Com. v. Chiaramonte, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN CHIARAMONTE :
:
Appellant : No. 839 WDA 2021
Appeal from the Judgment of Sentence Entered February 17, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0002709-2018
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 11, 2022
Dylan Chiaramonte appeals from the judgment of sentence imposed
following his convictions for rape of a child and related offenses.1 We affirm.
Between 2011 and 2016, Chiaramonte sexually abused his niece (“the
victim”) beginning when she was four years old.2 The victim’s relative referred
to the abuse when talking to a school counselor, who informed police.
Chiaramonte was arrested and charged with numerous sexual offenses.
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(a)(7), 3126(a)(7),
6301(a)(1)(ii).
2For a more detailed description of Chiaramonte’s sexual abuse of the victim,
see Trial Court Opinion, 7/15/21, at 2-24.
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Chiaramonte filed a pre-trial motion in limine to limit the testimony of
the Commonwealth’s expert witness, Carol A. Hughes, M.A., (“Hughes”) a
licensed psychologist who specializes in the treatment of sexual abuse victims
and offenders. Therein, Chiaramonte generally sought to limit Hughes’s report
and testimony to facts and opinions regarding specific types of victim
responses and victim behaviors pursuant to 42 Pa.C.S.A. § 5920(b)(2). See
Motion in Limine, 3/11/20, at 1-2. The trial court scheduled a hearing on the
motion. At the hearing, Chiaramonte sought the preclusion of specific portions
of Hughes’s expert report, including her references to a certain “class of
perpetrators.”3 N.T. Motions Hearing, 9/8/20, at 6-8. Following the hearing,
the trial court denied the motion. Id.
The matter proceeded to a jury trial in September 2020. At trial, the
Commonwealth presented the testimony of Hughes, who testified without
objection regarding general descriptions of false reports of abuse and the
factors she uses to determine if a victim was coached.
At trial, the Commonwealth also called Daisy Perez (“Perez”), a forensic
interviewer at the Child Advocacy Center (“CAC”), who interviewed the victim
on September 26, 2017. The Commonwealth did not call Perez as an expert
witness. Perez testified about her education and described the process and
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3 In the copy of Hughes’s expert report attached to Chiaramonte’s motion in
limine, Hughes generally discussed a victim’s delayed reporting of abuse due
to the relationships between the abuser and victim, including grooming
behavior by the abuser and the victim’s fear of the consequences of reporting
the abuse.
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nature of forensic interviews generally. She testified that she conducted over
150 forensic interviews at CAC. She also testified about “red flags” she looked
for in her experience as a forensic interviewer, specifically as it relates to
children who are “coached.” N.T., 9/14-17/20, at 244. Over Chiaramonte’s
objection,4 Perez testified that she did not recall any “red flags” during the
interview with victim. Id. at 244-45.
At the conclusion of trial, the jury found Chiaramonte guilty of one count
of rape of a child, two counts of involuntary deviate sexual intercourse, and
one count each of aggravated indecent assault, indecent assault, and
corruption of minors.
On February 17, 2021, the trial court sentenced Chiaramonte to an
aggregate prison sentence of twenty to forty years followed by fourteen years
of probation. Chiaramonte filed post-sentence motions, which the trial court
denied.5 Chiaramonte filed a timely notice of appeal, and both he and the trial
court complied with Pa.R.A.P. 1925.
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4 Chiaramonte did not seek to limit Perez’s testimony in a pre-trial motion in
limine, but his trial counsel objected to “credibility” when the Commonwealth
asked whether she recalled “red flags” during the victim’s interview. The trial
court overruled the objection.
5 We note the trial court entered its opinion and order denying Chiaramonte’s
timely post-sentence motions after more than 120 days and without expressly
extending the time for deciding the motions. See Pa.R.Crim.P. 720(B)(2),
(3)(a)-(b). Although the trial court should have denied Chiaramonte’s post-
sentence motions by operation, Chiaramonte timely appealed within the thirty
days of trial court’s order. See Commonwealth v. Khalil, 806 A.2d 415,
419 (Pa. Super. 2002).
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Chiaramonte raises the following issues for our review:
1. Did the [c]ourt err in permitting the Commonwealth to elicit
expert testimony regarding false reports and the coaching of
sexual abuse victims, when such testimony encroached upon
the jury’s determination of the subject child’s credibility?
