J-S41018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD SMITH, :
:
Appellant : No. 3502 EDA 2017
Appeal from the Judgment of Sentence June 15, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004929-2016
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 23, 2018
Appellant, Ronald Smith, appeals from the judgment of sentence
entered on June 15, 2017, as made final by the denial of Appellant’s post-
sentence motion on September 29, 2017. We sua sponte vacate the trial
court’s June 15, 2017 order, which found Appellant to be a sexually violent
predator (“SVP”), and remand the case to the trial court for the sole purpose
of issuing the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to
Appellant’s tier-based registration obligations under SORNA. However, in all
other respects, we affirm.
The trial court provided us with a comprehensive and well-written
summary of the facts and procedural posture of this case. We thank the trial
court and quote this section of the trial court’s opinion at length:
This case involves numerous instances of Appellant sexually
abusing his two stepdaughters, juveniles S.A. and D.A, over
the course of several years. At the time of trial, S.A. and
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41018-18
D.A. were tenth and ninth grade students[, respectively]. . .
. [N.T. Trial, 1/10/17, at 5 and 220-221].
The following is a summary of S.A.'s testimony regarding the
assaults against her. The first incident occurred when S.A.
was six years old, and was living in a single room with two
beds at the Neshaminy Inn in Bensalem, Bucks County, with
her mother, two sisters, stepbrother, and the Appellant. [Id.
at 5 and 9-11]. S.A. remembered that she was in
kindergarten because a school bus picked her up at the
Neshaminy Inn during that time. Id. at 10-11. The family
lived in that motel room for just under one year. Appellant
was S.A.'s mother's boyfriend during that time. Id. at 9-11.
S.A. entered the bathroom of the motel room with the
Appellant, and he shut the door and put his penis in her
mouth while she was on her knees. Id. at 14-16.
About one year later, when S.A. was in the first grade, she
and her family moved in with the Appellant's mother. . . . Id.
at 17-18. S.A. and her family would stay in the attic of the
home, but they subsequently moved out in the summer
following her fourth grade year. Id. at 17-20.
The second and third incidents occurred in the basement of
[Appellant’s mother’s] home, while S.A. was in the first or
second grade. [Id. at 25 and 28]. During the first incident,
the Appellant shut the door and put his penis in S.A.'s mouth.
[Id. at 25 and 27]. A few months later, the Appellant took
S.A. into the basement and penetrated her with his penis,
although she was unsure whether the intercourse was anal
or vaginal at the time. [Id. at 28-29]. Subsequently, on three
separate occasions, Appellant forced S.A. to perform oral sex
upon his penis in the master bedroom. Id. at 32-33. Either
before or after these encounters, Appellant told S.A. that he
would "call CPS [Child Protective Services] or hurt mom." Id.
at 35. Although S.A. did not understand the meaning of CPS
at the time, the Appellant explained, "[t]hey would take us
away." Id. at 35. S.A. was afraid that the Appellant would
hurt her mother or have her and D.A. taken away if she
disclosed the sexual abuse. Id. at 36.
On a night towards the end of her stay at [Appellant’s
mother’s house], Appellant drove S.A. to an "abandoned
house" that belonged to his brother on Race Street, Bristol
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Borough, Bucks County. Id. at 40. He took S.A. up to a
room on the second floor, and engaged in anal intercourse
with her on a box spring mattress. Id. at 44-45. At that
time, S.A. knew that the Appellant had penetrated her anus
and that it hurt. Id. at 45-46.
In the summer between S.A.'s fourth and fifth grade year,
she, her family, and the Appellant moved down the street [to
another house on Spruce Street]. Id. at 49. The family lived
in that home for three years, until the October of S.A.'s eighth
grade year; the victims and their younger sister again shared
a bedroom in the attic of the home. [Id. at 51-52 and 56].
During that time, Appellant repeatedly called S.A. into his
bedroom, pulled her head down towards his lap, and forced
her to perform oral sex on his penis. Id. at 53-57. This
occurred over twenty times in that same bedroom. Id. at
54-57. The Appellant would shut the door each time, and
threatened to hurt S.A.'s mother if she disclosed the abuse.
Id.
The next assault occurred on a Saturday before Christmas.
