J-S35029-25
2025 PA Super 260
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AUSTIN JACOB KNIGHT :
:
Appellant : No. 579 MDA 2025
Appeal from the PCRA Order Entered March 31, 2025
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000062-2019
BEFORE: OLSON, J., MURRAY, J., and LANE, J.
OPINION BY MURRAY, J.: FILED: NOVEMBER 17, 2025
Austin Jacob Knight (Appellant) appeals from the order dismissing his
timely first petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
Appellant’s convictions involve sexual offenses against a minor
complainant, R.K. On January 25, 2018, R.K. reported to police that
Appellant, who was 28 years old, had sexually assaulted her on October 31,
2017, when she was 16 years old. On February 25, 2019, the Commonwealth
charged Appellant with one count each of aggravated indecent assault without
consent, sexual assault, indecent assault without consent, unlawful contact
with a minor, and corruption of minors.1 Ryan Barrett, Esquire (trial counsel),
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1 18 Pa.C.S.A §§ 3125(a)(1), 3124.1, 3126(a)(1), 6318(a)(1), 6301(a)(1)(ii).
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represented Appellant. The matter proceeded to a jury trial on October 5,
2020.
A prior panel of this Court summarized R.K.’s trial testimony as follows:
[R.K.] explained that she and Appellant had met in August of 2017
at Skateaway, a skating rink in Wilkes Barre[, Pennsylvania], and
had developed a friendship. Appellant was aware from the outset
that [R.K.] was only 16 years old, and Appellant led [R.K.] to
believe that he was in his early twenties. As time passed,
Appellant garnered [R.K.’s] and [R.K.’s] mother’s trust, and
[R.K.], with her mother’s approval, began to rely on him for
transportation [from] the skating rink. The relationship between
Appellant and [R.K.] soon alienated [R.K.] from her friends,
however, and she became estranged from them.
Eventually, the friendship between [R.K.] and Appellant
evolved into a sexual relationship. [R.K.] testified that this
“confused her” because she “never really had any sexual
knowledge in general[,]” but that she ignored her instincts
because she thought “this is what people do, I shouldn’t be saying
anything. You know, this is normal.” N.T., 10/5/20, at 39. [R.K.]
testified that Appellant kissed her[,] touched and digitally
penetrated her vagina[,] and touched her breasts. She testified
that, by the fall of 2017, she was uncomfortable with Appellant’s
actions, which included the performance of oral sex on her. She
further testified that she told Appellant she did not want him to
perform oral sex on her, but that he would do it anyway. She also
testified that when she expressed feeling uncomfortable in sexual
situations, Appellant would persuade her that he cared about her
and just wanted to “make [her] feel good.” Id. at 40. [R.K.]
testified that, ultimately, she realized that Appellant had been
grooming her for sexual abuse by talking her into thinking a sexual
relationship was what she wanted.
On the night of October 31, 2017, [R.K] went to a haunted
house with Appellant. While the two were standing in line,
Appellant “would press himself up against” [R.K.] with his “penis
[] against [her] butt.” Id. After the haunted house, Appellant
and [R.K.] returned to [R.K.’s] home where, on [R.K.’s] front
porch, Appellant penetrated [R.K.’s] vagina digitally and
performed oral sex on her[,] even though she expressed to
Appellant that she did not want him to. Later, the two retreated
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to [R.K.’s] basement[,] where Appellant’s sexual advances
escalated and culminated in Appellant performing oral sex and
intercourse with [R.K.] against her will. [R.K.] testified that she
“said that I didn’t want to. I said that very firmly that night. It
was the only time that I could say [] without a doubt that I
completely and honestly didn’t want to do anything, and I made
it very clear.” Id. at 46.
Commonwealth v. Knight, 290 A.3d 688, 481 MDA 2021 (Pa. Super. 2022)
(unpublished memorandum at 3-5) (footnotes omitted; record citations
modified).
R.K. testified that the intercourse concluded with Appellant ejaculating
on her stomach. N.T., 10/5/20, at 50. Afterward, R.K. “ran upstairs” and
“grabbed a towel.” Id. She stated, “I decided to wipe off the semen and keep
the towel because at that point I knew I was going to go to law enforcement
because I just couldn’t take it anymore.”
Id. R.K. testified she “saved [the
towel] in a plastic bag and kept it until [she] went” to the police.
Id.
R.K. did not immediately report the incident, testifying that she had “an
urge to do something, but then I didn’t because I lost the confidence.” Id. at
72. She continued to spend time with Appellant, though she stated their
relationship “deescalated a lot” and she “became very, very distant.” Id. at
51. R.K. testified Appellant took her on an overnight trip to a skating rink in
New York on November 11, 2017, but “nothing sexual happened.” Id. at 52,
70. R.K. testified Appellant lied to her, falsely telling her he had obtained her
mother’s permission to take her on the trip. Id. at 65. R.K. stated she was
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“very distant with [Appellant] on this trip, and I remember him pointing that
out.” Id. at 70.
R.K. also testified that, after the sexual assault, Appellant gave her a
Fender Stratocaster guitar worth $2,000. Id. at 53-54. R.K. stated Appellant
knew she was interested in the guitar, as Appellant had talked about getting
it for himself. Id. at 54. She testified, “[B]ut after the sexual assault and
after I started getting distant, after things are looking weird, all of a sudden
[Appellant] showed up in [the screened front porch of my house,] uninvited[,]
after I told him I could not see him.” Id. R.K. testified Appellant entered the
porch without knocking and left the guitar, then texted her to tell her the
guitar was on the porch. Id.
R.K. testified that she was
nervous because Appellant had begun yelling at her and being
verbally abusive[,] causing [R.K.] to become afraid that Appellant
would hurt her. She testified, however, that she feared cutting
off all contact with Appellant because she “knew the risk.” Id. at
53. [R.K.] … testified that she was also scared of Appellant
because, on one occasion after the rape, Appellant, while
intoxicated, approached [R.K.] and her mother at Skateaway and
pulled out a knife.
[R.K.] testified that she did not tell anyone about the
[assault] until January 2018. She explained that she came
forward because she “was struggling after the main sexual assault
experience. I realized that I was being groomed, and I didn’t
realize how long it was happening, obviously. Looking back on
the situation[,] it made me feel like he was the only one there for
me all of the time, so I felt like I needed to hold onto that, even
though I was going through so much pain from it.” Id. at 59-60.
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Knight, 290 A.3d 688 (unpublished memorandum at 5-6) (footnotes omitted;
record citations modified); see also N.T., 10/5/20, at 51 (R.K.’s testimony
that she did not tell her mother about the assault until the day she told police,
explaining, “I didn’t want my mom to think [less] of me … because I had a
sexual interaction….”).
Officer Jason O’Hora (Officer O’Hora) of the Moosic Borough Police
Department testified that on January 25, 2018, R.K.’s mother called the police
to report that R.K. had been sexually assaulted. N.T., 10/5/20, at 116. Officer
O’Hora conducted a “minimal fact interview” with R.K. at the police station,
and scheduled a forensic interview at the Children’s Advocacy Center for the
following day. Id. On January 26, 2018, Officer O’Hora observed R.K.’s
forensic interview, during which R.K. indicated she had preserved at her
residence a towel she had used to wipe Appellant’s semen off her stomach.
Id. at 119. Later that day, Officer O’Hora went to R.K.’s residence, where she
provided him with a blue and white towel. Id. Officer O’Hora subsequently
submitted the towel to the Pennsylvania State Police (PSP) for testing. Id. at
123. After the towel tested positive for seminal fluid, Officer O’Hora obtained
a sample of Appellant’s DNA via search warrant. Id. at 124. Further PSP
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testing confirmed Appellant’s DNA matched the semen on the towel. Id. at
125.2
Pertinently, the Commonwealth presented expert testimony from Cheryl
Friedman (Nurse Friedman), a certified nurse practitioner and Sexual Assault
Nurse Examiner. Id. at 96. Nurse Friedman testified that she had worked at
the Children’s Advocacy Center since 2014, where she examined children “for
the purpose of diagnosis and treatment of residual abuse.” Id. at 97. Nurse
Friedman indicated she had been involved in “[a]lmost a thousand exams
having to do with sexual abuse….” Id.; see also id. at 98 (trial court
accepting Nurse Friedman’s qualifications as “an expert [witness] in forensic
nurse practitioner with specialties in child sexual abuse….”).
