Com. v. Hagleston, K. ( 2022 )


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  • J-S30038-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    KIRK DANIEL HAGLESTON                      :
    :
    Appellant               :   No. 308 MDA 2021
    Appeal from the PCRA Order Entered February 8, 2021
    In the Court of Common Pleas of Huntingdon County Criminal Division at
    No(s): CP-31-CR-0000471-2015
    BEFORE:       BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
    MEMORANDUM BY COLINS, J.:                           FILED FEBRUARY 25, 2022
    Appellant, Kirk Daniel Hagleston,1 appeals from the order denying his
    first petition filed under the Post Conviction Relief Act (“PCRA”).2 We affirm.
    On January 25, 2017, a jury convicted Appellant of rape of a child,
    aggravated indecent assault of a child, and indecent assault of a person less
    than thirteen years of age.3 The PCRA court summarized the evidence at trial
    as follows:
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1 While Appellant’s surname is spelled as “Hagelston” in his brief, the
    Commonwealth’s brief, the PCRA court’s opinion, as well as this Court’s
    opinion resolving Appellant’s direct review, we use the spelling of Appellant’s
    surname as it appeared on the docket sheet below.
    2   42 Pa.C.S. §§ 9541-9546.
    3   18 Pa.C.S. §§ 3121(c), 3125(b), 3126(a)(7).
    J-S30038-21
    [O]ne night in July 2011, when W.D. was nine years old and while
    her mother and siblings were asleep, [Appellant] entered her
    room, dragged her downstairs and out the front door to a patio on
    the side of the house, tore her clothes off, forced her to the
    ground, and raped her. W.D.’s mother, T.D., who was at that time
    [Appellant’s] paramour, suspected the very next day that some
    sort of assault had occurred based on the changed behavior of
    both W.D. and [Appellant]. T.D. took W.D. to see a doctor in
    regard to her concerns, and went so far as to contact the police,
    but W.D. denied that the rape occurred because she was scared
    of [Appellant]. A few years later, in 2015, W.D. disclosed the rape
    to a guidance counselor at school [who] reported it to the
    appropriate authorities[.]
    PCRA Court Opinion, 5/7/21, at 2-3 (record citations omitted).
    Among the Commonwealth witnesses at trial was Craig Collison, M.D.,
    a pediatrician at Mount Nittany Health and the Medical Director for Centre
    County Children’s Advocacy Center.          As the PCRA court observed, Dr.
    Collison’s testimony was brief and focused on his March 2015 examination of
    W.D.     Id. at 4.     Dr. Collison discussed his relevant experience and
    qualifications at the outset of his testimony, including the fact that he was a
    board-certified pediatrician with experience examining children who claim to
    have experienced sexual abuse and that he had over 150 hours of relevant
    training. Id.; see also N.T. (trial), at 116-18. However, Dr. Collison was not
    qualified as an expert.
    The PCRA court summarized Dr. Collison’s testimony as follows:
    1. He conducted a full physical examination of W.D. in March
    2015, including a genital exam. The examination was not specific
    to the then-allegations against [Appellant], but rather was a
    general health examination. [N.T. (trial), at 119-20.]
    2. W.D. presented as a healthy thirteen[-]year-old girl in the
    middle of her pubertal development, exhibiting no signs of genital
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    trauma with an overall normal result. Id. at 121-22, 123, 127,
    132.
    3. Specifically with regard to W.D.’s hymen, it was “concentric
    and didn’t have any lesions or notches, no signs of trauma.” This
    is neither indicative nor contraindicative of sexual abuse. It
    cannot be determined, based on examination of an individual’s
    hymen, whether that individual has been sexually abused, or
    whether she has been sexually active. Id. at 124-26.
    4. The full scope of his testimony was “within a reasonable
    agreement of medical certainty.” Id. at 129.
    [5. Defense counsel’s] cross-examination of Dr. Collison was
    brief, focusing primarily on his findings regarding W.D.’s hymen
    (i.e., that no trauma was observed), and that the examination
    produced a normal result. Id. at 130-32.
    PCRA Court Opinion, 5/7/21, at 3-4 (some formatting; footnotes omitted).