S.A. remembered that it was Christmas because the living
room had a Christmas tree and because her mother took her
sisters and stepbrother to "Shop with a Cop." Id. at 67. S.A.
was lying on her stomach in the middle of that living room
floor. After the Appellant locked the front and rear doors to
the home, he engaged in anal intercourse with her. Id. at 68-
71. Appellant reiterated that he would hurt S.A.'s mother if
she disclosed the assault. Id. at 71. An additional incident
occurred one night in the attic while S.A. was sleeping on her
bed. S.A. remembered that it was the night before her
birthday because the Appellant gave her three chocolate eggs
the following morning. Id. at 79. The Appellant lay down
behind her while she was sleeping on her side. Id. at 75. As
she lay on her side, S.A. pretended to sleep while the
Appellant used his hand to rub the area around her vagina
above her clothing. Id. at 75-78.
S.A. also described several incidents that occurred in the
parking lot of Silver Lake Park in Bristol Borough, Bucks
County. On at least five separate occasions, the Appellant
would drive S.A. in his truck to the park during the day and
park away from other cars. Id. at 95. The Appellant would
pull down his pants and force S.A., who was in the passenger
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seat, to bend over the center console and perform oral sex
on his penis. Id. at 91-96. During the same time period, the
Appellant began to abuse S.A.'s younger sister, juvenile D.A,
who also testified at trial. D.A. testified that she was cleaning
her room . . . when the Appellant called her to come down to
his bedroom. Id. at 240. There, Appellant told D.A. to lock
the bedroom door behind her and sit on the bed beside him.
He told her, "just remember that I have guns." [Id. at 240-
241]. Appellant then pulled out his penis, pushed D.A.'s head
onto his lap, and forced her to perform oral sex on his penis.
[Id. at 242].
A second incident with D.A. occurred a few weeks later in the
same bedroom. D.A. was already in the room watching
television when the Appellant walked in and locked the
bedroom door. Id. at 245. Appellant sat next to her on the
bed and said, "you have to do this for me or people you love
are going to get hurt." Id. at 246. He then pulled out his
penis, pushed D.A.'s head onto his lap, and forced her to
perform oral sex on his penis to the point of ejaculation. Id.
The Appellant cleaned up his ejaculate by wiping it on his
pants. Id. D.A. did not disclose these incidents because the
Appellant told her not to do so, and because she was afraid
of him. Id. at 247.
Both victims described an incident when the Appellant abused
them simultaneously. S.A. testified that she and D.A. were
grounded when the Appellant called them into his bedroom,
ostensibly to "unground" them. Id. at 86-87. When she and
her sister arrived in the bedroom, Appellant told one of them
to lock the door and instructed them to sit on either side of
him. Id. at 249. S.A. testified that Appellant was seated on
the bed, while D.A. testified that Appellant sat in a computer
chair between the two sisters. Id. at 88-90, 249. The
Appellant then pulled out his penis and said, "you guys know
what to do." Id. at 250. The Appellant forced both S.A. and
D.A. to perform oral sex on his penis; he forced S.A. to go
first, and then told D.A. to perform the same act after a few
minutes. [Id. at 89-90 and 250]. S.A. testified that the
Appellant sexually abused her and her sister simultaneously
"a little more than three" times, while D.A. testified that this
act occurred only once. [Id. at 91-92, 251 and 257]. S.A.
testified that the two sisters discussed the abuse and
promised each other that they would not disclose it. Id. at
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102. S.A. further stated that the Appellant and her mother
had a "violent relationship" and that she feared that the
Appellant would hurt her mother if she disclosed any abuse.
Id. at 102-103.
The final incident with S.A. occurred on Halloween during her
eighth grade year. She, her sisters and mother were moving
out of the [] Spruce Street home that day because her
mother had ended her relationship with the Appellant. Id. at
98-101. While the rest of the family moved their belongings
into the car, Appellant forced S.A. to perform oral sex on his
penis in the master bedroom. Id. at 98-100.
