Commonwealth v. Jones Jr., R., Aplt. ( 2020 )

[J-17-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 24 WAP 2019
:
Appellee : Appeal from the Order of the
: Superior Court entered July 27,
: 2018 at No. 1636 WDA 2016,
v. : affirming in part and vacating in part
: the Judgment of Sentence of the
: Court of Common Pleas of
ROD L. JONES, JR., : Allegheny County entered June 28,
: 2016 at No. CP-02-CR-0008782-
Appellant : 2015 and remanding.
:
: SUBMITTED: April 16, 2020
OPINION
JUSTICE MUNDY DECIDED: OCTOBER 30, 2020
In this appeal by allowance, we consider whether opinion testimony from a
detective concerning the behavior of child victims in response to sexual abuse, informed
by that detective’s training and experience, constitutes lay or expert testimony under our
rules of evidence. As a necessary corollary, we also address the continued validity of our
decision in Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992),1 in light of the
legislature’s enactment of 42 Pa.C.S. § 5920 (permitting expert testimony concerning
victim behavior in response to sexual abuse in certain criminal proceedings involving
1 In Dunkle, discussed more fully infra, we held inadmissible expert testimony concerning
typical behavior patterns displayed by child victims of sexual abuse, reasoning it was
easily understood by laypersons, did not require expert analysis, and invaded the jury’s
province of determining witness credibility. Dunkle, 602 A.2d at 836-38.
sexual offenses). For the reasons that follow, we reverse the Superior Court’s order and
remand for a new trial.
I. Facts and Procedural History
Appellant Rod L. Jones, Jr. was charged with rape and various sexual offenses
following allegations by his stepdaughter (“the victim”) of repeated sexual abuse over a
period of several years. According to the victim, the first instance of abuse occurred when
she was thirteen years old. Appellant entered the victim’s bedroom while she was
sleeping and tried to penetrate her with his penis from behind. The victim pushed
Appellant away, causing him to leave the room without completing the act. He committed
additional assaults over the next several years, which included performing oral sex on the
victim, forcing the victim to perform oral sex on him, and also engaging in vaginal
intercourse. The victim did not tell anyone about these incidents for many years. She
explained that Appellant told her no one would believe her. The victim also feared what
Appellant would say about her to her mother. When the victim was seventeen years old,
she eventually told her mother about the abuse.
On April 5, 2016, Appellant proceeded to a jury trial. Throughout the trial, defense
counsel focused on discrepancies in the victim’s recounting of events in an attempt to
undermine her credibility. These discrepancies related to the timing and location of
certain sexual assaults. At one point, the Commonwealth called as a witness Detective
Scott Holzwarth, who interviewed the victim during the course of the investigation. The
Commonwealth began its direct examination by asking Detective Holzwarth the following
general questions:
[The Commonwealth]: How are you currently employed?
[Detective Holzwarth]: I’m a detective with the Allegheny County
Police, and I work in the General Investigations Section.
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[The Commonwealth]: How long have you been employed in this
capacity?
[Detective Holzwarth]: Ten years.
[The Commonwealth]: As a detective in the General Investigations
Unit, do you handle all sorts of crimes or do you have a certain type
of crime that you do more of?
[Detective Holzwarth]: We do handle different types of crimes, but I
do mostly crimes against people, which includes sex assaults and
child abuse.
[The Commonwealth]: And if you could estimate, during the course
of your career, approximately how many child sexual assault cases
have you investigated?
[Detective Holzwarth]: Hundreds. I would have to do the math, but
at least hundreds.
N.T. Trial, 4/6/16, at 97-98. The Commonwealth subsequently asked Detective Holzwarth
questions specific to his investigation of this matter. Then, particularly relevant to this
appeal, the following exchange occurred:
[The Commonwealth]: Did [the victim] indicate whether or not this
had been going on multiple times?
[Detective Holzwarth]: Yes.
[The Commonwealth]: And in your training and experience,
Detective, do kids often have trouble remembering each and every
time when this is an ongoing incident?
[Detective Holzwarth]: Yes, they do. As a matter of fact, in our
criminal complaints we normally put a little blurb in there that explains
that victims ̶
[Defense Counsel]: Your Honor, I would object to this as expert
testimony. This is an opinion.
The Court: I’m going to overrule.
[The Commonwealth]: Please continue, Detective.
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[Detective Holzwarth]: ̶ that explains that victims sometimes have
trouble remembering exact dates when events have happened.
[The Commonwealth]: And have you also found in your training and
experience with your specific cases whether or not victims will have
trouble recalling in each incident that they’re assaulted every single
detail of the assault?
[Detective Holzwarth]: Yes.
[The Commonwealth]: And do they often times get the times that
those things happened confused with other times that they discuss
with you?
[Detective Holzwarth]: Yes. Very often.
Id. at 100-101. On cross examination, defense counsel asked Detective Holzwarth if it
was possible that a victim’s delay in reporting or inability to provide details about sexual
assault incidents could mean that no abuse occurred in the first instance, to which the
detective agreed. Id. at 109-110.