Nurse Friedman testified that, on January 26, 2018, she examined R.K.
at the Children’s Advocacy Center. Id. at 102. Immediately prior to the
exam, R.K. underwent a forensic interview conducted by a trained forensic
interviewer, which Nurse Friedman observed. Id. at 104. Nurse Friedman
then spoke with R.K. and R.K.’s mother to obtain R.K.’s medical history. Id.
at 104-05. Nurse Friedman agreed that, “for the purposes of medical
treatment and diagnosis,” R.K. gave Nurse Friedman “a brief summary of what
____________________________________________
2 Sara Worsnick, a PSP forensic serologist, testified that she tested the towel
submitted by Officer O’Hora, and confirmed the presence of seminal fluid on
the towel. N.T., 10/6/20, at 8-13. Melinda Charley, a PSP forensic scientist,
testified that she conducted DNA testing on a seminal stain from the towel
and a cheek swab from Appellant; she confirmed DNA from the seminal stain
matched Appellant’s DNA. Id. at 29-32.
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brought her to the center that day[.]” Id. at 105. Nurse Friedman then
conducted a “physical and sexual exam” of R.K., including a genital exam. Id.
at 105-06.
Nurse Friedman testified that she observed “[n]o visible trauma” during
the genital exam. Id. at 107; see also id. at 109 (Nurse Friedman confirming
the genital exam “was normal.”). However, Nurse Friedman stated that she
“would not expect to see any physical findings” because of the length of time
that had passed since the alleged assault. Id. Explaining that genital tissue
heals quickly, Nurse Friedman testified that if R.K. “had trauma to that part of
her body I would have expected it to have healed by the time that I see her.”
Id. at 109-10. Nurse Friedman further agreed that she would not expect to
see physical trauma on the genital exam, even if R.K. had “reported that she
experienced pain during the sexual assault….” Id. at 110.
Significantly, the Commonwealth’s direct examination of Nurse
Friedman concluded with the following exchange:
Q: And based on your training and experience with a large number
of examinations you have conducted in sexual assault cases, do
you have an opinion within a reasonable degree of medical
certainty as to the findings, the medical findings relating to [R.K.]?
A: Yes.
Q: What is it?
A: Sexual assault by her history.
Id. at 110-11 (emphasis added).
Trial counsel began his cross-examination of Nurse Friedman as follows:
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Q: You just stated that your assessment of sexual assault is based
on history. Can you explain that a little bit more?
A: Because of what she talked about during her forensic interview
and because of what she talked about when we … talked together
during the medical history, she tells me a history of sexual assault.
Q: It’s not based on any physical findings, just from her
testimony[?]
A: Correct.
Id. at 111.
Trial counsel further questioned Nurse Friedman regarding the
significance of the lack of physical trauma found during the exam:
Q: I know that you discussed that you would not typically see
signs of injury, but in terms of forced vaginal penetration, is there
anything you would typically see at this point in terms of the time
from the alleged incident?
A: So I wouldn’t expect to see anything since time had passed.
And there are many scientific studies that match that up. That is
what is expected.
Q: So you can’t tell if something did or did not [happen]?
A: Correct, in most cases.
Id. at 112.
On redirect, the Commonwealth asked Nurse Friedman, “[D]oes the lack
of physical injury negate the fact that [R.K.] was sexually assaulted?” Id. at
113. Nurse Friedman responded, “No, absolutely not.” Id. On recross, trial
counsel questioned Nurse Friedman as follows:
Q: You’re stating that your opinion that she has been sexually
assaulted based on—
A: My medical opinion, yes.
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Q: Your medical opinion based on [R.K.’s] statement to you?
A: Yes.
Id. at 113.
The Commonwealth also presented testimony from Janet Bash (Ms.
Bash), who was 24 years old at the time of trial, regarding her previous
relationship with Appellant, which “resulted in Ms. Bash becoming pregnant at
age 16.”3 Knight, 290 A.3d 688 (unpublished memorandum at 2). Ms. Bash
testified
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3 In a pretrial motion in limine, Appellant sought to preclude Ms. Bash’s
testimony under Pa.R.E. 404(b)(1), which prohibits evidence of a defendant’s
prior bad acts “to prove a person’s character” or demonstrate “that on a
particular occasion the person acted in accordance with the character.”
Pa.R.E. 404(b)(1). Rule 404(b)(2) provides that prior bad acts evidence “may
be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.”
Id. (b)(2). The trial court determined Ms. Bash’s testimony was
admissible under Rule 404(b)(2) because
[t]he similarities between [Appellant’s relationships with Ms.]
Bash and [R.K.] indicate a common plan in which Appellant earned
the trust of naive, socially isolated minor females, initiated daily
communication and regular contact, manipulated them into
inappropriate touching and kissing, evolving into sexual contact,
and eliciting sexual contact through confusion, verbal coercion,
and physical force. Appellant created opportunities for [Ms.] Bash
and [R.K.] to spend periods of time with him encouraging sexual
conduct to occur. Appellant’s daily interactions with [Ms.] Bash
and [R.K.] conditioned the minor females to accept sexual conduct
and be deterred from resisting or reporting the assaults.
Knight, 290 A.3d 688 (unpublished memorandum at 12-13) (quoting Trial
Court Opinion, 3/9/22, at 26-27) (original brackets omitted). On direct
appeal, Appellant challenged the trial court’s admission of Ms. Bash’s
testimony, and this Court affirmed.
Id. (unpublished memorandum at 10-
13).
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that at the time she met Appellant[,] she was depressed and did
not have much of a social life. Ms. Bash’s father worked with
Appellant and introduced Appellant to Ms. Bash when she was 13
years old. When she was … 15 years old, her friendship with then-
21-year-old Appellant[] became sexual. Also, around that time,
Appellant moved into Ms. Bash’s family’s home. … Ms. Bash
testified that she requested that Appellant use condoms when
they had intercourse, but Appellant refused, explaining that they
hurt him. Ms. Bash testified that she naively believed Appellant.
She also testified that she felt pressured to have intercourse with
Appellant and to permit him to ejaculate inside her. She testified
that “[s]ometimes he forced” her to [let him] “finish inside. Like
he would hold me down and like pressure me into it or use words”
such as “[i]t would make us closer.” N.T., 10/5/20, at 88. She
also testified that, although he never physically forced her to have
intercourse, she felt pressured because he told her that if she did
not agree, Appellant “would leave or find someone else to do it[.]”
Id. Ms. Bash testified that sometimes she would try to physically
resist Appellant by squirming away during intercourse but
Appellant would pin her down.
Knight, 290 A.3d 688 (unpublished memorandum at 6-7) (footnotes omitted;
record citations modified). Ms. Bash testified that Appellant impregnated her
when she was 16 years old, and she later “gave the baby up for adoption[.]”
N.T., 10/5/20, at 89-90; see also id. at 90 (Ms. Bash testifying that Appellant
proposed marriage to her and she said yes).
Appellant called R.K.’s mother, M.K., to testify as a defense witness.
M.K. testified that, during the relevant period, she was separated from R.K.’s
father. N.T., 10/6/20, at 49. M.K. and R.K. lived with M.K.’s 92-year-old
father, and M.K. worked the night shift at a health care facility. Id. at 50.
During this period, M.K. frequently took R.K. to Skateaway. Id. at 51-
53. M.K. confirmed that she met Appellant there, and that she trusted
Appellant to drive R.K. home from Skateaway occasionally, when M.K. had to
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go to work. Id. at 52-53; see also id. at 55 (M.K. testifying that she was not
concerned about R.K.’s safety with Appellant “[b]ecause [M.K.] trusted they
were just friends.”). M.K. also testified that she was aware that R.K. went to
a haunted house with Appellant and two of R.K.’s other friends. Id. at 56.
However, M.K. testified that Appellant took R.K. on the overnight trip to New
York without M.K.’s awareness or permission, and asserted Appellant lied to
R.K. by telling her he had obtained M.K.’s permission. Id. at 54, 60-61. M.K.
further testified that Appellant lied to her about his age, telling M.K. he was in
his early twenties when he was, in fact, 28 years old. Id. at 59. M.K. testified
that she no longer trusted Appellant to be around R.K. “[b]ecause he raped
her.” Id. at 60.
Testifying in his own defense, Appellant stated that, during the relevant
period, he was an avid roller skater and went to Skateaway frequently. Id.
at 66-67. He indicated he knew the owners of Skateaway, and sometimes
helped out by cleaning up or acting as a floor guard. Id. at 67; see also id.
at 86 (Appellant describing a floor guard as “somebody that enforces the rules,
such as no cell phones on the floor,” etc.). Appellant testified he first met
R.K. at Skateaway when he saw her crying and asked her if she was hurt. Id.
at 68. Appellant testified he also met M.K. at Skateaway, and that M.K. agreed
Appellant could drive R.K. home, which he began to do on a regular basis. Id.
at 69-70. Appellant stated that M.K. “looked fatigued” and “seemed
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appreciative” of his “offer[] to take [R.K.] home should [M.K.] feel tired getting
ready for work.” Id.4
Appellant agreed that he and R.K. attended a haunted house together
with R.K.’s friends. Id. at 70. Appellant testified that the night ended
“[u]neventful[ly.]” Id. at 71. Appellant stated he “took [R.K.] home and
made sure she was okay with the night, checked in with the mother and
grandfather and went about my business.” Id.