    Relevant to this appeal, Dr. Collison testified as follows on direct
    examination regarding what an examination of a hymen reveals about a
    patient’s history of sexual abuse:
    Q. [] So based on the exam of the hymen, can you say whether
    someone’s been sexually abused?
    A. No.
    Q. And why is that?
    A. Like we talked about, sexual activity does not necessarily equal
    trauma to the level that would leave a scar or a change in the
    hymen long term. Acutely if there are issues with the hymen we
    should be able to see that. If somebody’s having bleeding or pain
    with that, that is something in a few days after that occurred that
    we can see.
    Q. Now is that something you would necessarily see years later?
    A. No. Again unless it went to the level that we talked about
    where it was taken all the way to the base and as it heals, then it
    would heal with a notch or a change in it.
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    J-S30038-21
    Q. Okay. Is it rare for you to see a victim of sexual abuse with
    normal examination?
    A. 95 percent of the children that we see that there is an
    accusation of sexual abuse have normal exams.
    Q. That would be like this exam we’re discussing right now?
    A. Correct. So I cannot make any conclusions from the exam and
    that’s -- the majority of the time that’s how it goes for us.
    *      *      *
    Q. What’s your overall assessment of [W.D.’s] exam?
    A. [W.D.] had a normal exam.
    Q. And does that preclude the fact abuse may have occurred?
    A. No.
    N.T. (trial), at 126-28.
    The   trial   court   sentenced     Appellant   to   an   aggregate   term   of
    imprisonment of 17 to 37 years. Appellant filed a direct appeal, and on August
    22, 2018, this Court affirmed his conviction but vacated the imposition of
    sexual offender registration requirements and remanded for the trial court to
    reassess his registration requirements. Commonwealth v. Hagelston, No.
    1515 MDA 2017, 
    2018 WL 4007500
    , at *4-5 (Pa. Super. filed Aug. 22, 2018)
    (unpublished memorandum). On June 28, 2019, the trial court imposed a
    new judgment of sentence.
    On March 4, 2020, Appellant filed this timely PCRA petition.4 The PCRA
    court held an evidentiary hearing on February 5, 2021. On February 8, 2021,
    ____________________________________________
    4Appellant’s PCRA petition was timely as it was filed within one year of July
    29, 2019 the last date upon which he could have filed a direct appeal from his
    (Footnote Continued Next Page)
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    J-S30038-21
    the court issued an order denying Appellant PCRA relief. This timely appeal
    followed.
    Appellant raises two issues for our review:
    A. Whether trial counsel’s failure to object to Dr. [Collison’s]
    testimony was per se ineffective and may not be the foundation
    for strategic decision making when Dr. [Collison’s] testimony
    effectively invaded the province of the jury in determining
    credibility of the minor child in a sexual assault case with no
    injuries by testifying that lack of injury does not mean that an
    assault did not occur.
    B. Whether trial counsel’s failure to object to Dr. [Collison’s]
    testimony was per se ineffective and may not be the foundation
    for strategic decision making when Dr. [Collison] was not qualified
    as an expert and offered an expert opinion contrary to the dictates
    of Pa.R.E. 701(c), which explicitly prohibits experts giving expert
    opinions under the guise of being lay witnesses.
    Appellant’s Brief at 4 (unnecessary capitalization omitted; some formatting).
    We review the denial of PCRA relief to decide whether the PCRA court’s
    factual determinations are supported by the record and its legal conclusions
    are free of error.      Commonwealth v. Small, 
    238 A.3d 1267
    , 1280 (Pa.
    2020). When supported by the record, the PCRA court’s factual findings and
    credibility determinations are binding on this Court, but we review the lower
    ____________________________________________
    June 28, 2019 judgment of sentence. See 42 Pa.C.S. § 9545(b)(1), (3) (PCRA
    petition must be timely filed within one year of date judgment becomes final,
    which occurs at the expiration of time for seeking direct review if no appeal is
    filed); Pa.R.A.P. 903(c)(3) (where no post-sentence motion is filed, notice of
    appeal must be filed within 30 days of imposition of judgment of sentence);
    see also 1 Pa.C.S. § 1908 (when the last day for a statutory filing deadline
    falls on a weekend or holiday, the deadline shall be extended until the next
    business day); Pa.R.A.P. 107 (incorporating 1 Pa.C.S. § 1908 with respect to
    deadlines set forth in the Rules of Appellate Procedure).
