Com. v. Sheffer, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW JOHN SHEFFER :
:
Appellant : No. 1501 MDA 2019
Appeal from the Judgment of Sentence Entered May 3, 2019
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000205-2017
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 25, 2020
The Court of Common Pleas of Centre County sentenced Appellant
Matthew John Sheffer to an aggregate term of 20 to 40 years’ imprisonment
after a jury convicted him of sexually abusing his former girlfriend’s 11-year-
old daughter, D.N. In this appeal, Sheffer takes issue with the testimony
offered by several witnesses at his trial. Those witnesses include D.N.’s
grandparents, D.N.’s school guidance counselor, and Dr. Veronique Valliere,
the Commonwealth’s expert on sexual violence. Sheffer also alleges the
verdict was against the weight of the evidence. After careful review, we
conclude that Sheffer’s arguments do not offer him any basis for relief and we
therefore affirm his judgment of sentence.
In February 2013, after meeting A.S., D.N.’s mother, online, Sheffer
moved to Maine to live with A.S. and D.N. D.N. was A.S.’s daughter from a
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previous relationship with B.N., who also lived in Maine. Approximately one
year after Sheffer moved to Maine, around February 2014, he, A.S. and D.N.
moved to Pennsylvania. Sheffer and A.S.’s relationship ended around March
2016, and Sheffer moved out of their house about one month later.
In June 2016, D.N. went to visit her father, B.N., in Maine. During that
visit, D.N. confided to her half-brother, M.F., that Sheffer had sexually abused
her. M.F. told their grandparents about the abuse who, in turn, told B.N.’s
fiancé about the abuse. B.N.’s fiancé told B.N. B.N. called D.N., who had
returned to Pennsylvania, and persuaded her to tell A.S. A.S. reported the
abuse, and Sheffer was arrested and charged with, inter alia, ten counts of
rape of a child. Sheffer’s first two trials ended in a mistrial.
The Commonwealth and Sheffer both filed pre-trial motions in limine.
The Commonwealth filed a motion to allow the testimony of D.N.'s guidance
counselor, R.M., and the trial court ultimately allowed this testimony.
Meanwhile, Sheffer filed a motion to preclude the testimony of Dr. Valliere,
which the trial court ultimately denied.
Sheffer’s trial began on February 13, 2019, and the Commonwealth’s
first witness at the trial was D.N. D.N. testified that when she first moved to
Pennsylvania she attended an after-school care program. However, she
stopped attending that program sometime around December 2015, when she
was 11 years old. Once she stopped going to the after-school program, D.N.
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was often alone with Sheffer in the afternoon while A.S. was at work. D.N.
testified that the two would talk and play video games.
At some point, D.N. testified, Sheffer began asking her to try on her
bathing suits and her mother’s clothing for him. One day, Sheffer sat down
next to D.N. on her bed and touched her vagina. D.N. then described various
forms of sexual abuse that Sheffer inflicted on her, including Sheffer
penetrating her vagina with his penis. The abuse took place over the course
of approximately four months, from some time after D.N. stopped going to
the after-school care program to when Sheffer left the house in April 2016.
A.S. also testified at the trial. She testified that she met Sheffer after
leaving a physically abusive relationship with D.N.’s father, B.N., and that she
had sought and obtained full custody of D.N. so that she and D.N. could move
to Pennsylvania with Sheffer. She stated that after she moved to
Pennsylvania, she worked as an insurance auditor from nine to five on
weekdays. Meanwhile, A.S. testified, Sheffer worked part-time as a server at
a country club. A.S. recounted how, in late July 2016, D.N. disclosed to her
that Sheffer had sexually abused her and that A.S. reported that abuse to the
authorities the next day. A.S. told the jury that she and D.N. moved back to
Maine in August 2016.
The Commonwealth also called D.N.'s grandparents, B.N., M.F., as well
as R.M., D.N.’s guidance counselor, to the stand. Two experts also testified
for the Commonwealth. Pediatrician Dr. Kristie Kaufman testified about the
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results of the physical exam she performed on D.N. after A.S. reported the
abuse. Dr. Valliere testified generally about the dynamics of sexual abuse,
victim responses to sexual abuse and the impact of sexual abuse on victims.
The defense called M.L., Sheffer’s brother-in-law, to testify. M.L.
testified that he and Sheffer were trying to start a business together and he
was therefore often in the garage at Sheffer’s house during the period of time
D.N. testified the abuse occurred. According to M.L., he never heard or saw
anything inappropriate between Sheffer and D.N. Sheffer testified on his own
behalf, denying that he had sexually assaulted D.N.