Appellant further testified that he and R.K. took an overnight trip to
Albany, New York, to visit a skating rink that “is in the Guinness Book of World
Records[.]” Id. Asked if R.K. had permission to go on the trip, Appellant
answered, “To my knowledge, yes.” Id. Appellant testified he and R.K. stayed
overnight at a hotel and returned home in his vehicle the next day. Id. at 71-
72.
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4 On cross-examination, Appellant initially denied that he offered to give R.K.
rides in order to “g[e]t [M.K.] out of the picture” so he could be alone with
R.K. N.T., 10/6/20, at 80. Upon further questioning, Appellant agreed that
he was alone with R.K. when he gave her rides, and the following exchange
ensued:
Q: So by getting [M.K.] out of the picture you got to spend a little
time with [R.K.]?
A: Yes.
Q: And you did it under the guise of helping out a tired, old single
mom who works midnights?
A: Yes.
Id. at 81.
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Appellant testified that, during this time period, he was employed as a
commercial truck driver and hauled candy for a candy company. Id. at 72.
Appellant stated that he then obtained “a more lucrative position” in the oil
and gas industry, “[h]auling frack sand for frack sites.” Id. at 72-73.
Appellant testified that his new job involved a hectic work schedule, and he
agreed that “in and around late November 2017,” he had less time to spend
with family and friends, including R.K. Id. at 72, 74. Appellant confirmed
that around “the third week of November” he “pretty much ceased [his]
interactions with [R.K.,]” because he did nothing but “work, eat, sleep, get up
and do it all over again.” Id. at 74. Appellant testified that his lack of contact
with R.K. caused a problem for her. Id. at 76-77. Appellant stated he had
no further contact with R.K. after she called one of his friends in the middle of
the night in early December 2017.5 Id. at 88.
____________________________________________
5 R.K. testified that Appellant yelled at her and then blocked her number, and
this increased her fear that he would hurt her. N.T., 10/5/20, at 55-56; see
also id. at 56 (R.K. testifying that “[t]his was pretty much the peak fear.”).
R.K. called Appellant’s friend, Steven Ashworth (Mr. Ashworth), whom she had
previously met. Id. R.K. testified that she never mentioned the sexual assault
to Mr. Ashworth, but that he “knew of the relationship-type thing that was
going on [between R.K. and Appellant,] where it was an intimate relationship.
He knew this.” Id. at 56, 78. R.K. testified that in the phone call, she told
Mr. Ashworth she and Appellant “were having difficulties in our friendship-type
thing,” and expressed her fears. Id. at 57, 58. According to R.K., Mr.
Ashworth said, “You know you can never go to law enforcement about this,”
and that if R.K. “told anybody about what [she and Appellant] were doing[,
Appellant] could get in a very large amount of trouble.” Id. at 58.
(Footnote Continued Next Page)
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Appellant testified that, in connection with his job as a commercial truck
driver, he kept a “go bag” in his personal vehicle, which he described as “just
a bag of clothing, toiletries, a couple of snacks, things like that.” Id. at 73;
see also id. (Appellant explaining that he kept the bag because, as a truck
driver, “you never know what’s going to happen,” such as getting stuck in a
snowstorm). Appellant confirmed the bag was in his vehicle during his trip to
New York with R.K. Id. at 74.
Appellant denied that he ever made sexual advances toward R.K., or
ever sexually assaulted her. Id. at 74-75. He expressly denied that he ever
____________________________________________
Mr. Ashworth testified as a defense witness. He indicated that R.K.
texted him at 3:00 a.m. on December 1, 2017, while he was working a shift
as a truck driver, and asked if they could talk. N.T., 10/6/20, at 91. He
suggested that R.K. call him because he could not text while driving, and they
proceeded to have a three-hour phone conversation throughout Mr.
Ashworth’s three-hour drive. Id. at 91-92. Mr. Ashworth stated they spent
only “the first 15 minutes” discussing Appellant, and the rest of the time
talking about “anything and everything.” Id. at 92-93. Mr. Ashworth testified
R.K. was trying to reach Appellant and asked if Mr. Ashworth could call
Appellant for her. Id. at 92. Mr. Ashworth testified R.K. never mentioned any
sexual abuse, sexual advances, or negative treatment by Appellant, “[o]ther
than the fact that she thought maybe he was ignoring her because she could
not reach him.” Id. at 93-94. Mr. Ashworth denied having knowledge of any
sexual contact between R.K. and Appellant, and denied that he ever advised
R.K. not to go to the authorities about anything. Id. at 94, 99. On cross-examination, Mr. Ashworth testified that he saw nothing inappropriate about
having a three-hour conversation with a 16-year-old girl in the middle of the
night, and stated he would see no problem with his own daughter having
similar contact with a 47-year-old man. Id. at 97; see also id. at 90, 95 (at
the time of the phone call, Mr. Ashworth was 47 and married with four
children).
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kissed R.K., touched her breast or vaginal area, performed oral sex on her, or
had intercourse with her. Id. at 75-76.
Appellant did not discuss the semen-stained towel in his direct
testimony. On cross-examination, the following exchange occurred:
Q: So this is [a] giant big mystery as to how your semen ended
up on a towel at [R.K.’s] house; is that correct?
A: It appears so.
Q: What’s your explanation for that?
A: Always having that [] go bag that could have been a sample
out of my truck. I have taken people with me in my truck and I
have personal relations outside that.
Q: So you are accusing [R.K.] of taking a towel out of your [] go
bag in which you ejaculated on?
A: No, I said it’s a possibility.
Q: Well, what other possibility is there, sir? … It was a towel from
[R.K.’s] house, wasn’t it?
A: I can’t identify that.
Q: Okay. Well [R.K.] did?
A: Could have been my towel, ma’am.
Id. at 77-78.
Appellant agreed that he gave R.K. a Fender Stratocaster guitar by
leaving it on her porch. Id. at 77. He testified the guitar’s retail value was
$2,000, but that he got it for $800. Id. at 84. Appellant maintained he
“give[s] a lot of things away,” and once gave “$1,500 worth of skates to
somebody else’s grandchildren.” Id. at 84-85.
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Appellant admitted he began a sexual relationship with Ms. Bash when
she was 16, and impregnated Ms. Bash with a child that was later given up
for adoption. Id. at 82-84; see also id. at 83 (Appellant agreeing that he
asked Ms. Bash to marry him). Appellant testified that Ms. Bash was 17 when
she became pregnant. Id. at 83-84. Appellant denied telling Ms. Bash he did
not want to use condoms, and testified her pregnancy resulted from a broken
condom. Id. at 83.
At the trial’s conclusion, the jury convicted Appellant of all charges. On
January 12, 2021, the trial court imposed an aggregate sentence of 7 to 14
years’ imprisonment.
Appellant filed a direct appeal. On December 19, 2022, we affirmed
Appellant’s judgment of sentence. Knight, 290 A.3d 688 (unpublished
memorandum). Appellant did not seek allowance of appeal in the
Pennsylvania Supreme Court.
On August 24, 2023, acting pro se, Appellant timely filed the instant
PCRA petition, his first. The PCRA court appointed PCRA counsel, who filed an
amended petition on March 5, 2024. The amended petition averred that trial
counsel rendered ineffective assistance by, inter alia, failing to object to Nurse
Friedman’s testimony, specifically her opinion of sexual assault by history. On
August 7, 2024, the PCRA court held an evidentiary hearing, at which trial
counsel and Appellant testified. On March 31, 2025, the PCRA court filed an
opinion and order dismissing the petition.
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Appellant timely appealed. Appellant and the PCRA court have complied
with Pa.R.A.P. 1925. Appellant presents a single issue for our review:
Whether the PCRA court[ erred or abused its discretion when it
denied Appellant’s] claim that trial counsel provided ineffective
assistance for failing to object or otherwise challenge [Nurse
Friedman’s] testimony and opinion of sexual abuse based on
history when there were no physical findings of abuse[,] since
[that testimony and opinion] impermissibly bolstered [R.K.’s]
testimony and was an encroachment upon the province of the jury
…?
Appellant’s Brief at 2.
When reviewing the denial of a PCRA petition, we examine “whether the
PCRA court’s conclusions are supported by the record and free from legal
error.” Commonwealth v. Johnson, 289 A.3d 959, 979 (Pa. 2023) (citation
omitted).
The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding. In contrast, we review the PCRA court’s legal
conclusions de novo.
Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc)
(citations omitted). A PCRA petitioner “has the burden of persuading [an
appellate c]ourt that the PCRA court erred and that such error requires relief.”
Commonwealth v. Montalvo,
205 A.3d 274, 286 (Pa. 2019); see also
Commonwealth v. Sandusky,
324 A.3d 551, 564 (Pa. Super. 2024) (“We
view the findings of the PCRA court and the evidence of record in a light most
favorable to the prevailing party.”).
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Appellant challenges trial counsel’s effectiveness. A PCRA petitioner
claiming ineffective assistance of counsel
will be granted relief only when he proves, by a preponderance of
the evidence, that his conviction or sentence resulted from the
“[i]neffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place.”
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (quoting 42
Pa.C.S.A. § 9543(a)(2)(ii)). “[C]ounsel is presumed to be effective, and the
petitioner bears the burden of proving to the contrary.” Commonwealth v.
Brown,
196 A.3d 130, 150 (Pa. 2018). “As a general and practical matter, it
is more difficult for a defendant to prevail on a claim litigated through the lens
of counsel ineffectiveness, rather than as a preserved claim of trial court
error.” Commonwealth v. Charleston,
94 A.3d 1012, 1019 (Pa. Super.
2014) (citing Commonwealth v. Gribble,
863 A.2d 455, 472 (Pa. 2004)).
To overcome the presumption of counsel’s effectiveness, a PCRA
petitioner must plead and prove each of the following three prongs:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) he
suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability the result
of the proceeding would have been different. Commonwealth v.
Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective
assistance of counsel test from Commonwealth v. Pierce, 527
A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations
modified). “We need not analyze the prongs of an ineffectiveness claim in any
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particular order. Rather, we may discuss first any prong that an appellant
cannot satisfy under the prevailing law and the applicable facts and
circumstances of the case.” Commonwealth v. Evans, 303 A.3d 175, 182
(Pa. Super. 2023)).
If a petitioner fails to prove any … prong[] [of the
ineffectiveness test], his claim fails. Generally, counsel’s
assistance is deemed constitutionally effective if he chose a
particular course of conduct that had some reasonable basis
designed to effectuate his client’s interests. Where matters of
strategy and tactics are concerned, a finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can
be concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued. To
demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different. A
reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, quotation
marks, and brackets omitted).
Instantly, Appellant argues trial counsel rendered ineffective assistance
by failing to object to Nurse Friedman’s testimony describing her opinion
regarding R.K. as “[s]exual assault by [R.K.’s] history.” Appellant’s Brief at
19 (quoting N.T., 10/5/20, at 111). Appellant asserts this testimony was
inadmissible under Commonwealth v. Maconeghy, 171 A.3d 707 (Pa.
2017), in which our 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.” Maconeghy,
171 A.3d at 712. Appellant argues
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that “Nurse Friedman’s examination of [R.K.] was normal and [Nurse
Friedman] found no evidence of any physical abuse. Her opinion was solely
based on the history that [R.K.] provided to her.” Appellant’s Brief at 20.
Appellant asserts “[t]his is the specific type of testimony that the
[Maconeghy] Court stated was prohibited.” Id. Appellant argues trial
counsel had no reasonable basis for not objecting to Nurse Friedman’s opinion
of “sexual assault by [R.K.’s] history.” Id. at 21. Appellant further maintains
that he suffered prejudice from the improper opinion testimony, arguing the
trial outcome would have been different had the testimony been excluded.
Id. at 26.
The Commonwealth counters that Maconeghy is distinguishable, and
that the instant case is “more akin” to Commonwealth v. Minerd, 753 A.2d
225 (Pa. 2000). Commonwealth Brief at 24. In Minerd, our Supreme Court
held that an expert witness did not improperly bolster the child victims’
credibility, where the expert testified that “the absence of physical trauma
[found in the expert’s exam] did not prove that the [sexual] abuse never
occurred.” Minerd,
753 A.2d at 228. The Commonwealth maintains that,
“like [the expert] in Minerd, [Nurse Friedman] was neither asked for, nor did
she express, any opinion as to whether R.K. was telling the truth about being
sexually abused.” Commonwealth Brief at 24. The Commonwealth further
maintains that, like the expert in Minerd, Nurse Friedman agreed that her
physical exam “was inconclusive as to whether any abuse occurred.”
Id.
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Finally, the Commonwealth argues Appellant failed to establish prejudice,
asserting “there is not a reasonable probability that the outcome of the trial
would have been different” had Nurse Friedman’s opinion of sexual abuse by
R.K.’s history “been objected to and excluded” from evidence. Id. at 27.
As our Supreme Court has explained,
[e]xpert testimony generally is admissible to aid the jury when
the subject matter is distinctly related to a science, skill or
occupation which is beyond the knowledge or experience of an
average lay person. Commonwealth v. Counterman, 553 Pa.
370,
719 A.2d 284, 302-03 (citing Commonwealth v. O’Searo,
466 Pa. 224,
352 A.2d 30, 33 (1976)), cert. denied, [528] U.S.
[836], 120 S.[ ]Ct. 97, 145 L.Ed.2d 82 (1999). Conversely, expert
testimony is not admissible where the issue involves a matter of
common knowledge. Id. at 303. In assessing the credibility of a
witness, jurors must rely on their ordinary experiences of life,
common knowledge of the tendencies of human behavior, and
observations of the witness’[s] character and demeanor. Id.
Because the truthfulness of a witness is solely within the
province of the jury, expert testimony cannot be used to
bolster the credibility of witnesses. See id.
Minerd, 753 A.2d at 230 (emphasis added).
Expert testimony in sexual abuse cases is governed by 42 Pa.C.S.A.
§ 5920(b), which provides, in pertinent part:
(b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, [including,
inter alia, sexual offenses,] a witness may be qualified by the court
as an expert if the witness has specialized knowledge beyond that
possessed by the average layperson based on the witness’s
experience with, or specialized training or education in, criminal
justice, behavioral sciences or victim services issues, related to
sexual violence or domestic violence, that will assist the trier of
fact in understanding the dynamics of sexual violence or domestic
violence, victim responses to sexual violence or domestic violence
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and the impact of sexual violence or domestic violence on victims
during and after being assaulted.
(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)(1)-(3) (emphasis added).
As the parties rely heavily on Minerd and Maconeghy, we examine
those decisions in some detail.
In Minerd, two child victims disclosed that they had been sexually
abused several years earlier by their then-stepfather. Minerd, 753 A.2d at
227-28. Dr. Margaret Carver (Dr. Carver), “a qualified expert in obstetrics
and gynecology,” physically examined the victims following their disclosure.
Id. at 228. At trial,
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
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 … 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. (record citations omitted).
On appeal, the defendant argued Dr. Carver’s testimony was
inadmissible “because it improperly bolster[ed] the victim[s’] credibility, and
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as such, the prejudicial impact of the testimony outweigh[ed] its probative
value.” Id. at 230. The Minerd Court disagreed:
In this case, Dr. Carver’s testimony was probative of the veracity
of the children. See [Commonwealth v.] Hawk, 709 A.2d
[373,] 377 [(Pa. 1998)] (negative rape kit test results were
probative of defendant’s claim of innocence). 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. See [Commonwealth v.]
Johnson, 690 A.2d [274,] 277 [(Pa. Super. 1997) (en banc)].
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.
Minerd, 753 A.2d at 230.
The defendant also claimed that “the jury may have been unduly
impressed by the expert’s testimony,” asserting “the jury essentially [was]
asked to conclude that the assaults occurred because the expert stated that
there was no physical evidence to prove the assaults, thereby allowing the
Commonwealth to prove its case through ‘non-evidence.’” Id. at 232. The
Minerd Court rejected this claim, stating:
Dr. Carver did not offer only one biased view of the physical
evidence; to the contrary, defense counsel elicited an explanation
which was equally favorable to [the defendant]. Moreover, the
trial judge clearly advised the jury that they were not bound to
accept the expert’s testimony merely because she possessed
special skill or knowledge. The law presumes that the jury follows
the court’s instructions. Commonwealth v. Baez, 554 Pa. 66,
720 A.2d 711, 726-27, cert. denied,
528 U.S. 827, 120 S.[ ]Ct.
78, 145 L.Ed.2d 66 (1999). We fail to see how the jury could have
been unduly influenced under these circumstances.
Minerd, 753 A.2d at 232 (record citation omitted).
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In Maconeghy, a 16-year-old victim disclosed that she had been raped
by her stepfather when she was 11 years old. Maconeghy, 171 A.3d at 708.
At trial, the Commonwealth
adduced testimony from Quentin Thomas Novinger, M.D. [(Dr.
Novinger)], a pediatrician who had evaluated [the victim] 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 [the victim]. He indicated that he observed
a forensic interview of [the victim] 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. Thus,
according to the pediatrician, the fact of abuse can be determined
“[r]eally by history only.”