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    J-S30038-21
    court’s legal conclusions under a de novo standard of review. Id. Our scope
    of review is limited to the findings of the PCRA court and the evidence of
    record, which we view in the light most favorable to the Commonwealth, the
    party who prevailed below. Id.
    In this appeal, Appellant argues that his trial counsel, Michael S.
    Gingerich, Esquire, provided ineffective assistance of counsel by failing to
    object to the testimony of Dr. Collison. When assessing a claim of ineffective
    assistance under the PCRA, we begin our analysis with the presumption that
    counsel has rendered effective assistance.    Commonwealth v. Reid, 
    259 A.3d 395
    , 405 (Pa. 2021). To overcome the presumption, the petitioner must
    show that:
    (1) the underlying substantive claim has arguable merit; (2)
    counsel did not have a reasonable basis for his or her act or
    omission; and (3) the petitioner suffered prejudice as a result of
    counsel’s deficient performance, that is, a reasonable probability
    that but for counsel’s act or omission, the outcome of the
    proceeding would have been different.
    
    Id.
     (citation and quotation marks omitted). The defendant must satisfy all
    three prongs of this test to obtain relief under the PCRA. 
    Id.
    Appellant first argues that trial counsel was ineffective for failing to
    object to Dr. Collison’s testimony that (i) an examination of a hymen does not
    show whether sexual abuse occurred; (ii) 95 percent of the children claiming
    sexual abuse that he examines have normal gynecological examinations; (iii)
    he could not conclude that the victim, W.D., was abused based upon her
    examination; and (iv) he also could not rule out that W.D. may have been
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    abused.    N.T. (trial), at 126-28.     Appellant argues that this testimony
    constitutes improper bolstering of the victim’s testimony, which our Supreme
    Court has ruled is an improper invasion of the jury’s exclusive role to assess
    the credibility of witnesses.   Appellant contends that trial counsel had no
    reasonable basis for not objecting as counsel testified at the PCRA hearing
    that Dr. Collison’s testimony “could be read” as bolstering the victim’s
    testimony and, if there was legal authority prohibiting bolstering, he “certainly
    should have been aware of it.” N.T. (PCRA hearing), at 9. Appellant asserts
    that he was prejudiced by trial counsel’s error allowing Dr. Collison to vouch
    for W.D.’s credibility, particularly in light of the fact that this case hinged on
    whether the jury believed the victim’s otherwise uncorroborated accusation.
    Appellant relies principally on our Supreme Court’s decision in
    Commonwealth v. Maconeghy, 
    171 A.3d 707
     (Pa. 2017). In Maconeghy,
    the Commonwealth called as a witness a pediatrician, Dr. Novinger, who
    examined and interviewed C.S., the alleged victim of sexual abuse by the
    defendant. Id. at 708. Dr. Novinger, who was qualified as an expert witness,
    testified that no physical signs of abuse were present and that the fact of
    abuse could be determined only through patient history. Id. Dr. Novinger
    further testified that the “history [the victim] provided to me pretty clearly
    indicated that she was sexually abused” and “I really believe strongly that was
    my medical conclusion that this child was victimized.” Id.
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    This Court vacated the defendant’s conviction based upon Dr. Novinger’s
    improper bolstering of the victim’s credibility, and our Supreme Court
    affirmed. The Supreme Court held that
    an expert witness may not express an opinion that a particular
    complainant was a victim of sexual assault based upon witness
    accounts couched as a history, at least in the absence of physical
    evidence of abuse. We find that such testimony intrudes into the
    province of the jury relative to determining credibility.
    Id. at 712; see also Commonwealth v. Hairston, 
    249 A.3d 1046
    , 1069
    (Pa. 2021) (“Because issues of credibility are within the exclusive province of
    the jury, expert testimony on the issue of a witness’s credibility is prohibited.”)
