an expert witness. Minarik testified as to his opinion
that the bruises on Victim were similar to marks that could have been
created by fingers and that the bruises were caused by blunt trauma.
“[Q]ualification of a witness as an expert rests within the sound discretion of
the trial court, and the court’s determination in this regard will not be
disturbed absent an abuse of discretion.” Commonwealth v. Malseed,
847 A.2d 112, 114 (Pa. Super. 2004), appeal denied, 862 A.2d 1254 (Pa.
2004) (citation omitted). “The standard for qualifying an expert witness is a
liberal one: the witness need only have a reasonable pretension to
specialized knowledge on a subject for which expert testimony is
admissible.” Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa. Super.
2014) (en banc) (citation omitted).
Appellant concedes that a non-doctor may be qualified as an expert
witness regarding medical issues. See Miller v. Brass Rail Tavern, 664
A.2d 525, 528-529 (Pa. 1995). For example, lay medical examiners, Ph.D.’s
in neuroscience, police officers, and nurses have all been qualified as experts
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and permitted to testify regarding medical issues. Freed v. Geisinger
Med. Ctr., 5 A.3d 212, 220 (Pa. 2010); McClain ex rel. Thomas v.
Welker, 761 A.2d 155, 158-159 (Pa. Super. 2000); Miller, 664 A.2d at
528-529; Commonwealth v. Gonzalez, 546 A.2d 26, 31 (Pa. 1988).
Nonetheless, Appellant argues that Minarik should not have been admitted
as an expert witness.
Minarik testified that he is a licensed physician’s assistant in Ohio,
Michigan, and Pennsylvania. N.T., 10/9/14, at 33. He attended Ohio State
University and Cuyahoga Community College. Id. He then attended a
master’s program at Still University, an osteopathic medical school. Id. He
engaged in clinical programs for a year in various areas, including
emergency medicine and general practice. Id. He has practiced as a
physician’s assistant in Ohio, Michigan, the District of Columbia, and
Pennsylvania. Id. at 33-34. He specializes in emergency care. Id. at 34.
He completes 200 hours of continuing education every year. Id. at 35.
As is clear by this recitation of Minarik’s qualifications, he possessed
specialized knowledge outside of that held by the general public. He
attended school for several years while learning about medicine. He served
as a physician’s assistant in four jurisdictions during which he treated many
patients. He is subject to continuing education requirements and has spent,
on average, four hours per week fulfilling those continuing education
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requirements. A member of the general public would not have this
specialized knowledge.5
Appellant focuses on the fact that Minarik has not published any
journal articles nor has he previously been admitted as an expert witness.
These factors, however, are not dispositive. “[A] witness qualified as an
expert by knowledge, skill, experience, training[,] or education may testify
thereto in the form of an opinion or otherwise.” Pa.R.Evid. 702. In other
words, there are several manners in which an expert witness can obtain his
or her specialized knowledge. In this case, it is evident from Minarik’s
testimony that he obtained such specialized knowledge by education and
experience. An expert need only receive his or her specialized knowledge
from one of the above listed means – not all of them. The absence of
published material in Minarik curriculum vitae goes to the weight of his
testimony, not its admissibility.
Appellant cites a line of cases in which this Court held that a doctor in
one specialized field was not qualified as an expert regarding another
specialized field. Those cases, however, are distinguishable from the case at
bar. Almost all of those cases arose in the medical malpractice area. In
Pennsylvania, an expert witness in a medical malpractice case must be of
5
Minarik certainly had more education than the police officer in Gonzalez
who testified as to the effect that alcohol had on the body. In Gonzalez,
our Supreme Court noted that the police officer had merely taken several
classes related to pharmacology and toxicology of alcohol. Gonzalez, 546
A.2d at 32.
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the same specialty as the defendant doctor. Anderson v. McAfoos, 57
A.3d 1141, 1144 (Pa. 2012), citing 40 P.S. § 1303.512(c). There is no such
requirement for testimony regarding medical causation in a criminal case.
Furthermore, Appellant’s attempt to carve out medical causation as a
specialty is unavailing. All forms of medicine deal with causation. For
example, a podiatrist testifying regarding injuries to a foot does not need
specialized knowledge in medical causation in order to be admitted as an
expert to testify as to whether a certain incident was the medical cause of a
foot injury. Similarly, a cardiologist does not need specialized training in
medical causation to know whether a particular diet was the medical cause
of a heart attack. Instead, medical causation is at the heart of any medical
professional’s knowledge in his or her field. In this case, Minarik had
training in general medicine and emergency medicine. Specialized
knowledge in these two areas was sufficient to qualify him as an expert
regarding bruising. Accordingly, we conclude that the trial court did not
abuse its discretion in admitting Minarik as an expert witness.
In his second issue on appeal, Appellant contends that the trial court
erred by granting the Commonwealth’s motion in limine and admitting
Victim’s statements under TYHA. “We will not reverse the trial court’s
decision to admit evidence pursuant to [TYHA] absent an abuse of
discretion.” Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super.
2006), appeal denied, 927 A.2d 622 (Pa. 2007) (citation omitted).
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TYHA provides, in relevant part, that:
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing [a series of offenses,
inter alia, those at issue in this case,] not otherwise admissible
by statute or rule of evidence, is admissible in evidence in any
criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is
relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
(a.1) Emotional distress.--In order to make a finding under
subsection (a)(2)(ii) that the child is unavailable as a witness,
the court must determine, based on evidence presented to it,
that testimony by the child as a witness will result in the child
suffering serious emotional distress that would substantially
impair the child’s ability to reasonably communicate. In making
this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the
courtroom.
