Com. v. Carter, C. , 111 A.3d 1221 ( 2015 )

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2015 PA Super 55COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTOPHER JACKSON CARTER, : No. 1391 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 31, 2014,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0002272-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED MARCH 19, 2015
Christopher Jackson Carter appeals from the judgment of sentence of
March 31, 2014, following his conviction of various sexual offenses. We
affirm.
Following a jury trial held October 21-22, 2013, appellant was found
guilty of one count of rape by forcible compulsion, five counts of involuntary
deviate sexual intercourse (“IDSI”) -- person less than sixteen years of age,
five counts of aggravated indecent assault, four counts of indecent assault,
five counts of endangering the welfare of a child, and five counts of
corruption of minors. The charges resulted from the victim’s disclosure that
she had been sexually abused by appellant during the years 1990 through
1994. Appellant was sentenced to an aggregate term of 240 to 480 months’
imprisonment; this timely appeal followed. Appellant has complied with
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Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an
opinion.
Appellant has raised the following issues for this court’s review:
[1.] Did the trial court err by permitting the
Commonwealth to call an expert to testify that
bolstered the credibility of the complaining
witness?
[2.] Were [appellant]’s constitutional rights violated
by the Commonwealth proceeding against him
in violation of the Statute of Limitations that
was in place at the time the offenses were
alleged to have been committed?
[3.] Has the Commonwealth failed to demonstrate
any reason why the applicable statute of
limitations of two and five years was tolled
pursuant to 42 Pa.C.S.A. Section 5554[?]
Appellant’s brief at 11.
In his first issue on appeal, appellant complains that the
Commonwealth should not have been permitted to call Ms. Carol Haupt as
an expert witness to explain the victim’s delay in reporting the sexual abuse.
Appellant argues that this improperly bolstered the victim’s credibility and
invaded the province of the jury.
“The admission of expert testimony is a matter of discretion [for] the
trial court and will not be remanded, overruled or disturbed unless there was
a clear abuse of discretion.” Blicha v. Jacks, 864 A.2d 1214, 1218
(Pa.Super. 2004). “Expert testimony is permitted as an aid to the jury when
the subject matter is distinctly related to a science, skill, or occupation
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beyond the knowledge or experience of the average layman.”
Commonwealth v. Lopez, 854 A.2d 465, 470 (Pa. 2004), quoting
Commonwealth v. Auker, 681 A.2d 1305, 1317 (Pa. 1996). “Conversely,
expert testimony is not admissible where the issue involves a matter of
common knowledge.” Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa.
2000) (citation omitted).
42 Pa.C.S.A. § 5920 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. Ch. 31
(relating to sexual offenses).
(b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to
this section, a witness may be
qualified by the court as an expert
if the witness has specialized
knowledge beyond that possessed
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
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understanding the dynamics of
sexual violence, victim responses
to sexual violence and the impact
of sexual violence on victims
during and after being assaulted.
(2) If qualified as an expert, the
witness may testify to facts and
opinions regarding specific types of
victim responses and victim
behaviors.
(3) The witness’s opinion regarding the
credibility of any other witness,
including the victim, shall not be
admissible.
(4) A witness qualified by the court as
an expert under this section may
be called by the attorney for the
Commonwealth or the defendant to
provide the expert testimony.
42 Pa.C.S.A. § 5920 (footnote omitted).1
Ms. Haupt testified that it is common for child sexual abuse victims to
delay in reporting. (Notes of testimony, 10/21/13 at 121-122.) Ms. Haupt
expounded upon some of the reasons why a child sexual abuse victim may
delay in reporting. (Id. at 122-124.) However, she did not testify regarding
this victim specifically or whether or not the alleged incidents actually
occurred. (Id. at 125.) Ms. Haupt did not offer any opinion regarding the
1
“Section 2 of 2012, June 29, P.L. 656, No. 75, effective in 60 days
[Aug. 28, 2012], provides that ‘[t]he addition of 42 Pa.C.S. § 5920 shall
apply to actions initiated on or after the effective date of this section.’” Id.,
historical and statutory notes. The criminal complaint in this case was filed
on September 7, 2012. Therefore, Section 5920 applies.
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victim’s credibility. Under Section 5920, her testimony was clearly
admissible.
In a related argument, appellant contends that Section 5920 violates
separation of powers because only the Pennsylvania Supreme Court may
promulgate rules of procedure. We addressed a similar argument in
Commonwealth v. Presley, 686 A.2d 1321 (Pa.Super. 1996), appeal
denied, 694 A.2d 621 (Pa. 1997):
Presley next claims that Section 6354(b)(4)
[(of the Juvenile Act, amended in 1995 to permit use
of a juvenile adjudication in a subsequent criminal
proceeding under certain circumstances)] violates
the concept of separation of powers under
Pennsylvania’s Constitution. To support this
argument, Presley directs our attention to Article V,
Section 10(c) which provides that:
The Supreme Court shall have the power
to prescribe general rules governing
practice, procedure and the conduct of all
courts. . . . All laws shall be suspended
to the extent that they are inconsistent
with rules prescribed under these
provisions.