The jury ultimately found Appellant guilty of rape, involuntary deviate sexual
intercourse with a person under sixteen years of age, unlawful contact with a minor,
aggravated indecent assault, sexual assault, statutory sexual assault, endangering the
welfare of a child, corruption of minors, and indecent assault of a person under sixteen
years of age.2 The trial court sentenced Appellant to an aggregate term of twenty-seven
to sixty years’ imprisonment. Appellant filed a post-sentence motion, which the trial court
denied. He then filed a timely notice of appeal to the Superior Court.
On appeal, Appellant argued, inter alia, that the trial court abused its discretion by
allowing Detective Holzwarth to testify that child sexual assault victims are often unable
to recall specific details and dates of sexual assaults. Appellant claimed that this evidence
constituted expert testimony because it was not within the scope of knowledge possessed
2See 18 Pa.C.S. §§ 3121(a), 3123(a)(7), 6318(a)(1), 3125(a)(1), 3124.1, 3122.1(a)(2),
4304(a)(1), 6301(a)(1)(ii), and 3126(a)(8), respectively.
[J-17-2020] - 4
by the average layperson, but was rather based on the detective’s specialized training
and experience concerning child victim responses and behaviors to sexual assault.
Appellant argued that absent qualification as an expert witness, the trial court should have
precluded this testimony.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) addressing
Appellant’s claim that admission of the detective’s testimony was improper. It explained
that defense counsel’s strategy at trial involved discrediting the victim. In light of these
repeated attacks, the trial court concluded the Commonwealth “was entitled to question
Detective Holzwarth regarding his experience with child victims.” Trial Ct. Op., 5/5/17, at
9. It also recognized that while cross-examining Detective Holzwarth, defense counsel
“was able to get the [d]etective to concede that an alternative reason the allegations by
child victims lacked detail was that they never happened.” Id. at 9-10. For this reason,
the trial court alternatively concluded that any damage resulting from admission of
Detective Holzwarth’s testimony was remedied by defense counsel’s effective cross-
examination. Id. at 10.
The Superior Court affirmed in a divided, unpublished memorandum opinion.
Commonwealth v. Jones, 1636 WDA 2016, 2018 WL 3598642 (Pa. Super. July 27, 2018).
The majority explained that challenges to the admissibility of evidence typically rest within
the sound discretion of the trial court and will not be reversed absent an abuse of
discretion. Id. at *2 (citing Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa. Super.
2005)). It noted that an 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 or the record.” Id. (citing Commonwealth v. Cameron, 780 A.2d 688, 692
(Pa. Super. 2001) (citation and quotation omitted)). The majority then recounted the
[J-17-2020] - 5
language of Pennsylvania Rules of Evidence 701 and 702, which pertain to lay opinion
and expert witness testimony, respectively. Id. at *2-3.
After reviewing the testimony at issue, the majority concluded that the trial court
did not abuse its discretion by permitting the detective, without first being qualified as an
expert witness, to provide opinion testimony about the inability of child victims of sexual
abuse to recall specific dates and details of sexual assaults. Id. at *4. The majority
reasoned that such testimony constituted permissible lay opinion testimony because it
was based on information within the detective’s personal knowledge and experience, in
light of observations with similar child victims of sexual abuse. Id. It was also helpful to
the trier of fact and was not based upon scientific, technical, or other specialized
knowledge. Id. Thus, the Commonwealth was not required to qualify Detective Holzwarth
as an expert witness in order for him to testify to this information. Id.
Senior Judge Eugene B. Strassburger filed a dissenting opinion which, in relevant
part, disagreed with the majority’s conclusion that the detective’s testimony constituted
lay opinion testimony. Id. at *8. He recognized that in Dunkle, this Court specifically
found that testimony concerning the reasons why child victims of sexual abuse delay
reporting incidents of sexual abuse, omit details regarding sexual abuse, and are unable
to remember dates and times of instances of sexual abuse was within the understanding
of lay persons and did not require expert analysis. Id. (citing Dunkle, 602 A.2d at 836-
38). While Dunkle appears dispositive of the instant issue, Judge Strassburger noted that
case predated the legislature’s enactment of 42 Pa.C.S. § 5920, which now authorizes
expert testimony on this subject matter. Id.
Judge Strassburger explained that in Commonwealth v. Olivo, 127 A.3d 769, 780
(Pa. 2015), this Court described Section 5920 as a substantive rule authorizing experts
to testify to facts and opinions regarding specific types of victim responses and behaviors.
[J-17-2020] - 6
Id. No court, however, has explicitly addressed whether the enactment of Section 5920
effectively overruled Dunkle’s holding that opinions regarding responses by child sexual
assault victims fall within the knowledge of laypersons. Id. (citing Commonwealth v.