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.” [Dr. Novinger further stated:] “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 708-09 (record citations omitted).
On appeal, our Supreme Court held
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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).
Maconeghy,
171 A.3d at 712; see also
id. at 715 (concluding “that expert
testimony opining that a child has been sexually abused—which is predicated
on witness accounts and not physical findings—is inadmissible.”).
The Maconeghy Court set forth the following analysis:
The decision in State v. Iban C., 275 Conn. 624,
881 A.2d 1005
(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
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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.
Other 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,” [State v.] Favoccia, 51 A.3d
[1002,] 1025 [(Conn. 2012)]. 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.”).
Most 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., [People v.] Peterson, 537 N.W.2d [857,]
868 [(Mich. 1995)] (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, 434 Mich. 691,
456 N.W.2d 391,
404 (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.
Maconeghy, 171 A.3d at 712-13 (footnotes omitted).
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The Maconeghy Court distinguished Minerd, stating that
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.
Id. at 715 (quoting Minerd,
753 A.2d at 228).
Pertinently, this Court has previously applied Minerd and Maconeghy
in non-precedential decisions6 involving challenges to Nurse Friedman’s
testimony, in unrelated child sexual assault cases, regarding her opinion of
“sexual assault by history.”
In Commonwealth v. Wildoner, 981 MDA 2018, 2019 WL 2447057
(Pa. Super. June 11, 2019) (unpublished memorandum), appeal denied,
222
A.3d 378 (Pa. 2019), the defendant argued on direct appeal that the trial court
abused its discretion in admitting Nurse Friedman’s testimony regarding
“sexual assault by history,” where her “physical examination of [the victim]
revealed no evidence of sexual assault.” Id. at *3. Relying on Maconeghy,
the defendant claimed the testimony improperly bolstered the victim’s
credibility. Id. This Court disagreed:
[Nurse] Friedman provided a diagnosis for [the 14-year-old
victim, K.H.,] following an interview and physical exam of “sexual
assault by history.” Neither [Nurse] Friedman’s testimony nor her
report, however, precisely explains the meaning of this diagnosis.
____________________________________________
6 Pursuant to Pa.R.A.P. 126(b), unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for persuasive value.
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At trial, [Nurse] Friedman explained the following with respect to
her diagnosis:
I take into account everything that has happened that
evening—the interview, the forensic interview, that
has taken place, as well as my discussion with [K.H.],
obtaining her medical history and her concerns, as
well as the treatment I provided that evening and the
recommendation for further treatment after she
leaves.
Thus, from what we can discern from [Nurse] Friedman’s
testimony, the diagnosis of “sexual assault by history”
represents nothing more than an expression that K.H.
relayed that she was sexually assaulted, and [Nurse]
Friedman provided and recommended corresponding
treatment. Unlike the expert in Maconeghy, at no point during
her testimony did [Nurse] Friedman express, either implicitly or
explicitly, any kind of opinion or belief that K.H. was sexually
assaulted. Like the expert in Minerd, the Commonwealth did not
ask [Nurse] Friedman to express such an opinion. Indeed, on
cross-examination, when defense counsel asked [Nurse]
Friedman if it was “possible that there were no injuries [discovered
during the physical examination of K.H.] because nothing
happened in the first place[,]” [Nurse] Friedman responded in the
affirmative. Therefore, [Nurse] Friedman’s testimony more
closely resembles that of the expert in Minerd. Consequently, we
conclude that the trial court did not abuse its discretion in
declining to exclude testimony relating to Friedman’s diagnosis of
“sexual assault by history.”
Id. at *4 (record citations omitted; emphasis added).
In Commonwealth v. Sansone (Sansone I), 329 A.3d 604,
2024 WL
4432799 (Pa. Super. Oct. 7, 2024) (unpublished memorandum), vacated
and remanded by
335 A.3d 303 (Pa. 2025), this Court affirmed the PCRA
court’s denial of PCRA relief, where the defendant argued his counsel “was
ineffective for failing to object to [Nurse Friedman’s] testimony regarding her
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diagnosis of sexual abuse by history.” Id. at *1. This Court expressed its
agreement with the PCRA court’s following analysis:
Here, similar to Minerd, [Nurse] Friedman … did not
impermissibly bolster the victim’s credibility. [Nurse Friedman],
following an interview and physical exam[,] diagnosed the victim
with “sexual assault by history.” … At trial, the nurse explained
… that her diagnosis was based on what the victim relayed to her.
Unlike Maconeghy, [Nurse Friedman] was neither asked
for, nor did she express, any opinion as to whether the victim was
telling the truth about being sexually abused. Regarding the
physical examination, [Nurse Friedman’s] testimony was
inconclusive as to whether any abuse had occurred, agreeing with
[defense] counsel that a “normal physical exam does not rule out
the possibility of sexual assault[,] … a normal exam also means
that possibly sexual assault didn’t happen,” and “we don’t know
based on the physical exam whether it happened or didn’t happen
in this case.” [Nurse Friedman’s] testimony only explained the
significance of the results of the physical examination, stating
multiple times that the victim’s exam came back normal.
Id. at *3 (quoting PCRA Court Opinion, 6/28/23, at 3-5) (record citations
omitted).
The Sansone I Court further
stress[ed] that, on cross-examination, defense counsel
thoroughly questioned Nurse Friedman about the 8-year-old
victim’s complete lack of physical injury despite her report that
[the defendant], a 230-pound adult, had raped her. Counsel
expressly asked [Nurse Friedman]:
Q: So if I understand you correctly, you’re saying that
the normal physical exam does not rule out the
possibility of sexual assault?
A: Yes.
Q: Is the opposite true though[,] that a normal exam
also means that possibly sexual assault didn’t
happen?
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A: Yes.
Q: So we don’t know based on the physical exam
whether it happened or didn’t happen in this case?
A: In this case, correct.
Q: Right. So 50 percent it could have happened, 50
percent it didn’t happen?
A: Well, I look back at my history that I’ve obtain[ed]
and I look to see if it’s … clear and consistent. So my
diagnosis is based on the history presented.
Additionally, although Nurse Friedman stated that listening for
clear and consistent information aids in her diagnosis, as noted by
the [PCRA] court, at no point did the nurse say the victim was
telling the truth. Therefore, the jury was made aware that there
was no physical evidence of sexual assault, that Nurse Friedman’s
diagnosis was based on the victim’s history alone, but that, based
on the lack of any physical evidence, it was just as likely that a
sexual assault had not occurred. The nurse never said it was her
medical opinion that a sexual assault definitely occurred. Hence,
she did not improperly bolster the victim’s testimony in the
absence of physical evidence[,] and the jury was free to exercise
its role of weighing all evidence before it.
Id. at *3-4 (record citations omitted).
The Sansone I Court concluded that
the concerns raised by Maconeghy, decided in 2017, were not
present here. Instead, Minerd, decided 17 years earlier, was
more akin to these circumstances. [Therefore], we conclude the
PCRA court properly found there is no underlying merit to the
claim that [defense] counsel was ineffective for failing to object to
[Nurse Friedman’s] testimony as improperly bolstering that of the
victim on the basis of Maconeghy.
Id. at *4.
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Following Sansone I, the defendant sought allowance of appeal to our
Supreme Court. The Supreme Court granted allowance of appeal and vacated
the Sansone I decision in the following order:
AND NOW, this 18th day of March, 2025, Petition for Allowance of
Appeal is GRANTED. Further, the decision of the Superior Court
is VACATED and the case is REMANDED for the Superior Court to
reassess Petitioner’s ineffectiveness claim. See Commonwealth
v. Maconeghy, 642 Pa. 770,
171 A.3d 707, 713, 715 (2017)
(holding “that expert testimony opining that a child has been
sexually abused–which is predicated on witness accounts and not
physical findings–is inadmissible” and acknowledging “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.’”)).
Commonwealth v. Sansone, 335 A.3d 303 (Pa. 2025).
On remand, in a non-precedential decision, this Court granted PCRA
relief and awarded the defendant a new trial, reasoning as follows:
Pursuant to [Maconeghy], and in light of the undisputed fact that
[Nurse Friedman] relied on “sexual assault by history,” not on
physical findings, for her diagnosis that the victim in this matter
was sexually assaulted, we conclude [the defendant’s] claim has
merit. [Defense] counsel should have objected to [Nurse
Friedman’s] testimony that the victim was sexually abused based
only on the history the victim related to her. In fact, counsel
admitted as much at the PCRA hearing.
We also conclude that the second prong of the
ineffectiveness test, lack of a reasonable basis, has been met. At
the PCRA hearing, trial counsel could not adequately explain why
he did not object, offering only that he might have been focused
on the fact that there was no physical evidence.