2. Did the [c]ourt err in permitting a forensic interviewer to testify
that she did not observe any “red flags” during her forensic
interview of the subject child, as such testimony encroached
upon the jury’s determination of the subject child’s credibility?
Chiaramonte’s Brief at 4.
In both of the issues before us, Chiaramonte challenges the trial court’s
admission of certain portions of witness testimony. Our standard of review is
as follows: “The admission of evidence is committed to the sound discretion
of the trial court[.]” Commonwealth v. Benvenisti-Zarom, 229 A.3d 14,
25 (Pa. Super. 2020) (internal citation omitted), appeal denied, 239 A.3d 1095(Pa. 2020). “[A]n appellate court may only reverse upon a showing that the
trial court abused its discretion. An abuse of discretion is not a mere error in
judgment but, rather, involves bias, ill will, partiality, prejudice, manifest
unreasonableness, or misapplication of law.” Commonwealth v. McGhee,
230 A.3d 1277, 1283 (Pa. Super. 2020), appeal denied, 244 A.3d 345 (Pa.
2021) (internal citation omitted).
Further, “expert testimony is generally admissible if: the witness has a
specialized knowledge beyond that possessed by the average layperson; such
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue; and the expert’s methodology is generally accepted
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in the relevant field.” Commonwealth v. Maconeghy, 171 A.3d 707, 712
(Pa. 2017) (citing Pa.R.E. 702).
In cases of sexual assault, 42 Pa.C.S.A. § 5920 permits the following
expert evidence:
(b) Qualifications and use of experts.—
****
(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.
42 Pa.C.S.A. § 5920(b); see also Commonwealth v. Jones, 240 A.3d 881,
896-97 (Pa. 2020) (holding that that under Section 5920, “expert testimony
on the issue of a witness’s credibility is impermissible, as it encroaches on the
province of the jury to make such determinations,” but recognizing that such
a determination must “be assessed on a case-by-case basis”).
In his first issue, Chiaramonte argues that Hughes’s testimony regarding
general descriptions of false reports of abuse and the factors she uses to
determine if a victim was coached impermissibly encroached on the jury’s
function to consider the victim’s credibility.
The trial court, in its opinion, found Chiaramonte’s issue waived because
he failed to object at trial. See Trial Court Opinion, 7/15/21, at 29. A review
of the instant record establishes that Chiaramonte did not preserve this
particular challenge for our review. As explained above, the trial court denied
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Chiaramonte’s motion in limine and arguments at the pre-trial hearing seeking
to limit Hughes’s testimony to facts and opinions regarding victim responses
and victim behaviors under Section 5920(b)(2) and, specifically, Hughes’s
references to classes of potential perpetrators. See Motion in Limine,
3/11/20, at 1-2; N.T. Motions Hearing, 9/8/20, at 6-8. Additionally, when
Hughes testified about her general experiences with victims giving false
reports and being coached, Chiaramonte did not object. See N.T. Trial, 9/14-
17/20, at 74-75. Thus, Chiaramonte’s first issue is waived. See Pa.R.E.
103(a) (requiring contemporaneous objections to a trial court’s evidentiary
ruling); Pa.R.A.P. 302(a) (providing that issues not raised in the trial court are
waived and cannot be raised for the first time on appeal); Commonwealth
v. Radecki, 180 A.3d 441, 455 (Pa. Super. 2018) (holding that claims not
raised in the trial court are waived).6
In his second issue, Chiaramonte challenges the trial court’s admission
of testimony concerning “red flags” from Perez, whom the Commonwealth
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6 Even if Chiaramonte had preserved his first issue for our review, we would
have determined that Hughes’s expert opinions regarding the indicia of false
reports and coaching constituted permissible testimony regarding victim
responses and victim behaviors under Section 5920(b)(2) rather than an
opinion regarding the credibility of other witnesses or the specific victim
prohibited by Section 5920(b)(3). See Commonwealth v. Smith, 206 A.3d
551, 562 (Pa. Super. 2019) (holding that an expert’s general testimony about
the dynamics of sexual violence and victim responses did not improperly
bolster the victim’s credibility); see also Trial Court Opinion, 7/15/21, at 28-
29 (concluding that Hughes offered proper opinions under Section 5920,
because she did not opine on the specific victim’s credibility).
