Com. v. Maconeghy, Jr., K. ( 2015 )


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  • J-S31026-15; J-S31027-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    KENNETH MACONEGHY, JR.,
    Appellant                   No. 1493 MDA 2014
    Appeal from the Judgment of Sentence entered July 21, 2014,
    In the Court of Common Pleas of Lackawanna County,
    Criminal Division at No(s): CP-38-CR-0001450-2012
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    KENNETH MACONEGHY, JR.,
    Appellant                   No. 2191 MDA 2014
    Appeal from the Judgment of Sentence entered July 21, 2014,
    in the Court of Common Pleas of Lackawanna County,
    Criminal Division at No(s): CP-38-CR-0001450-2012
    BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.
    MEMORANDUM BY ALLEN J.:                                FILED JUNE 12, 2015
    Kenneth Maconeghy Jr. (“Appellant”) appeals from the judgment of
    sentence imposed after a jury found him guilty of rape by forcible
    compulsion, rape of a child, statutory sexual assault, aggravated indecent
    assault of a child less than thirteen years of age, endangering the welfare of
    a child, indecent assault of a child less than thirteen years of age, corruption
    J-S31026-15; J-S31027-15
    of minors, and unlawful contact or communication with a minor.1          We are
    constrained to vacate Appellant’s judgment of sentence and remand for a
    new trial.
    The pertinent facts and procedural history are as follows: the charges
    against Appellant resulted from offenses that allegedly occurred in the
    summer of 2005, when Appellant was home with his 11-year-old step-
    daughter while her mother was at work. Trial Court Opinion, 10/30/14, at
    2; Affidavit of Probable Cause, 4/12/12. Appellant was arrested and a jury
    trial was held on January 21, 22 and 23, 2014, at the conclusion of which
    the jury rendered its guilty verdicts.
    The trial court convened a sentencing hearing on July 21, 2014, and
    sentenced Appellant to an aggregate term of 10½ to 30 years of
    incarceration.
    By order dated January 23, 2014, the trial court ordered Appellant to
    undergo assessment by the Sexual Offenders Assessment Board, and on July
    21, 2014, the trial court found Appellant to be a sexually violent predator
    subject to lifetime registration. 42 Pa.C.S.A. § 9799.10 et. seq.
    Appellant filed a post-sentence “Motion for New Trial” on July 30,
    2014, pursuant to Pa.R.Crim.P. 720(B)(2) and Pa.R.Crim.P. 607, thereby
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 3121(a)(1), 2121(c),           2122.1,   3125(a)(7),    4304,
    3126(a)(7), 6301(a)(1), 6318(a)(1).
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    extending the time for filing an appeal until the trial court ruled on the post-
    sentence motion, or the expiration of 120 days. See Pa.R.Crim. P. 720.
    In addition to the post-sentence motion requesting a new trial,
    Appellant on July 30, 2014 also filed a separate “Motion for Reconsideration
    of Sentence,” which the trial court denied that same day. The July 30, 2014
    order denying Appellant’s motion for reconsideration erroneously stated that
    Appellant had thirty days to file an appeal; as noted above, Appellant’s post-
    sentence motion for new trial, which was pending, extended the appeal
    period pursuant to Pa.R.Crim. P. 720(A)(2).
    Nevertheless, although a decision on his post-sentence motion was still
    pending, Appellant, on August 28, 2014, filed a notice of appeal.2       3
    The
    appeal was docketed by this Court at 1493 MDA 2014 on September 8,
    2014, and Appellant’s new counsel, Attorney Donna M. DeVita, of the
    Lackawanna County Public Defender’s Office, filed with this Court an Anders
    brief and “Petition to Withdraw as Counsel” at Docket No. 1493 MDA 2014.
    On October 30, 2014, the trial court filed an opinion and order denying
    Appellant’s post-sentence motion for a new trial. On November 17, 2014,
    Appellant filed another notice of appeal. This second notice of appeal was
    ____________________________________________
    2
    On August 29, 2014, Appellant’s trial counsel, Attorney Joseph S.
    Toczydlowski, filed a motion to withdraw, which the trial court granted, and
    that same day, the trial court filed an order directing the appearance of the
    Office of the Public Defender of Lackawanna County.
    3
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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    docketed by this Court at No. 2191 MDA 2014 on December 19, 2014. The
    trial court did not direct Appellant to file a concise statement of errors
    complained of on appeal.    On November 18, 2014, the trial court filed an
    opinion pursuant to Pa.R.A.P. 1925(a).