Following the three-day trial, the jury convicted Sheffer on all counts,
which included ten counts of rape of a child, one count of involuntary deviate
sexual intercourse, three counts of aggravated indecent assault of a child and
fourteen counts of indecent assault of a child. The court sentenced Sheffer to
an aggregate term of 20 to 40 years’ imprisonment.
Sheffer filed a post-sentence motion, which the trial court denied.
Sheffer filed a notice of appeal1 and complied with the trial court’s directive to
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1 Sheffer filed his post-sentence motion on May 9, 2019. The trial court’s order
denying that post-sentence motion was not entered until September 10, 2019,
four days after the 120-day period allotted for ruling on post-sentence
motions. See Pa.R.Crim.P. 720(B)(3)(a). However, Sheffer filed his notice of
appeal on the same day as the order denying his post-sentence motion was
entered, so we discern no issue with the timeliness of his appeal. See
Pa.R.Crim.P. 720(A)(2)(b) (stating that if a defendant files a timely post-
sentence motion, a notice of appeal must be filed within 30 days of the entry
of the order denying the motion by operation of law).
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file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The
court issued a Pa.R.A.P. 1925(a) opinion responding to Sheffer’s statement,
and we now consider the issues Sheffer raises in his appeal to this Court.
At their core, Sheffer’s first three claims challenge the trial court’s
rulings on the admissibility of evidence at his trial. A trial court’s decision to
admit or exclude evidence will only be reversed on appeal if the trial court
abused its discretion in making that decision. See Commonwealth v.
Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017). An abuse of discretion is
not merely an error of judgment. See id. Rather, an abuse of discretion only
occurs when the trial court overrides or misapplies the law, or exercises
judgment that is manifestly unreasonable or the result of partiality, prejudice,
ill-will or bias. See id.Evidence is only admissible if it is relevant, see Pa.R.E. 402, meaning
that it logically tends to establish a material fact or tends to support a
reasonable inference regarding a material fact. See Commonwealth v. Reid,
811 A.2d 530, 550 (Pa. 2002). However, a trial court may exclude evidence
even if it is relevant when it determines, in its discretion, that the probative
value of the evidence is outweighed by the danger that the evidence may,
inter alia, cause unfair prejudice, confuse the issues, mislead the jury, or
needlessly present cumulative evidence. See Pa.R.E. 403 (“Rule 403”).
Grandparents’ Testimony
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Sheffer first alleges that the trial court abused its discretion by allowing
D.N.'s grandparents to testify because he believes their testimony amounted
to double hearsay. He further asserts that even if the testimony did not
constitute hearsay, the trial court should have precluded it pursuant to Rule
403 for multiple reasons. None of these claims have merit.
On the second day of Sheffer’s trial, the Commonwealth made an oral
motion requesting that the trial court allow D.N.’s grandparents to testify. The
grandparents would testify that M.F. told them about D.N.’s disclosure that
Sheffer had abused her. In support of its motion, the Commonwealth
explained that it wanted to present the grandparents’ testimony to rebut the
defense’s theory that B.N. had prompted D.N. to falsely accuse Sheffer of the
sexual abuse. The Commonwealth wanted to show that the grandparents were
part of the chain of D.N.’s disclosure, and that the chain did not originate with
B.N. The court granted the motion and in doing so, rejected Sheffer’s
argument that this testimony was inadmissible hearsay. However, the court
specifically limited the grandparents’ testimony to the fact that “they were in
the chain and passed [D.N.’s disclosure of abuse] on.” N.T. Trial, 2/14/19, at
9.
Sheffer first claims that the trial court abused its discretion by allowing
this testimony because it was double hearsay. However, as the trial court
found, the grandparents’ testimony was not hearsay at all as it was not offered
to prove the truth of the matter asserted, i.e. that Sheffer, in fact, abused
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D.N. See Pa.R.E. 801(c) (defining hearsay as a statement, other than the one
made by the declarant while testifying at the trial or hearing, offered to prove
the truth of the matter asserted).
Instead, the testimony was offered to demonstrate that the
grandparents were part of the chain of disclosure, i.e. D.N. told M.F. who told
the grandparents, and to show what the grandparents did with that
information, i.e. the grandparents told B.N.’s fiancé who then told B.N. As
such, we see no abuse of discretion in the trial court’s conclusion that the
grandparents’ testimony did not constitute hearsay. See Commonwealth v.
