Com. v. Lipinski, T. ( 2021 )

J-A06009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY LIPINSKI :
:
Appellant : No. 678 WDA 2020
Appeal from the PCRA Order Entered May 12, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008958-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: June 23, 2021
Appellant, Terry Lipinski, appeals from the post-conviction court’s May
12, 2020 order, dismissing as meritless his timely petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the background of this matter as follows:
On September 11, 2014, [Appellant] was convicted by a jury of
three … counts each of: Rape, 18 Pa.C.S.[] § 3121(a)(1);
Involuntary Deviate Sexual Intercourse (IDSI), 18 Pa.C.S.[] §
3123(a)(7); Statutory Sexual Assault, 18 Pa.C.S.[] § 3122.1(b);
Incest of a Minor, 18 Pa.C.S.[] § 4302(b); Sexual Assault, 18
Pa.C.S.[] § 3124.1; Indecent Assault, 18 Pa.C.S.[] § 3126(a)(8);
and one … count each of: Unlawful Contact, 18 Pa.C.S.[] § 6318;
Aggravated Indecent Assault, 18 Pa.C.S.[] § 3125(a)(8);
Endangering the Welfare [o]f Children, 18 Pa.C.S.[] § 4304(a);
Corruption of Minors, 18 Pa.C.S.[] § []6301[(]a)(1)(ii); and
Terroristic Threats, 18 Pa.C.S.[] § 2706(a)(1).
After conviction[,] the Commonwealth filed [its] intent to seek …
mandatory [minimum sentences] pursuant to 42 Pa[.]C.S.[] §
9718. The trial [j]udge, the Honorable Donna Jo McDaniel[,]
imposed an aggregate sentence of 40-80 years of incarceration:
10-20 years at each count of Rape, and 10-20 years at the count
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of IDSI, all to … run consecutively; and, an additional 10-20 year
sentence at the remaining two … counts of IDSI, running
concurrently. On January 22, 2018, Appellant filed a direct appeal
to [the] Superior Court challenging the legality of the mandatory
sentence under [Section] 9718. [The] Superior Court vacated the
sentence and remanded for … resentencing. [Commonwealth v.
Lipinski, 183 A.3d 1079 (Pa. Super. 2018) (unpublished
memorandum).] On May 3, 2018, Judge McDaniel resentenced
[Appellant] to 9-18 years of incarceration at the same counts, and
in the same fashion, for an aggregate sentence of 36-72 years[’
imprisonment]. [Appellant] did not file any post-sentence
motions or appeal. On February 4, 2019, [Appellant] filed a pro
se PCRA Petition and[,] on March 7, 2019, Suzanne Swan, Esq.[,]
was appointed as counsel. After a request for an extension, an
Amended PCRA Petition was filed on September 5, 2019, followed
by the Commonwealth’s Answer of November 4, 2019.
PCRA Court Opinion (PCO), 3/16/20, at 1-2.
On March 16, 2020, the PCRA court issued a notice of its intent to
dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.
907. Appellant did not respond. Thereafter, the court entered an order
denying his petition on May 12, 2020. On June 24, 2020, Appellant filed a
petition for reinstatement of his right to appeal nunc pro tunc, which the court
granted. He subsequently filed a notice of appeal on July 2, 2020. The court
instructed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied. The court then
supplied a statement in lieu of an opinion pursuant to Rule 1925(a)(1),
explaining that it had already set forth the reasons for its ruling in its earlier
Rule 907 notice of its intent to dismiss Appellant’s petition.
Presently, Appellant raises two issues for our review:
I. Did the lower court abuse its discretion in dismissing the PCRA
petition without a hearing where [Appellant] established the
merits of the claim that counsel was ineffective for failing to object
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to and make an oral motion in limine to preclude the expert
testimony of a physician where the Commonwealth failed to
disclose that the physician would be testifying as an expert and
failed to disclose her expert opinion prior to trial, resulting in a
discovery violation and prejudice to [Appellant]?
II. Did the lower court abuse its discretion in dismissing the PCRA
petition without a hearing where [Appellant] established the
merits of the claim that counsel was ineffective for failing to object
to the expert testimony of a physician on the grounds that it was
irrelevant and prejudicial to [Appellant]?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
At the outset, we recognize that,
in reviewing the propriety of an order granting or denying PCRA
relief, we are limited to determining whether the evidence of
record supports the determination of the PCRA court, and whether
the ruling is free of legal error. Great deference is granted to the
findings of the post-conviction court, and these findings will not
be disturbed unless they have no support in the certified record.