Finally, again based on Maconeghy, we are constrained to
conclude [the defendant] was prejudiced by counsel’s failure to
object to this inadmissible testimony. See Maconeghy, 171 A.3d
at 775-76 (noting, “[g]iven its determination that the [expert’s]
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testimony was inadmissible, … the [Superior Court] panel
concluded that it was constrained to award a new trial” because
the expert’s testimony he believed child was victimized based only
on her report to him where physical evidence was inconclusive
would cause jury to defer to expert rather than assess victim's
credibility on its own) (citation omitted); see also
Commonwealth v. Maconeghy, 2015 WL 7078462, unpublished
memorandum, at *5 (Pa. Super. June 12, 2015).
Commonwealth v. Sansone (Sansone II), 341 A.3d 84,
2025 WL 1330497,
*2 (Pa. Super. May 7, 2025) (unpublished memorandum).
Instantly, Appellant argues his case “is identical to Sansone,” and urges
us to adopt Sansone II’s reasoning. Appellant’s Brief at 29; see also id. at
21-23, 24-25. The Commonwealth counters that Sansone II is non-
precedential and non-binding, and further asserts it is unpersuasive.
Commonwealth Brief at 18. Rather, the Commonwealth maintains this Court
“had it right the first time” in Sansone I, and argues we should be persuaded
by Sansone I’s reasoning, even though the Supreme Court vacated that
decision. Id.; see also id. at 18-22. The Commonwealth further maintains
Wildoner is analogous and persuasive. Id. at 22-23.
Here, the PCRA court determined Appellant’s underlying claim that
Nurse Friedman’s opinion was inadmissible lacked arguable merit. PCRA Court
Opinion, 3/31/25, at 15. Relying heavily on the reasoning of Sansone I,7 the
____________________________________________
7 Though filed thirteen days after the Supreme Court entered its order in
Sansone, the PCRA court’s opinion does not evince an awareness that
Sansone I had been vacated. See generally, PCRA Court Opinion, 3/31/25.
The Sansone II decision (filed May 7, 2025) had not yet been issued.
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PCRA court opined that Nurse Friedman’s testimony in the instant case was
akin to Minerd and did not run afoul of Maconeghy. See id. at 12-15
(discussing Sansone I); see also id. at 12, 13-14 (citing Wildoner, supra).
Our review discloses Nurse Friedman’s testimony shares many
similarities with Dr. Carver’s testimony in Minerd. Nurse Friedman testified
that her genital exam of R.K. revealed no physical trauma, but that she would
expect any trauma to have healed due to the length of time since the alleged
assault. N.T., 10/5/20, at 107-10; see also Minerd, 753 A.2d at 228 (“Dr.
Carver testified that she found no evidence of physical trauma,” but “explained
that … there would have been an adequate time between when the abuse
occurred and the examination for any damage that had been done to heal.”).
Nurse Friedman also testified that the lack of physical trauma did not mean
the alleged assault did not occur. N.T., 10/5/20, at 113; see also Minerd,
753 A.2d at 228 (“According to Dr. Carver, the absence of physical trauma did
not prove that the abuse had never occurred.”). On cross-examination, Nurse
Friedman agreed with trial counsel that she “can’t tell if something did or did
not [happen.]” N.T., 10/5/20, at 112; see also Minerd,
753 A.2d at 228
(“On cross-examination, Dr. Carver confirmed that she was not stating that
the alleged acts did or did not occur, and agreed that … it could be that ‘there
was no trauma to the anus or genitals because the acts in fact did not
occur.’”);
id. at 230 (“Dr. Carver’s testimony regarding her physical findings
was inconclusive as to whether any abuse had even occurred.”). Nurse
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Friedman confirmed that her opinion of sexual assault by history was “based
on [R.K.’s] statement” to her, N.T., 10/5/20, at 113, but she “was neither
asked for, nor did she express, any opinion” specifically as to whether
R.K. was “telling the truth about being sexually abused.” Minerd, 753
A.2d at 230 (emphasis added).
However, while Dr. Carver’s testimony “only explained the significance
of the results of the physical examination,” id. at 230, Nurse Friedman
ventured beyond explaining the significance of her physical exam when, at the
conclusion of her testimony on direct examination, she offered the opinion of
“[s]exual assault by [R.K.’s] history.” N.T., 10/5/20, at 111. That opinion—
the specific testimony Appellant challenges—does not clearly fall within
Minerd’s ambit.
Turning to Maconeghy, our review discloses the testimony of Nurse
Friedman and Dr. Novinger share some similarities. Dr. Novinger “found no
evidence of abuse in the physical exam,” but “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.” Maconeghy, 171
A.3d at 708. “Thus, according to [Dr. Novinger], the fact of abuse can be
determined ‘really by history only.’”
Id. Though Nurse Friedman did not
affirmatively state that abuse can be determined by history only, her
testimony implied as much when she gave her opinion of sexual assault by
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history, after conceding her exam revealed no physical findings. See N.T.,
10/5/20, at 111.
However, Nurse Friedman’s testimony stopped short of the opinion
expressed by Dr. Novinger in significant respects. Dr. Novinger testified that
“[t]he history [the victim] provided to me pretty clearly indicated that she
was sexually abused.” Maconeghy, 171 A.3d at 708 (emphasis added).
Dr. Novinger further stated, “Clearly the medical encounter[, including the
history,] indicated the child had been victimized.”
Id. (brackets and
bracketed language in original; emphasis added). Dr. Novinger’s testimony
“culminat[ed]” in his statement, “I really believe strongly that was my
medical conclusion that this child was victimized.”
Id. (emphasis
added). Unlike Dr. Novinger, Nurse Friedman never directly commented on
the quality of the history R.K. provided, nor did she state she believed in the
history’s veracity. Rather, Nurse Friedman explained her opinion of sexual
assault by history as follows: “Because of what [R.K.] talked about during her
forensic interview and because of what she talked about when we … talked
together during the medical history, she tells me a history of sexual
assault.” Id. at 111 (emphasis added).
Given Nurse Friedman’s use of language substantially more neutral than
Dr. Novinger’s, her testimony in this case could arguably bear the innocuous
interpretation given to her similar testimony in Wildoner:
[F]rom what we can discern from [Nurse] Friedman’s testimony,
the diagnosis of “sexual assault by history” represents nothing
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more than an expression that [the victim] relayed that she was
sexually assaulted, and [Nurse] Friedman provided and
recommended corresponding treatment.
Wildoner, 2019 WL 2447057, *4 (unpublished memorandum). However, we
observe that, in the instant case, Nurse Friedman’s opinion of “[s]exual assault
by [R.K.’s] history” was presented as “an opinion within a reasonable degree
of medical certainty as to the … medical findings relating to [R.K.]” N.T.,
10/5/20, at 110-11; see also id. at 113 (Nurse Friedman describing sexual
assault by history as “[m]y medical opinion.”).8 Regarding the admissibility
of this testimony, we do not find Wildoner’s application of Maconeghy
persuasive.
We reiterate Maconeghy’s holding 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.” Maconeghy, 171 A.3d at 712. The Maconeghy
Court “f[ou]nd 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.’).”
Id. at 713. While Dr. Novinger’s testimony in Maconeghy
____________________________________________
8 It is unclear whether similar language was also used at trial in Wildoner or
Sansone, as those decisions describe “sexual assault by history” as Nurse
Friedman’s “diagnosis” rather than her “opinion” or “medical opinion.” See
Wildoner,
2019 WL 2447057, *4; Sansone I,
2024 WL 4432799, *4;
Sansone II,
2025 WL 1330497, *2. For our present purposes, we discern no
material difference between these terms.
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resembles direct vouching, in our view, Nurse Friedman’s instant testimony
amounts to indirect vouching.
We acknowledge that Nurse Friedman’s testimony was perhaps a shade
less direct than Maconeghy’s example of indirect vouching, id., and might
sustain the innocuous interpretation Wildoner gave to similar testimony. In
reaching its interpretation, however, the Wildoner Court remarked that
“[n]either Nurse Friedman’s testimony nor her report … precisely explains the
meaning of [her] diagnosis” of sexual assault by history. Wildoner,
2019 WL
2447057, *4. We agree with Wildoner to the extent that, in both Wildoner
and the instant case, Nurse Friedman never directly or explicitly stated what
her opinion of sexual assault by history meant, beyond merely reflecting the
fact that the victim relayed to her a history of sexual assault. But Wildoner’s
analysis on this point suggests that Nurse Friedman’s imprecision was a point
in her favor when compared with Dr. Novinger’s more direct vouching. We do
not fully agree. While Nurse Friedman’s imprecision may render her testimony
less prejudicial than Dr. Novinger’s,9 it cuts against her on the more basic
question of whether the opinion—regardless of its prejudicial value—aids the
jury.