Wade, 226 A.3d 1023, 1033 (Pa. Super. 2020) (stating that a statement
introduced to explain a witness’s course of conduct is not hearsay);
Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012) (holding that a
witness’s testimony that another individual told him and the defendant that
the victim had robbed the individual was not hearsay when it was not offered
to show that the robbery occurred but to show only that the statement had
been made to the defendant and motivated the defendant to act).2
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2 In support of his position, Sheffer cites a United States Supreme Court case
from 1813, Queen v. Hepburn, 11 U.S. 290 (1813), and claims that “it is
difficult to find a case more on point than Hepburn.” Appellant’s Brief at 26.
We do not agree. Hepburn was a case initiated by a slave seeking
emancipation under a Maryland law that allowed slaves to prove that an
ancestor had been emancipated. Relevant to Sheffer’s argument, the
Hepburn Court overruled a Maryland law allowing hearsay in support of a
petitioner’s claim for freedom based on “an ancestor who had been dead for
a great length of time.” Id. at 298 (Duvall, J., dissenting). We fail to see how
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Sheffer further alleges that, even if the testimony was not hearsay, it
should not have been admitted pursuant to Rule 403 because it was
cumulative, distracted the jury, and was unduly prejudicial. In the first
instance, it is questionable whether any of these claims were properly
preserved as Sheffer only asserted in his 1925(b) statement that the
grandparents’ testimony, if not hearsay, was irrelevant and improperly
bolstered the credibility of the witnesses. See Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998) (holding that issues not raised in a 1925(b)
statement are waived). Regardless, the claims are devoid of merit as none of
them demonstrate that the trial court abused its discretion in admitting the
grandparents’ testimony.
Sheffer argues that the trial court should not have admitted the
grandparents’ testimony pursuant to Rule 403 because it was merely
cumulative of M.F.’s testimony that he told his grandparents about D.N.’s
disclosure and B.N.’s testimony that he learned about the allegations from his
fiancé who had learned of them from his parents. We disagree.
Under Rule 403, a trial court may, in its discretion, preclude relevant
evidence if its probative value is outweighed by the danger of needlessly
presenting cumulative evidence. See Pa.R.E. 403. Here, as the
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Hepburn undermines our conclusion that the trial court did not abuse its
discretion in finding that D.N.’s grandparents’ testimony was not hearsay in
circumstances vastly different from those in Hepburn.
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Commonwealth points out, “due to [Sheffer] claiming said disclosure was a
result of [B.N.] forcing [D.N.] to make it up while on a visit to Maine, it was
important to fully flesh out the circumstances surrounding the disclosure.”
Commonwealth’s Brief at 30-31. As the grandparents were a distinct part of
the chain of disclosure, and their testimony was brief and limited to describing
their part in how D.N.'s disclosure ultimately came to light, we do not agree
with Sheffer that the grandparents’ testimony was needlessly cumulative.3
Sheffer goes on to argue, however, that the grandparents’ testimony
and “hearing [D.N.’s] accusations voiced over and over again” caused undue
prejudice because of the phenomenon known as “illusory truth,” which causes
a person to be more likely to believe something the more times they hear it.
Appellant’s Brief at 34. It does not appear that Sheffer ever asserted the
applicability of this phenomenon before the trial court and it is arguably also
waived for that reason. See Pa.R.A.P. 302(a) (stating that issues not raised
in the lower court are waived). In any event, the grandparents did not testify
about the specific content of D.N.’s allegations at all. Rather, they only
testified about how they became aware of those allegations and what they
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3 Even if we were to agree with Sheffer that the grandparents’ testimony was
improperly admitted because it was cumulative, we would find that any error
in the admission of this testimony was, at most, harmless for the very reason
that it was cumulative. See Commonwealth v. Chmiel, 889 A.2d 501, 521
(Pa. 2005) (harmless error exists when challenged testimony is merely
cumulative of other untainted evidence).
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proceeded to do with that information. Accordingly, Sheffer’s claim is simply
not supported by the record.
Sheffer’s assertion that the grandparents’ testimony also distracted the
jury from the main issues of the case is likewise not supported by the record.
Sheffer maintains that “the only purpose served by the grandparents’
testimony was enabling the jury to see how the entire family had been hurt
by this alleged act.” Appellant’s Brief at 32. However, neither grandparent
testified to this effect at trial or was ever asked about the emotional impact
the allegations had on their family. As with Sheffer’s other claims challenging
the testimony of D.N.’s grandparents, this claim warrants no relief.
Guidance Counselor’s Testimony
Next, Sheffer argues the trial court erred by allowing the testimony of
D.N.'s guidance counselor, R.M., on multiple grounds. According to Sheffer,
the trial court should have excluded R.M.’s testimony under Rule 403 because
it confused the issues, misled the jury and was unfairly prejudicial. These
claims all fail.