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002) (internal
citations omitted). We also observe that:
The right to an evidentiary hearing on a post-conviction petition
is not absolute. A PCRA court may decline to hold a hearing if the
petitioner’s claim is patently frivolous and is without a trace of
support in either the record or from other evidence. A reviewing
court on appeal must examine each of the issues raised in the
PCRA petition in light of the record in order to determine whether
the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary
hearing.
Id. at 906 (citation omitted). Further,
[i]n order to obtain relief under the PCRA premised upon a claim
that counsel was ineffective, a petitioner must establish beyond a
preponderance of the evidence that counsel’s ineffectiveness “so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.[] § 9543(a)(2)(ii). This requires the petitioner
demonstrate that: (1) the underlying claim is of arguable merit;
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(2) counsel had no reasonable strategic basis for his or her action
or inaction; and (3) petitioner was prejudiced by counsel’s act or
omission. It is presumed that counsel is effective, and [we] place
upon the appellant the burden of proving otherwise. Counsel
cannot be deemed ineffective for failing to pursue a meritless
claim.
Id. at 905-06 (most internal citations and quotation marks omitted).
In Appellant’s first issue, he argues that “counsel was ineffective for
failing to object to and make an oral motion in limine to preclude the expert
testimony of a physician[, Jennifer Wolford, M.D.,] where the Commonwealth
failed to disclose that [Dr. Wolford] would be testifying as an expert and failed
to disclose her expert opinion prior to trial, resulting in a discovery violation
and prejudice to [Appellant].” Appellant’s Brief at 10 (unnecessary
capitalization and emphasis omitted). Appellant claims that Rule of Criminal
Procedure 573 requires the Commonwealth to inform the defense before trial
of any expert opinions to be offered at trial, and the results or reports of any
scientific test performed by an expert. See id. at 11. Specifically, Rule 573
sets forth, in relevant part, that:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
…
(e) any results or reports of scientific tests, expert opinions,
and written or recorded reports of polygraph examinations
or other physical or mental examinations of the defendant
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that are within the possession or control of the attorney for
the Commonwealth;
…
(2) Discretionary With the Court.
…
(b) If an expert whom the attorney for the Commonwealth
intends to call in any proceeding has not prepared a report
of examination or tests, the court, upon motion, may order
that the expert prepare, and that the attorney for the
Commonwealth disclose, a report stating the subject matter
on which the expert is expected to testify; the substance of
the facts to which the expert is expected to testify; and a
summary of the expert’s opinions and the grounds for each
opinion.
Pa.R.Crim.P. 573.
Appellant complains that “the Commonwealth failed to disclose, through
pretrial discovery, the nature and content of Dr. Wolford’s expert testimony.”
Appellant’s Brief at 13. He explains:
Dr. Wolford was the attending physician at the Division of Child
Advocacy at Children’s Hospital of Pittsburgh. The parties
stipulated that she is an expert in the field of medicine with a
specialty of child abuse. Dr. Wolford did not treat the alleged
victim…. Rather[,] she testified that she reviewed the medical
records of the hospital emergency room regarding the history,
examination, diagnoses[,] and treatment of the alleged victim.
Dr. Wolford was permitted to testify as to the contents of the
report prepared by another physician. She noted that the exam
did not support a diagnosis of child sexual abuse. Most
significantly, Dr. Wolford then testified that a normal physical
exam, as in the instant case, “is actually more common in child
physical abuse and sexual abuse. We say it is normal to be
normal.” She then related the reasons why 90 to 95 percent of
exams of alleged victims of sexual abuse are normal.
The testimony of Dr. Wolford … ambushed defense counsel at trial
on a critical aspect of the Commonwealth’s case. Defense counsel
had no notice that the Commonwealth would seek to use Dr.
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Wolford as an expert. A denial of due process indeed occurred
here, as well as a denial of the right to counsel. Rather than
promote the fairness and integrity of the trial as a truth-seeking
process, the Commonwealth undermined it. The Commonwealth
prevented defense counsel from being prepared to cross-examine
D[r]. Wolford as to whether her qualifications were those that
should be expected of someone who is “expert” in the specialized
field of child sexual abuse. The Commonwealth further prevented
defense counsel from arming himself with the tools he needed to
challenge the [d]octor’s opinion. Specifically, he was forced to
cross-examine her through questions to which he did not know
the answers, and failed to question her as to the research and
studies upon which she based her opinion. For example, counsel
did not explore whether or how it was determined for certain
(other than through the victims’ allegations) that the 90 to 95
percent of alleged sexual abuse victims who had normal physical
exams[] were[,] in fact[,] abused. Furthermore, counsel did not
inquire as to how long it takes to heal, and whether tissue tearing
would likely be observed when examining someone who claimed
to have been anally raped several times within one month of the
examination.