____________________________________________
9 We discuss more fully below whether and to what extent Nurse Friedman’s
opinion testimony may have prejudiced Appellant.
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Though Nurse Friedman may testify to the simple fact that R.K. relayed
to her a history of sexual assault, we fail to see how presenting such
information as a “medical opinion” or “diagnosis” aids the jury. In other
words, if Nurse Friedman’s opinion of sexual assault by history was nothing
more than a confirmation that R.K. relayed a history of sexual assault to Nurse
Friedman, then the language couching that information as “an opinion within
a reasonable degree of medical certainty as to the … medical findings relating
to [R.K.],” N.T., 10/5/20, at 110, was extraneous, and therefore “not helpful
to the jury in deciding the precise question on which it had to pass.”
Maconeghy, 171 A.3d at 712 (quoting Iban C.,
881 A.2d at 1016-17). As
such, the opinion was not admissible as expert testimony.
Because Maconeghy dealt with direct vouching, its views on indirect
vouching could be considered dicta. See Commonwealth v. Borrin, 80 A.3d
1219, 1224 n.10 (Pa. 2013) (“In every case, what is actually decided is the
law applicable to the particular facts; all other conclusions are but obiter
dicta.” (citation and brackets omitted)); Commonwealth v. Jackson,
111
A.3d 1187, 1190 (Pa. Super. 2015) (citing Borrin and stating dicta “is not
binding”). In any event, we agree with the Maconeghy Court’s reasoning on
indirect vouching. See Maconeghy,
171 A.3d at 712-13. Though Nurse
Friedman never stated that her opinion of sexual assault by history involved
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her assessment of R.K.’s credibility,10 her opinion ran the risk, to a minor
degree, of “putting a certificate of veracity on the child’s testimony,” id. at
713 (quoting Buchholtz,
841 N.W.2d at 459), by a witness “clothed with the
mantle of professional expertise.”
Id. Thus, though Nurse Friedman’s
testimony may be less problematic than Dr. Novinger’s (and resemble in many
respects Dr. Carver’s admissible testimony in Minerd), it is nevertheless
inadmissible under Maconeghy’s reasoning.
Based on the foregoing, we conclude that Appellant’s underlying claim
regarding the inadmissibility of Nurse Friedman’s opinion testimony has
____________________________________________
10 Nurse Friedman’s instant testimony avoided commentary on the quality of
the victim’s history more successfully than her testimony in Sansone, where
she stated: “I look back at my history that I’ve obtain[ed,] and I look to see
if it’s … clear and consistent. So my diagnosis is based on the history
presented.” Sansone I, 2024 WL 4432799, *4.
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arguable merit. Moreover, in light of the above analysis, trial counsel’s
proffered basis for not objecting to the testimony was unreasonable.11, 12
However, our inquiry does not end here. Appellant’s ineffectiveness
claim does not merit relief unless he can establish the third and final prong of
the ineffectiveness test: prejudice. To establish prejudice, Appellant must
prove actual prejudice, that is, a reasonable probability that, but
for counsel’s lapse, the result of the … proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 694
____________________________________________
11 As the PCRA court observed, trial counsel testified at the PCRA evidentiary
hearing
that he did not object to [Nurse Friedman’s] testimony, even given
the … holding in Maconeghy, because the defense was that there
was no sexual contact with R.K., and the fact that there was no
sexual trauma present [in the physical exam] helped the defense.
[N.T., 8/7/24,] at 26-34. [Trial counsel] testified that he did not
believe that [Nurse] Friedman’s determination of sexual assault
based on history bolstered the victim’s testimony. Id. at 34. He
testified that he was aware of [Nurse] Friedman’s findings before
the trial, and that she was going to testify that there were no
physical findings of abuse, and that allowing her testimony was
an agreed upon defense trial strategy. Id. at 44.
PCRA Court Opinion, 3/31/25, at 15. Trial counsel’s rationale appears to
presume that Nurse Friedman’s opinion of sexual assault by history could not
be excluded under Maconeghy. Nurse Friedman’s broader testimony
regarding her physical findings was clearly admissible, and trial counsel’s
reasonable belief that this testimony helped the defense did not require him
to also acquiesce to the admission of her opinion of sexual assault by history.
Trial counsel did not assert that particular opinion helped the defense, and he
articulated no reasonable basis for failing to lodge an objection.
12 We observe that, in light of our determination below that Appellant failed to
establish the prejudice prong of the ineffectiveness test, our consideration of
the first two prongs is not strictly necessary to our disposition. However, as
the admissibility of Nurse Friedman’s opinion testimony is a close question,
we deemed a thorough examination of its admissibility essential to our
consideration of its prejudicial effect.
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(1984). “In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury…. Moreover, a verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”
Id. at 695-96 (emphasis added). Ultimately, a reviewing court
must question the reliability of the proceedings and ask whether
“the result of the particular proceeding [was] unreliable because
of a breakdown in the adversarial process that our system counts
on to produce just results.” Id. at 696.
Commonwealth v. Lesko, 15 A.3d 345, 383 (Pa. 2011) (emphasis in
original; citations modified); see also Commonwealth v. Collins,
957 A.2d
237, 244 (Pa. 2008) (“A reasonable probability is a probability that is sufficient
to undermine confidence in the outcome of the proceeding.” (citing
Strickland,
466 U.S. at 694)).
As our Supreme Court has observed,
the test for prejudice in the ineffectiveness context is more
exacting than the test for harmless error, and the burden of proof
is on the defendant, not the Commonwealth. … [The harmless
error] standard … is a lesser standard than the Pierce prejudice
standard, which requires the defendant to show that counsel’s
conduct had an actual adverse effect on the outcome of the
proceedings. This distinction appropriately arises from the
difference between a direct attack on error occurring at trial and
a collateral attack on the stewardship of counsel.
Spotz, 84 A.3d at 315 (citations and quotation marks omitted).
Instantly, Appellant asserts he was prejudiced “for the same reason” as
the defendant in Sansone. Appellant’s Brief at 24 (citing Sansone II, 2025
WL 1330497 at *2). Appellant argues trial counsel’s failure to object to Nurse
Friedman’s opinion testimony “allowed the jury to hear an expert testify that
[R.K.] was telling the truth about being sexually assaulted.” Id. at 26.
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Appellant maintains he was prejudiced because “[t]he outcome of the trial
would have been different had the impermissible testimony from [Nurse
Friedman] bolstering [R.K.’s] testimony … been omitted[,] as it should have
been.” Id. at 25.
Appellant argues “the evidence in this case was not overwhelming.” Id.
at 25. He notes that while R.K. testified Appellant sexually assaulted her, he
denied the allegation, and there were no eyewitnesses to the alleged assault.
Id. Appellant contends that “[s]ince credibility was significant, and perhaps
the primary … factor in this case, had [Nurse Friedman’s] opinion been
properly excluded[,] there is a reasonable probability that the outcome would
[have] be[en] different.” Id. at 26-27.
Regarding the towel stained with his semen, Appellant notes that R.K.
did not provide the towel to police until three months after the alleged
incident. Id. at 25. Appellant argues R.K. “claimed she used the towel to
clean herself after [Appellant] assaulted her,” and “testified she saved it in
order to bring it to law enforcement.” Id. (emphasis added). Appellant
asserts that he “denied ever having sexual encounters with” R.K., but “never
denied he was with [R.K.] or that he was at her home, or even that he drove
her in his vehicle.” Id. at 26. Apart from what may be inferred from this lone
assertion, Appellant’s brief makes no attempt to discuss or defend the
suggestion he made at trial, i.e., that R.K. could have stolen the towel from
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his bag.13 Nevertheless, Appellant maintains that, “[e]ven with the towel, this
case still came down to credibility.” Id. at 26.
The Commonwealth counters that Appellant failed to demonstrate
prejudice, highlighting evidence such as “the towel containing [Appellant’s]
DNA,” Ms. Bash’s testimony that Appellant had a sexual relationship with her
“very similar to the one he had with R.K.,” and “the expensive gifts [Appellant]
gave R.K.” Commonwealth Brief at 26-27. The Commonwealth argues that,
in light of this evidence, “there is not a reasonable probability that the
outcome of the trial would have been different if the words [Nurse] Friedman
uttered, ‘sexual assault by [R.K.’s] history,’ had been objected to and
excluded.” Id. at 27.
