Commonwealth v. Maconeghy

• Citation: 171 A.3d 707
• Decision Date: 18 October 2017
• Docket Number: No. 81 MAP 2016,81 MAP 2016
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Kenneth MACONEGHY, Jr., Appellee
• Court: United States State Supreme Court of Pennsylvania

171 A.3d 707

COMMONWEALTH of Pennsylvania, Appellant

v.Kenneth MACONEGHY, Jr., Appellee

No. 81 MAP 2016

Supreme Court of Pennsylvania.

ARGUED: March 8, 2017

DECIDED: October 18, 2017

Andrew John Jarbola III, Esq., Mariclare Lawless, Esq., John Henry Scanlon IV, Esq., Lisa Ann Swift, Esq., Lackawanna County District Attorney's Office, for Appellant.

Donna M. DeVita, Esq., Lawrence J. Moran, Esq., for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

The question presented concerns whether, in a criminal prosecution, a sexual abuse evaluator may testify to his opinion that a child was sexually assaulted, where there is no physical evidence of abuse, and the opinion is premised upon the expert's apparent acceptance of the child's reporting and description.

In 2011, when she was sixteen years old, the victim, C.S., reported that she had been raped and otherwise sexually abused repeatedly by her stepfather, Appellee Kenneth Maconeghy, Jr. C.S. related that the assaults had occurred in the home that she shared with her mother, Appellee, and several siblings, during the summer months of 2005, when she was eleven years old. Appellee was arrested and charged with various sexual crimes, including rape by forcible compulsion and rape of a child.

At trial, the Commonwealth presented several witnesses, including C.S., who testified to the abuse. Most relevant for present purposes, the prosecution also adduced testimony from Quentin Thomas Novinger, M.D., a pediatrician who had evaluated C.S. to determine whether she had suffered from sexual abuse.

On direct examination, Dr. Novinger explained that he regularly rendered consultative services on behalf of the Children's Advocacy Center for Northeastern Pennsylvania, and, in this capacity, he had been engaged to evaluate C.S. He indicated that he observed a forensic interview of C.S. and collected and reviewed other historical information, then he conducted a physical examination. Although Dr. Novinger found no evidence of abuse in the physical exam, he opined that, outside the first seventy-two hours after the occurrence of a sexual assault, such an examination is unlikely to detect evidence of the abuse. See, e.g., N.T., Jan. 21, 2014, at 210. Thus, according to the pediatrician, the fact of abuse can be determined "[r]eally by history only." Id. at 206.

On cross-examination, the defense repeatedly attempted to secure a concession that the medical evidence did not support a determination of abuse, to which Dr. Novinger replied: "The history she provided to me pretty clearly indicated that she was sexually abused." Id. at 219; see also id. at 228 ("Clearly the medical encounter[, including the history,] indicated the child had been victimized."). On redirect, the district attorney posed a series of questions directed toward highlighting that a physical examination is not conclusive, culminating in the following interchange:

[Prosecutor]: And when 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.

Appellee's lawyer did not lodge an immediate objection to any of these statements, but the following day he asked that the first of them be stricken from the record. See N.T., Jan. 22, 2014, at 21. The court noted the objection but reasoned that the opinion was appropriately grounded and that it would place undue emphasis on the testimony to reference it at that juncture. See id. at 22–23.¹

Appellee was convicted of the charged crimes and lodged an appeal in the Superior Court, which vacated the judgment of sentence and remanded for a new trial. See Commonwealth v. Maconeghy, 2191 MDA 2014, slip op., 2015 WL 7078462 (Pa. Super. June 12, 2015). In its opinion, the panel refused to consider Appellee's challenge to Dr. Novinger's statement that the history C.S. had provided indicated that she was sexually abused, because this was adduced by defense counsel on cross-examination. See id. at 10 n.5, 2015 WL 7078462, at *4 n.5. Accordingly, the panel focused on the pediatrician's statement, on redirect, offering a medical conclusion that C.S. had been victimized.

Initially, the panel recognized that the admissibility of expert testimony is a matter generally committed to the sound discretion of the trial courts. See id. at 6, 2015 WL 7078462, at *3. The panel explained, however, that experts are forbidden from opining as to the credibility of fact witnesses. See id. at 7, 2015 WL 7078462, at *3 (citing Commonwealth v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986) ).