In addition, the Commonwealth precluded defense counsel from
making an informed tactical decision pretrial on the critical
question of whether the services of a defense expert were
necessary at trial in order to meet the Commonwealth’s evidence.
Without sufficient time to obtain his own expert, defense counsel
was denied the opportunity to challenge the validity of the
statistics referred to by D[r.] Wolford. In the interest of gaining
an advantage at trial, the Commonwealth left the defense
stranded in the courtroom.
Id. at 14-16 (internal citations omitted).
Appellant observes that Subsection E of Rule 573 provides relief in the
event of a party’s lack of compliance with its requirements. Id. at 18. Rule
573(E) states:
(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
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testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.
Pa.R.Crim.P. 573(E). Appellant therefore asserts that “[i]f counsel had
objected to or made an oral motion in limine, requesting that the court
preclude Dr. Wolford’s testimony, absent an abuse of discretion, the court
properly would have prohibited Dr. Wolford from testifying pursuant to Rule
573(E)[,]” and he further contends that, “[a]t a minimum, counsel should
have requested a continuance, which the court properly would have granted.”
Appellant’s Brief at 18-19 (citations omitted).
In denying this claim, the PCRA court determined that the record did not
support Appellant’s assertion that his trial counsel was unaware of the nature
of Dr. Wolford’s testimony. It reasoned:
Although [Appellant] did not attach the docket in support of the
position that the Commonwealth failed to comply with [Rule] 573,
by the [c]ourt’s own review of the record, it is evident that the
Commonwealth did not file a Notice of Expert Witness. However,
that is not dispositive of [Appellant’s] argument. After a thorough
review of the record, including the trial transcript, it is apparent
that trial counsel was otherwise aware of this expert witness.
First, defense counsel never raised a discovery violation with the
[c]ourt, and second, the trial transcript is devoid of anything
demonstrating that defense counsel was unaware of Dr. Wolford
and the purpose of her testimony. On September 9, 2014, the
first day of trial, an on-the-record discussion took place between
the prosecutor and the [c]ourt related to witness availability and
order. It was during this conversation that the Commonwealth
mentioned that Dr. Wolford was present, and provided a proffer
of her testimony: that she did not physically examine the minor
victim and would be testifying as an expert on rape trauma. [N.T.,
9/9/14, at 94-95.] Although present, trial counsel for [Appellant]
did not respond in any manner. This silence does not demonstrate
“trial by ambush,” as asserted by [Appellant], but rather that trial
counsel was in fact aware of this witness and the exact testimony
she would provide. Third, Dr. Wolford was the fifth and last
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witness called on the second day of trial, further undermining
[Appellant’s] allegation that trial counsel was caught off-guard.
Fourth, trial counsel stipulated to Dr. Wolford’s qualifications and
the victim’s medical records that the expert would be testifying
about. Thus, [Appellant’s] assertion that trial counsel was ill-
prepared to cross examine Dr. Wolford’s qualifications is
completely without support, and belied by the record as no voir
dire on qualifications was conducted. As trial counsel engaged in
a lengthy and effective cross-examination of Dr. Wolford, and
challenged not only her statistics but her underlying conclusions,
the record demonstrates the preparedness of [Appellant’s]
counsel. [N.T., 9/10/14, at 290-300.]
[Appellant] does not cite to any portion of the trial transcript for
the repeated accusation that trial counsel was “ambushed[,]”
“sandbagged[,]” and “stranded” by a “last minute disclosure.”
[Appellant’s] suggestion that additional questions could have been
asked of the expert is not proof of ineffectiveness. As there is no
support for the assertion in the record, the claim lacks merit, and
counsel cannot be deemed ineffective for failing to raise a
meritless claim. Com[monwealth] v. Weiss, 81 A.3d 767, 782
(Pa. 2013). As such, this [c]ourt finds that this issue is without
merit, and therefore no hearing is required. Commonwealth v.
Maddrey, 205 A.3d 323[, 328] (Pa. Super. 2019) ([“]It is well
settled that there is no absolute right to an evidentiary hearing on
a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exists, then a
hearing is not necessary.[”]).