(2) Hear testimony of a parent or custodian or any other person,
such as a person who has dealt with the child in a medical or
therapeutic setting.
42 Pa.C.S.A. § 5985.1.
Appellant first contends, at least implicitly, that the trial court erred by
concluding that Victim was unavailable. We disagree. At the in camera
hearing, the trial court asked Mother what the effect on Victim would be if he
were called to the witness stand. N.T., 10/7/14, at 54-55. Mother
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responded, “It wouldn’t be good.” Id. at 55. She explained that “I think
that he would cry or sit here and be completely silent.” Id. From that
testimony, the trial court reasonable concluded that Victim was unavailable
due to emotional distress.
Appellant next contends that Victim’s statements lacked sufficient
indicia of reliability to be admitted under TYHA. It is undisputed that shortly
after arriving at the hospital, Minarik prompted Mother to ask Victim who
caused his injuries. Id. at 11, 33. At the in camera hearing, Minarik
testified that Mother asked the question twice, seven minutes apart. Id. at
11. He further testified that, both times Mother asked the question, Victim
responded that Appellant caused his injuries. Id. On the other hand,
Mother testified that in response to these questions, Victim gave four
different answers: Appellant, Victim’s grandmother, Victim’s cat, and
Victim’s sister. Id. at 30, 33. It is undisputed that after leaving the
hospital, Victim was interviewed by a forensics interviewer and was unable
to name the perpetrator of the offense. N.T., 10/9/14 at 109. At the
conclusion of the in camera hearing, the trial court found Minarik’s testimony
to be credible and Mother’s testimony not credible. Specifically, the trial
court found that Mother’s testimony was biased because she wished to
continue her relationship with Appellant. See Trial Court Opinion, 12/29/14,
at 3. Thus, the trial court found that Victim gave consistent answers to
Mother’s questions regarding Appellant’s role in causing Victim’s injuries.
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We ascertain no abuse of discretion in the trial court’s determinations.
The trial court’s credibility determinations regarding Mother and Minarik are
supported by the record. As such, we may not overturn those
determinations. See Commonwealth v. Simpson, 112 A.3d 1194, 1198
(Pa. 2015) (citation omitted) (“[W]e have emphasized that the lower
tribunal’s . . . credibility determinations which are supported by the record
will not be disturbed on appeal.”). Furthermore, there were significant
indicia of reliability regarding Victim’s statements in the hospital. For
example, our Supreme Court has held that consistent repetition of a
statement is an indicator of reliability. Commonwealth v. Walter, 93 A.3d
442, 456 (Pa. 2014), citing Commonwealth v. Delbridge, 855 A.2d 27, 47
(Pa. 2003). In this case, Victim gave the same answer twice, seven minutes
apart. Another indicator of reliability is when the child’s statements are
given in response to open-ended questions. Commonwealth v. Barnett,
50 A.3d 176, 186 (Pa. Super. 2012), appeal denied, 63 A.3d 772 (Pa. 2013).
In this case, Mother’s questions were open-ended and not leading. She
merely asked Victim who caused his injuries. Similarly, a good relationship
between the child and the person that he reported the abuse to indicates the
statement is reliable. Commonwealth v. Hunzer, 868 A.2d 498, 511 (Pa.
Super. 2005), appeal denied, 880 A.2d 1237 (Pa. 2005). In this case,
Mother testified that she had a good relationship with Victim. Finally, when
a child has no incentive to lie, that is an indicator of reliability. See
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Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005). In this case, there is no evidence that
Victim had an incentive to lie. Thus, there are several indicia that Victim’s
statements to Mother in the hospital were reliable. Accordingly, we conclude
that the trial court correctly held that Victim’s statements possessed the
requisite indicia of reliability.
Appellant next argues that the trial court used the TYHA to admit
evidence despite the fact that Victim would not be competent to testify at
trial. Even assuming arguendo that Victim would not have been competent
to testify at trial, that fact is irrelevant. Our Supreme Court has ruled that it
is permissible to admit statements pursuant to TYHA even if the witness
would not otherwise be competent to testify. Walter, 93 A.3d at 452.
Finally, Appellant argues that use of TYHA violated his right to
confrontation as guaranteed by the Sixth Amendment to the United States
Constitution. The Supreme Court of the United States has held “that fidelity
to the Confrontation Clause permit[s] admission of testimonial statements of
witnesses absent from trial only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine[.]”
Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713 (2011) (internal
quotation marks, alteration, ellipsis, and citation omitted). “A statement is
testimonial if made for the purpose of establishing or proving some fact in a
criminal proceeding.” Commonwealth v. Dyarman, 73 A.3d 565, 573
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n.11 (Pa. 2013) (internal quotation marks and citation omitted). The
statements by Victim were non-testimonial. A two-year-old child would not
realize his statements, to his mother, in a hospital emergency room, may
later be used in a criminal prosecution. See Ohio v. Clark, 2015 WL
2473372, *6-7 (U.S. June 18, 2015); Commonwealth v. Allshouse, 36
A.3d 163, 181 (Pa. 2012). Therefore, Victim’s statements were non-
testimonial and do not implicate the Confrontation Clause. As such, the trial
court did not abuse its discretion in admitting Victim’s statements under
TYHA.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2015
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