At trial, R.M. testified that she was D.N.’s guidance counselor at D.N.’s
elementary school in Pennsylvania. R.M. testified that D.N. had a difficult time
acclimating to her new school when she arrived in the fourth grade, but that
she was more adjusted in the fifth grade and in the first half of sixth grade.
However, R.M. testified that D.N. became very agitated starting in January
2016, or what was the second half of D.N.’s sixth-grade year. D.N. would not
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tell R.M. what was wrong. R.M. testified that around April 2016, D.N. was
angry that she may not be able to move back to Maine, which R.M. testified
was a change from D.N.’s previous disclosures in fourth grade that she did not
want to go back to Maine.
R.M. also testified that D.N. never told her that she was being abused.
R.M. admitted that she did not report any abuse during the time D.N. was at
her elementary school because she did not have any specific evidence of
abuse. However, R.M. testified that she was moved to report her observations
about R.M.’s behavior to the police after she read a newspaper article about
this case in August of 2018.4
Sheffer first asserts that the trial court should have excluded R.M.’s
testimony as it was so speculative that it caused the jury to confuse the issues.
Sheffer maintains that, although R.M. testified that D.N. was agitated during
the time of the alleged abuse, D.N. could have been agitated for any number
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4 As the trial court explained:
[R.M.] contacted authorities when she read about the charges
having been filed against Mr. Sheffer regarding an unnamed girl
at her school district. What caught her attention was the
timeframe in which the alleged abuse was to have occurred as well
as the fact that the child had allegedly moved back to Maine from
Pennsylvania. She recalled her interactions with the complainant
during the timeframe and was sufficiently moved by their
significance that she felt it important to contact the Pennsylvania
State Police.
Trial Court Opinion, 10/31/19, at 4 (unpaginated).
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of reasons and the jury was left to “speculate as to the reason for such
agitation and infer abuse.” Appellant’s Brief at 38. This claim warrants no
relief.
Sheffer relies on Commonwealth v. Douglass, 588 A.2d 53 (Pa.
Super. 1991) to support his contention. In Douglass, a school principal was
charged with simple assault after excessively paddling a seven-year-old
student. In an attempt to establish that independent factors contributed to
the student’s mental distress following that paddling, the principal sought to
introduce evidence that the student’s mother used drugs. The trial court ruled
that this evidence was inadmissible. In concluding that the trial court had not
abused its discretion in precluding the evidence, this Court specifically noted
that the nexus between the mother’s drug activity and the student’s fear of
the principal following the paddling was tenuous at best. See id. at 58.
Sheffer asserts R.M.’s testimony should have been excluded because it
was “akin to the mother’s drug use in Douglass.” Appellant’s Brief at 40. We
do not agree. If anything, we find that Douglass actually supports the trial
court’s decision to allow R.M.’s testimony. The jury in the instant case, like
the jury in Douglass, could have reasonably inferred that the victim’s
emotional distress was related to the abuse. As the trial court below reasoned,
R.M.’s testimony “about the change in [D.N.’s] behavior, as well as her change
in desire to move to Maine, was consistent with the timeline of abuse which
she had disclosed.” Trial Court Opinion, 10/31/19, at 5 (unpaginated). The
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trial court therefore found that the testimony was proper circumstantial
evidence of the abuse, and that it was up to the jury to place whatever weight
on that testimony as it deemed fit.5 We see no abuse of discretion in this
determination.
Sheffer also contends that R.M.’s testimony misled the jury because of
“the phenomenon in psychology known as hindsight bias [, which] … pertains
to the overestimation that people make about their ability to have predicted
something after they discovered it.” Appellant’s Brief at 42. Sheffer appears
to contend that R.M. suffered from hindsight bias because she did not suspect
D.N. had been abused until after she read the newspaper article and this
insight, Sheffer maintains, is “indicative of hindsight bias in action.” Id. at 44.
This claim also offers no basis for relief.
In the first place, Sheffer does not direct this Court to any part of the
record where he raised this “hindsight bias” claim before the trial court. See
Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are
waived). In any event, as the Commonwealth points out, R.M. admitted to the
jury during cross-examination that she did not report her observations about
D.N.’s behavior to the police until after she read the newspaper article in
August 2018. The jury was therefore aware of these circumstances when
determining the weight it deemed appropriate to give to R.M.’s testimony.
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5As both the trial court and Commonwealth noted, Sheffer was free to cross-
examine R.M. about the possible alternative reasons for D.N.’s agitation.