    (internal citation omitted).       The Court ruled that an expert witness’s
    prohibition on bolstering applied regardless of whether it was “direct vouching
    (e.g., ‘I believe the complainant is telling the truth’)” for the victim’s credibility
    or “indirect vouching (e.g, ‘I conclude that the complainant was sexually
    assaulted based upon the history she related.’).” Maconeghy, 171 A.3d at
    713. Furthermore, the Maconeghy Court recognized the additional potential
    concern for bolstering the credibility of a child witness in an abuse case, noting
    the “the high stakes involved in child sexual assault cases and the potential
    power and persuasiveness of testimony by those clothed with the mantle of
    professional expertise.” Id.; see also 42 Pa.C.S. § 5920(b)(3) (providing
    that an expert witness testifying regarding the dynamics of sexual violence,
    victim responses to sexual violence, and the impact on sexual violence on
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    victims in sexual abuse cases may not offer an “opinion regarding the
    credibility of any [] witness, including the victim”).
    While Maconeghy related to bolstering by an expert witness, we note
    that, as discussed in more detail below, Dr. Collison was not qualified as an
    expert at trial.   However, this Court has held that lay witnesses are also
    precluded from offering testimony that would bolster a witness’s credibility.
    Commonwealth v. Yockey, 
    158 A.3d 1246
    , 1255-56 (Pa. Super. 2017);
    Commonwealth v. McClure, 
    144 A.3d 970
    , 977 (Pa. Super. 2016). Such
    lay witness bolstering is particularly problematic in cases where the lay
    witness is testifying in a professional capacity, which could provide an
    “‘unwarranted appearance of authority in the subject of credibility,’ something
    ordinary jurors are able to assess.”      McClure, 144 A.3d at 977 (citation
    omitted) (police detective’s testimony that he did not believe defendant-
    daycare worker’s explanation for child’s injuries was improper bolstering);
    Commonwealth v. Loner, 
    609 A.2d 1376
    , 1377 (Pa. Super. 1992) (child
    caseworker’s testimony that she believed victim’s report of abuse improperly
    bolstered the victim’s veracity).
    Addressing this issue, the PCRA court found Appellant’s argument to
    lack merit as Dr. Collison’s testimony did not bolster W.D.’s credibility:
    Here, Dr. Collison did not testify to bolster W.D.’s credibility.
    While his testimony was of limited probative value, it was
    essentially necessary for the Commonwealth to present it so as to
    negate doubts that might arise in the minds of jurors if no
    discussion was made regarding W.D.’s physical condition (i.e., the
    misconception that rape will always result in permanent genital
    injury resulting in the inference that no evidence of injury means
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    J-S30038-21
    no evidence of rape), and to avoid the appearance of attempting
    to hide exculpatory evidence were [Appellant] to call Dr. Collison
    as witness [. A]ny bolstering effect Dr. Collison’s testimony might
    have had was intrinsically tied to the jury’s credibility
    determination regarding W.D.’s testimony. Had they found her
    not credible, the lack of physical injury would support that finding,
    rather than contradict it.
    PCRA Court Opinion, 5/7/21, at 10.      The PCRA court further distinguished
    Maconeghy:
    [I]n no way did Dr. Collison’s testimony mirror that of the
    Maconeghy witness. He did not examine W.D. with the specific
    intent of determining whether she had been sexually assaulted;
    did not observe a forensic interview with her; did not refer in any
    way to the medical history he obtained from her and did not in
    any manner, offer an opinion as to whether she had been sexually
    assaulted. In fact, Dr. Collison was very careful in his testimony
    to make clear, repeatedly, that a normal examination was not
    conclusive evidence either way regarding the occurrence or
    nonoccurrence of sexual assault.         His testimony is thus
    permissible under Maconeghy, rather than barred by it
    Id. at 9.
    We agree with the PCRA court that Dr. Collison’s testimony was not
    prohibited “bolstering” of W.D.’s testimony. In particular, we find support in
    our Supreme Court’s decision in Commonwealth v. Minerd, 
    753 A.2d 225
    (Pa. 2000). In Minerd, the Commonwealth presented the testimony of Dr.
    Carver, an expert in obstetrics and gynecology, who performed a physical
    examination of the two sexual assault minor victims:
    Dr. Carver testified that she found no evidence of physical trauma
    to the girls’ genital or anal areas. According to Dr. Carver, the
    absence of physical trauma did not prove that the abuse had never
    occurred. She explained 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
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    J-S30038-21
    damage that had been done to heal. On cross-examination, Dr.
