Commonwealth, Aplt. v. Maconeghy Jr., K. , 171 A.3d 707 ( 2017 )

[J-17-2017] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 81 MAP 2016
:
Appellant :
: Appeal from the Order of the Superior
: Court dated June 12, 2015 at No. 2191
v. : MDA 2014, vacating the Judgment of
: Sentence of July 21, 2014 of the Court
: of Common Pleas of Lackawanna
KENNETH MACONEGHY, JR., : County, Criminal Division, at No. CP-35-
: CR-0001450-2012 and remanding
Appellee :
: ARGUED: March 8, 2017
DISSENTING OPINION
JUSTICE TODD DECIDED: October 18, 2017
The majority holds that Dr. Novinger’s expert opinion that C.S. was sexually
abused was inadmissible because it was founded solely on his crediting her reports of
the abuse and, thus, in the majority’s view, invades the jury’s province as the sole
arbiter of witness credibility. In my view, the majority overlooks an important distinction
between expert testimony on the subject of witness credibility, which is inadmissible,
and expert testimony on other subjects which are merely founded on assessments of
witness credibility, which are not ipso facto inadmissible. I am concerned that the
majority’s holding will lead to the exclusion of myriad types of salutary expert testimony
which would not infringe upon the jury’s role, but, rather, would assist the jury in its
execution of its duties as the finder of fact. I further fear that the majority’s holding is
particularly troublesome in the context of prosecutions for child sexual abuse, where
pediatricians frequently rely on non-physical evidence of such abuse, where physical
evidence is exceedingly rare, and where juries commonly labor under outdated myths to
the contrary. Accordingly, I respectfully dissent, and would reverse the Superior Court’s
order and reinstate Appellee’s convictions and judgment of sentence.
As the majority summarizes, in 2011, C.S. reported that, in the summer of 2005,
when she was 11 years old, Appellee repeatedly raped and otherwise sexually abused
her over a period of several months, at times when her mother and siblings were absent
from their home. In the ensuing investigation, C.S. was referred to the Children’s
Advocacy Center of Northeastern Pennsylvania (“CAC”), where she underwent a
forensic interview with a certified forensic interviewer, detailing the abuse, which was
observed by the CAC’s former director and then-consulting pediatrician, Dr. Novinger.
C.S. then underwent a forensic medical examination performed by Dr. Novinger, who
ultimately determined that C.S. was sexually abused.
Appellee was arrested and charged with, inter alia, rape, rape of a child, statutory
sexual assault, aggravated indecent assault of a person less than 13 years of age,
endangering welfare of children, indecent assault of a person less than 13 years of age,
corruption of minors, and unlawful contact with a minor,1 and proceeded to a jury trial, at
which C.S. testified at length to the details of the abuse. Specifically, C.S. indicated
that, during the summer of 2005, she lived with Appellee, who was unemployed, her
mother, who worked during the day, and her siblings. C.S. testified that, after her
mother left for work, Appellee would send her siblings to a relative’s house or otherwise
isolate her, whereupon he would force her to bathe with him and engage in vaginal
intercourse and other sexual conduct in their bath, on their couch, and in his bedroom.
C.S. further testified that she did not understand that his behavior was abnormal, but
that, by 2011, she had begun to appreciate the nature of her abuse. C.S. explained
1
18 Pa.C.S. §§ 3121(a)(1), 3121(c), 3122.1, 3125(a)(7), 4304(a), 3126(a)(7),
6301(a)(1), and 6318(a)(1), respectively.
[J-17-2017] [MO: Saylor, C.J.] - 2
that, around that time, she was spending the weekend with her biological father and his
girlfriend, and they were watching a television show which turned to the subject of rape,
causing her to cry. According to C.S, her father then asked her if she had been
victimized, and she ultimately disclosed what Appellee had done.
