ARGUED: March 8, 2017
from the Order of the Superior Court dated 6/12/15 at No.
2191 MDA 2014, reargument denied 8/13/15, vacating the
judgment of sentence of 7/21/14 of the Court of Common Pleas
of Lackawanna County, Criminal Division, at No.
CP-35-CR-0001450-2012 and remanding
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
SAYLOR, CHIEF JUSTICE
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.
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.
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
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.
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.
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
[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
Id. at 229.
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.
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
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)).
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). 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
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
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
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.
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. ___, ___ A.3d ___
(2016) (per curiam).
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)).
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 degree that
this Court would discern any bolstering effect - and while
otherwise recognizing that, under this Court's
longstanding decisional law, no expert testimony is
to be employed to validate the credibility of other witnesses
-- the Commonwealth reverts to the more general proposition
that such testimony is admissible if it will assist the trier
of fact in understanding the evidence or in determining a
fact in issue. See Pa.R.E. 702(b).
Commonwealth also draws support from this Court's
decisions in Commonwealth v. Minerd, 562 Pa. 46,
55-56, 753 A.2d 225, 230 (2000) (approving the admissibility
of expert testimony explaining that the absence of physical
trauma does not disprove abuse), and Commonwealth v.
Rounds, 518 Pa. 204, 209-10, 542 A.2d 997, 999 (1988)
(disapproving medical testimony that abuse had occurred on
the ground that the testimony was based on a case history
that was not before the jury). With regard to
Minerd, the Commonwealth observes that the Court
allowed the relevant expert testimony even though it had some
effect in terms of enhancing the veracity of children.
See Minerd, 562 Pa. at 55, 753 A.2d at 230.
Concerning Rounds, the Commonwealth highlights that
the Court did not disapprove diagnoses of abuse generally,
but rather, relied on the absence of underlying record
support for the diagnosis. See Rounds, 518 Pa. at
209-10, 542 A.2d at 999. The Commonwealth also discusses
several other cases from the Superior Court.
Commonwealth concludes its argument with the following
hyperbole: "Excluding an opinion based on a medical
encounter because the evaluation included a history would
make it impossible for a medical doctor to be presented as a
witness in any case involving sexual assault, a result
clearly not intended by our courts or legislature."
Brief for Appellant at 34.
Superior Court explained, evidentiary rulings are within the
general province of the trial courts and will not be
overturned by an appellate court absent an abuse of
discretion, as, for example, when the law is overridden or
misapplied. See, e.g., Commonwealth v.
Flor, 606 Pa. 384, 414, 998 A.2d 606, 623 (2010). In
terms of the applicable law, 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 in the relevant field. See
Pa.R.E. 702. Under longstanding Pennsylvania precedent
pertaining to jury trials, however, determining witness
credibility is exclusively the function of jurors, and expert
witnesses are specifically prohibited from invading this
province. See, e.g., Commonwealth v.
O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976)
(holding that the issue of witness credibility is within the
knowledge of the average layperson and must be determined
solely by the finder of fact).
our review, we hold 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. Such conclusion is
consistent with a wide body of decisions in other
jurisdictions. See, e.g., United States v.
Charley, 189 F.3d 1251, 1267 n.23 (10th Cir. 1999)
(collecting cases); State v. Buchholtz, 841 N.W.2d
449, 459 (S.D. 2013) (same).
decision in State v. Iban C., 881 A.2d 1005 (Conn.
2005), is illustrative and is essentially on all fours with
the issue presented in this case. There, a pediatrician
testified in a child sexual assault case that the complainant
manifested no physical signs of abuse; the physician
nevertheless rendered a diagnosis of abuse based both upon
the physical examination and the complainant's history
developed by an investigative team. See id. at
1013-14. The Connecticut Supreme Court held that the trial
court had abused its discretion in admitting such testimony,
because the pediatrician's opinion was inextricably tied
to her belief in the complainant's veracity. In this
regard, the court reasoned:
[B]y [the pediatrician's] own admission, her diagnosis
depended on a belief in this same credibility [that was
central to the jurors' determination] because her
ultimate assessment was based almost entirely on the history
provided by the victim and the victim's mother to the
investigation team. [The pediatrician's] diagnosis of
child sexual abuse, therefore, necessarily endorsed the
victim's credibility, and functioned as an opinion as to
whether the victim's claims were truthful.