Maconeghy, 171 A.3d 707, 709 n.2 (Pa. 2017) (recognizing that Dunkle is “impacted by
the enactment of Section 5920[,]” but noting that “specific effect of the statute” was
beyond the scope of review) (additional citation omitted)). Id. Judge Strassburger opined
that the holding in Dunkle in this regard is no longer valid when viewed alongside Section
5920, which “classifies such knowledge, when acquired through experience, training, or
education in criminal justice related to sexual violence, as specialized.” Id.
Turning to the merits, Judge Strassburger highlighted the majority’s failure to
address Dunkle and Section 5920 or assess whether the detective’s testimony amounted
to expert testimony under Rule 702. Id. Judge Strassburger explained that contrary to
the majority’s conclusion, Detective Holzwarth’s testimony concerning victim responses
following sexual abuse was explicitly based upon his training and experience as one who
investigates sexual assaults, which falls squarely within the type of expert testimony
permissible under Section 5920(b)(1). Id. (citing Commonwealth v. Huggins, 68 A.3d
962, 969 (Pa. Super. 2013) (“[A]n officer testifies as an expert when he brings the wealth
of his experience as an officer to bear on those observations and makes connections for
the jury based on that specialized knowledge.”) (citation and quotation omitted);
Commonwealth v. Powell, 171 A.3d 294, 307 (Pa. Super. 2017) (holding a police officer
may testify as an expert witness based upon knowledge gained from practical and
occupational training)). The testimony was therefore impermissible absent any attempt
by the Commonwealth to qualify Detective Holzwarth as an expert witness. Id. Thus,
Judge Strassburger concluded that the trial court erred by admitting the testimony and
such an error called for a new trial. Id.
[J-17-2020] - 7
 Appellant filed a petition for allowance of appeal. We granted allowance of appeal
to address the following related issues:
1. Whether testimony from a detective about victim responses and
behaviors, when based on that detective’s training, experience, and
specialized knowledge, constitutes expert testimony and whether permitting
such testimony from a lay witness is inconsistent with the plain language of
Pa.R.E. 701, Pa.R.E. 702, and Commonwealth v. Huggins, 68 A.3d 962
(Pa. Super. 2013)?
2. Whether the General Assembly’s enactment of 42 Pa.C.S. § 5920
(relating to expert testimony in certain criminal proceedings) legislatively
overruled this Honorable Court’s decision in Commonwealth v. Dunkle, [ ]
602 A.2d 830 ([Pa.] 1992), which held that specific types of victim responses
and behaviors are within the range of common experience, easily
understood by lay people, and for which expert analysis is inappropriate?
Commonwealth v. Jones, 207 A.3d 913 (Pa. 2019) (per curiam).
II. Admissibility of Detective Holzwarth’s Testimony
A. Parties’ Arguments
We now turn to the parties’ arguments concerning the admissibility of the
detective’s testimony. Appellant argues that testimony from a detective concerning victim
behavior in response to sexual abuse, when based upon that detective’s training,
experience, and specialized knowledge as a law enforcement officer, is not permissible
lay opinion testimony under Rule 701. Appellant’s Brief at 12. Appellant emphasizes that
lay opinion testimony must be based upon personal knowledge and must not involve
specialized knowledge within the scope of Rule 702. Id. at 15. Appellant avers that the
detective’s testimony was not based upon personal knowledge, as it was beyond that
which an ordinary witness could conclude from observation and “based on nothing more
than his personal perceptions of [child victims’] reports of alleged abuse.” Id. at 18-19.
Appellant also argues that the detective’s testimony was based upon specialized
knowledge gained through experience as a law enforcement officer and therefore falls
squarely within the realm of expert testimony. Id. at 18-19. For these reasons, Appellant
[J-17-2020] - 8
argues that Detective Holzwarth’s testimony was inadmissible, absent qualification as an
expert. Id.
Appellant highlights the distinction between lay and expert testimony by relying on
Huggins, in which the Superior Court held that Pa.R.E. 701 and 702 “do not preclude a
single witness from testifying, or offering opinions, in the capacity as both a lay and expert
witness on matters that may embrace the ultimate issues to be decided by the fact-finder.”
Id. at 21-22 (quoting Huggins, 68 A.3d at 967). Based on Huggins, Appellant argues that
“the Commonwealth plainly could have proffered Detective Holzwarth as a dual-capacity
witness[,]” but instead “evaded the reliability requirements inherent in [Rule] 702 through
the simple expedient of proffering [him] in lay witness clothing.” Id.
Appellant further maintains that both this Court and the legislature have recognized
that testimony concerning victim behavior and responses to sexual abuse, if admissible,
may only be offered by a properly qualified expert. Id. at 22. He claims that this Court
has never held testimony concerning victim behavior in response to sexual abuse to be
permissible lay opinion testimony. Id. Appellant also points to the legislature’s passage
of Section 5920, which explicitly classifies knowledge pertaining to the dynamics of sexual
violence, victim responses to sexual violence, and the impact of sexual violence on
victims during and after being assaulted, as expert testimony when gleaned from
experience with or specialized training related to sexual assault. Id. at 24-25. Finally,
Appellant asserts that the trial court’s admission of the instant testimony, which had the
sole effect of improperly bolstering the victim’s credibility, was so prejudicial as to warrant
a new trial. Id. at 25.