In this regard, the panel alluded to a series of decisions in which this Court had: determined that an expert had intruded on the jury's function via testimony that children generally do not fabricate reports of abuse, Seese, 512 Pa. at 444–45, 517 A.2d at 922 ; disapproved expert testimony concerning typical behavioral patterns exhibited by sexually abused children, see Commonwealth v. Balodis, 560 Pa. 567, 576–77, 747 A.2d 341, 345–46 (2000) ; and held that expert testimony that a victim displayed behavioral patterns consistent with those typically displayed by sexually abused children was inadmissible, see Commonwealth v. Dunkle, 529 Pa. 168, 183, 602 A.2d 830, 837 (1992).² Further, the panel noted the Superior Court's own previous admonition that "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." Maconeghy, 2191 MDA 2014, slip op. at 7, 2015 WL 7078462, at *3 (quoting Commonwealth v. Hernandez, 420 Pa.Super. 1, 8, 615 A.2d 1337, 1340 (1992) ). The panel also discussed the legislative enactment pertaining to expert testimony in various criminal proceedings involving sexual offenses, which now authorizes certain professionals to testify as to "specific types of victim responses and behaviors." 42 Pa.C.S. § 5920(b)(2) ; see supra note 2. In particular, the panel highlighted the statute's disapproval of opinions about witness credibility. See 42 Pa.C.S. § 5920(b)(3) ("The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.").

The panel concluded that Dr. Novinger's testimony that he believed that C.S. was sexually abused, based on her statements to such effect, "improperly constituted an opinion as to whether the victim was telling the truth, and intruded into the jury's function to assess the credibility of witnesses." Maconeghy, 2191 MDA 2014, slip op. at 9–10, 2015 WL 7078462, at *4 ; see also id. at 10, 2015 WL 7078462, at *5 (indicating that Dr. Novinger's statements "encroached on the jury's function as the sole arbiter of credibility"). In this regard, the panel relied upon this Court's Seese decision, as follows:

As our Supreme Court observed in Seese, "[s]uch 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 [of the class of people of which the particular witness is a member]. 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."

Id. at 10–11, 2015 WL 7078462, at *5 (quoting Seese, 512 Pa. at 444, 517 A.2d at 922 (emphasis in original)). Given its determination that the testimony was inadmissible, and in light of the trial court's refusal to issue a curative instruction, the panel concluded that it was constrained to award a new trial. See id.

After the Superior Court denied reargument, this Court allowed appeal, limited to the following issue:

Whether the Superior Court erred in finding that Dr. Novinger' statement that he believed the child was victimized encroached on the jury's function as the sole arbiter of credibility when the case law that the Superior Court relied on does not warrant such a result.

Commonwealth v. Maconeghy, ––– Pa. ––––, 163 A.3d 395 (2016) (per curiam).³

Presently, the Commonwealth argues that the Superior Court errantly failed to distinguish between cases that pertain to behavioral experts and those that involve medical professionals, such as Dr. Novinger. Relative to this proposed "behavioral/medical" distinction, the Commonwealth posits that "Pennsylvania case law has essentially determined what type of expert falls into the category of those whose testimony improperly bolsters the credibility of witnesses," i.e., behavioral experts only. Brief for Appellant at 14; see also id. at 11 ("Dr. Novinger's testimony was not based on the behavior of the victim as compared to the typical victim of sexual assault." (emphasis in original)); id. at 24 (drawing a distinction between "objective medical facts" and "speculative explanations for patterns of behavior" (emphasis deleted)). The Commonwealth distinguishes Dr. Novinger's credentials as a medical doctor and stresses the depth of his training and experience. See, e.g., id. at 6 (explaining that the pediatrician "testified that in the past 32 years, he evaluated between 500 and 1000 children"). Additionally, the Commonwealth draws support for the distinction that it envisions from Section 5920 of the Judicial Code. See id. at 12 (opining that "the legislature codified the prohibition of a witness's opinion regarding credibility of the victim only with regard to behavioral experts, not medical experts like Dr. Novinger." (emphasis in original)).

The Commonwealth also denies that Dr. Novinger commented upon C.S.'s credibility at all, asserting that the pediatrician's testimony went only to his "medical encounter" with C.S. and did not concern her truthfulness. Brief for Appellant at 12. To the...