    Carver confirmed that she was not stating that the alleged acts
    did or did not occur, and agreed that that it could be that “there
    was no trauma to the anus or genitals because the acts in fact did
    not occur.” Dr. Carver stated that “either way, there was no
    evidence of it.”
    Id. at 228 (record citations omitted).     The Court rejected the defendant’s
    argument that the expert’s testimony bolstered the victims’ reports of abuse:
    In this case, Dr. Carver’s testimony was probative of the veracity
    of the children. However, Dr. Carver 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, Dr. Carver's testimony regarding her
    physical findings was inconclusive as to whether any abuse had
    even occurred.       Thus, we do not agree that the expert
    impermissibly bolstered the children’s credibility.
    Id. at 230 (internal citations omitted).
    In Maconeghy, the Court distinguished its earlier decision, noting that
    the expert’s testimony did not infringe on the jury’s authority to assess the
    credibility of the witnesses:
    [T]he evidence in Minerd fell within the class of generalized
    evidence about victims of sexual assault that is more widely
    approved in the courts and was focused on a physical
    examination; indeed, the Court specifically noted that the expert
    witness “confirmed that she was not stating that the alleged acts
    did or did not occur” relative to the complainant.
    Maconeghy, 171 A.3d at 715 (quoting Minerd, 753 A.2d at 228) (emphasis
    omitted).
    Here, the relevant testimony is nearly identical to Minerd. Dr. Collison
    did not testify that he believed W.D.’s allegation that Appellant had abused
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    her. Instead, like Dr. Carver in Minerd¸ Dr. Collison merely described his
    physical examination of W.D. and stated that the normal examination neither
    confirmed nor negated the abuse allegations.        N.T. (trial), at 126-28; cf.
    Minerd, 753 A.2d at 228, 230. While Dr. Collison’s testimony was relevant
    to the jury’s evaluation of W.D.’s account as the PCRA court explained, PCRA
    Court Opinion, 5/7/21, at 10,5 it did not bolster the credibility of W.D.’s
    testimony that Appellant sexually abused her when she was nine-years old.
    While we note that Dr. Collison did not testify as an expert as was the case in
    Maconeghy and Minerd, we do not find this fact determinative as the rule
    against bolstering a witness’s credibility applies equally if it comes from a lay
    witness as from an expert. See Yockey, 158 A.3d at 1255-56; McClure, 144
    A.3d at 977. Accordingly, Appellant is entitled to no relief on his first claim of
    ineffective assistance of counsel. See Minerd, 753 A.2d at 230; see also
    Commonwealth v. Callahan, No. 1381 EDA 2020, 
    2021 WL 4119559
    , at *3
    (Pa. Super. filed September 9, 2021) (unpublished memorandum) (counsel
    ____________________________________________
    5 The Minerd Court explained as follows the relevance of the medical expert’s
    testimony regarding the inconclusive nature of the negative results of the
    victims’ physical exams:
    Since the children alleged that the abuse occurred several years ago,
    there was no recent physical evidence. Given this passage of time, Dr.
    Carver’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.
    753 A.2d at 231.
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    J-S30038-21
    was not ineffective for failing to object to medical expert’s testimony that child
    victim’s vaginal examination was consistent with sexual abuse even though
    no physical trauma was detected as such testimony was permissible under
    Minerd).6
    In his second issue, Appellant argues that trial counsel was ineffective
    for failing to object to Dr. Collison’s offering of expert opinions during his
    testimony without him ever being qualified as an expert by the trial court.
    Appellant asserts that Dr. Collison’s testimony bore the hallmarks of being
    that of an expert witness—including by detailing his credentials, his
    description of a general gynecological exam, his discussion of results in other
    patients who allege abuse, and his statement that his testimony was given
    within a reasonable degree of medical certainty. N.T. (trial), at 116-18, 120,
    122-29. Appellant argues that, as a non-expert, he was barred under the
    Pennsylvania Rules of Evidence from offering an opinion based upon scientific,
    technical, or other specialized knowledge, and trial counsel should have
    objected on this ground.          Appellant contends that trial counsel had no
    reasonable basis for not objecting to this testimony and that if counsel had
    objected there was a reasonable probability that the outcome of the trial would
    have had a different result.