At issue herein, the Commonwealth elicited the testimony of Dr. Novinger, who
testified at length to his experience as a pediatrician, and, particularly, as a pediatrician
experienced in the evaluation and treatment of child sexual abuse victims. Specifically,
Dr. Novinger indicated that he had 37 years of experience as a practicing, board-
certified pediatrician, which included, inter alia, chairing the Department of Pediatrics at
Geisinger Wyoming Valley Medical Center, externing with a Children’s Advocacy Center
in San Diego, California, founding a clinic at Geisinger for the evaluation and treatment
of child sexual abuse victims, serving as CAC’s medical director for several years, and
holding numerous seminars for medical and educational professionals concerning child
sexual abuse. Dr. Novinger estimated that he had evaluated between 500 and 1000
children for signs of abuse, and that he had testified in myriad civil and criminal cases
involving child sexual abuse.
Based on this experience, the Commonwealth offered, and the trial court
certified, Dr. Novinger as an expert in the fields of pediatrics and child abuse. Dr.
Novinger indicated generally that his forensic medical examination consisted of
observing C.S.’s forensic interview, taking her medical history, including her account of
the abuse, and conducting a physical examination, which yielded no physical evidence
of the abuse. Dr. Novinger clarified that the lack of physical evidence neither
corroborated nor undermined the Commonwealth’s allegations. Indeed, Dr. Novinger
explained that the “overwhelming majority” of physical examinations involving similar
abuse reveal no physical evidence of the same:
[J-17-2017] [MO: Saylor, C.J.] - 3
[The Commonwealth:] Doctor, I am going to get you . . .
to the area that I am most
concerned about. You indicated
on your report that everything
seemed to be normal. Could you
tell me a little bit about what
we’re looking for when you’re
looking at something in the
hymeneal ring?
[Dr. Novinger:] We’re looking for evidence of
acute, chronic, or healed trauma
in light of the history that we’re
provided. We know that children
– girls who are victimized, the
overwhelming majority of their
exams will be normal, and that’s
what we expect to find if it’s
greater than 72 hours. If it is less
than 72 hours – in other words,
we see the child less than 72
hours after they’ve been
victimized – then about 70
percent will be normal. And so
our expectation . . . is that the
exam would be entirely normal.
[The Commonwealth:] Okay. But when you’re going in
on an examination based on the
disclosure like you had in this
case, what is your expectation?
Do you think you’re going to find
something? Is there a red flag
that waves around at the hymen
as to a huge indicator flashing
sign saying this person has been
abused?
[Dr. Novinger:] No. I mean we’re objective in
trying to -- our goal is to identify
and objectively examine and
describe what we find. The truth
of the matter is that the
overwhelming majority of
children, adolescent girls, who
present with the sort of complaint
[J-17-2017] [MO: Saylor, C.J.] - 4
that [C.S.] did their exam is
normal.
[The Commonwealth:] So is there a certain like
watermark that you would think
that you would see in patients
that presented with this
disclosure that [C.S.] had?
[Dr. Novinger:] No. No. I would expect that her
exam would be normal.
N.T. Trial, 1/21/14, at 203-05 (R.R. at 86a-88a). Dr. Novinger went on to explain that
the reason that physical evidence is rare is because children who are abused frequently
sustain no injuries during, or heal after, the abuse, contrary to long-held cultural beliefs:
[Dr. Novinger:] [W]e know that the hymen and
the surrounding structures of . . .
