Com. v. McGinnis, R. ( 2021 )

J-S55020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKEY MCGINNIS :
:
Appellant : No. 16 WDA 2020
Appeal from the Judgment of Sentence Entered December 4, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011014-2018
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
DISSENTING MEMORANDUM BY COLINS, J.: FILED: JUNE 28, 2021
I respectfully dissent from the majority’s affirmance of the trial court’s
determination that Section 5920 of the Judicial Code barred the testimony of
Appellant’s expert, Dr. Bruce Chambers, because Dr. Chambers would have
improperly offered an “opinion regarding the credibility of any [] witness,
including the victim.” 42 Pa.C.S. § 5920(b)(3). In Commonwealth v.
Jones, 240 A.3d 881 (Pa. 2020), our Supreme Court held that a police officer
could testify as an expert under Section 5920 on the issue of “whether or not
it was common for child victims of sexual assault to have trouble remembering
dates and details of ongoing sexual assaults.” Id. at 891; see also
Commonwealth v. Smith, 206 A.3d 551, 562 (Pa. Super. 2019) (holding as
permissible under Section 5920 expert testimony that child victims of sexual
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* Retired Senior Judge assigned to the Superior Court.
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abuse share the details of the abuse in piecemeal fashion and that child victims
relate details differently in separate accounts of the abuse). Moreover, in this
case, Jamie Mesar, the Commonwealth’s expert on child sexual abuse, offered
broad-ranging testimony upon such topics as children who initially disclose
sexual abuse but then “recant[]” or “change” their accounts of abuse and
“child[ren who] might not have disclosed enough” in an initial forensic
interview but are able to relate more details of the abuse in later interviews
after further therapy.1 N.T., 9/9/19, at 62-63, 68-70.
In light of the expansive understanding of the bounds of expert
testimony in sexual abuse cases under Section 5920, including the testimony
of the Commonwealth’s expert sanctioned by the trial court in this very case,
I fail to discern any principled rationale to justify the trial court’s exclusion of
Dr. Chambers’ proposed generic expert testimony that, as a result of
repeated forensic interviews and psychotherapy sessions, some children
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1 Notably, Ms. Mesar is the director of the Child Advocacy Center at UPMC
Children’s Hospital where the victim’s forensic interviews took place, and she
was permitted, over defense objection, to describe aspects of the forensic
interview process. N.T., 9/9/19, at 49-50, 68-70, 76-80. Later at trial, police
officers who witnessed the three interviews at the Child Advocacy Center
discussed the evolving nature of the victim’s disclosures of sexual abuse over
the course of the interviews. N.T., 9/9/19, at 177-82, 188-92. While not
directly at issue in this appeal, I believe that, due to the nature of her
organization’s role in this case, Ms. Mesar’s testimony strayed beyond “the
dynamics of sexual violence, victim responses to sexual violence and the
impact of sexual violence on victims during and after being assaulted,” the
topics for which her testimony was approved by the trial court, and instead
served to bolster the “credibility of [] the victim[’s]” reports of sexual abuse
during his forensic interviews. 42 Pa.C.S. § 5920(b)(1), (3).
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mistakenly come to believe that they are victims of sexual abuse. See
Commonwealth v. Walker, 92 A.3d 766, 784 (Pa. 2014) (“Expert testimony
on relevant psychological factors . . . does not directly speak to whether a
particular witness was untrustworthy, or even unreliable, as the expert is not
rendering an opinion on whether a specific witness [testified accurately].
Rather, such testimony teaches—it provides jurors with education by which
they assess for themselves the witness’s credibility.”); Smith, 206 A.3d at
561 (stating that while Walker related to the admissibility of expert testimony
concerning witness identification, the principle enunciated in that case “is
applicable to expert testimony on the dynamics of sexual violence and victim
responses to sexual violence”). As I would find that the trial court abused its
discretion in excluding Dr. Chambers from testifying, I would vacate
Appellant’s conviction and remand for a new trial at which Appellant’s counsel
shall be permitted to introduce the testimony of his expert.
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