    ____________________________________________
    6Although Callahan is an unreported decision, we cite to it for its persuasive
    value. See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed
    after May 1, 2019 may be cited for their persuasive value).
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    J-S30038-21
    Pursuant to Pennsylvania Rule of Evidence 701, a witness not testifying
    as an expert is permitted to offer an opinion that is:
    (a) rationally based on the witness’s perception;
    (b) helpful to clearly understanding the witness’s testimony or to
    determining a fact in issue; and
    (c) not based on scientific, technical, or other specialized
    knowledge within the scope of Rule 702.
    Pa.R.E. 701. Rule 702, relating to testimony by expert witnesses, states as
    follows:
    A witness who is qualified as an expert by knowledge, skill,
    experience, training, or education may testify in the form of an
    opinion or otherwise if:
    (a) the expert’s scientific, technical, or other specialized
    knowledge is beyond that possessed by the average
    layperson;
    (b) the expert’s scientific, technical, or other specialized
    knowledge will help the trier of fact to understand the
    evidence or to determine a fact in issue; and
    (c) the expert’s methodology is generally accepted in the
    relevant field.
    Pa.R.E. 702.
    Expert testimony is “permitted only 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.” Commonwealth v.
    Jones, 
    240 A.3d 881
    , 890 (Pa. 2020) (citation omitted). While the expert is
    not required to use “magic words” in stating her opinion, “the expert must
    base the substance of her opinion on a reasonable degree of certainty instead
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    of mere speculation.” Commonwealth v. Yocolano, 
    169 A.3d 47
    , 61 (Pa.
    Super. 2017) (quoting Commonwealth v. Gonzalez, 
    109 A.3d 711
    , 727 (Pa.
    Super. 2015)). “[T]he standard for qualifying as an expert is a liberal one and
    the witness need only have any reasonable pretension to specialized
    knowledge on the subject matter under investigation and the weight to be
    given to the expert’s testimony is for the factfinder.” Jones, 240 A.3d at 890
    (internal quotation marks and citation omitted). “It is the job of the trial court
    to assess the expert’s testimony to determine whether the expert’s testimony
    reflects the application of expertise or strays into matters of common
    knowledge.” Yocolano, 169 A.3d at 60 (quoting Nobles v. Staples, Inc.,
    
    150 A.3d 110
    , 114 (Pa. Super. 2016)).
    We further note that “the rules governing expert and lay testimony do
    not preclude a single witness from testifying, or offering opinions, in the
    capacity as both a lay and an expert witness on matters that may embrace
    the ultimate issues to be decided by the fact-finder.” Id. at 62; see also
    Jones, 240 A.3d at 890; Commonwealth v. Huggins, 
    68 A.3d 962
    , 967 (Pa.
    Super. 2013). However, where the same witness testifies in a dual capacity
    as a fact and expert witness, the proponent of the witness should make clear
    which testimony is based upon expert knowledge and which is based upon
    personal perception and the trial court should ensure that “the jury is properly
    instructed to avoid confusion.” Jones, 240 A.3d at 890; Yocolano, 169 A.3d
    at 62; Huggins, 
    68 A.3d at 973-74
    .
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    J-S30038-21
    Like the PCRA court, we assume for the purposes of our analysis that
    Appellant has shown arguable merit and a lack of reasonable basis for trial
    counsel’s failure to object to Dr. Collison’s unqualified opinion testimony.
    First, it is clear that Dr. Collison offered opinion testimony—most notably that
    a “normal” genital examination of a child is not inconsistent with past sexual
    abuse—and that, in formulating his opinion, he applied his scientific, technical,
    and other specialized knowledge. N.T. (trial), at 116-18, 126-28. While Dr.
    Collison also testified as a fact witness regarding his examination of W.D., this
    does not alter the fact that the trial court did not qualify him as an expert or
    properly instruct the jury on its evaluation of Dr. Collison’s expert opinions.
    See Jones, 240 A.3d at 891 (police detective’s testimony regarding common
    behavior of victim of sexual abuse that drew upon his specialized training and
    experience was improperly admitted where detective was not qualified as
    expert). Furthermore, while trial counsel testified at the PCRA hearing that
    he viewed Dr. Collison’s testimony as “helpful” or at least “not [] harmful to
    [Appellant’s] case” because Dr. Collison testified that there were no injuries
    to the victim’s hymen which may have run counter to the jury’s expectations,
    N.T. (PCRA hearing), at 6-8, trial counsel did not offer any explanation of why
    he did not at least insist that Dr. Collison’s opinions be offered in his capacity
    as a medical expert and with the appropriate jury instruction.