    We are thus in the unusual position of having two appeals at two
    different docket numbers from the same judgment of sentence.              For
    purposes of clarity and ease of analysis, we will first address the issues
    raised by Appellant in the appeal filed at Docket No. 2191 MDA 2014,
    following the denial of Appellant’s post-sentence motion. Appellant presents
    three issues:
    A. Whether the [trial] court erred in denying the Appellant’s
    request to strike Dr. Novinger’s testimony wherein he stated that
    “I really believe strongly that was my medical conclusion that
    this child was victimized,” since this opinion was:
    1. not base[d] upon medical evidence;
    2. encroached upon the jury’s province of determining
    whether a sexual assault had occurred; and/or
    3. improperly bolsters the victim’s credibility, and, as
    such, the prejudicial impact of the testimony outweighs
    its probative value.
    B. Whether the verdict was against the weight of the evidence?
    C. Whether there was sufficient evidence to support the verdicts
    of guilt of rape forcible compulsion, of rape of a child, of
    statutory sexual assault, of aggravated indecent assault, of
    endangering the welfare of a child, of indecent assault, of
    corrupting the morals of a minor, and of unlawful contact or
    communication?
    Appellant’s Brief at 4.
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    Appellant first claims that the trial court erred when it denied his
    motion to strike the testimony of the Commonwealth’s expert. Appellant’s
    Brief at 20-26.     Specifically, Appellant objects to the portion of Dr.
    Novinger’s testimony stating: “I really believe strongly that was my medical
    conclusion that this child was victimized”, and Dr. Novinger’s statement that
    he based his opinion on “the history [she] provided to me [which] pretty
    clearly indicated that she was sexually abused.” N.T., 1/21/14 at 219, 229.
    Appellant’s counsel did not immediately object to Dr. Novinger’s testimony,
    but the following day, moved to strike it. N.T., 1/22/14, at 21-23. The trial
    court denied Appellant’s motion to strike, explaining:
    My recollection of that question and answer, and I don’t think it
    was isolated to one question and one answer, was that the
    opinions that he expressed were based on many things, not just
    the physical exam, but also the history that was taken, the
    consultation of the other reports and all of the other information.
    And that if he were asked to say could he express an opinion as
    to whether or not there was abuse strictly by physical findings,
    his answer was he could not; however, when he looked at the
    whole picture as to all of the information to be considered, it was
    his opinion that abuse had taken place.
    So your objection is noted. You had the opportunity to
    cross-examine at th[at] point in time. I did specifically ask
    whether or not you had any objection to the doctor being
    excused at that point in time and you indicated that you did not.
    But I think it would cause und[ue] emphasis on a single portion
    of the doctor’s testimony for me to now refer to it and then order
    it stricken or modified in any way so your objection is noted but
    overruled.
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    N.T., 1/22/14, at 22-23.4
    “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. Expert testimony is permitted as an aid to the
    jury when the subject matter is distinctly related to a science, skill, or
    occupation beyond the knowledge or experience of the average layman.
    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) (citations and internal quotations omitted).
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    4
    Although Appellant’s counsel did not contemporaneously object to Dr.
    Novinger’s testimony at the earliest possible opportunity, we conclude that
    Appellant has not waived appellate review of this claim. “The purpose of
    contemporaneous objection requirements respecting trial-related issues is to
    allow the court to take corrective measures and, thereby, to conserve limited
    judicial resources.” Commonwealth v. Sanchez, 
    36 A.3d 24
    , 42 (Pa.
    2011). Here, although the objection to Dr. Novinger’s testimony was lodged
    the day after Dr. Novinger testified, the trial court still had the opportunity
    to take corrective measures and thus was not deprived of the opportunity to
    correct a possible error. Accordingly, we find this claim appropriately
    preserved for appellate review. See also Commonwealth v. Johnson,
    
    456 A.2d 988
    , 994 (Pa. Super. 1983) (explaining that “although in the vast
    majority of cases a ‘timely objection’ means a ‘contemporaneous objection’
    ... contemporaniety of objection is not insisted upon as a value in itself,
    rather it is required as the most convenient method of preventing a party
    from permitting error to insinuate itself into the record and complaining
    thereafter”; thus it is improper for counsel, deliberately, as a strategic
    decision, to refrain from objecting, but where there was “no attempt to
    ‘insinuate error into the record and complain thereafter’, and counsel
    strenuously attempted to excise the error, to find such an objection untimely
    would indeed be to ‘insist upon contemporaneity as a value in itself’”);
    Pa.R.Crim.P. 720(B)(1)(c) (“Issues raised before or during trial shall be
    deemed preserved for appeal whether or not the defendant elects to file a
    post-sentence motion on those issues.”).