The Commonwealth argues that the detective’s testimony did not constitute expert
testimony but was rather properly admitted as lay testimony. Commonwealth’s Brief at
10. It maintains that contrary to expert testimony, the detective relayed information based
[J-17-2020] - 9
solely upon personal observations rather than reference to any fact, testimony, or
empirical data that would require it to be proffered as expert testimony. Id. at 13. The
Commonwealth notes that, although the detective spoke to observations that jurors had
not experienced in the same manner, his testimony was nonetheless within the realm of
common understanding and did not intrude into an area reserved for expert testimony.
Id. The Commonwealth further asserts that the detective’s status as a law enforcement
officer did not preclude him from offering lay opinion testimony. Id. at 14 (citing Huggins,
68 A.3d at 967).
The Commonwealth also disagrees with Appellant’s contention that the instant
testimony rose to the level of expert testimony simply because the detective was asked
about training and experience as a police officer prior to providing a response. Id. at 15.
It submits that “merely framing a question with the words training and experience does
not elevate the resulting answers to expert testimony.” Id. at 17. The Commonwealth
asserts that the detective’s testimony, which merely stated general observations that child
victims of sexual assault confuse dates and have trouble recalling every detail of
incidents, was a common sense observation capable of being understood by the average
person. Id. at 17-18 (citing Dunkle, 602 A.3d at 836-38).
The Commonwealth further maintains that even if the detective’s testimony
constituted expert testimony, its admission did not result in prejudice that would require
reversal. Id. at 21 (citing Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018)). It
explains that while the detective stated child victims of sexual abuse often forget dates
and details of incidents, he alternatively acknowledged on cross-examination that
confusion regarding these facts may also mean an assault did not occur. Id. at 22.
Furthermore, the Commonwealth argues that despite defense counsel’s repeated
attempts to undermine the victim’s credibility, the detective never rendered an opinion as
[J-17-2020] - 10
to whether or not the victim in this case was telling the truth. Id. Thus, admission of the
testimony was harmless. Id. at 23.
B. Analysis
An appellate court generally reviews a trial court’s decisions regarding the
admissibility of evidence for an abuse of discretion. Commonwealth v. Johnson, 42 A.3d
1017, 1027 (Pa. 2012) (“An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such a lack of
support so as to be clearly erroneous.”) (citations and quotations omitted). This case
additionally requires us to examine the proper interpretation of our rules of evidence, a
question of law for which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Brown, 52 A.3d 1139, 1176 (Pa. 2012). When interpreting
our rules of evidence, we must ascribe to the words of these rules their plain and ordinary
meaning. Id. (citation omitted).
Whether Detective Holzwarth’s testimony, predicated on his knowledge and
experience as a police officer, was properly admitted as lay opinion testimony requires
an examination of two relevant Pennsylvania Rules of Evidence. Rule 701 permits lay
witnesses to provide opinion testimony only if such testimony meets three limiting criteria:
Pa.R.E. 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
[J-17-2020] - 11
Pa.R.E. 701. The first and second criteria outlined in the rule are self-explanatory, in that
they simply require that a witness’s opinion testimony be based upon personal knowledge
and be helpful to the jury in understanding the witness’s testimony or a fact at issue. The
final limiting criteria precludes lay witness opinion testimony based upon scientific,
technical, or other specialized knowledge that falls within the realm of expert opinion
testimony as outlined by Rule 702, which provides as follows:
Pa.R.E. 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702. We have explained that “[e]xpert testimony is permitted only as an aid to
the jury when the subject matter is distinctly related to a science, skill, or occupation
beyond the knowledge or experience of the average layman.” Commonwealth v. Duffey,
548 A.2d 1178, 1186 (Pa. 1988) (citation omitted). We have also recognized that the
standard for qualifying as an expert is a liberal one and the witness need only have “‘any
reasonable pretension to specialized knowledge on the subject matter under
investigation’” and the weight to be given to the expert’s testimony is for the factfinder.
Commonwealth v. Gonzales, 546 A.2d 26, 31 (Pa. 1988) (quoting Kuisis v. Baldwin-Lima-
Hamilton Corp., 319 A.2d 914, 924 (Pa. 1974) (additional citation omitted)); see also
Comment, Pa.R.E. 702. We have also noted that “[e]xpertise, whether acquired as a
[J-17-2020] - 12
result of formal education or by experience, is expertise.” Commonwealth v. Auker, 681
A.3d 1305, 1317 (Pa. 1996).
