L.R. v. S.R. ( 2017 )

J-S28015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
S.R., JR.
Appellant No. 1837 WDA 2016
Appeal from the Order October 25, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 12-008542-016
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 23, 2017
S.R., Jr., (“Father”) appeals from the order entered on October 25,
2016 awarding him shared legal custody of E.R. (“Child”) (born in January
2008) with L.R. (“Mother”), primary physical custody to Mother, and partial
physical custody to Father on a supervised, community visit basis. We
affirm.
The trial court accurately summarized the factual background of this
case as follows:
This case centers on the Child’s allegations that Father sexually
abused her. The first sign of potential abuse was detected by
Maternal Grandfather in August of 2013 when the Child made
disconcerting comments. The Child was six [] years old at the
time. Maternal Grandfather testified that the Child told him he
could touch her in her privates. On August 17, 2013, Maternal
Grandfather informed Mother of the Child’s comments. Mother
testified that she and the Child were scheduled to attend an
event on August 18, 2013 so she planned to discuss the
comments with the Child afterward. Mother stated that while at
the event, the Child tripped over a small dog and proceeded to
* Retired Senior Judge assigned to the Superior Court.
J-S28015-17
have an emotional meltdown for fear that she had harmed the
dog. Mother testified that this behavior was unusual for the
Child. Mother stated that once they returned home she
discussed the comments with the Child and asked her who
touches her like that. The Child responded that [Father does].
Mother further testified that after the disclosure the Child’s
demeanor changed. The Child had become closed off and angry,
sometimes violent. Mother stated that the Child seemed to have
a sexual curiosity that wasn’t there before and that she began to
look at her body parts in the mirror. The [trial c]ourt found
Mother to be credible in her testimony.
The Child was eight [] years, old at the time of trial. She
testified that she understood the difference between truth and
lies. At trial, the Child was asked if she enjoys her visits with
Father and she responded that she did. She further stated that
she likes that she gets to talk to him for a little bit at the visits.
When she was asked, however, if she would like to see Father
more often she stated that she thinks it’s fine just the way it is.
She testified that she’s not afraid of Father, but that sometimes
she gets nervous during visits with him. The Child was asked
what type of activities she enjoys doing with Mother and
indicated that she likes when they go swimming. When she was
asked if she would like to go swimming with Father, the Child
responded “maybe if someone is with us.” The Child was asked
if Father had hurt her. She testified that he had but that she did
not remember what happened. The Child testified that she does
remember telling Mother about the incident but does not
remember what she disclosed. The Child indicated that Mother
remembers what was said and that Mother is telling the truth.
Father denied all allegations of sexual abuse.
Trial Court Opinion, 12/21/2016, at 4-5 (certain quotation marks and
paragraph break omitted).
The procedural history of this case is as follows. Prior to Child’s
allegations of sexual abuse, the parties had an informal custody
arrangement. After Mother learned of Child’s allegations, she began
withholding custody from Father. On November 22, 2013, Mother filed a
-2-
J-S28015-17
complaint requesting primary custody of Child. On January 3, 2014, Father
filed a motion seeking reinstatement of his visits with Child. On January 24,
2014, the trial court ordered the parties to undergo psychological
evaluations by Beth A. Bliss, Psy.D. That order also provided that Father
could have supervised visits with Child every Sunday at McDonald’s.
As a result of her evaluations, Dr. Bliss prepared a report. In that
report, Dr. Bliss opined that Child was sexually abused. On August 15,
2014, Mother sought to terminate Father’s supervised visits with Child. The
trial court instead ordered that the supervised visitations occur at Three
Rivers Adoption Council. A therapist at Three Rivers Adoption Council
informed the trial court that Child disclosed that she had been the victim of
sexual abuse. Thereafter, the trial court permitted Father to have weekly
telephone conversations with Child and ordered Child and Father to have
community visits prior to the supervised visits.
On March 8, 2016, the trial court increased the length of the
community visits and awarded Father partial physical custody of Child twice
per month. This partial physical custody was exercised at Arsenal Family &
Children’s Center. On October 5-6, 2016, a custody trial was held. On
October 24, 2016, the trial court issued findings of fact and conclusions of
law finding that Father sexually abused Child and awarding the parties
shared legal custody, primary physical custody to Mother, and partial
-3-
J-S28015-17
physical custody to Father on a supervised, community visit basis. This
timely appeal followed.1
Father raises four issues for our review:
1. Whether the trial court abused its discretion by certifying [Dr.
Bliss] as an expert[?]
2. Whether the trial court abused its discretion by admitting and
relying upon the expert report of [Dr. Bliss?]
3. Whether the trial court abused its discretion in admitting and
relying upon an uncertified docket sheet to prove that [Father]
was charged with a crime on a certain date and convicted of a
certain crime[?]