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While Sheffer laments that the jury was misled because it “had no
reason to be aware of the hindsight bias phenomenon,” he does not argue
that he made any attempt to offer any evidence about, or otherwise introduce,
this phenomenon to the jury. Appellant’s Brief at 42. Moreover, as the
Commonwealth notes, “the notion that ‘hindsight is 20/20,’ which is
essentially what [Sheffer] is referring to, is a well-known concept and falls
well within the purview of a lay jury to understand and apply when judging
the credibility and weight of the guidance counselor’s testimony.”
Commonwealth Brief at 44. No relief is due.
Sheffer also appears to assert that the trial court erred by not
conducting a Rule 403 balancing test on the record. According to Sheffer, “if
no balancing test was conducted, then there was no determination that the
probative value of the guidance counselor’s testimony outweighed the unfair
prejudice to Mr. Sheffer.” Appellant’s Brief at 47. This claim also fails.
As a threshold matter, Sheffer did not raise this claim in his 1925(b)
statement and it is waived for that reason. See Lord, 719 A.2d at 309. Even
if Sheffer had properly preserved this issue for our review, he does not point
to any case law from this Commonwealth requiring a trial court to conduct a
Rule 403 balancing test on the record before it deems evidence admissible.
Instead, Sheffer cites several cases from the Third Circuit to support his
proposition that it must be apparent from the record that the trial court
conducted a Rule 403 analysis.
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Of course, we are not bound by federal circuit court decisions. See
Wenk v. State Farm Co., 228 A.3d 540, 550 n.9 (Pa. Super. 2020).
Moreover, as even Sheffer acknowledges elsewhere in his brief, the federal
counterpart to Pennsylvania’s Rule 403 does not incorporate the same
standard as the one in our state’s Rule 403. See Comment to Pa.R.E. 403
(“Pa.R.E. 403 differs from F.R.E. 403”). Regardless, in rejecting the same
argument as the one advanced by Sheffer here, our Supreme Court stated:
Appellant is entitled to no relief resulting from the trial court’s
failure to articulate its balancing test on the record. We presume
that the trial courts know the law, and there is nothing in this
record to suggest that this trial court did not understand its duty
to weigh the evidence in accord with the Rules of Evidence. Such
weighing and the general consideration of the admissibility of
evidence is a discretionary ruling which trial courts routinely
engage in mentally. There is no requirement that it record these
mental deliberations on the record.
Commonwealth v. Hairston, 84 A.3d 657, 667 (Pa. 2014).
Accordingly, Sheffer’s claim that R.M.'s testimony was inadmissible
because the trial court did not conduct a Rule 403 balancing test on the record,
even if not waived, offers him no basis for relief.
Dr. Valliere’s Testimony
Sheffer argues that the trial court abused its discretion by allowing Dr.
Valliere’s testimony because it went beyond the parameters allowed by 42
Pa.C.S.A. § 5920 in several different ways. None of these claims warrant any
relief.
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Section 5920, pursuant to which Dr. Valliere testified, is a statutory rule
of evidence that permits qualified experts to testify in certain criminal
proceedings about the general dynamics of sexual violence, victim responses
to sexual violence, and the impact of sexual violence on victims. See 42
Pa.C.S.A. § 5920 (b)(1). Section 5920 permits experts to testify as to their
“opinions regarding specific types of victim responses and victim behaviors.”
Id. at § 5920(b)(2). However, Section 5920 specifically prohibits experts from
offering their opinion on the credibility of any witness, including the victim.
See id. at § 5920(b)(3).
Sheffer first argues, in essence, that Dr. Valliere’s testimony violated
Section 5920’s prohibition against giving credibility opinions because her
testimony improperly vouched for D.N.’s testimony. While Sheffer
acknowledges that Dr. Valliere never offered an explicit opinion as to whether
D.N. was credible, Sheffer nonetheless contends that Dr. Valliere improperly
bolstered D.N.’s credibility by portraying D.N.’s behavior as that exhibited by
a “normal, true sexual assault victim.” Appellant’s Brief at 53.
In support of his claim, Sheffer identifies certain portions of Dr. Valliere’s
testimony about general victim behavior which he believes served to implicitly
bolster D.N.’s credibility. Specifically, Sheffer points to Dr. Valliere’s testimony
that: sexual abuse victims commonly provide gradual or piecemeal disclosure;
sexual abuse victims will likely remain attached to the perpetrator during the
time they are being abused; and sexual abuse victims generally do not
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immediately disclose the abuse but rather, delay their disclosure. All of these
topics fall squarely within the category of testimony permissible under Section
5920(b)(2).