We conclude that the opinion testimony by Detective Holzwarth on the inability of
child victims of sexual abuse to recall specific dates and details was based upon scientific,
technical, or other specialized knowledge within the scope of Rule 702. Specifically,
Detective Holzwarth based his testimony on his training and experience investigating
sexual assaults. Nevertheless, this did not require Detective Holzwarth to testify solely
as an expert. The Superior Court’s decision in Huggins is helpful in this regard.
In Huggins, the Superior Court considered whether Rules 701 and 702 precluded
a police officer from testifying as both a lay and expert witness. Huggins, 68 A.3d at 966,
974. The court ultimately held that the plain language of these rules “do not preclude a
single witness from testifying, or offering opinions, in the capacity as both a lay and expert
witness on matters that may embrace the ultimate issues to be decided by the fact-
finder[,]” so long as the jury is properly instructed to avoid confusion. Id. at 967, 974. In
reaching this conclusion, the panel referenced federal case law highlighting the difficulty
in distinguishing between an officer’s lay and expert testimony:
We have explained that [a] law enforcement officer’s testimony is lay
opinion if it is limited to what he observed . . . or to other facts derived
exclusively from [a] particular investigation . . . . On the other hand, an
officer testifies as an expert when he brings the wealth of his experience as
[an] officer to bear on those observations and [makes] connections for the
jury based on that specialized knowledge.
Id. at 969 (quoting United States v. Christian, 673 F.3d 702, 709 (7th Cir. 2012) (additional
quotations and citations omitted)). The panel also acknowledged that distinguishing
between an officer’s expert and lay testimony “is often far from clear” when that officer
possesses specialized knowledge and was also personally involved in the facts
underlying the case. Id. It explained that “‘[t]he inferences officers draw when observing
and responding to situations cannot always be separated from the expertise they bring to
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evaluate those situations. Their observations are guided by experience and training and
thus, at least some of their fact testimony will be influenced by specialized knowledge.’”
Id. (quoting Christian, 673 F.3d at 708).
In light of Huggins, we agree with Appellant that the Superior Court erred in
concluding that the instant testimony was admissible as lay opinion because it did not
involve specialized knowledge within the realm of expert testimony. Here, Detective
Holzwarth primarily functioned as a fact witness but was also called upon to offer general
opinion testimony concerning whether or not it was common for child victims of sexual
assault to have trouble remembering dates and details of ongoing sexual assaults.
Detective Holzwarth was asked to provide insights gained through specialized
occupational training and experience not within the average layperson’s knowledge base
as required by the plain language of Rule 702(a). Detective Holzwarth called upon the
wealth of his knowledge and training as a detective with extensive experience
investigating sexual assaults and made connections for the jury based on that specialized
knowledge. While some laypersons may be aware of common behaviors and responses
to sexual abuse, it would be a generalization to assume that the average juror is privy to
the complex psychological dynamics surrounding sexual abuse. Accordingly, we hold
that testimony from a law enforcement officer concerning child victims’ typical behaviors
and responses to sexual abuse, when based on that officer’s training and experience,
falls within the realm of expert testimony. Moreover, as detailed above, Section 5920
specifically provides that such testimony is an appropriate topic for expert analysis.3 We
3 We recognize that this conclusion conflicts with Dunkle insofar as that case can be read
as precluding entirely expert testimony concerning facts and opinions regarding specific
types of victim responses and behaviors to sexual abuse. We consider the continued
validity of Dunkle in this regard below, as well as the impact of Section 5920 on its holding.
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further emphasize that whether expert testimony on this topic is admissible is subject to
all other admissibility concerns, such as proper qualification as an expert.4
We must now consider the appropriate remedy given the improper admission of
this testimony. This Court has held that an error may be considered harmless “only if the
appellate court is convinced beyond a reasonable doubt that the error is harmless.”
Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). “[A]n error cannot be held
harmless unless the appellate court determined that the error could not have contributed
to the verdict. Whenever there is a reasonable probability that an error might have
contributed to the conviction, the error is not harmless.” Id. at 164. In Story, this Court
outlined three scenarios under which an error may be deemed harmless, which have
been summarized in subsequent cases as follows:
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 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) (additional citations omitted).
This case implicates the first analytical approach, as it involves the impact of the
detective’s improperly admitted testimony. We disagree with the Commonwealth that
admission of the instant testimony was harmless. This case involved competing
narratives about whether or not various sexual assaults occurred, making credibility a
central issue. Whether intentional or unintentional, the Commonwealth’s emphasis on
4 The Commonwealth’s framing of its questions in terms of training and experience
significantly impacts our decision in this case. By doing so, the Commonwealth signaled
the imprimatur of the detective to provide generalized expert testimony regarding
behavior patterns of child victims of sexual abuse. We note, however, that testimony from
the detective based solely on factual observations, without extrapolation to victim
behavior generally, would arguably be admissible as lay opinion testimony, as it does not
signal any type of specialized knowledge.