the vagina is the mucosa, similar
to the mucosa that is inside your
mouth. We know that this part of
the body heals up very quickly
should there be an injury. We
know that in the event we see a
child very early after an incident
in which she is sexually
assaulted, and there is evidence
of trauma, that if you check the
same child three weeks later, the
trauma is completely healed and
there really is no residual finding
whatsoever, and over the
majority of the time that is the
case. So I think there’s an idea
of a culture belief in virginity,
which is really a myth. In other
words, in children and in anyone
who experiences sexual activity,
the idea that they’re changed in
some way as a result is really a
myth. That the overwhelming
majority of times they’re really not
changed in any way. As I show
[J-17-2017] [MO: Saylor, C.J.] - 5
there, the hymeneal rim, it’s
actually . . . not a membrane and
therefore it’s not something that
necessarily is traumatized by
penetration. It’s made of tissue,
which is very elastic. And I mean
obviously this is where a baby
comes from and the good Lord
made that part of the body to
stretch. And so we know that
adolescents can experience
stretching there either as a
[result] of sexual assault or even
as the result of [a] speculum
exam . . . and have no evidence
of any trauma.
Id. at 205-06 (R.R. at 88a-89a). Doctor Novinger then explained that, because physical
examinations typically reveal no physical evidence of abuse, physicians forming expert
opinions on whether a child was sexually abused rely largely on the child’s provided
history, explaining that his experience and a series of medical publications similarly
refute the notion that one’s “virginity” can be determined by resort to physical
examination:
[The Commonwealth:] Doctor, I’m just going to back you
up a little bit. You touched upon
the fact that you’re talking about
whether this idea that we have as
a society of a virgin, what have
you had in your experience and
in the medical literature that says
that the examination of a person
who has had intercourse versus
the examination of a person who
hasn’t had intercourse, how you
would be able to differentiate the
difference between those two?
[Dr. Novinger:] Really by history only. There is
really no physical difference
[J-17-2017] [MO: Saylor, C.J.] - 6
between the two, and in the
context of medical literature
today, the term virgin would not
be used because it really has no
medical basis. The idea that a
virgin is someone who has not
had the change of someone who
had experienced a sexual
experience or sexual assault is
really a long, long standing myth.
It’s a cultural belief that [the]
medical field just does not
support.
[The Commonwealth:] Where do you get this information
from when you’re talking about
the medical literature?
[Dr. Novinger:] Besides my personal experience
at the CAC, there’s a published
peer review in medical literature
that at this point universally
supports the significant fact that
the hymenal ring is typically not
changed by any penetration.
[The Commonwealth:] Doctor, when you authored your
report . . . with regard to what
your findings were with [C.S.],
you would expect them to be
normal, right?
[Dr. Novinger:] Yes.
[The Commonwealth:] Do you cite this book, Child
Abuse, Medical Diagnosis and
Management as a reference to
say that you would expect that
examination to be normal based
on her disclosure?
[Dr. Novinger:] Yes.
[J-17-2017] [MO: Saylor, C.J.] - 7
[The Commonwealth:] Is this a book that you find to be
authoritative and that others in
your profession would find
authoritative in the area of child
abuse?
[Dr. Novinger:] Yes.
[The Commonwealth:] Doctor, is there a specific article
that you mentioned in your report
. . . that basically describes that
whole idea of virgin in the context
of medical research?
[Dr. Novinger:] Yes. I have to emphasize there’s
a number of different articles.
There is one particular one in
2004 published by Nancy Kellogg
and others in which they
examined 36 adolescent girls, all
of whom were pregnant. So by
definition they have had sexual
experience and described their
hymenal anatomy, and the
overwhelming majority of these
pregnant adolescents, hymenal
anatomy was completely normal.
There was no evidence of acute
trauma, blunt trauma, notching,
anything like that that you would
expect from a belief that
somehow they’re changed by a
sexual experience. . . . Two of the
36 were not normal, and actually
one of the 36 had — it was
actually her second child. I think
there was a belief that somehow
the hymen disappears after their
first sexual experience, and
again, that’s a cultural myth that
is part of a young woman’s
anatomy. It doesn’t go away.
[J-17-2017] [MO: Saylor, C.J.] - 8
And in most cases it’s not
changed.
Id. at 206-09 (R.R. at 89a-92a).
On cross-examination, Appellee’s counsel attempted to characterize Dr.