Sheffer complains, however, that because D.N.’s testimony at trial
revealed that she disclosed the abuse in a piecemeal fashion, continued to
have a relationship with Sheffer throughout the abuse, and did not disclose
the abuse until a few months after it ended, Dr. Valliere’s testimony regarding
how victims generally behave basically had the same effect as if she had told
the jury that D.N. behaved like a typical sexual abuse victim and therefore
actually was one. We do not agree.
Contrary to what Sheffer suggests, Dr. Valliere never explicitly
addressed whether Sheffer abused D.N., testified as to how D.N. in particular
reacted to being abused, or expressed any opinion regarding the overall
truthfulness of D.N.'s testimony. In fact, Dr. Valliere made it clear to the jury
that she had never spoken to D.N., that she did not have any opinion about
this particular case, and that she was not in any way evaluating either “this
defendant or this victim.” N.T. Trial, 2/13/19, at 155; see also id. at 142-
143. The fact that D.N. exhibited the same behaviors as those which Dr.
Valliere testified are generally seen in sexual abuse victims simply does not
translate into Dr. Valliere improperly offering her opinion about the credibility
of D.N. in particular. See Commonwealth v. Cramer, 195 A.3d 594, 608
(Pa. Super. 2018) (holding that the testimony regarding general victim
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responses given by the expert, also Dr. Valliere, did not improperly bolster the
victim’s credibility when Dr. Valliere did not know the factual background of
the allegations, only responded to the Commonwealth’s general questions and
did not offer any opinion on the victim’s credibility or whether the victim’s
particular responses to the particular assault in that case were normal).
Moreover, the trial court gave the jury an instruction on expert
testimony and in doing so, specifically mentioned Dr. Valliere’s testimony. See
N.T. Trial, 2/15/19, at 66. In this vein, the trial court reminded the jurors, as
it had explained to them during its opening remarks, that they were the sole
judges of the credibility and weight of the testimony. See N.T. Trial, 2/13/19,
at 8-9; N.T. Trial, 2/15/19, at 67. The court continued:
The fact that the lawyers and I may have referred to certain
witnesses as experts and that the witnesses may have special
knowledge or skill does not mean that their testimony or opinions
are right. When you are determining the credibility and weight of
an expert’s testimony and opinions consider all of the factors that
I described earlier that are relevant when evaluating the
testimony of any witness.
N.T. Trial, 2/15/19, at 67.
Given that Dr. Valliere’s testimony did not improperly vouch for the
credibility of D.N., and that the jury was explicitly instructed that it was its
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province alone to determine the credibility of each and every witness, we
conclude that Sheffer is not entitled to any relief on the basis of this claim. 6
Sheffer also contends that Dr. Valliere should not have been allowed to
testify at this trial because she had previously obtained knowledge of the facts
of the case when she testified at his second trial. Thus, Sheffer contends, Dr.
Valliere was not the “blind” expert witness that he maintains is required by
Section 5920. As a threshold matter, this issue is waived as Sheffer did not
raise it before the trial court or in his 1925(b) statement. See Pa.R.A.P.
302(a); Lord, 719 A.2d at 309. Even if not waived, the claim lacks merit.
Although not expressly mandated by Section 5920, this Court
suggested in Cramer that experts testifying pursuant to Section 5920 should
not have direct familiarity with the specific facts underlying the allegations at
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6 Interlaced among his argument that Dr. Valliere improperly bolstered D.N.’s
credibility is Sheffer’s assertion that Dr. Valliere’s testimony also ran counter
to the trial court’s instructions. Specifically, Sheffer asserts that Dr. Valliere’s
testimony that “it was part of the ‘process’ for a complainant to at one point
say something did not happen, but later on say that it did,” Appellant’s Brief
at 57, conflicted with the court’s instructions to the jury that inconsistent
testimony can be used as evidence “of the truth of anything that the witness
said in an earlier statement” and to “help you judge the credibility [of that
witness].” N.T. Trial, 2/15/19, at 64. However, Sheffer misrepresents Dr.
Valliere’s testimony. When asked about a situation where a complainant says
she had been abused in a particular way that she had previously said she had
not, Dr. Valliere responded that “that may not be inconsistent at all. That may
just be incomplete … That’s why disclosure is a process. More details unfold
over time.” N.T. Trial, 2/13/19, at 152-153. We do not agree with Sheffer that
this testimony had the effect of undermining the court’s instructions to the
jury about how it could properly use any testimony that it found to be
inconsistent.
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issue in the trial in which they are offering their general expert testimony. To
that end, in support of our determination that the expert in Cramer had not
improperly bolstered the credibility of the sexual abuse victim in that case, we
stated that the “Commonwealth did not provide Dr. Valliere with a factual
account of the allegations against Appellant, and she testified without knowing
anything about the allegations, the Victim or Appellant in order to comply with
Section 5920.” Cramer, 195 A.3d at 608.