Id. at 1015. Additionally, the Connecticut court
determined that the opinion evidence "was not helpful to
the jury in deciding the precise question on which it had to
pass." Id. at 1016-17. The court proceeded to
distinguish the circumstances from cases in which expert
testimony concerning the general characteristics of sexual
assault victims had been permitted, i.e., testimony
that did not specifically link those characteristics to the
complainant. See id. at 1015.
courts have variously characterized expert opinions that
children have been sexually assaulted in the absence of
physical evidence as "putting a certificate of veracity
on the child's testimony, " Buchholtz, 841
N.W.2d at 459; "bolstering credibility, id. at
458; "merely vouching, " Charley, 189 F.3d
at 1267; and "indirect vouching, "
Favoccia, 51 A.3d at 1025. See generally
Buchholtz, 841 N.W.2d at 458 & n.4 (collecting cases
for the proposition that "[m]ost jurisdictions restrict
this type of expert testimony, raising concerns about
improper bolstering of credibility and invading the province
of the jury on determining an ultimate issue"). We are
in full agreement with the assessment of these courts in the
relevant regard. Consistent with the Connecticut
jurisprudence, we find no material distinction between direct
vouching (e.g., "I believe the complainant is
telling the truth") and indirect vouching (e.g,
"I conclude that the complainant was sexually assaulted
based upon the history she related.").
courts also recognize 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. See, e.g.,
Peterson, 537 N.W.2d at 868 (reflecting the Michigan
Supreme Court's appreciation that the risks associated
with expert vouching in child sexual assault cases are
exacerbated by "the nature of the offense and the
terrible consequences of a miscalculation" given that,
"[t]o a jury recognizing the awesome dilemma of whom to
believe, an expert will often represent the only seemingly
objective source, offering it a much sought-after hook on
which to hang its hat" (quoting People v.
Beckley, 456 N.W.2d 391, 404 (Mich. 1990)
(plurality))). Accordingly, the courts have attempted
to devise appropriate and necessary limitations, albeit
differing in various respects concerning the appropriate
balance to be stricken.
this Court's previous decisions place Pennsylvania among
a minority of jurisdictions in which the highest court has
taken a most restrictive approach. For example, although a
majority of jurisdictions would appear to allow the
prosecution to adduce expert testimony concerning general
characteristics of sexual assault victims, see 23A
C.J.S. Criminal Procedure and Rights of Accused §1506
(2017), this Court's decisions had disapproved of such
evidence on the grounds that it invades the province of
jurors. See, e.g., Balodis, 560 Pa. at
576-77, 747 A.2d at 345-46. It 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
response to the Commonwealth's effort to distinguish
medical experts from behavioral ones, the credentials of
medical professionals do not insulate them from the
prohibition against invading the province of jurors. See,
e.g., Southard, 218 P.3d at 112 (reasoning,
relative to a physician's diagnosis of abuse, that
"[t]he fact that the diagnosis came from a credentialed
expert, surrounded with the hallmarks of the scientific
method, created a substantial risk that the jury 'may be
overly impressed or prejudiced by a perhaps misplaced aura of
reliability or validity of the evidence'" (quoting
State v. Brown, 687 P.2d 751, 773 (Or.
1984))). Along these lines, the
Commonwealth's references to a broader "medical
encounter" also are not persuasive, since Dr. Novinger
grounded his opinion on the history provided by C.S. See,
e.g., N.T., Jan. 21, 2014, at 219. Thus, the opinion is
inextricably intertwined with the veracity of her statements.
acknowledge that a number of states allow the admission of a
medical diagnosis of child sexual assault where this is
premised, at least in part, upon physical findings. See,
e.g., State v. Chandler, 697 S.E.2d 327, 331 (
N.C. 2010) ("[F]or expert testimony presenting a
definitive diagnosis of sexual abuse, an adequate foundation
requires supporting physical evidence of the abuse.").
Notably, a well-developed decision in this line of cases both
carefully delineates relevant criteria to be assessed in
determining admissibility and reaffirms that, in the absence
of physical evidence of abuse, such diagnoses are
inadmissible. See State v. Beauvais, 354 P.3d 680,
689-90 (Or. 2015). Because, however, there was no physical
evidence of abuse in the present case, we are not called upon
here to determine the admissibility of expert testimony in
circumstances where physical evidence is present or to
consider what if any restrictions should attend
regard to Minerd and Rounds, the 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. Minerd, 562 Pa. at 52,
753 A.2d at 228. Rounds did concern expert testimony
particular to the complainant, but the decision may have been
shaped by the manner in which the issues were presented to
the Court. Accordingly, while Rounds may provide
some inferential evidence that the Court was not then
consciously inclined to disapprove expert witness opinions
that abuse has occurred within the contours of the case as it
had developed, see Rounds, 518 Pa. at 207, 542 A.2d
at 998 (observing an expert witness's opinion that a
child was sexually abused, without disapproving of the
testimony other than on the ground that the underlying
history was not adduced at trial), there is no developed
reasoning in the opinion on this subject. Thus, we
decline to accord material significance to that decision in
this case. Finally, to the extent there is any conflict
between our present opinion and those of the Superior Court
cited in the parties' briefs or otherwise, the latter are
now disapproved in the relevant respect.
summary, we agree with the Superior Court, as well as the
wide body of decisions from other jurisdictions, that expert
testimony opining that a child has been sexually abused --
which is predicated on witness accounts and not physical
findings --is inadmissible. Our decision is limited according
to the terms of this opinion as expressed throughout. For
example, we are not presently assessing whether, or under
what circumstances, such evidence may be appropriate in light
of physical findings or as fair response on redirect
examination or in rebuttal.
order of the Superior Court is affirmed.
Justices Baer, Donohue and ...