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Detective Holzwarth’s training and experience prior to eliciting testimony concerning
common victim behavior in response to sexual abuse likely signaled to the jury that he
was qualified to offer such a response. As a result, the jury was able to draw an inference
that the victim’s behavior in this case was consistent with similarly situated victims,
without any of the heightened reliability concerns that accompany expert testimony. We
therefore cannot say with certainty that the jury did not place undue weight on the
testimony, despite defense counsel’s attempt to neutralize the effect of the testimony on
cross-examination by eliciting a concession from the detective that an inability to recall
dates and times of assaults could mean no assault occurred. Appellant is therefore
entitled to a new trial.
III. Commonwealth v. Dunkle and 42 Pa.C.S. § 5920
Before proceeding to the next issue, we find it necessary to recount our decision
in Dunkle, as well as the statutory language of Section 5920.5 In Dunkle, this Court
addressed, inter alia, whether it was error to admit expert testimony explaining why
sexually abused children may be unable to recall details of assaults, omit details of
assaults, and delay reporting assaults. Dunkle, 602 A.2d at 831. We concluded that such
testimony was “easily understood by lay people and did not require expert analysis.” Id.
at 836-838. We additionally found that testimony on this topic invaded the jury’s sole
province of determining witness credibility. Id. at 837-38 (citing Commonwealth v. Seese,
5 The Commonwealth asserts that Appellant waived any claim concerning the validity of
Dunkle in light of the legislature’s passage of Section 5920 by failing to raise it in the
courts below. Commonwealth’s Brief at 24. We decline to find this issue waived, but
rather subsumed by the scope of our grant of allocatur.
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517 A.2d 920 (Pa. 1986) (holding inadmissible expert testimony concerning veracity of
child victim in sexual abuse case) (additional citations omitted)).6
More than twenty years following our decision in Dunkle, the legislature enacted
Section 5920, which provides as follows:
§ 5920. Expert testimony in certain criminal proceedings
(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. [Chapter]
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 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.
6 In Dunkle, we also considered whether the trial court erred by allowing expert testimony
concerning behavior patterns of child sexual assault victims, referred to then as “child
sexual abuse syndrome.” Dunkle, 602 A.2d at 832. We concluded that based upon
research available at the time, expert testimony on this topic should have been precluded
as it was not “sufficiently established to have gained general acceptance in the particular
field in which it belongs[,]” for purposes of the test set forth in Frye v. United States, 293
F. 1013 (D.C. Cir. 1923). Id. at 834 (citation omitted). This aspect of our holding in Dunkle
is not relevant to the instant appeal, as this case does not involve testimony concerning
child sexual abuse syndrome.
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(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.
IV. Continued Validity of Dunkle in light of 42 Pa.C.S § 5920
A. Parties’ Arguments
We now turn to the parties’ arguments concerning the continued validity of Dunkle
in light of Section 5920. Appellant first notes that the doctrine of separation of powers
prohibits the legislature from overruling this Court’s judicial decisions through acts of
assembly. Appellant’s Brief at 27 (citing Leahey v. Farrell, 66 A.2d 577, 579 (Pa. 1949)).
Turning to Olivo, Appellant recognizes that we narrowly held Section 5920 did not infringe
on our constitutional authority to govern the procedure of the courts. Id. at 28-29 (citing
Olivo, 127 A.3d at 769). He asserts that this decision, however, does not preclude us
from concluding that certain other applications of Section 5920 are impermissible.
Specifically, Appellant argues Section 5920 must be construed in a manner consistent
with Dunkle and our longstanding precedent prohibiting expert testimony that invades the
jury’s province to determine witness credibility. Id. at 28-30 (citing Commonwealth v.
Alicia, 92 A.3d 753, 760 (Pa. 2014); Maconeghy, 171 A.3d at 712).
With respect to whether the statute offends this prohibition, Appellant asserts that
although Section 5920 expressly precludes expert witness opinions concerning the
credibility of witnesses, including the victim, the statute nonetheless cannot be reconciled
with decisions of this Court. Id. at 33. In Appellant’s view, Section 5920 is particularly at
odds with Dunkle and Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000), insofar as it
permits a properly qualified expert to testify to facts and opinions concerning types of
victim behaviors. Id. at 33. He explains that in Dunkle, we concluded that expert
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testimony concerning typical behavior patterns displayed by child victims of sexual abuse
invaded the jury’s province of determining witness credibility. Id. at 33-36 (citing Dunkle,
602 A.2d at 837-38). He further notes that in Balodis, we found that counsel rendered
ineffective assistance by failing to preserve a challenge to the trial court’s admission of
expert testimony which bolstered the credibility of victim in child sexual assault case. Id.
at 36-37 (citing Balodis, 747 A.2d at 344-48).