The victims eventually disclosed the abuse shortly after
moving out of [the Spruce Street home]. S.A., a ninth-grader
at the time, was at the Oxford Valley Mall in Bucks County
with her mother, sisters, stepbrother, and Tasha Davis, a
family friend and neighbor. Id. at 103-105. Ms. Davis
testified that she had previously observed S.A. fidget with her
sweatshirt, suck her thumb, and become "very agitated"
when anyone would speak about the Appellant in her
presence. Id. at 260-261. When the Appellant telephoned
S.A.'s mother at the Oxford Valley Mall, Ms. Davis observed
that S.A. became angry while listening to the conversation.
This observation "raised a really big red flag" for Ms. Davis,
and prompted her to invite S.A. to her apartment to speak
privately. Id. at 262-264. Ms. Davis expressed her suspicions
to S.A., and asked her if she had ever been touched by
anyone. [Id. at 106-107 and 264]. At first, S.A. did not want
to disclose the abuse because she promised her sister that
she would not, but she eventually disclosed to Ms. Davis that
the Appellant had abused her. [Id. at 106-107 and 265-266].
S.A. cried and shook during the approximately one-and-one-
half hour conversation. [Id. at 108 and 266].
With S.A.'s permission, Ms. Davis invited S.A.'s mother to the
apartment, followed by D.A. Id. at 268-269. After disclosing
the abuse to her mother, S.A. told D.A. that it was "okay to
say something now [be]cause it's already out." Id. at 112.
At first, D.A. said that nothing happened to her. Id. at 269.
After Ms. Davis repeatedly questioned her about whether the
Appellant had touched her, D.A. finally disclosed that he did.
Id. at 254. Ms. Davis testified that D.A. was only able to
discuss the abuse a few months after that initial conversation,
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and that her affect was "very flat" throughout those
conversations. Id. at 269-270. Both victims testified that
they were afraid to disclose the abuse and had difficulty
discussing the incidents. [Id. at 109-111, 113, and 255].
Following this disclosure, Detective William Davis of the
Bristol Borough Police Department referred the victims for
interviews at the Children's Advocacy Center in Fairless Hills,
Bucks County. Id. at 133. Detective Davis subsequently
obtained permission from S.A. to perform a "cellphone
takeover," in which he would portray himself as S.A. and,
using her cellphone, contact the Appellant via text message
to elicit a conversation. Id. at 135. On May 17, 2016, and
June 9, 2017, Detective Davis used S.A.'s cellphone to
contact the Appellant by text message and attempted to elicit
a conversation regarding the sexual abuse. Screenshots of
the text messages were admitted into evidence. Id. at 135-
157.
Following the initial cellphone takeover, Detective Davis,
along with Lieutenant Robert Gorman of the Bucks County
Detectives, attempted to use S.A.'s cellphone to place a
recorded phone call to the Appellant. Id. at 212. On May 17,
2016, S.A. placed a recorded phone call to the Appellant. [Id.
at 218-219; Commonwealth Exhibit 38]. In response to a
discussion regarding a doctor's visit for her sister, S.A. said,
"You know what you did though." Id. The Appellant
responded, "I don't remember what you're talking about,"
and told S.A. that he would call her back. Id. Before he hung
up, the Appellant said, "they're setting me up for the kill." Id.
When the Appellant failed to return her call, S.A. attempted
to place three additional phone calls to the Appellant over the
next several weeks, but they went unanswered. Id. at 213-
215.
Bristol Township Detective Timothy Fuhrmann subsequently
obtained a search warrant to extract logical data, including
text messages, from the Appellant's cellphone. Id. at 175-
178. On October 21, 2016, Detective Fuhrmann conducted
the extraction and downloaded the cellphone's data. Id. at
191. Using search terms based on S.A.'s first name, Detective
Fuhrmann searched for all voice and text communications
between Appellant and S.A. on the cellphone; the extraction
report did not yield any text message communications
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between Appellant and S.A. on either May 17, 2016, or June
9, 2016. [Id. at 185-186 and 191-193]. Detective Fuhrmann
testified that, in light of the previously conducted cellphone
takeover, the absence of these text messages on those dates
indicated that the cellphone operator deleted the text
messages. Id. at 194.
...