Novinger’s testimony as indicating that the medical evidence did not corroborate the
Commonwealth’s allegations of abuse, but Dr. Novinger rejected the characterization,
noting that a portion of the “medical evidence” — C.S.’s medical history — indicated she
was abused:
[Appellee’s Counsel:] Dr. Novinger, you testified at
length about this exam. Of
course you started the testimony
by agreeing that the medical
evidence that you observed in
this alleged victim did not support
an allegation that there was
sexual abuse.
[Dr. Novinger:] The history she provided to me
pretty clearly indicated that she
was sexually abused.
Id. at 218-19 (R.R. at 101a-02a). Appellee’s counsel clarified that, by “medical”
evidence, he was referring to physical evidence, and, ultimately, asked Dr. Novinger
whether he could offer an opinion as to whether C.S. was sexually abused based solely
thereon. Dr. Novinger responded that he could not, but that his opinion, based on the
forensic medical examination as a whole, was that C.S. had been sexually abused:
[Appellee’s Counsel:] Based on your physical
examination, you can’t testify
here today to a degree of medical
certainty as to whether or not this
particular victim was sexually
assaulted.
[J-17-2017] [MO: Saylor, C.J.] - 9
[Dr. Novinger:] I really can’t speak to the different
parts of the medical encounter.
[The] [m]edical encounter
included a history as well as a
physical exam. As I said, the
physical exam was normal.
Clearly the medical encounter
indicated the child had been
victimized.
Id. at 228 (R.R. at 111a).
On redirect examination, the Commonwealth sought to emphasize that the lack
of physical evidence did not undermine its allegations, and Dr. Novinger agreed,
restating his conclusion that C.S. had been sexually abused:
[The Commonwealth:] [W]hen you’re saying that your
examination is normal, you’re not
saying that nothing happened,
are you?
[Dr. Novinger:] That’s correct. I really believe
strongly that was my medical
conclusion that this child was
victimized.
Id. at 229 (R.R. at 112a). Notably, Dr. Novinger at no point identified Appellee, or any
other specific individual, as the perpetrator of C.S.’s abuse.
Although not objecting at that time, the next day, Appellee's counsel made an
oral motion to strike this testimony as “inappropriate opinion testimony that’s not based
on medical evidence or . . . medical expertise.” N.T. Trial, 1/22/14, at 22 (R.R. at 115a).
The trial court denied the motion, reasoning that the testimony was an admissible
medical opinion, based on the forensic medical examination as a whole, that C.S. had
been sexually abused.
Ultimately, Appellee was convicted of the aforementioned offenses and
sentenced to a term of 10½ to 30 years imprisonment. He appealed to the Superior
[J-17-2017] [MO: Saylor, C.J.] - 10
Court, arguing that the trial court erred in denying his motion to strike because Dr.
Novinger’s testimony, founded solely upon his crediting C.S.’s reports of the abuse,
indirectly vouched for C.S.’s credibility and invaded the jury’s purview as the sole arbiter
of credibility. The Superior Court agreed, reversing and remanding for further
proceedings, and the Commonwealth sought allocatur, which we granted.
Before us, the Commonwealth argues, consistent with the trial court’s analysis,
that Dr. Novinger’s testimony did not express an opinion on C.S.’s credibility, but, rather,
expressed a medical opinion based on the forensic medical examination as a whole,
that C.S. had been sexually abused. The majority rejects the Commonwealth’s
arguments based on the view, shared by some other jurisdictions, that an expert opinion
that an individual was sexually abused, founded solely on the expert’s crediting the
individual’s reports of the abuse, is “inextricably tied to [the expert’s] belief in the
complainant’s veracity” and, thus, constitutes “indirect vouching” for the individual’s
credibility. Majority Opinion at 8-9. The majority further reasons that, because this
Court has previously forbidden “expert testimony concerning general characteristics of
sexual assault victims,” “[i]t would be incongruous indeed for the Court to now forge a
minority pathway on the opposite side of the spectrum by sanctioning the admission of
evidence having a more direct bolstering effect specific to the complainant.” Id. at 11
(citing Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000)).