PCO at 4-5 (footnotes omitted; emphasis in original).
We discern no error or abuse of discretion by the PCRA court. Our
review of the record confirms that Appellant’s trial counsel was not surprised
by the Commonwealth’s calling of Dr. Wolford to testify or by the content of
her testimony, and we agree with the PCRA court that trial counsel effectively
cross-examined Dr. Wolford on her opinions. As Appellant has not
demonstrated that trial counsel was surprised or otherwise unaware of Dr.
Wolford’s testimony, trial counsel cannot be deemed ineffective for failing to
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file a motion in limine or seek a continuance pursuant to Rule 573(E). Thus,
no relief is due on this basis.
In Appellant’s second issue, he argues that his trial counsel was
ineffective for failing to object to Dr. Wolford’s expert testimony on the
grounds that it was irrelevant and prejudicial to him. See Appellant’s Brief at
19. He states:
At the time the Commonwealth put D[r.] Wolford on the stand, no
evidence had been presented regarding the medical examination
of the alleged victim when she went to the hospital emergency
room to report the assault. Rather, the Commonwealth presented
the results of the examination through Dr. Wolford, who did not
conduct the exam[,] but read the report of the person who did
conduct it. The jury was informed that the exam did not reveal
any signs of sexual abuse. The results were “normal.” After
presenting this exculpatory evidence, the Commonwealth
hastened to have Dr. Wolford explain that “normal is normal” in
the majority of sexual assault cases. Trial counsel did not object
to the admission of Dr. Wolford’s testimony on any grounds.
Arguably, testimony that an absence of physical symptoms does
not disprove that the assaults occurred was admissible pursuant
to 42 Pa.C.S. § 5920(b)(2).[1] However, it is [Appellant’s] position
____________________________________________
1 § 5920. Expert testimony in certain criminal proceedings
(a) Scope. -- This section applies to all of the following:
…
(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
(Footnote Continued Next Page)
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that Dr. Wolford’s testimony was inadmissible because 1) it was
irrelevant because the defense had not cross-examined the
alleged victim about the results of the rape kit/medical exam, and
2) the expert’s testimony was speculative and not probative of
any matter at issue.
Here, when Dr. Wolford was called to testify, no evidence had
been presented regarding the medical examination of the alleged
victim.[2] There was no fact from which the jury may have
improperly drawn a negative inference, that is, that the results of
the exam were normal. [Appellant] is cognizant of the rationale
for admitting expert testimony explaining the lack of evidence
proving the crime that “[o]nce certain theories of a case are
presented and some evidence is offered to support them, triers of
fact, especially juries untrained in evidence law and the rules
governing litigation, may expect to hear specific kinds of proof in
further support of or in response to the offered evidence. If their
expectations are not satisfied, triers of fact may penalize the party
who disappoints them by drawing a negative inference against
that party.” However, this rationale does not apply where no
____________________________________________
with, or specialized training or education in, criminal justice,
behavioral sciences or victim services issues, related to
sexual violence, that will assist the trier of fact in
understanding the dynamics of sexual violence, victim
responses to sexual violence and the impact of sexual
violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts
and opinions regarding specific types of victim responses
and victim behaviors.
(3) The witness’s opinion regarding the credibility of any
other witness, including the victim, shall not be admissible.
(4) The witness’s opinion regarding the credibility of any
other witness, including the victim, shall not be admissible.
42 Pa.C.S. § 5920.
2 However, we note that, on the first day of trial, the victim testified that she
went to the hospital after disclosing the abuse and “got a rape kit done….”
N.T., 9/9/14, at 93. See also id. at 39-40 (the victim’s mother testifying that
the victim went to the hospital for a rape kit after telling her about the sexual
assaults).
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evidence is offered to support a theory of the case. Here, since
the jury had not been informed that the exam was normal and did
not indicate that the alleged victim had suffered any sexual abuse,
evidence explaining the negative, inconclusive results was not
relevant. Any concern that the jury might draw a negative
inference from information that they were not given was purely
speculative.