    Turning to the prejudice prong of the ineffective assistance standard,
    however, we find no error in the PCRA court’s determination that Appellant
    did not prove a reasonable probability that, but for trial counsel’s lack of an
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    objection to Dr. Collison’s unqualified opinion testimony, Appellant’s trial
    would have resulted in a different outcome. Reid, 259 A.3d at 405. Initially,
    Appellant does not argue that Dr. Collison lacked the appropriate scientific or
    technical expertise, that his testimony was not helpful to the trier of fact, or
    that his opinion was not generally accepted in his field. See Pa.R.E. 702. In
    other words, there is no claim that the trial court would not have qualified Dr.
    Collison as an expert and therefore he would not have been permitted to opine
    as to how the results of W.D.’s examination compare to those of other children
    who allege sexual abuse.7 Cf. Yocolano, 169 A.3d at 63 (trial court abused
    its discretion by permitting opinion testimony by doctor and nurse that victim’s
    wounds were consistent with ligature and strangulation marks without
    assessing whether the witnesses had specialized knowledge on the causation
    of such wounds that would have allowed them to testify as experts on the
    subject). Moreover, Appellant has not articulated how Dr. Collison’s opinions,
    whether given as a lay or expert witness, were harmful to Appellant’s defense
    ____________________________________________
    7 Indeed, we observe that similar expert testimony to that of Dr. Collison has
    been allowed in other child sexual abuse cases. See, e.g., Minerd, 753 A.2d
    at 228, 230-31 (obstetrician and gynecologist who examined child sexual
    abuse victims was permitted to offer expert opinion that absence of physical
    trauma did not prove that abuse had not occurred); Callahan, 
    2021 WL 4119559
    , at *1, 3 (court properly allowed expert testimony by nurse
    specializing in sexual assault cases that normal vaginal examination of child
    victim was consistent with sexual abuse because large majority of such cases
    present no physical evidence); Commonwealth v. Bishop, 
    742 A.2d 178
    ,
    185 (Pa. Super. 1999) (trial counsel not ineffective for failing to object to
    expert testimony of treating pediatrician that scar tissue in child victim’s
    vagina was consistent with an old injury from sexual abuse).
    - 17 -
    J-S30038-21
    that the incident of sexual abuse did not occur, particularly in light of Dr.
    Collison’s testimony that W.D.’s examination revealed no sign of genital
    trauma and the examination was consistent with a finding that no sexual
    abuse occurred. N.T. (trial), at 126-27, 131-32.
    Furthermore, as the PCRA court observed, the next witness to testify at
    trial after Dr. Collison was admitted as an expert on the behavior of child
    sexual abuse victims, and the trial court did provide the appropriate expert
    witness instruction to the jury at the outset of her testimony. N.T. (trial), at
    139-40. The trial court additionally instructed the jury as to its consideration
    of expert witness testimony as part of the jury charge and this latter
    instruction was not specifically tailored to any particular expert. 
    Id.
     at 228-
    29. Therefore, while the jury was not instructed specifically as to Dr. Collison’s
    testimony, the jurors were made aware that they were not bound by the
    testimony of a witness with specialized knowledge, skill, and training and were
    free to determine the weight to be afforded to the expert opinion. See PCRA
    Court Opinion, 5/7/21, at 11; see also Huggins, 
    68 A.3d at 973-74
    .
    We therefore conclude that the PCRA court’s determination that
    Appellant did not establish prejudice on his second ineffective assistance of
    counsel claim is supported by the record and free of legal error. As Appellant
    was not entitled to relief on either of his PCRA claims, we affirm the PCRA
    court’s denial of Appellant’s petition.
    - 18 -
    J-S30038-21
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/25/2022
    - 19 -
    

Document Info

Docket Number: 308 MDA 2021

Judges: Colins, J.

Filed Date: 2/25/2022

Precedential Status: Precedential

Modified Date: 2/25/2022