In my view, the majority’s analysis in this regard conflates two distinct categories
of expert testimony: expert opinions on the subject of witness credibility, which this
Court has held inadmissible, and expert opinions on other subjects founded on a
witness’s prior statements, which are not ipso facto inadmissible. Indeed, this Court has
not hesitated to reject expert testimony merely corroborating a witness’s testimony or
offering reasons why a witness (or class of witnesses) is credible. See Commonwealth
[J-17-2017] [MO: Saylor, C.J.] - 11
v. O’Searo, 352 A.2d 30 (Pa. 1976) (rejecting expert psychological testimony
corroborating a defendant’s testimony concerning his lack of malice in shooting his
victim); Commonwealth v. Rounds, 542 A.2d 997 (Pa. 1988) (rejecting an expert’s
testimony that she believed a complaining witness); Commonwealth v. Seese, 517 A.2d
92 (Pa. 1986) (rejecting expert testimony that prepubescent children do not typically
fabricate abuse of being sexually abused because they lack sufficient knowledge of
sexual behavior to do so); Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992) (rejecting
expert testimony explaining why child sexual abuse victims may delay reporting their
abuse).2
However, with respect to the latter category — i.e., expert opinions on other
subjects which are merely founded upon credited reports of others — we have charted
a somewhat different course. In Rounds, supra, we addressed a defendant’s claim that
his counsel was ineffective in failing to object to a medical opinion, based solely on the
alleged victim’s history, that the alleged victim had been sexually abused, on the ground
that the expert had failed to state the basis for her opinion. Rounds, 542 A.2d at 997-
99. Notably, we expressly rejected, albeit in dicta, the expert’s explicit testimony that
she believed the alleged victim, as an inadmissible expert opinion on her credibility, see
id. at 997 n.4 (citing Seese, but noting the issue was not raised); however, we did not
suggest that her opinion itself was inadmissible because it was based solely on the
alleged victim’s history. Rather, we appeared to reject the proposition, opining that it
was counsel’s duty to elicit from the expert that her opinion was rooted solely in the
2
Notably, following Dunkle, the General Assembly enacted a provision permitting the
introduction of such expert testimony under certain circumstances, provided experts do
not opine on the subject of witness credibility. See 42 Pa.C.S. § 5920.
[J-17-2017] [MO: Saylor, C.J.] - 12
alleged victim’s statement, and then to challenge the opinion as unreliable by
challenging the statement as unreliable:
[W]e must conclude that trial counsel was ineffective. There
is no reason that can be offered for permitting the damaging
opinion of [the expert] to be admitted without the facts upon
which it was being considered. How could a jury evaluate
the expert opinion without even knowing the facts upon
which it was based[?] [The expert] testified that the case
history was the single most important factor in reaching her
conclusion. If the jury believed that the case history she
received was inaccurate or false, surely this would affect the
validity of her opinion.
Id. at 999.
The majority acknowledges that Rounds “may provide some inferential evidence
that the Court was then not consciously inclined to disapprove expert witness opinions
that abuse has occurred within the contours of the case as it had developed,” but
nevertheless rejects the import of this passage on the ground that the court offered “no
developed reasoning . . . on this subject.” Majority Opinion at 13. In my view, the more
sound reading of the passage is as embracing the notion advanced by the
Commonwealth herein: that expert testimony on a subject other than witness credibility
is not transformed into an opinion on the subject of credibility solely because it is
founded on a witness’s prior statements.