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    Our case law is clear that while “[e]xpert testimony is generally
    admissible in any case, where such testimony goes to a subject requiring
    special knowledge, skill or intelligence beyond that possessed by the
    ordinary juror[,] a determination of whether or not a witness is telling the
    truth is a subject well within the ordinary knowledge and experience of the
    average juror.” Commonwealth v. Balodis, 
    747 A.2d 341
    , 345 (Pa. 2000)
    citing Commonwealth v. Seese, 
    517 A.2d 920
    , 921-922 (Pa. 1986). Thus,
    “the question of a witness’ credibility has routinely been regarded as a
    decision reserved exclusively for the jury” and “[i]t is an encroachment upon
    the province of the jury to permit admission of expert testimony on the issue
    of a witness’ credibility.”   Seese, 517 A.2d at 922 (awarding defendant a
    new trial where the expert testified as to the veracity of the victim and the
    prosecution relied primarily on the victim’s perceived veracity to establish its
    case).
    Accordingly, “the admissibility of expert testimony in child abuse cases
    must be evaluated cautiously in order to prevent encroachment upon the
    jury’s function by the unfair enhancement of a child victim’s credibility.”
    Commonwealth v. Hernandez, 
    615 A.2d 1337
    , 1341 (Pa. Super. 1992).
    “This Court has stated that the key criteria in determining whether such
    expert testimony is admissible is the purpose for which the testimony is
    offered; if it is offered solely to sustain the credibility of the victim, it should
    not be admitted.”       
    Id.
       See also Minerd, 753 A.2d at 225 (expert
    testimony of pediatrician in child sexual abuse case was admissible where
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    the expert was not asked and did not express any opinion as to whether the
    children were telling the truth about being sexually abused); Balodis, supra
    (expert testimony that child victims of sexual abuse normally do not
    immediately disclose the abuse was inadmissible because it invaded the
    jury’s province); Commonwealth v. Johnson, 
    690 A.2d 274
     (Pa. Super.
    1997); Commonwealth v. Dunkle, 
    602 A.2d 830
     (Pa. 1992) (expert
    testimony that the victim displayed behavior patterns consistent with those
    typically displayed by sexually abused children was inadmissible because it
    encroached on the province of the jury to determine witness credibility);
    Commonwealth v. Rounds, 
    542 A.2d 997
     (Pa. 1988); Commonwealth v.
    Ferguson, 
    546 A.2d 1249
    , 1253 (Pa. Super. 1987). See also Pa.R.E. 702.
    In 2012, our legislature enacted 42 Pa.C.S.A. § 5920, pertaining
    specifically to expert testimony in certain criminal proceedings involving sex
    offenses. Section 5920 provides:
    (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) [42 Pa.C.S.A. § 9799.10 et seq.].
    (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
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    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)   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 (emphasis added).
    Section 5920 thus upholds the longstanding prohibition precluding
    expert witnesses from testifying about the credibility of a child sexual abuse
    victim, although permitting experts to testify as to “specific types of victim
    responses and victim behaviors.” 42 Pa.C.S.A. § 5920 (b)(2) and (3). See
    Commonwealth v. Carter, --- A.3d --- (Pa. Super. Mar. 19, 2015).
    Through the language of section 5920(b)(3), our legislature has made clear
    that “[t]he witness's opinion regarding the credibility of ... the victim, shall
    not be admissible.”
    Here, Appellant argues that Dr. Novinger’s testimony that he believed
    the victim was sexually abused, which was based on the victim’s statements
    to that effect, improperly constituted an opinion as to whether the victim
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    was telling the truth, and intruded into the jury’s function to assess the
    credibility of witnesses. Upon careful review of the record, we must agree.
    Appellant    specifically    challenges     the   portion   of   Dr.   Novinger’s
    testimony in which he stated verbatim: “I really believe strongly that was
    my medical conclusion that this child was victimized.”              N.T., 1/21/14, at
    229.5 Appellant maintains that, in light of Dr. Novinger’s testimony that the
    physical examination of the victim was inconclusive, Dr. Novinger’s
    statement that he believed the child was victimized, constituted an expert
    opinion as to the credibility of the victim, particularly given that the victim
    displayed no physical signs of abuse, and the only evidence of such abuse
    was the victim’s testimony.