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called as a fact witness. In addition to her testimony regarding her forensic
interview with the victim, Perez testified about her education, training, and
experience as a forensic interviewer. N.T., 9/14-17/20, at 241. She described
the process of forensic interviews as “unscripted” and “non-leading,” and
noted that she received specialized training to conduct the forensic interviews.
Id. at 242-43. She stated that she conducted 150 to 200 forensic interviews.
See id. at 243.
The Commonwealth then engaged Perez in the following exchange:
Q. And when you’re performing a forensic interview, are there any
red flags that you look for in terms of whether a child has been
coached as to what to say?
A. Yes. I would look for what words the child used. Were they
exactly the same as to what I was told, for example, by parents
who brought the child in. That could possibly be a red flag.
Another red flag would be the details. Children who are telling the
truth tend to have a lot of details to their report.
Q. I want to ask you, did you perform a forensic interview with
[the victim]?
[Perez answered that she interviewed the victim on September
26, 2017]
A. And when you were performing this interview . . ., do you recall
any red flags during that interview?
[Chiaramonte’s counsel]: Objection, Your Honor. That goes
way too close to credibility. Way too close.
[Commonwealth]: She talked about her experience as a
forensic interviewer.
THE COURT: The objection is overruled.
****
Q. Did you observe any red flags during your interview with [the
victim]?
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A. No, I didn’t.
See N.T., 9/14-17/20, at 244-45. Perez continued to testify that she recalled
the victim providing “a lot of detail” during the interview and that she talked
to the victim’s mother and heard “a little bit from the mother’s perspective of
things.” Id. at 245.
Chiaramonte first claims that Perez offered expert opinions despite the
Commonwealth’s failure to qualify her as an expert witness.7 Second,
Chiaramonte contends that Perez’s general descriptions of “red flags” during
forensic interviews, and her subsequent testimony that there were no “red
flags” when she interviewed the victim in the instant case, “unquestionably
amounted to testimony that the victim was not coached and was telling the
truth in her forensic interview.” Chiaramonte’s Brief at 14, 16.
The trial court considered Chiaramonte’s second issue both at trial and
in its opinion and determined that it lacked merit. The court reasoned that
“Perez’s testimony offered no conclusion as to the credibility of [the victim.]”
Trial Court Opinion, 7/15/21, at 32. In reaching its conclusion, the trial court
relied on Commonwealth v. T.B., 232 A.3d 915 (Pa. Super. 2020), appeal
denied, 240 A.3d 98 (Pa. 2020).
In T.B., the Commonwealth sought to introduce factual evidence
describing the interview process and use of an interview summary report form.
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7 To the extent Chiaramonte claims that the Commonwealth should have
qualified Perez as an expert, we conclude that he waived this issue by failing
to object to her testimony on this basis. See Pa.R.E. 103(a); Pa.R.A.P.
302(a); Radecki, 180 A.3d at 455.
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Id. at 920. The trial court permitted a forensic interviewer—who had spoken
to the victim but was not qualified as an expert at trial—to explain the
significance of a check mark on the interview summary report indicating that
the victim “provided sensory details.” Id. at 918. Over the appellant’s
objection, the interviewer testified that “[a] child’s ability to describe a
situation, including details of how something sounded or something
tasted or something felt speaks to an experience having occurred.”
Id. (emphasis in original).
On appeal, the T.B. Court affirmed the trial court’s ruling on the basis
that the interviewer testified to facts about the interview and did not offer an
opinion on the victim’s veracity or credibility. Id. at 920. The Court
emphasized that “[t]echnical expertise does not ipso facto convert a fact
witness, who might explain how data was gathered, into an expert witness,
who renders an opinion based on the data.” Id. at 919 (citation and quotation
marks omitted).
In the instant matter, the trial court explained that Perez offered proper
lay opinions similar to those in T.B. Trial Court Opinion, 7/15/21, at 31. In
the court’s view, Perez’s testimony, when read as a whole, “stated that [the
victim] offered a lot of details and did not mirror a parent’s or other person’s
story . . ..” See id.
We discern no abuse of discretion in the trial court’s reasoning. Like the
witness in T.B., Perez offered no opinions about whether Chiaramonte abused
the victim or whether the victim was more credible due to the absence of “red
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flags” during the forensic interview. See T.B., 232 A.3d at 920. For these
reasons, we conclude Chiaramonte’s arguments concerning Perez’s testimony
merit no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/11/2022
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