Additionally, in Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000), we
considered whether a medical expert’s testimony that the absence of physical trauma is
nevertheless consistent with the alleged sexual abuse was inadmissible expert
testimony as to credibility, ultimately adopting the view that it was proper, even if it
tended to support a witness’s credibility, in part because the expert did not opine directly
as to any witness’s credibility. Id. at 227-30 (“In this case, [the expert’s] testimony was
probative of the veracity of [the alleged victims]. However, [she] was neither asked for,
[J-17-2017] [MO: Saylor, C.J.] - 13
nor did she express, any opinion as to whether the children were telling the truth about
being sexually abused.”). Admittedly, as the majority highlights, we also noted that the
expert’s testimony “only explained the significance of the results of the physical
examination,” and that her opinion was “inconclusive as to whether any abuse had even
occurred.” Id. However, in my view, these distinctions are insignificant: because the
expert offered no opinion as to a witness’s credibility, it did not invade the jury’s
province as the sole arbiter of credibility.
Given this distinction between expert opinions about credibility and expert
opinions on other subjects rooted in the expert’s credibility judgments, I am likewise
unpersuaded by the majority’s reliance on our preclusion, in Balodis, of “expert
testimony concerning general characteristics of sexual assault victims,” as supporting its
analysis herein. Majority Opinion at 11. Simply put, the testimony in Balodis concerned
“the general characteristics of child sexual abuse victims as those traits relate to a
failure to promptly report abuse.” Balodis, 747 A.2d at 343. That is, the testimony was
offered to explain why child sexual abuse victims engage in conduct that would
otherwise form a basis for attacking their credibility, and was not, like Dr. Novinger’s
testimony herein, an opinion on another subject which was merely rooted in crediting a
witness’s prior statements.
Moreover, the majority’s apparent view that an expert opinion is inadmissible
merely because it is rooted in the expert’s assessment of the veracity of third-party
statements is itself anomalous, as our Rules of Evidence and numerous decisions of
this Court have essentially delegated the question of proper methodology for deriving,
and the proper foundation of, expert opinions to the judgment of experts themselves,
reflecting this Court’s reluctance to substitute its judgment on those methodological
questions for those of individuals learned and experienced in their respective
[J-17-2017] [MO: Saylor, C.J.] - 14
specialized fields. See Pa.R.E. 702(c) (requiring that an “expert’s methodology” be
“generally accepted in the relevant field”); Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1044-
45 (Pa. 2003) (noting that “[o]ne of the primary reasons” for deferring to professional
judgments concerning methodology is “its assurance that judges would be guided by
scientists when assessing the reliability of a scientific method” and that the rationale
applies with greater force over time due to “the ever-increasing complexity of scientific
advances”); Pa.R.E. 703 (“If experts in the particular field would reasonably rely on . . .
facts or data in forming an opinion on the subject, they need not be admissible for the
opinion to be admitted.”); cf. Commonwealth v. Thomas, 282 A.2d 693, 698 (Pa. 1971)
(noting that medical experts may testify to opinions based upon “reports of others which
are not in evidence, but which the expert customarily relies upon in the practice of his
profession”).
Indeed, I find myself largely in agreement with the Superior Court’s decision in
Commonwealth v. Hernandez, 615 A.3d 1337 (Pa. Super. 1992), which the
Commonwealth relies on in its brief. In that case, a criminal defendant raised a claim
that his trial counsel was ineffective in failing to object to a medical expert’s testimony
that “assuming the truthfulness of the victim’s history, the physical facts from a medical
examination . . . were consistent with the victim’s allegation.” Id. at 1338. The court
rejected the defendant’s claim, opining that a medical expert is free to base his opinion
on methods and foundational facts or data that are reasonably relied upon in the field of
medicine:
The general rule governing admissibility of expert testimony
is that “[e]xpert testimony is permitted only as an aid to the
jury when the subject matter is . . . beyond the knowledge or
experience of the average layman. Where the issue
involves a matter of common knowledge, expert testimony is
inadmissible.” Commonwealth v. O’Searo, 352 A.2d [at 32].