Bristol Borough Police arrested and charged Appellant on
June 13, 2016. On January 9, 2017, [the trial c]ourt
entertained pre-trial motions regarding the admissibility of
expert testimony. On January 7, 2017, Appellant moved to
preclude expert testimony offered by the Commonwealth
regarding child sex abuse. Specifically, Appellant
acknowledged that the Commonwealth intended to call this
expert for two purposes: first, to offer medical testimony,
and, second, to offer testimony regarding a child's behavior
in response to sexual abuse. [N.T. Hearing, 1/9/17, at 10-
11]. Appellant affirmed that he was not seeking to preclude
the expert's medical testimony as part of his pre-trial motion.
Id. at 11.
In response, the Commonwealth argued that the expert
witness would testify regarding victim responses and
reactions to sexual assault pursuant to [42 Pa.C.S.A. § 5920.
Id. 12-13 and 15]. Appellant argued that [the trial court]
should exclude the testimony because it would improperly
bolster the Commonwealth witness' credibility, because the
proffered testimony was not specialized knowledge requiring
an expert opinion, and because the testimony would be more
prejudicial than probative. Id. at 11. The Commonwealth
responded that the expert would limit her testimony to
whether certain general behaviors of victims are consistent
with sexual assault. Id. at 15-17. [The trial court]
subsequently denied Appellant's motion. Id. at 17.
At trial, the Commonwealth offered the expert testimony of
Dr. Maria McColgan, a child abuse pediatrician. [N.T. Trial,
1/11/17, at 11-12]. Dr. McColgan testified that she was
certified as a child abuse pediatrician and general pediatrician
by the American Board of Pediatrics since 2009, and that she
personally performed 300 to 400 child sexual abuse
examinations per year. Id. at 13, 21. Dr. McColgan further
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testified that she oversaw several thousand other child sexual
abuse examinations performed by other doctors, nurses and
nurse practitioners over the course of her career. Id. She
described her teaching and publishing experience, and stated
that she testified as an expert witness in over 300 cases in
various Pennsylvania county courts. Id. at 14-15. Finally,
Dr. McColgan testified that, in addition to observing and
performing frequent child abuse examinations, she received
a significant amount of training in the dynamics of sexual
abuse, children's responses to sexual abuse, and the impact
of sexual abuse on children. Id. at 25-26. [The trial court]
subsequently received Dr. McColgan as an expert in child
abuse pediatrics, general pediatrics, the dynamics of sexual
violence, and victim responses to sexual abuse. Id.
Dr. McColgan first testified to administering a comprehensive
physical examination of each child, including a genital
examination, at the Child Protection Program at St.
Christopher's Hospital in Philadelphia. Id. at 28-32. There,
Dr. McColgan supervised Elizabeth Grund, the nurse
practitioner that performed the physical examinations, and
subsequently reviewed Ms. Grund's report. Id. at 31. Dr.
McColgan testified that both physical examinations were
"normal," meaning that neither examination yielded any
evidence of injury or scarring to the genitals, anus, or mouth.
Id. at 32-36. Specifically, based on D.A.'s allegations of
performing oral sex three separate times, Dr. McColgan
testified that she would not expect to see any physical
injuries during the examination due to the delay in disclosure
and the physical characteristics of the mouth:
MS. VAUGHAN: Now, Doctor, I think we began discussing
[D.A.]. [D.A.] has been here and testified that on three
separate occasions she was required by [Appellant] to
perform oral sex on him. Based on that information,
would you expect [D.A.] to have any physical injuries?
DR. MCCOLGAN: No.
MS. VAUGHAN: And why is that?
DR. MCCOLGAN: Because several reasons. First of all, oral
penetration doesn't typically lead to physical trauma. It
can lead to other forms of trauma, but not typically
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physical trauma. And with oral penetration, sometimes
we can see petechia[,] which are little teeny, tiny bruises
to the back of the mouth, but even if they are there they
would go away within hours to days. Anybody who knows
that any injury inside of your cheek, if you have injury, it
typically heals really, really quickly. You can actually, you
know, bite the inside of your cheek pretty significantly,
and within a couple days it heals without any signs of
scarring. That's because of the type of tissue that it is.
And so in these children's case, the disclosure of sexual
abuse, there was a delay in the time between the last
episode of sexual abuse and the examinations, and so any
injury that might have been there, even though it's pretty
unlikely that there would have been injury from oral
penetration would have healed in that time frame.