    We agree with Appellant that Dr. Novinger’s statement that he
    believed the child was victimized, encroached on the jury’s function as the
    sole arbiter of credibility. As our Supreme Court observed in Seese, “[s]uch
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    5
    Appellant also takes issue with Dr. Novinger’s statement that “the history
    she provided to me pretty much indicated that she was sexually abused,”
    thus intruding on the ultimate issue of the victim’s credibility.       N.T.,
    1/21/14, at 219; Appellant’s Brief at 22, 26. Our review of the record
    reveals, however, that this statement by Dr. Novinger was elicited by
    Appellant’s own counsel on cross-examination. “It is well settled that the
    defendant must assume the risk of his counsel's questions and he cannot
    benefit on appeal when his own cross-examination elicited an unwelcome
    response.” Commonwealth v. Gilliard, 
    446 A.2d 951
    , 954 (Pa. Super.
    1982) (rejecting the appellant’s claim that trial court improperly denied his
    motion for mistrial after witness testified that the appellant had other
    charges pending against him when such testimony was elicited by
    appellant’s own counsel).
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    testimony, admitted as evidence, would encourage jurors to shift their focus
    from determining the credibility of the particular witness who testified at
    trial, allowing them instead to defer to the so-called ‘expert’ assessment ...
    In addition, such testimony would imbue the opinions of ‘experts’ with an
    unwarranted appearance of reliability upon a subject, veracity, which is not
    beyond the facility of the ordinary juror to assess.” Seese, 517 A.2d at 922.
    Dr. Novinger’s expert testimony pertaining to the credibility of the victim
    was therefore inadmissible. Moreover, the trial court declined to issue any
    curative instruction to the jury to mitigate the impact of the impermissible
    statement. We are constrained to find, therefore, that Appellant is entitled
    to a new trial. See id.
    Although we are vacating Appellant’s judgment of sentence and
    remanding this case for a new trial, we will address Appellant’s remaining
    weight and sufficiency claims at Docket No. 2191 MDA 2014.
    When presented with a claim that the evidence was insufficient to
    sustain a conviction,
    an appellate court, viewing all the evidence and reasonable
    inferences therefrom in the light most favorable to the
    Commonwealth as the verdict winner, must determine whether
    the evidence was sufficient to enable the fact finder to find that
    all of the elements of the offenses were established beyond a
    reasonable doubt.
    Commonwealth        v.    Hawkins,   
    701 A.2d 492
    ,   499   (Pa.   1997).
    “Furthermore, it is axiomatic that [t]he Commonwealth may sustain its
    burden by proving the crime's elements with evidence which is entirely
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    circumstantial and the trier of fact, who determines credibility of witnesses
    and the weight to give the evidence produced, is free to believe all, part, or
    none of the evidence. In the case of sexual offenses, the testimony of the
    victim alone is sufficient to convict, and medical evidence is not required if
    the fact finder believes the victim.”     Commonwealth v. Jette, 
    818 A.2d 533
    , 534 (Pa. Super. 2003) (citations and internal quotations omitted).
    With regard to weight of the evidence challenges, our Courts have
    made clear:
    The testimony of a sexual assault victim standing alone is
    sufficient weight to support a conviction.            Furthermore, in
    reviewing a weight of the evidence claim we look to see if the
    verdict was so contrary to the evidence as to shock one's sense
    of justice and make the award of a new trial imperative. The
    decision whether to grant a new trial is within the trial court's
    discretion, and we review that decision under an abuse of
    discretion standard. Furthermore, since issues of credibility are
    left to the trier of fact, the trial court, sitting as fact finder, [is]
    free to accept all, part, or none of a witness's testimony.
    Commonwealth v. Strutt, 
    624 A.2d 162
    , 164 (Pa. Super. 1993) (citations
    and internal quotations omitted).
    Here, even absent the expert testimony of Dr. Novinger, the testimony
    of the victim alone was sufficient and of adequate weight to support the
    verdicts.   The victim testified as to numerous incidents where Appellant
    raped and sexually assaulted her beginning when she was eleven years old,
    detailing the circumstances surrounding the incidents, including the various
    locations in the house where the assaults occurred, and the manner in which
    Appellant regularly initiated sexual contact with her by inducing her to bathe
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    with him. N.T., 1/21/14, at 68-88. This testimony, if believed by the jury,
    was sufficient and of adequate weight to support Appellant’s convictions.
    Appellant’s weight and sufficiency claims therefore fail.
    At Docket No. 1493 MDA 2014, Appellant’s issues pertain solely to the
    discretionary aspects of his sentence.        Given our determination that
    Appellant is entitled to a new trial, we need not address the discretionary
    sentencing claims raised by Appellant in the Anders Brief filed at Docket No.
    1493 MDA 2014.       Additionally, given our disposition, we deny counsel’s
    petition to withdraw at Docket No. 1493 MDA 2014.
    Judgment of sentence vacated and case remanded.            Petition to
    withdraw at Docket No. 1493 MDA 2014 denied. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/12/2015
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