[J-17-2017] [MO: Saylor, C.J.] - 15
We are unaware of any precedent that establishes that an
expert . . . may not explain the assumptions on which he
bases his opinion. . . . [A] medical expert may base his
opinion upon facts which are in the record and reports of
others which are . . . customarily relied upon in practicing
medicine, including the observations of lay persons. It
follows that a pediatrician . . . may testify that the physical
facts observed and reported by the treating physician were
consistent with the allegation . . . set forth in the history of
the child. The medical history of a patient is customarily
relied upon in practicing medicine. Consequently, it is not
error for the expert to testify . . . that his opinion assumes the
truthfulness of the history supplied by the victim.
Id. at 1343.3
Finally, I am concerned that the majority’s holding will undermine the admissibility
of myriad forms of salutary expert opinion evidence. Indeed, one can readily imagine
numerous kinds of appropriate expert opinions, rooted solely in the statements of
others, that may now be prohibited. Doctors may be forbidden from testifying
concerning their patients’ diseases where their diagnoses are made on the basis of
patients’ or other medical professionals’ statements or reports. Psychiatric
professionals, whose diagnoses often rely solely on their evaluation of their patients’
mental states as evidenced by their verbal statements, may be precluded. These and
numerous other experts may be forbidden from offering opinions based on third-parties’
statements, even where their professions routinely rely on such statements. In my view,
3
In his brief, Appellee claims that Hernandez is distinguishable in that, therein, the
expert based his opinion on both physical observations and the victim’s history, and
testified only that the data was consistent with abuse, rather than offering an affirmative
opinion that abuse occurred. However, I do not find those distinctions to alter the
appropriate answer to the salient question of whether the prohibition on expert opinions
on witness credibility applies to opinions that are on subjects other than witness
credibility, but founded in assessments of the credibility of witnesses’ prior statements.
[J-17-2017] [MO: Saylor, C.J.] - 16
the exclusion of such expertise from the courts of this Commonwealth would deprive
jurors of guidance they need. Moreover, as observed in Grady, supra, the ever-
increasing complexity of modern life counsels toward greater deference to communities
of experts as to the proper foundations of their expert opinions.
Such deprivation is particularly pernicious in the context of prosecutions for child
sexual abuse. There is an extremely narrow temporal window for the collection of
physical evidence of child sexual abuse like that which was alleged to have occurred in
this case, such that the discovery of physical evidence is the exception, rather than the
rule. See, e.g., Bernd Herrmann, et al., Physical Examination in Child Sexual Abuse:
Approaches and Current Evidence, Deutsches Arzteblatt International, 692-703, 700
(2014) (noting that physical examinations “reveal only normal findings in 90-95% of
cases”); id. at 695 (explaining that “‘[n]ormal’ does not mean ‘nothing happened’” and
that “[n]ormal findings are the rule, not the exception, in victims of child sexual abuse,
with or without penetration”).4 That narrow window almost always closes before a child
has time to cognitively and emotionally process his or her abuse – much less overcome
the all-too-frequent confusion, embarrassment, guilt, and shame that accompany it –
and to report it to anyone, including medical professionals. Moreover, medical
professionals are comfortable and experienced in arriving at a diagnosis without
physical evidence, and the absence of such evidence is often given too great of weight,
outside of the medical profession, based on outdated cultural myths about virginity. See
also id. at 700 (noting that “[t]he diagnosis of sexual abuse is usually based on a
4
Notably, Dr. Novinger testified that, even if a child victimized in the manner C.S. was
allegedly victimized does manage to comprehend and report his or her victimization
within a mere three days, medical professionals still expect an absence of physical
evidence in approximately 70 percent of cases. N.T. Trial, 1/21/14, at 204 (R.R. at
87a).