Id. at 36-37. Additionally, in light of S.A.'s allegation that the
Appellant either anally or vaginally penetrated her with his
penis when she was approximately ten years old, Dr.
McColgan again testified that she would not expect to see any
physical injuries for the same reasons:
MS. VAUGHAN: Now, [S.A.] has been here, Doctor, and
testified that as to one instance when she was at best ten
years old to anal or vaginal intercourse, she couldn't tell
because she didn't know I think what was happening.
Would you expect any injury based on that report?
DR. MCCOLGAN: No.
MS. VAUGHAN: And why is that?
DR. MCCOLGAN: Again, the majority of children who have
been sexually abused, even when there's vagina or anal
penetration, have normal examinations, and that's for a
long list of reasons.
The first, as we already mentioned, is the delay in
disclosure and the subsequent delay in the time the
medical examination is done since the last time anything
occurred. I already explained to you that the tissues of
the genital structures and the anus are similar to the
tissues of inside of your cheek. If there is any injury at
all, it heals very quickly, and oftentimes, the vast majority
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of the times, without any scar at all. So that plays a big
role in why the exam would be perfectly normal.
Second of all, the tissues of the anus are meant to stretch
significantly. That's how we pass a stool. Anybody who
has seen a small two year old, for example, go to the
bathroom and you look in the toilet and go, oh my God,
how could that possibly have come out of him, but if you
look at their anus, you know, two minutes later there's no
injury. Those tissues are meant to stretch. It's designed
to stretch. If something can come out without injury, then
something can go in without significant injury.
The tissues of the genital structures, in [S.A.]'s case she
got her period when she was about 12 years old, which
means that when she was ten she probably was already
starting to go through puberty, and so as you already
heard, if she didn't know if it was in the anus or the
vagina, it's -- that's not uncommon in that age group.
Children will say in and not exactly know where it goes.
And, in fact, most adult women don't really know, you
know, their genital anatomy very well unless you've
actually looked down there so that's not surprising that
she may not know where it went, she just knows that
something – that it was down there. Oftentimes, too,
when a child says it was in, there's types of sex called
vulvar coitus and gluteal coitus. That's where the male
rubs their penis in between the labia majora and labia
minora, and it may go through the hymen somewhat but
maybe not all the way through the hymen like adult sex
or it may be rubbed in between the butt cheeks and go
into the anus either partially or fully, but to that child it's
still in. It's still in their genito-anal structures. And so for
all of those reasons we wouldn't expect to see any
findings.
And, furthermore, once you start to go through puberty,
as I said earlier, the hymen becomes sort of more
stretchy, kind of like a scrunchy, and you wouldn't
necessarily see injury even if there was penetration.
Id. at 41-44. Dr. McColgan noted that, generally, she only
finds injury in less than five percent of cases of anal or vaginal
penetration of a child. Id. at 44.
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In conclusion, Dr. McColgan opined that the results of S.A.'s
physical examination were consistent with her allegation that
Appellant anally penetrated her three times prior to the age
of twelve:
MS. VAUGHAN: And so could you tell us, to a reasonable
degree of medical certainty, if [S.A.]'s report that she was
forced to have anal sex with the defendant three times
prior to the age of 12 is consistent with her physical
examination?
DR. MCCOLGAN: Yes, it's completely consistent.
Id. at 44-45. She further opined that the results of D.A.'s
physical examination were consistent with her allegation that
Appellant forced her to perform oral sex on him:
MS. VAUGHAN: Doctor, if we could move to-well, does the
lack of physical injury on [D.A.], I think that's where we
started, mean that she was not forced to have oral sex
with the defendant?
DR. MCCOLGAN: No
MS. VAUGHAN: And so is the lack of physical injury
consistent with her account of what happened to a degree
of reasonable medical certainty?
DR. MCCOLGAN: Yes, of course.
Id. at 40-41. On cross-examination, Dr. McColgan testified
that the absence of injury to both victims was also consistent
with "nothing ever happening:"
MS. JANNETTI: Okay. And essentially you are aware-one
moment, Your Honor that the allegation would be that
there was multiple instances of anal intercourse; is that
correct, with [S.A.]?
DR. MCCOLGAN: Yes.