Sheffer alleges the same was not true in this case. In support of his
argument, Sheffer notes that prior to questioning Dr. Valliere at the second
trial, the Commonwealth gave Dr. Valliere some basic information about the
case so that she could have some context when providing answers to the
Commonwealth’s general questions about victim behavior. This information
included the defendant’s age, that the defendant had been accused of sexually
abusing his former girlfriend’s 11 year-old daughter, their living
arrangements, and that there was a history of domestic abuse between the
victim’s mother and father. However, the Commonwealth provided this same
information to Dr. Valliere, without objection, before questioning her at the
third trial. See N.T. Trial, 2/13/19, at 123-124. We agree with the
Commonwealth that “providing general context to focus an expert’s testimony
does not negate their blind status.” Commonwealth’s Brief at 51.
Notably, Dr. Valliere also unequivocally testified that she had not
reviewed anything about, or interviewed anyone involved, in this particular
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case and knew nothing about the specific facts of this case. See N.T. Trial,
2/13/19, at 142, 143-145, 155. Accordingly, even if not waived, Sheffer’s
claim in this regard fails.
Sheffer also challenges the Commonwealth’s use of hypotheticals during
its questioning of Dr. Valliere because, according to Sheffer, these
hypotheticals “fed the facts of the case” to Dr. Valliere in violation of Section
5920. Appellant’s Brief at 58. He complains that the Commonwealth’s
hypothetical questions to Dr. Valliere improperly tracked the testimony of D.N.
and therefore amounted to “poorly disguised attempts to have [Dr. Valliere]
opine on [D.N.’s] credibility.” Id. at 64. This claim offers no basis for relief.
This Court has held that hypothetical questions are an appropriate way
to question experts, such as Dr. Valliere, who do not have personal knowledge
of the facts of a case. See Commonwealth v. Clemat, 218 A.3d 944, 957
(Pa. Super. 2019) (stating that the Commonwealth may ask expert witnesses
hypothetical questions so long as the record supports the hypothetical);
Ranieli v. Mut. Life Ins. Co., 413 A.2d 396, 398 (Pa. Super. 1979) (stating
that hypotheticals are an acceptable method of allowing experts to render
opinions on facts not personally known to the expert). The Commonwealth
properly used such hypothetical questions here and in fact, did so at the
direction of the trial court. See N.T., 2/13/19, at 132.
Of course, hypothetical questions which ask or elicit testimony about the
credibility of a child in that hypothetical scenario are not permitted under
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Section 5920. See Commonwealth v. Leap, 222 A.3d 386, 388 n.3, 392
(Pa. Super. 2019), appeal denied, 2020 WL 2465050 (Pa. May 13, 2020)
(holding that expert’s testimony opining about the credibility of the victim in
a hypothetical was impermissible under Section 5920). The Commonwealth
did not pose any such question here. Sheffer has simply not demonstrated
that the trial court abused its discretion in allowing the Commonwealth to ask
Dr. Valliere hypothetical questions or that those questions improperly
bolstered the credibility of D.N. Instead, we agree with the trial court that Dr.
Valliere’s testimony was “entirely consistent with the purposes of [Section
5920] and the need to educate the jury as to the dynamics of child sexual
abuse.” Trial Court Opinion, 10/31/19, at 4 (unpaginated). No relief is due.
Weight of the evidence
Lastly, Sheffer argues that the verdict was against the weight of the
evidence because it was not grounded in logic or supported by credible
evidence. This claim warrants no relief.
“The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part or none of the evidence and to determine the credibility
of witnesses.” Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)
(citation omitted). A trial court should only grant a new trial on the ground
that the verdict was against the weight of the evidence when the verdict is so
contrary to the evidence so as to shock one’s sense of justice. See
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011). This Court’s
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standard of review of a trial court’s decision regarding a weight of the evidence
claim is limited to determining whether the trial court palpably abused its
discretion in concluding that the verdict was or was not against the weight of
the evidence. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.
2003).
Here, Sheffer first claims that the trial court abused its discretion in
finding that the verdict was not against the weight of the evidence because
Dr. Kaufman, who was qualified as an expert in the examination of children
who may have been sexually abused, found that the exam of D.N.'s hymen
was normal. Sheffer asserts, in essence, that this lack of physical evidence of
trauma rendered the verdict against the weight of the evidence because it was
inconsistent with D.N.’s testimony that Sheffer had repeatedly penetrated her
vagina.7 We disagree.