In Commonwealth v Minerd, … 753 A[.]2d 225 ([Pa.] 2000),
the [c]ourt was faced with a similar situation to that presented
here. The [c]ourt held that the Commonwealth was entitled to
address this negative inference in its case-in-chief because the
defense may choose not to introduce the results of the physical
examination showing the lack of physical trauma, thereby
depriving the Commonwealth of the opportunity to address the
juror’s potential negative inferences. However, the [c]ourt did not
consider that there is a real possibility that a jury could be misled
or confused when the Commonwealth presents exculpatory
evidence, then presents an expert who testifies that she examined
the exculpatory evidence, and that in most cases such evidence is
meaningless. The jury was then free to impermissibly infer that
the expert was of the opinion that the test results relative to the
alleged victim in the instant case likewise were meaningless. The
testimony thus acted to improperly invade[] the province of the
jury by bolstering the credibility of the victim. “It is a basic tenet
of our judicial system that issues of credibility are left solely to the
jury for resolution….”
In addition, in the matter sub judice, the expert presented no
testimony that would make a material fact “more or less
probable.” Dr. Wolford testified that the fact that the alleged
victim’s physical exam was normal was not uncommon. She
stated that it “is actually much more common in child physical
abuse and sexual abuse. We say it is normal to be normal.” She
opined that there were various reasons why that was the case,
but only discussed two — that a woman’s body is meant to stretch,
and that tissue heals. She did not offer an opinion that a normal
result could mean that no abuse occurred. She did not say
whether one reason was more likely than the other. This
speculative testimony could not have aided the jury in its task of
determining whether sexual assaults did occur here. Therefore,
the testimony was irrelevant.
In fact, the jury instructions were sufficient to ameliorate any
concerns that the jury might notice that they were not given any
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test results, and might penalize the Commonwealth for not
presenting medical evidence by pondering some nebulous
negative inference. The jury was instructed that “[t]he evidence
which you are to consider in reaching your decision consists of the
testimony of the witnesses which you have heard and the exhibits
which you saw introduced.” The jury also was charged that “[y]ou
must not consider the victim’s delay in making a complaint as
conclusive evidence that the act did not occur.” Finally, the court
instructed the jury that “[t]he testimony of a victim standing
alone, if believed by you, is sufficient proof upon which to find
[Appellant] guilty in this case. The testimony of the victim such
as this need not be supported by other evidence to sustain a
conviction.” It is well[-]settled that the jury is presumed to follow
the trial court’s instructions.
Id. at 21-25 (most internal citations omitted; some brackets added; emphasis
in original). For these reasons, Appellant maintains that his trial counsel
“could not have had a reasonable basis for failing to object to the admission
of the testimony which impermissibly invaded the province of the jury to
determine the alleged victim’s credibility.” Id. at 26. He insists that he “was
prejudiced by counsel’s omission insofar as the jury’s verdict turned [on]
whether or not it believed the alleged victim.” Id.
No relief is due on this basis. Our Supreme Court, in Minerd, has
already rejected the arguments made by Appellant. In that case, two sisters
were sexually abused by their stepfather, but did not disclose the abuse until
years later. Minerd, 753 A.2d at 227-28. At trial, the Commonwealth
presented the testimony of a qualified expert in obstetrics and gynecology
who stated that she examined the sisters and found no evidence of physical
trauma to their genital or anal areas. Id. at 228. However, she explained
that “the absence of physical trauma did not prove that the abuse had never
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occurred[,]” and that “because of the nature of the muscle that closes the
anus, there would have been an adequate time between when the abuse
occurred and the examination for any damage that had been done to heal.”
Id. (citations omitted). On cross-examination, the expert “confirmed that she
was not stating that the alleged acts did or did not occur, and agreed that …
it could be that ‘there was no trauma to the anus or genitals because the acts
in fact did not occur[,]’” and stated that “‘either way, there was no evidence
of it.’” Id. (citations omitted). After the stepfather was convicted of various
sexual offenses, he appealed, claiming that the expert’s “testimony improperly
bolstered the [sisters’] credibility; that its probative value is outweighed by
its prejudicial value; that it was irrelevant; and that it may have unduly
influenced the jury.” Id. at 230. Our Supreme Court deemed each of these
arguments unpersuasive.
Notably, the Minerd Court first rejected the stepfather’s argument that
the expert’s testimony impermissibly bolstered the sisters’ credibility as the
expert “was neither asked for, nor did she express, any opinion as to whether
the children were telling the truth about being sexually abused. Her testimony
only explained the significance of the results of the physical examination.