MS. JANNETTI: And that she experienced bleeding and
pain as a result. Is that correct?
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DR. MCCOLGAN: Yes.
MS. JANNETTI: And it's your testimony that the absence
of that injury basically means nothing?
DR. MCCOLGAN: No, I didn't say it basically means
nothing.
MS. JANNETTI: Well, if I can just clarify for myself, you're
saying that it could mean that the-it's consistent with
what she's saying?
DR. MCCOLGAN: Yes.
MS. JANNETTI: But it could also be consistent with
nothing ever happening?
DR. MCCOLGAN: Yes.
Id. at 55-56. Finally, Dr. McColgan testified that sexual abuse
with anal penetration could be one of the causes, among
many, of S.A.'s reported constipation prior to the age of 12.
Id. at 46.
Regarding victim responses to sexual abuse, Dr. McColgan
testified generally that the majority of children delay
disclosure of abuse, and described several reasons for this
delay, including fear, embarrassment, and guilt. Id. 37-39.
She also testified that, "more than 90 percent of the time,"
the abuser is well known to the child victim, which results in
the child continuing to see or visit their abuser even after an
assault. Id. at 38-40, 46-47. She opined that the above
factor further contributes to a child's delayed disclosure. Id.
at 38-40. Dr. McColgan also testified that it was common for
child victims to engage in piecemeal disclosures of abuse over
time, and noted that she has seen "every range of emotional
affect" in child victims when confronted with disclosure,
including outright denial. Id. at 47-50.
The Commonwealth additionally offered the testimony of
Lieutenant Gorman regarding his role in diagraming and
photographing the interiors of the . . . homes [where the
abuse occurred. N.T. Trial, 1/9/17, at 57-58]. Both victims'
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recollections of the then-existing furniture and appearances
of the rooms in which the abuse occurred were consistent
with the various diagrams and photographs taken by
Lieutenant Gorman. [Id. at 66, 68, 74, 80, 82-83, and 90;
N.T. Trial, 1/10/17, at 21, 36-40, 61-65, 69, 81-83, 85, 227-
230, and 233-238].
Appellant offered the expert testimony of Dr. William L.
Manion, a forensic pathologist. [N.T. Trial, 1/11/17, at 61-
65]. Dr. Manion[] testified that the majority of his experience
involved performing autopsies on deceased adults and
children, and that he has not physically examined a living
child since his pediatric rotation in medical school. Id. at 73-
74. He opined that he would expect to see some kind of
injury, scarring or laceration of some kind in nearly every
case of child sexual abuse involving anal penetration of the
child. [Id. at 77-79 and 88-89].
Finally, Appellant's daughter testified on his behalf. She
resided with the Appellant and two victims in the same room
at the Neshaminy Inn [and the Spruce Street houses] during
the same period of time the victims described. Id. at 96-100.
She testified that she did not witness or otherwise have
knowledge of any inappropriate behavior between Appellant
and the two victims during that time. Id.
After a three-day trial, a jury found Appellant guilty of the
following crimes: three counts of rape of a child, seven
counts of involuntary deviate sexual intercourse with a child
less than 13 years of age, involuntary deviate sexual
intercourse with a person less than 16 years of age, indecent
assault of a person less than 13 years of age, and indecent
assault of a person less than 16 years of age.[1] On June 15,
2017, [the trial] court sentenced Appellant to an aggregate
[term of] 30 to 80 years' incarceration. [Further, that same
day, the trial court determined that “the Commonwealth has
met its burden in establishing that [Appellant] does meet the
criteria to be classified as a sexually violent predator.” N.T.
Sentencing, 6/15/17, at 57]. Appellant filed a timely Motion
____________________________________________
1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3123(a)(7), 3126(a)(7), and 3126(a)(8),
respectively.
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to Reconsider Sentence on June 23, 2017, which [the trial]
court denied after a hearing on September 29, 2017.
Appellant filed a timely notice of appeal to the Superior Court
on October 26, 2017.
Trial Court Opinion, 3/23/18, at 1-14 (internal footnotes and some internal
capitalization omitted).
Appellant raises one claim on appeal:
Was it an error to admit testimony by the Commonwealth’s
expert which improperly bolstered the testimony of the
victims and was premised on the expert’s apparent
acceptance of the children’s report[?]