Dr. Kaufman testified that she performed a genital exam of D.N. on
August 1, 2016. According to Dr. Kaufman, D.N.’s exam was normal, meaning
that D.N.’s hymen had no lacerations or transections. Dr. Kaufman explained
____________________________________________
7 Sheffer relies on a medical journal article, Sexual Assault in Prepubertal
Girls: It is Normal to Be Normal - Or is it: Evidence of Vaginal Penetration in
Prepubertal Girls, 52 Med.Sci. & L. 193 (2012), to support his claim. Sheffer
does not point to any place in the record where he mentioned this article,
submitted this article to the trial court or otherwise made it a part of the
certified record. It would therefore be improper for this Court to consider it.
See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (stating
that if a document is not in the certified record, this Court may not consider
it).
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that it is common for the hymen of the children she is examining for reported
sexual abuse to not show any injury and that in fact, 97 to 99 percent of
exams are considered normal. See N.T., 2/14/19, at 54, 61-62. “Just to
expand on that,” Dr. Kaufman testified that any injuries to the hymen will
typically heal within two to ten days and lacerations and transections will
typically heal within one month. Id. at 54-55. Accordingly, Dr. Kaufman stated
that if an injured hymen heals fine, the exam will be normal after one month.
See id. at 55. In D.N.’s case, then, Dr. Kaufman testified that there was “very
little” likelihood that she would have seen signs of abuse during her August
2016 exam if the abuse had ended in April. Id. at 55. She concluded that
nothing about D.N.’s exam could confirm or rule out that sexual abuse had
occurred. See id.In evaluating Sheffer’s weight of the evidence claim, the trial court
pointed to Dr. Kaufman’s testimony, and stated that contrary to Sheffer’s
claim, “the lack of physical evidence of sexual abuse based on an examination
of the complainant’s genital area is probably more common than to actually
have a physical finding of sexual contact.” Trial Court Opinion, 10/31/19, at 6
(unpaginated). The trial court also noted Dr. Kaufman’s testimony that this
lack of physical evidence could not rule out that D.N. had been sexually
abused. Based on this testimony, the trial court rejected Sheffer’s claim that
Dr. Kaufman’s exam results necessarily meant that the jury’s verdict was
against the weight of the evidence. We discern no abuse of discretion in this
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determination. See Cramer, 195 A.3d at 601 (explaining that this Court gives
the highest deference to a trial court’s ruling on a weight of the evidence claim
as it was the trial court that heard and saw the testimony).
The remainder of arguments that Sheffer submits in support of his
weight of the evidence claim are no more than challenges to the jury’s
assessment of the credibility of witnesses. Those arguments include Sheffer’s
claim that there were “multiple witnesses” contradicting D.N.’s report of
sexual abuse. Specifically, Sheffer contends that he himself testified that he
did not assault D.N. and that his brother-in-law corroborated this with his
testimony that he never heard or saw anything suspicious, even though he
was often at the house. Of course, these questions of credibility were for the
jury to decide. See Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.
Super. 2013) (stating that issues of credibility lie within the sole province of
the fact-finder and any conflict in the testimony is to be resolved by the fact-
finder).
The jury clearly credited D.N.’s testimony and her testimony, as the trial
court noted, was sufficient on its own to support Sheffer’s verdict in this case.
See Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018)
(holding that a victim’s testimony alone, if believed by the fact-finder, is
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sufficient to sustain a conviction).8 We see no abuse of discretion in the trial
court’s finding that the verdict did not shock one’s sense of justice and was
therefore, not against the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/25/2020
____________________________________________
8 Sheffer also argues that the Commonwealth had no corroborating physical
evidence of the abuse, and to overcome this vacuum, presented A.S.’s
testimony that she saw a condom wrapper in the toilet at one point and that
D.N. bled on a maxi pad. As an initial matter, as discussed above, no physical
evidence was required to sustain the jury’s verdict. And while Sheffer points
out that he testified that, unlike A.S., he never saw a condom wrapper in the
toilet, this issue clearly went to credibility. Sheffer also appears to contend
that the blood on the maxi pad was not corroborating physical evidence
because it was more likely evidence of A.S. getting her menstrual period
rather than anything connected to an assault. However, A.S.’s testimony
about the maxi pad arose during questioning about D.N.’s first period, and
A.S. never testified that she believed the blood was associated with the abuse.
Certainly, neither of these claims establish that the trial court abused its
discretion in determining that the verdict was not against the weight of the
evidence. See Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)
(stating that a verdict is not against the weight of the evidence simply because
there was a conflict in the testimony).
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