4. Whether the trial court abused its discretion in finding that
Child has been sexually abused by [Father?]
Father’s Brief at 13.
In his first issue, Father argues that the trial court erred in certifying
Dr. Bliss as an expert witness. “[T]he admission of expert scientific
testimony is an evidentiary matter for the trial court's discretion and should
not be disturbed on appeal unless the trial court abuses its discretion.”
Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003) (citation
omitted). Pennsylvania Rule of Evidence 702 provides that:
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:
____________________________________________
1
Father filed a concise statement of errors complained of on appeal
contemporaneously with his notice of appeal. See Pa.R.A.P. 1925(a)(2)(i)
and (b). On December 21, 2016, the trial court issued its Rule 1925(a)
opinion. All of Father’s issues were included in his concise statement.
-4-
J-S28015-17
(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.Evid. 702. “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).
In this case, Father does not challenge the trial court’s determination
that Dr. Bliss’ testimony would help it determine if Child were sexually
abused by Father. See Pa.R.Evid. 702(b). Father also does not challenge
the trial court’s determination that Dr. Bliss’ methodology is generally
accepted in the field of psychology. See Pa.R.Evid. 702(c). Instead, Father
argues that Dr. Bliss’ lack of a license to practice psychology made her
unqualified to be an expert witness in this case.
In 2007, Dr. Bliss received her undergraduate degree in psychology
from Kent State University. In 2010, she received her master’s in clinical
psychology from Indiana University of Pennsylvania. In 2013, she received
her doctorate in psychology from Indiana University of Pennsylvania. Prior
to evaluating the parties in this case, Dr. Bliss completed training in child
-5-
J-S28015-17
custody, with a focus on sexual abuse. She also completed an internship
where she concentrated on sex offenses and sex offenders. She has
published three academic articles, including two which focused on children.
When Dr. Bliss evaluated the parties in this case, she had yet to complete
post-doctorate work required to become a licensed psychologist.
This extensive education and practical training provided Dr. Bliss with
“scientific, technical, or other specialized knowledge [] beyond that
possessed by the average layperson[.]” Pa.R.Evid. 702(a). Father’s
argument that, because at the time Dr. Bliss evaluated the parties she
lacked a license to practice psychology and, therefore, was not qualified to
give an expert opinion in this case, is without merit. “Pennsylvania courts
have not held that licensing is a requirement for qualification of an expert.”
Ford ex rel. Pringle v. Philadelphia Hous. Auth., 789 A.2d 360, 362 (Pa.
Cmwlth. 2001), appeal denied, 803 A.2d 736 (Pa. 2002), citing McClain v.
Welker, 761 A.2d 155 (Pa. Super. 2000). This child custody case is not
governed by the Medical Care Availability and Reduction of Error Act, 40 P.S.
§ 1303.101 et seq. Therefore, the general rule that an expert need not be
licensed as long as he or she possesses “scientific, technical, or other
specialized knowledge [] beyond that possessed by the average layperson”
applies. Pa.R.Evid. 702(a). As Dr. Bliss possesses such scientific, technical,
or other specialized knowledge, we conclude that the trial court did not
abuse its discretion in certifying Dr. Bliss as an expert witness.
-6-
J-S28015-17
In his second and third issues, Father challenges the trial court’s
admission of evidence. “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)
(citation omitted).
Father argues that the trial court erred in admitting Dr. Bliss’ expert
report.2 He contends that the report was completed under the direct
supervision of Dr. J. Anthony McGroarty and it required Dr. McGroarty’s
signature. He argues that since Dr. McGroarty failed to sign the report and
was not available for cross-examination as required by Pennsylvania Rule of
Civil Procedure 1915.8(a), the trial court abused its discretion in admitting
and relying upon it. This argument is without merit. The record reflects that
____________________________________________
2
Dr. Bliss’ expert report is not included in the certified record. This Court’s
prothonotary contacted the trial court regarding this omission and was
notified that the trial court did not include the report in the certified record
because it contained confidential information and was sealed. A copy of Dr.
Bliss’ expert report is included as an attachment to Father’s brief. As the
trial court has confirmed that it has a copy of the report, Mother does not
allege that the report attached to Father’s brief is inaccurate, and this is a
children’s fast track case, we have utilized this copy to expedite disposition
of this appeal. We remind Father’s counsel that it is his responsibility to
ensure that all materials necessary for our review are included in the
certified record. See Commonwealth v. Martz, 926 A.2d 514, 525 (Pa.
Super. 2007), appeal denied, 940 A.2d 363 (Pa. 2008). We also remind the
trial court that it is required to transmit the entire certified record to this
Court, including any documents that are confidential and/or sealed. See
Pa.R.A.P. 1921.