Appellant’s Brief at 5.
“The admission of evidence is committed to the sound discretion of the
trial court and an appellate court may reverse only upon a showing that the
trial court clearly abused its discretion.” Commonwealth v. McFadden, 156
A.3d 299, 309 (Pa. Super. 2017) (internal quotations and citations omitted).
This standard of review is a narrow one. Commonwealth v. Mendez, 74
A.3d 256, 260 (Pa. Super. 2013) (citation omitted). Our case law holds that
“[a]n abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.” Id.
Appellant claims that the trial erred when it permitted the
Commonwealth’s expert, Dr. Maria McColgan, to testify: 1) that the “lack of
physical injury is consistent with [both S.A. and D.A.’s] account[s] of what
happened” and 2) “that it is common for there to be a delay in the reporting
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of sexual abuse and the reasons why various victims may delay their
disclosures.” Appellant’s Brief at 14-15. We will consider Appellant’s two
sub-claims in the order presented above.
First, Appellant claims, the trial court erred when it allowed Dr.
McColgan to testify that the “lack of physical injury is consistent with [both
S.A. and D.A.’s] account[s] of what happened.” Appellant’s Brief at 14. The
trial court found this claim waived, as Appellant failed to raise the issue in his
pre-trial motion and Appellant did not object to Dr. McColgan’s testimony at
trial. See Trial Court Opinion, 3/23/18, at 20. We agree that Appellant has
waived this claim on appeal.
Pursuant to Pennsylvania Rule of Appellate Procedure 302, “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). With respect to evidentiary rulings, “[e]rror may
not be predicated upon a ruling that admits [ ] evidence unless . . . a timely
objection, motion to strike[,] or motion in limine appears of record, stating
the specific ground of objection, if the specific ground was not apparent from
the context.” Pa.R.E. 103(a)(1).
Appellant’s motion in limine requested that the trial court preclude any
testimony from the Commonwealth’s expert that dealt with “victim responses
to sexual abuse and the impact of sexual abuse on victims during and after
being assaulted.” Appellant’s Pre-Trial Motion, 1/5/17, at 1. Appellant
claimed that this testimony was inadmissible for a number of reasons,
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including that it would “improperly bolster the credibility of the
Commonwealth’s witnesses.” Id. at 2.
On January 9, 2017, the trial court heard oral argument on Appellant’s
motion in limine and, at the beginning of the argument, Appellant’s counsel
clarified the scope of her objection. Counsel declared:
Your Honor . . . , [i]t’s my understanding that the
Commonwealth’s expert would be called for two purposes:
one for medical testimony, which is not a part of this
motion, but we are seeking to exclude her testimony
regarding the child’s behavior in response to sexual
abuse. We believe that this improperly bolsters the
credibility of the Commonwealth’s witness, specifically the
victims that would be testifying in this case.
N.T. Oral Argument, 1/9/17, at 10-11 (emphasis added).
The trial court denied Appellant’s motion, but informed Appellant’s
counsel that, “if you think the [questions] are beyond what the expert can
opine under the current state of the law, you’ll object.” Id. at 15.
As noted, during trial, Dr. McColgan testified that she reviewed the
reports from S.A. and D.A.’s medical examinations and testified that both S.A.
and D.A. had “normal” genital examination results. N.T. Trial, 1/11/17, at 31.
Further, Dr. McColgan testified that “the lack of physical injury [was]
consistent with [both S.A. and D.A.’s] account[s] of what happened.” Id. at
40-41 and 44-45. Appellant did not object to any of this testimony. See id.
Therefore, since Appellant failed to object to Dr. McColgan’s testimony
that “the lack of physical injury [was] consistent with [both S.A. and D.A.’s]
account[s] of what happened” and, since Appellant’s motion in limine did not
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encompass Dr. McColgan’s medical testimony, but was limited to her
testimony regarding victim “behavior in response to sexual abuse,” Appellant
waived any claim that the trial court erred in permitting Dr. McColgan to testify
that the “lack of physical injury is consistent with [both S.A. and D.A.’s]
account[s] of what happened.” Appellant’s Brief at 14; see also Pa.R.E.
103(a)(1).