Appellant again discusses our decision in Olivo, and interprets our holding as a
“wholesale rejection” of the argument that Section 5920 contravenes our decision in
Dunkle, and asks us to revisit that conclusion. Id. at 38. He argues that Dunkle plainly
found expert testimony concerning why sexually abused children omit details of assaults,
cannot recall details of assaults, or delay reporting of assaults invaded the jury’s province
as sole arbiter of credibility. Id. at 41 (Dunkle, 602 A.2d at 836-38). He asserts that this
conclusion was distinct from our finding that expert testimony concerning the uniformity
of behavior generally displayed by child victims of sexual assault did not meet the Frye
standard for admitting expert testimony. Id. at 42. For this reason, Appellant argues that
any advancements in science pertaining to this subject matter would be an illegitimate
basis to reject our holding in Dunkle. Id. at 43. Appellant lastly observes that our
precedent precluding expert testimony touching upon witness credibility is “inextricably
linked” to due process rights, as well as the right to trial by an impartial jury. Id. He argues
that because Section 5920 touches upon the constitutional rights of criminal defendants
by permitting expert testimony in a manner that invades the jury’s role of determining
credibility, the legislature exceeded its authority by enacting the statute. Id. at 43-44.7
7 The Defender Association of Philadelphia and the Pennsylvania Association of Criminal
Defense Lawyers filed an amicus brief in support of Appellant. They do not offer any
argument as to whether the testimony at issue constitutes expert or lay testimony, but
instead focus on the second issue, largely echoing the arguments made by Appellant.
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Notwithstanding its waiver argument, the Commonwealth agrees with Appellant
that the legislature may not overrule our judicial decisions. Commonwealth’s Brief at 28.
It further maintains that our decisions in both Olivo and Maconeghy indicate that Section
5920 alters the interpretation of Dunkle. Id. at 28-31. The Commonwealth submits that
the premise in Dunkle that certain victim responses and behaviors are capable of being
understood by laypersons remains valid and urges us to view Section 5920 as “creating
a means, under the appropriate circumstances, to permit expert testimony with regard to
specific victim responses and behaviors[.]” Id. at 33.
The Commonwealth explains that by enacting Section 5920, the legislature
acknowledged that expert testimony concerning certain types of victim responses and
behaviors are indeed beyond the common knowledge of laypersons, aligning
Pennsylvania with the prevailing view among all other states. Id. at 34-37. The
Commonwealth then references this Court’s decision in Commonwealth v. Walker, 92
A.3d 766 (Pa. 2014), which concerned the admission of expert testimony on the topic of
eyewitness identification, to illustrate that scientific developments in a certain field may
alter courts’ evidentiary determinations. Id. at 38. Accordingly, the Commonwealth avers
that Dunkle is outmoded in that it concludes all responses and behaviors are within the
realm of knowledge possessed by laypersons. Id. at 39. In this regard, the
Commonwealth disagrees with Appellant that scientific progress is an inappropriate basis
to reject our holding in Dunkle. Id. at 38.
Finally, the Commonwealth further disagrees with Appellant that Section 5920
impermissibly intrudes on the jury’s role of determining credibility. Id. It explains that our
decision in Olivo acknowledged that the holding in Dunkle was partly based on then-
available research, therefore its conclusion that testimony concerning victim responses
and behaviors was “based, at least partially, on its assumption that the jury was already
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well equipped to understand these matters.” Id. at 40. It again references Walker, this
time to support its assertion that testimony concerning victim behavior in response to
sexual abuse does not infringe upon the jury’s credibility determinations. Id. at 41. There,
this Court concluded that expert testimony on psychological factors that may influence
eyewitness identification did not speak to witness credibility, but “provide[d] jurors with
education by which they assess themselves the witness’s credibility.” Id. (quoting Walker,
92 A.3d at 784). As for the scope and parameters of expert testimony concerning victim
responses and behaviors, the Commonwealth points out that Section 5920 merely speaks
to the relevancy of the expert’s testimony, while the proponent of the testimony must still
prove the testimony meets the admissibility standards set forth in Frye. Id. at 46-47 (citing
Commonwealth v. Cramer, 195 A.3d 594 (Pa. Super 2018)).
B. Analysis
Whether the legislature’s enactment of Section 5920, which allows for expert
testimony concerning victim behavior in response to sexual abuse in certain criminal
proceedings involving sexual offenses, effectively overruled our decision in Dunkle poses
a question of law, for which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Martinez, 147 A.3d 517, 529 (Pa. 2016) (citing
Commonwealth v. Crawley, 924 A.2d 612, 614 (Pa. 2007)).
The parties touch upon two aspects of our holding in Dunkle. The first being the
conclusion that testimony concerning the reasons why child victims of sexual assault
delay reporting sexual assaults, omit reporting details of sexual assaults, or are unable to
recall details of sexual assaults was easily understood by laypersons and did not require
expert analysis. With respect to this holding, Appellant agrees that Section 5920 is a
proper exercise of legislative authority insofar as it deems admissible certain expert
testimony involving facts and opinions regarding specific types of victim responses and
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victim behaviors to sexual abuse. The Commonwealth similarly does not take issue with
the legislature’s authority to statutorily allow such testimony, but maintains the provision
merely creates a means for admission of expert testimony on this topic when appropriate
and does not necessarily preclude lay witnesses from also commenting on this topic.