Moreover, [her] testimony regarding her physical findings was inconclusive as
to whether any abuse had even occurred.” Id. (citation omitted). Second,
the Court determined that the expert’s testimony was relevant and should not
be limited to rebuttal, opining:
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It is axiomatic that the Commonwealth has the burden of proving
every element of the offense for which the defendant is charged
beyond a reasonable doubt. The jurors, as factfinders, are
entrusted with the responsibility of evaluating the evidence and
rendering a decision based on the evidence presented and the
inferences deduced therefrom. In this case, the defendant was
charged with sexually abusing his stepchildren. Since the children
alleged that the abuse occurred several years ago, there was no
recent physical evidence. Given this passage of time, [the
expert’s] testimony was relevant to explain to the jurors the
absence of physical trauma. Without such an explanation, jurors
may improperly draw a negative inference against the
Commonwealth, based upon a layperson’s untutored
assumptions, and rely upon that inference in rendering a verdict.
Limiting the admission of expert testimony to rebuttal is an
imperfect procedure, as the defense may not introduce the
examination results, thereby depriving the Commonwealth of the
opportunity to counteract the jurors’ negative inferences.
Moreover, the admission of the evidence on direct will not confuse
or prejudice the jury any more than if it is introduced on rebuttal,
since in both cases, the defense will have the opportunity to cross-
examine the expert. Hence, there is no need to limit this type of
expert testimony only on rebuttal; it may be admitted in the
Commonwealth’s case-in-chief.
[The stepfather] also claims that the expert testimony is irrelevant
because it is speculative. He asserts that since [the expert]
rendered two opposing opinions, her testimony is speculative and
thus does not help jurors, but rather confuses them and forces
them to speculate. Initially, we note that [the expert] in fact
rendered only one opinion, viz., the examination results were
inconclusive. Moreover, we recently addressed a similar issue in
[Commonwealth v.] Hawk, [709 A.2d 373 (Pa. 1998)], in which
we determined that the trial court abused its discretion in
precluding the defense from admitting testimony of a forensic
scientist regarding the negative test results of a rape kit. We
rejected the lower court’s concern that the testimony was
speculative, stating “[t]he inconclusiveness of the negative test
results does not render the scientist’s testimony inadmissible.”
[Id.] at 377. Because the expert could offer the jury potential
theories to explain the negative test results, “her testimony would
have assisted the jury in its interpretation of the physical
evidence.” Id. We noted that the Commonwealth was entitled to
cross-examine the scientist to challenge the reliability of her
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findings, and that the jury was free to evaluate the expert
testimony and accept or reject some, none or all of the scientific
evidence. Id. (citations omitted).
The expert testimony in the instant case is similar to that offered
in Hawk. [The expert’s] testimony offered the jury potential
theories to explain the results of the physical examination of the
children. [The stepfather’s] counsel cross-examined the expert
witness in order to explore the reliability of her findings, and in
fact was able to elicit an explanation of the results that was helpful
to the defense. The jury, upon hearing all of these theories, was
able to accept or reject any part of the expert’s testimony.
Consequently, we find no merit to this claim.
Id. at 231-32 (most internal citations and footnote omitted).
In the case sub judice, Appellant does not effectively distinguish Minerd
and fails to convince us that the rationale employed by our Supreme Court in
that case does not apply here. Like the expert in Minerd, Dr. Wolford testified
that the results of the victim’s full physical examination were normal and not
diagnostic of child sexual abuse. N.T., 9/10/14, at 287. Regarding the normal
test results, she explained that “it is very normal to be normal, even after
having documented intercourse.” Id. at 288. Later, on cross-examination,
she agreed with Appellant’s trial counsel that, although the absence of injury
does not mean that a sexual assault did not happen, it likewise does not
necessarily mean that it did happen. Id. at 297. Our review of the transcript
confirms that Dr. Wolford did not express any opinion on the victim’s
credibility.
In light of Dr. Wolford’s testimony, we see no reason why our Supreme
Court’s reasoning in Minerd does not control here, and Appellant does not
advance a sufficient argument convincing us otherwise. As the
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J-A06009-21
Commonwealth notes, “[a]n alleged child sex assault victim was taken for a
medical exam; the results of that exam, and testimony from medical experts
interpreting those results, would seem to be relevant to the question of
whether an assault actually occurred.” Commonwealth’s Brief at 11. It aptly
adds that “[t]he case law, particularly Minerd…, supports this commonsense
notion, and further explains that such evidence is not limited to rebuttal.” Id.
We agree. Further, Appellant’s claim of prejudice fails, as Dr. Wolford did not
impermissibly bolster the victim’s credibility. Accordingly, Appellant’s
argument that Dr. Wolford’s testimony was irrelevant and prejudicial is
meritless, and his trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Thus, we affirm the PCRA court’s order dismissing
his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2021
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