Next, Appellant claims that the trial court erred when it allowed Dr.
McColgan to testify “that it is common for there to be a delay in the reporting
of sexual abuse and the reasons why various victims may delay their
disclosures.” Appellant’s Brief at 14-15. Appellant claims that this testimony
was inadmissible because it “indirectly vouch[ed] for the reports of the
victims” and “improperly invaded [] the jury’s province to determine the
credibility of the Commonwealth’s witnesses.” Id. Appellant’s claim fails.
42 Pa.C.S.A. § 5920, entitled “expert testimony in certain criminal
proceedings,” provides:
(a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which
registration is required under Subchapter H of Chapter 97
(relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S.
Ch. 31 (relating to sexual 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
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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, that will assist the trier
of fact in understanding the dynamics of sexual violence,
victim responses to sexual violence and the impact of
sexual 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.A. § 5920 (internal footnote omitted) (emphasis added).
The trial court accepted Dr. McColgan as an expert in “child abuse
pediatrics, general pediatrics, and the dynamics of sexual violence and victim
responses to sexual abuse.” N.T. Trial, 1/11/17, at 26. Further, as the trial
court explained, Section 5920 expressly allowed Dr. McColgan to testify “that
it is common for there to be a delay in the reporting of sexual abuse and the
reasons why various victims may delay their disclosures” because Dr.
McColgan “testified generally regarding common child victim responses to
sexual abuse” and she “did not testify regarding any specific victim responses
exhibited by S.A. or D.A. in this case.” Trial Court Opinion, 3/23/18, at 18-
19. Therefore, in accordance with Section 5920(b)(2) and (3), since Dr.
McColgan “testif[ied] to facts and opinions regarding specific types of victim
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responses and victim behaviors” – and did not provide an “opinion regarding
the credibility of . . . the victim[s]” – Dr. McColgan’s expert testimony was
admissible and the trial court did not err in denying Appellant’s motion in
limine.
Before concluding our analysis, however, we are constrained to sua
sponte2 raise the legality of Appellant’s designation as an SVP under the Sex
Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§
9799.10-9799.41. A recent panel of this Court recognized:
In [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)],
our Supreme Court held that the registration requirements
under SORNA constitute criminal punishment. Id. at 1218.
In light of Muniz, this Court determined: “Under Apprendi
v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United
States, 570 U.S. 99 (2013) a factual finding, such as whether
a defendant has a mental abnormality or personality disorder
that makes him . . . likely to engage in predatory sexually
violent offenses, that increases the length of registration
must be found beyond a reasonable doubt by the chosen
fact–finder.” Commonwealth v. Butler, 173 A.3d 1212,
1217 (Pa. Super. 2017) (internal quotations and citations
omitted). The Butler Court further held “section
9799.24(e)(3) of SORNA violates the federal and state
constitutions because it increases the criminal penalty to
which a defendant is exposed without the chosen fact–finder
making the necessary factual findings beyond a reasonable
doubt.” Id. at 1218. The Court therefore concluded that trial
courts no longer can designate convicted defendants as SVPs
or hold SVP hearings “until our General Assembly enacts a
constitutional designation mechanism.” Id. The Butler Court
directed trial courts to apply only the applicable tier–based
registration period, as those periods apply based on the
____________________________________________
2 See Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(addressing legality of SVP status sua sponte).
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conviction itself, and not due to any additional fact not found,
under SORNA's procedures, by the fact–finder. The Court
ultimately reversed the order finding the defendant to be an
SVP and remanded to the trial court for the sole purpose of
issuing appropriate notice of the defendant's tier–based
registration period. Id.
Commonwealth v. Golson, ___ A.3d ___, 2018 WL 2473514, at *7 (Pa.
Super. 2018) (some internal corrections omitted).
Here, the trial court designated Appellant an SVP on June 15, 2017.
N.T. Sentencing, 6/15/17, at 57. In light of Butler and our Supreme Court’s
decision in Muniz, as summarized above, we are constrained to vacate the
portion of the trial court’s order of June 15, 2017 designating Appellant as an
SVP. We remand the case to the trial court for the sole purpose of issuing the
appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s tier-based
registration obligations under SORNA.
Judgment of sentence affirmed in part, SVP designation vacated. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/18
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