Presley correctly notes that the above
provision generally prohibits the legislature from
“tell[ing] the Judiciary how to hear and decide
cases.” Appeal of Borough of Churchill, 525 Pa.
80, 88, 575 A.2d 550, 554 (1990) (citing In re 42
Pa.C.S. Section 1703, 482 Pa. 522, 394 A.2d 444(1978)). Nevertheless, “[i]t is well settled that the
legislature of a state has the power to prescribe new
rules of evidence, providing that they do not deprive
any person of his constitutional rights.” Dranzo v.
Winterhalter, 395 Pa.Super. 578, 589, 577 A.2d
1349, 1354 (1990), alloc. denied, 526 Pa. 648,
649, 585 A.2d 468 (1991). This principle was settled
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nearly sixty years ago, when our Supreme Court
stated that “[w]e recognize the right of the
legislature to create or alter rules of evidence.” Rich
Hill Coal Co. v. Bashore, 334 Pa. 449, 485, 7 A.2d
302, 319 (1939). More recently, the Court
reaffirmed this holding by stating that “[s]ubject only
to constitutional limitations, the legislature is always
free to change the rules governing the competency
of witnesses and the admissibility of evidence.”
[Commonwealth v.] Newman, [633 A.2d 1069,
1071 (Pa. 1993)].
Further, the state constitution, itself, does not
provide a complete proscription against laws which
regulate practice, procedure and the conduct of
courts. To the contrary, the constitution mandates
that such laws shall only be prohibited “to the extent
that they are inconsistent with rules prescribed” by
the Supreme Court. Since the Supreme Court has
not yet adopted a rule concerning the issue
addressed in Section 6354(b)(4) and our Supreme
Court has held that the legislature may properly
create rules of evidence, we cannot find that
42 Pa.C.S.A. § 6354(b)(4) violates Article V,
Section 10(c) of our state constitution.
Id. at 1324-1325.
Instantly, Section 5920 is really a rule regarding the admissibility of
evidence, not a procedural rule. Furthermore, it is not in direct conflict with
any existing rule of the Pennsylvania Supreme Court. Appellant claims it
conflicts with Pa.R.E. 702, in that the reasons why a child may not promptly
report a sexual assault is not beyond the ken of the average layperson.
Appellant also cites to Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa.
1992) (“Not only is there no need for testimony about the reasons children
may not come forward, but permitting it would infringe upon the jury’s right
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to determine credibility.”) (emphasis in original) (citations omitted). Dunkle
held that it is error to allow expert testimony on the issue of prompt
complaint, which impermissibly interferes with the jury’s function to judge
credibility. Id. at 837-838. See also, e.g., Commonwealth v. Alicia, 92
A.3d 753 (Pa. 2014) (holding that expert testimony on the phenomenon of
false confessions would impermissibly invade the jury's exclusive role as the
sole arbiter of credibility).
Appellant argues that our supreme court has ruled on precisely this
issue, in an area specifically consigned to its authority. (Appellant’s brief at
20-21.) However, Dunkle predates Section 5920 and was not based on
constitutional grounds but on existing case law and rules of evidence. As
such, we determine that Section 5920 does not violate separation of powers.
Next, appellant argues that the charges should have been dismissed as
being beyond the applicable statute of limitations. This claim is waived.
In Commonwealth v. Rossetti, 863 A.2d 1185 (Pa.Super. 2004),
appeal denied, 878 A.2d 864 (Pa. 2005), this court found the defendant’s
statute of limitations claim raised in post-sentence motions to be waived,
stating,
In Commonwealth v. Darush, 501 Pa. 15, 20 n.4,
459 A.2d 727, 730 n.4 (1983), the Pennsylvania
Supreme Court held that a statute of limitations
claim is waived if not raised in a pretrial omnibus
motion seeking dismissal of the charges. Id. In two
decisions following Darush, this Court found statute
of limitations claims to be waived when not raised at
the first available opportunity and when raised after
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the imposition of sentence. Commonwealth v.
Groff, 378 Pa.Super. 353, 548 A.2d 1237, 1244-45
(1988); Commonwealth v. Stover, 372 Pa.Super.
35, 538 A.2d 1336, 1339 (1988). In Stover, we
stated that a defendant had from the expiration date
of the statute of limitations until the date of
sentencing to raise the issue of statute of limitations
and that the failure to raise it in a timely fashion
constituted a waiver of the claim. Stover, 538 A.2d
at 1339.
Id. at 1190.
Instantly, the issue was not raised until after sentencing, in appellant’s
Rule 1925(b) statement. Accordingly, it is deemed waived.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2015
2
We note that the issue is clearly without merit for the reasons discussed in
the trial court opinion. (See trial court opinion, 7/8/14 at 6-10) (discussing
tolling of the statute where the victim is less than 18 years of age when the
offenses were committed).
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