[J-17-2017] [MO: Saylor, C.J.] - 17
statement from the child, obtained in the correct way through sympathetic but not
suggestive questioning”); id. at 695 (explaining that “[t]he medically documented fact
that penetrating abuse may not be associated with any subsequently abnormal physical
findings must be known and understood by the treating personnel and the government
authorities . . . so that the credibility of the victims will not be unjustly put in doubt”).
Against this backdrop, I am troubled that the majority’s departure from ordinary
principles governing expert opinion foundation may only serve to deprive jurors of
necessary expert determinations, demanding more than medical science requires and
insisting on more than is present in all but a few cases of child sexual assault, where
jurors are most in need of specialized knowledge on the subject.
I acknowledge that expert opinions based in whole or in part on assessments of
the credibility of particular witnesses could conceivably tempt jurors to view those
witnesses as credible. However, I do not view this concern as a sufficient reason to
conclude that such expert opinions are, in and of themselves, opinions on witness
credibility, nor do I think they unavoidably invite the jury to abdicate its role as the arbiter
of credibility. Notably, litigants concerned that expert opinions are rooted in dubious
credibility assessments are free, for example, to challenge those opinions as
methodologically inappropriate in the expert’s field of expertise. See Pa.R.E. 702(c).
Moreover, litigants may argue that such opinions are more unfairly prejudicial than
probative of the facts at issue. See Pa.R.E. 403. Additionally, litigants may take the
course charted in Rounds: vigorous cross-examination with regard to an opinion’s
foundational components and argument to the finder of fact concerning the reliability of
those components themselves. Indeed, as we indicated in Rounds, the persuasive
value of an expert opinion demonstrably shown to rely solely on a hearsay account will,
if properly explained to a jury, rise and fall with the persuasive value of that hearsay
[J-17-2017] [MO: Saylor, C.J.] - 18
account. See Rounds, 542 A.2d at 999 (“If the jury believed that the case history [the
expert] received was inaccurate or false, surely this would affect the validity of her
opinion.”). Appellee availed himself of none of these options.5
Thus, I would hold that the prohibition of expert testimony on credibility does not
preclude expert opinions which do not opine as to a witness’s credibility, but which
address other subjects and are necessarily based on an expert’s assessment of that
credibility. Applying that rule herein, Dr. Novinger’s testimony that he “believe[d]
strongly that was [his] medical conclusion that [C.S.] was victimized” was properly
admitted. Dr. Novinger’s testimony, although based on C.S.’s history, contains no
express opinion that C.S. was credible or incredible, or that children like C.S. are
generally credible or incredible. Moreover, Dr. Novinger’s testimony was not challenged
on the basis that his opinion was rooted in methods or statements not customarily relied
upon in the fields of pediatrics or child abuse, and, at no time did he testify on subjects
irrelevant to his medical inquiry, such as whether Appellee was the perpetrator of the
abuse. Indeed, Dr. Novinger, offered by the Commonwealth and certified by the trial
court as an expert in the fields of pediatrics and child abuse, merely testified to his view,
based on his expertise in those fields, that C.S. had been sexually abused. In my view,
and contrary to the conclusion of the majority, our decisions emphasizing the jury’s role
as arbiter of credibility do not bar such testimony. Accordingly, I would hold that
Appellee was not entitled to strike the testimony, and that the learned trial court did not
5
I also note that a party is entitled to a cautionary instruction that such testimony is
meant to establish the opinion’s foundation, and is not substantive evidence. See
Pa.R.E. 705 cmt. (“When an expert testifies about the underlying facts and data that
support the expert's opinion and the evidence would be otherwise inadmissible, the trial
judge upon request must, or on the judge's own initiative may, instruct the jury to
consider the facts and data only to explain the basis for the expert's opinion, and not as
substantive evidence.”).
[J-17-2017] [MO: Saylor, C.J.] - 19
err in denying Appellee’s motion to do so, and thus, I would reverse the Superior Court’s
order and reinstate Appellee’s convictions and judgment of sentence.
[J-17-2017] [MO: Saylor, C.J.] - 20