-7-
J-S28015-17
Dr. Bliss submitted the expert report. The report is on her letterhead, not
Dr. McGroarty’s letterhead, and is signed by Dr. Bliss. Although Dr.
McGroarty’s name appears next to Dr. Bliss’ name in the signature block,
this is because Dr. Bliss had not yet received her license to practice
psychology at the time she authored the report. As noted above, however,
a license to practice psychology is not required in order for an individual to
be admitted as an expert in a child custody dispute. Therefore, Dr. Bliss was
permitted to author an expert report. She did so in this case and was
subject to cross-examination. Rule 1915.8(a) only requires the author of an
expert report to be subject to cross-examination. It does not require that
any individual named in the expert report be subject to cross-examination.
Accordingly, we conclude that the trial court did not abuse its discretion in
admitting Dr. Bliss’ expert report into evidence.
Father next argues that the trial court erred in admitting docket sheets
that showed he was convicted of driving under the influence (“DUI”) in 2015.
According to Father, the docket sheets were hearsay not subject to a
recognized hearsay exception. We conclude that, even if the docket sheets
were improperly admitted hearsay, such error was harmless.
“An error is harmless if it could not have contributed to the verdict[.]”
Commonwealth v. McClure, 144 A.3d 970, 975–976 (Pa. Super. 2016)
(citation omitted). In this case, the trial court used the docket sheets to
show that Father was untruthful when he spoke to Dr. Bliss about his drug
-8-
J-S28015-17
and alcohol history. This evidence, however, was unnecessary for the trial
court to determine that Father was untruthful when he spoke to Dr. Bliss.
Specifically, Father testified that he was convicted of DUI in 2015. N.T.,
10/6/16, at 416.3 As such, the docket sheets were merely duplicative of
Father’s own admission at trial.
Father also argues that the trial court erred in considering Dr. Bliss’
report and opinions which were based, in part, on these docket sheets. It is
well-settled, however, that an expert witness may rely upon inadmissible
hearsay when offering an expert opinion. See Pa.R.Evid. 703;
Commonwealth v. Brown, 139 A.3d 208, 218 (Pa. Super. 2016), appeal
granted, 2016 WL 7235309 & 2016 WL 7235589 (Pa. Dec. 14, 2016); In re
D.Y., 34 A.3d 177, 182–183 (Pa. Super. 2011), appeal denied, 47 A.3d 848(Pa. 2012); Boucher v. Pa. Hosp., 831 A.2d 623, 628 (Pa. Super. 2003),
appeal denied, 847 A.2d 1276 (Pa. 2004); Primavera v. Celotex Corp.,
608 A.2d 515, 519–520 (Pa. Super. 1992), appeal denied, 622 A.2d 1374(Pa. 1993); Maravich v. Aetna Life & Casualty Co., 504 A.2d 896, 900–
901 (Pa. Super. 1986); Commonwealth v. Thomas, 282 A.2d 693, 698
(Pa. 1971). An expert in psychology would reasonably rely upon docket
sheets to determine if an individual was forthcoming about his or her drug
____________________________________________
3
The transcript from the October 5-6, 2016 hearing is continuously
paginated. We cite to the correct date and the page number reflected on the
transcript.
-9-
J-S28015-17
and/or alcohol use. As such, Dr. Bliss could rely upon the docket sheets
even if they were inadmissible hearsay. Accordingly, any error in admitting
the docket sheets was harmless.
In his final issue, Father argues that the trial court erred in concluding
that he sexually abused Child. “We must accept findings of the trial court
that are supported by competent evidence of record, as our role does not
include making independent factual determinations. In addition, with regard
to issues of credibility[,] . . . we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand.” E.R. v. J.N.B., 129 A.3d
521, 527 (Pa. Super. 2015), appeal denied, 135 A.3d 586 (Pa. 2016)
(citation omitted).
Appellant’s entire argument related to this claim of error centers on
the alleged improper admission of Dr. Bliss’ expert testimony and report. As
noted above, we conclude that the trial court did not err by qualifying Dr.
Bliss as an expert witness and admitting her expert report. Accordingly, the
trial court did not err in finding that Father sexually abused Child.
Order affirmed.4
____________________________________________
4
Mother did not file a cross-appeal in this case and, therefore, we lack the
authority to modify the trial court’s order to award Mother the full relief she
sought before the trial court. Nonetheless, we are very concerned that
Father, who the trial court found sexually abused Child, may exercise six
hours of physical custody every month and has shared legal custody of
Child. We impress upon all individuals involved in this case that they have
(Footnote Continued Next Page)
- 10 -
J-S28015-17
Judge Moulton joins.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
_______________________
(Footnote Continued)
both a moral and legal responsibility to ensure that Child is not abused by
Father in the future.
- 11 -