Appeal from Order of the Superior Court of Pennsylvania entered on September 4, 1986 at No. 520 Pittsburgh 1984 affirming the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, entered April 2, 1984, at No. 1323 Criminal of 1982.
Zappala, Justice. Stout, J., and Hutchinson, former J., did not participate in the consideration or decision of this case. Larsen, J., concurred in the result.
This appeal raises one issue for consideration, whether Appellant's trial counsel was ineffective in failing to object
to or strike the introduction into evidence of a medical expert's opinion when the facts upon which that opinion was based were not part of the existing record or subsequently disclosed to the jury.*fn1 The Appellant was convicted by a jury of violating § 3123 of the Crimes Code.*fn2 During the trial, the Commonwealth presented the testimony of the victim, who was the Appellant's son, a classmate of the victim, one of the victim's school teachers, and a pediatrician. It is the pediatrician's testimony that is the subject of this appeal.*fn3
After being qualified as an expert, Dr. Linda Fagenholtz testified regarding her investigation into the victim's complaint of sexual abuse. This investigation included an extensive physical examination, which failed to disclose evidence of sexual abuse. However, Dr. Fagenholtz testified that a negative physical examination did not conclusively preclude sexual abuse given the time lag between the alleged incident and the examination itself. Dr. Fagenholtz testified that in this type of case, a case history is more important:
Q: In the course of your physical exam, would you just explain to the jury what it is that you do and what it is that you are looking for.
A: Okay. When we see these children we do a history which, in this particular case and in most cases, is more important than the physical exam, . . . . (Notes of Testimony p. 57)
Q: And my question is, when there is a gap between an abuse and an examination of some five to six months, it is typical that you would not find any physical manifestations?
A: It's more likely than not that you will not find anything. The most important encounter at that point becomes your history. (Notes of Testimony, p. 60)
As part of her investigation, Dr. Fagenholtz prepared a written report, which the Commonwealth had marked as an exhibit for identification, but failed to have introduced into evidence. The Commonwealth also failed to have Dr. Fagenholtz testify as to the contents of her report other than her conclusion. Finally, Dr. Fagenholtz was ...