We agree with Appellant that Section 5920 effectively overruled Dunkle in this
regard. In Olivo, this Court found that Section 5920 did not violate our exclusive control
over judicial procedures pursuant to Article V, Section 10(c) of the Pennsylvania
Constitution. Olivo, 127 A.3d at 770. We concluded that the statute constituted a rule of
evidence governable by statute, and also deemed it “substantive rather than procedural
as it permits both parties to present experts to testify to facts and opinions regarding
specific types of victim responses and victim behaviors.” Id. at 780 (citing Commonwealth
v. Newman, 633 A.3d 1069, 1071 (Pa. 1993) (“Subject only to constitutional limitations,
the legislature is always free to change the rules governing competency of witnesses and
admissibility of evidence.”)). Olivo did not provide us with an opportunity to comment on
the continued validity of Dunkle in light of the provision. However, based on Olivo, which
found Section 5920 to be a proper exercise of legislative authority, as well as our above
analysis recognizing that such testimony falls within the realm of expert testimony under
our rules of evidence and Huggins, we now necessarily hold that Section 5920 effectively
overruled Dunkle to the extent that case can be read as categorically prohibiting expert
testimony concerning victim behavior in response to sexual abuse due to it being within
the ken of laypeople and not requiring expert analysis. See Olivo, 127 A.3d at 781
(Saylor, C.J., concurring) (opining legislature’s intent in enacting Section 5920 was to
remove appearance of per se prohibition erected by some of the language used in
Dunkle). We disagree with the Commonwealth’s assertion that Section 5920 does not
preclude lay opinion testimony on this topic, but merely created an avenue for expert
[J-17-2020] - 22
testimony when appropriate. To conclude that some lay testimony on this subject matter
is permissible would undermine our conclusion that the behavior of child sexual assault
victims is beyond that generally understood by the average layperson.
Both parties, to some degree, also touch on the other aspect of our holding in
Dunkle, which found that expert testimony on this topic invades the jury’s province of
determining witness credibility. They seem to agree that any interpretation of Section
5920 must comport with this prohibition. Appellant, however, reads broadly our holding
in Dunkle, asserting that all testimony in this regard violates this mandate. Such an
interpretation would of course prohibit the Commonwealth entirely from introducing
testimony like that provided by Detective Holzwarth in this case. To the contrary, the
Commonwealth does not believe such testimony categorically violates this proscription.
We are in substantial agreement with the Commonwealth on this point.
It is well-settled that expert testimony on the issue of a witness’s credibility is
impermissible, as it encroaches on the province of the jury to make such determinations.
See e.g., Maconeghy, 171 A.3d at 712 (holding inadmissible expert testimony that a
particular complainant was a victim of sexual abuse as it invaded the province of the jury
relative to determining credibility); Commonwealth v. Davis, 541 A.2d 315 (Pa. 1988)
(holding trial counsel ineffective for failing to object to expert testimony that children
typically have had some sort of sexual experience in order to report abuse because such
testimony assessed children’s truthfulness); Seese, 517 A.2d at 921 (holding
impermissible expert testimony that young children lack the sexual knowledge to supply
details about sexual encounters and therefore usually do not fabricate stories of sexual
abuse because such testimony encroached on jury’s province to determine credibility);
Commonwealth v. O’Searo, 352 A.2d 30, 32 (Pa. 1976) (holding that issue of witness
credibility is within the knowledge of the average layperson and must be determined
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solely by the factfinder). Notwithstanding, we decline to read Dunkle so broadly as to
preclude all expert testimony concerning victim responses and behaviors to sexual
assaults. While some testimony on this topic may be prohibited for impermissibly
invading the jury’s province of determining credibility, we disagree that all testimony will.
Whether or not this prohibition has been violated must instead be assessed on a case by
case basis.
We additionally note that Section 5920 complies with this notion on its face, as it
explicitly provides that a properly qualified expert may testify to facts and opinions
regarding specific types of victim responses and behaviors in certain criminal proceedings
involving sexual assaults, provided experts do not offer opinions regarding the credibility
of any witness, including the victim. See 42 Pa.C.S. § 5920(b)(3) (“The witness’s opinion
regarding the credibility of any other witness, including the victim, shall not be
admissible.”). For these reasons, we hold that Dunkle remains valid insofar as it
precludes expert testimony concerning victim responses and behaviors that touch upon
witness credibility, but decline to find that the case categorically precludes expert
testimony concerning victim behavior in response to sexual abuse. This said, whether
Detective Holzwarth’s testimony complies with the foregoing admissibility considerations
is a question for the trial court upon remand.
V. Conclusion
Accordingly, we reverse the judgment of the Superior Court and remand this matter
for a new trial consistent with this opinion.
Chief Justice Saylor and Justices Baer, Todd, Donohue, Dougherty and Wecht join the
opinion.
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