Regarding the prejudice prong of the ineffectiveness test, the PCRA
court rejected Appellant’s claim:
[E]ven if [Appellant] could establish that [Nurse] Friedman’s
testimony improperly bolstered [R.K.’s] testimony under
Maconeghy, [trial] counsel’s failure to object to [Nurse
Friedman’s] testimony did not prejudice [Appellant], and there is
not a reasonable probability that the outcome of the trial would
have been different had the court excluded her testimony. Unlike
child sexual assault cases where there are no eyewitnesses and
the only evidence is the defendant’s word against the child’s, there
was physical evidence to corroborate the child’s testimony here.
The Commonwealth introduced a towel into evidence that was
provided to [police] by R.K., and she testified that she used it to
clean herself after [Appellant] assaulted her. The towel tested
positive for seminal fluid that positively matched [Appellant’s]
DNA. Thus, even if [Nurse] Friedman’s testimony had been
excluded, there was corroborating evidence of a sexual interaction
____________________________________________
13 Appellant does not dispute that his semen was on the towel.
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between R.K and [Appellant], and [Appellant] has not
demonstrated that the outcome of the trial would have been
different here.
PCRA Court Opinion, 3/31/25, at 15-16.
Our review of the totality of the evidence suggests that, although Nurse
Friedman’s opinion testimony was inadmissible as set forth above, Appellant
established no prejudice resulting from its admission. Contrary to Appellant’s
argument, the jury did not “hear an expert testify that [R.K.] was telling the
truth about being sexually assaulted.” Appellant’s Brief at 26. Rather, Nurse
Friedman gave an opinion of “[s]exual assault by [R.K.’s] history” that was,
at worst, ambiguous as to whether it included Nurse Friedman’s own
assessment of the R.K.’s credibility. The potential prejudicial impact of this
testimony was mitigated on cross-examination, by Nurse Friedman’s
concession that her opinion was not based on physical findings, and that she
“can’t tell if something did or did not [happen].” N.T., 10/5/20, at 111-12;
see also Minerd, 753 A.2d at 232 (noting “defense counsel elicited an
explanation [of the physical evidence] which was equally favorable to [the
defendant].”).14
____________________________________________
14 The trial court instructed the jury that “[t]he credibility of the witnesses is
entirely for you to determine.” N.T., 10/6/20, at 150; see also id. at 156
(court’s instruction regarding the jury’s province to determine the “credibility
of the alleged victim”). After instructing the jury regarding expert witnesses,
the court advised:
(Footnote Continued Next Page)
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Regarding Appellant’s assertion that he was prejudiced for the same
reason as the defendant in Sansone II, we do not find Sansone II
persuasive on the prejudice question. Sansone II’s brief prejudice analysis
consisted solely of the statement that, “based on Maconeghy, we are
constrained to conclude [the defendant] was prejudiced by counsel’s failure to
object to [Nurse Friedman’s] inadmissible testimony.” Sansone II, 2025 WL
1330497, *2. We observe that Maconeghy was a direct rather than collateral
appeal, and therefore involved the lesser harmless error standard. An
ineffectiveness claim involves the “more exacting” Strickland/Pierce test of
actual prejudice, which requires consideration of the totality of the evidence.
Spotz,
84 A.3d at 315. Sansone II does not appear to have applied this
test, and we disagree with its conclusion that Maconeghy, by itself, can
dictate a finding of prejudice in the PCRA/ineffectiveness context. 15 In sum,
____________________________________________
Remember though you, the jury, are the sole judges of the
credibility and the weight of all of the testimony. The fact that the
lawyers and I may have referred to certain witnesses as experts,
and that the witnesses may have special knowledge or skill does
not mean that their testimony and opinions are right.
Id. at 155-56; see also Minerd, 753 A.2d at 232 (determining jury could not
have been “unduly influenced” by expert’s testimony in part because trial
court “clearly advised” the jury that it “was not bound to accept the expert’s
testimony merely because she possessed special skill or knowledge.”).
15 We further observe that neither Sansone I nor Sansone II sets forth a
detailed recitation of the trial evidence, and Sansone’s facts do not appear
analogous to the unique facts of the instant case. We note that the jury in
Sansone acquitted the defendant of the more serious sexual offenses and
(Footnote Continued Next Page)
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Sansone II does not support Appellant’s argument that prejudice resulted
from Nurse Friedman’s opinion testimony.
Rather, the unique facts of the instant case support the PCRA court’s
conclusion that Nurse Friedman’s opinion testimony had no decisive impact on
the outcome of Appellant’s trial. The Maconeghy Court observed 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[.]” Maconeghy, 171 A.3d at 713
(quoting Peterson, 537 N.W.2d at 868). While this may often be the case,
the instant jury had other, more significant “hook[s] on which to hang its hat,”
id., including Appellant’s admission to a prior sexual relationship with the 16-
year-old Ms. Bash and—most significantly—R.K.’s possession of a towel
stained with Appellant’s semen.
We observe that Appellant’s brief neglects to mention Ms. Bash’s
testimony or Appellant’s admission to having had a sexual relationship with
her when she was 16. In asserting the trial’s outcome would have been
different had Nurse Friedman’s opinion been excluded, Appellant fails to
acknowledge the impact of Ms. Bash’s evidence. Our review suggests that
____________________________________________
convicted him only of offenses that did not require actual sexual contact. See
Sansone I, 2024 WL 4432799, *1.
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Ms. Bash’s testimony, the core of which Appellant conceded was true, strongly
corroborated R.K.’s testimony.16
Finally, we disagree with Appellant’s assertion that the towel’s
provenance is simply a matter of credibility. Our review of the evidence
discloses that Appellant presented contradictory theories regarding R.K.’s
purported motive and opportunity. Compare N.T., 10/6/20, at 73-74
(Appellant testifying he kept a “go bag” in his vehicle, and that he had the bag
during his trip to New York with R.K.), 78 (Appellant testifying that the semen-
stained towel “could have” come from the bag in his vehicle), 72 (Appellant
agreeing that “[d]uring th[e] time period” of the New York trip, he was still
employed with the candy company), with id. at 74 (Appellant testifying he
“stopped interacting with” R.K. “[t]oward the third week of November”
because of his new job hauling frack sand), 77 (Appellant testifying that his
lack of interaction with R.K. because of his new job caused a problem for her);
see also Knight, 290 A.3d 688 (unpublished memorandum at 8) (observing
Appellant “posited that [R.K.] had felt abandoned by him when he took a new
job, which resulted in him having less time for her. He concluded that this
caused [R.K.] to become angry with him and to fabricate the sexual assault
____________________________________________
16 We further observe that M.K., whom Appellant called to testify as a defense
witness, corroborated R.K.’s testimony that Appellant lied about his age and
lied about obtaining M.K.’s permission to take R.K. on the New York trip. N.T.,
10/6/20, at 54, 59-61. M.K. further testified that she no longer trusted
Appellant “because he raped” R.K. Id. at 60.
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allegation. Appellant’s counsel reiterated these themes during his closing
argument.”). Appellant points to no evidence that R.K. had any access to his
belongings after he claims she became upset with him.
At trial, Appellant baldly asserted it “[c]ould have been my towel,” but
he never affirmatively testified that his bag contained a towel, much less one
stained with his semen. See N.T., 10/6/20, at 73-74, 77-78. He also never
testified that he had a blue and white towel like the one R.K. produced, or that
he had any towel that went missing. Id. Though Appellant indicated his bag
was in the vehicle he used to give R.K. rides, including to New York, he never
testified R.K. was ever alone with the bag. Id.
Appellant does not dispute that his semen was on the towel, but he
identifies no coherent explanation for this fact that is consistent with his denial
that any sexual activity occurred. While we recognize that the Commonwealth
bore the burden of proof and Appellant did not have to prove any theory, our
review of the evidence discloses that the towel was not simply a credibility
issue on which Nurse Friedman’s opinion could have tipped the balance in
R.K.’s favor.17
____________________________________________
17 The trial evidence indicated that, at the time Nurse Friedman examined R.K.
and formed her opinion, the towel had not yet been turned over to police, and
PSP testing had not yet confirmed the towel was stained with Appellant’s
semen. See N.T., 10/5/20, at 102, 119-25; N.T., 10/6/20, at 8, 29.
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For these reasons, we cannot conclude the PCRA court abused its
discretion in determining Appellant failed to establish a reasonable probability
that his trial would have had a different outcome had Nurse Friedman’s opinion
testimony been excluded. Our review of the totality of the evidence suggests
the instant outcome is not one “weakly supported by the record,” such that it
is “more likely to be affected by errors,” but rather is more akin to “one with
overwhelming record support.” Lesko, 15 A.3d at 383 (quoting Strickland,
466 U.S. at 696). The admission of Nurse Friedman’s opinion testimony,
though improper, was not “sufficient to undermine confidence in the outcome
of the proceeding.” Collins,
957 A.2d at 244 (citing Strickland,
466 U.S. at
694); see also Commonwealth v. Huertas, 605 EDA 2019,
2020 WL
408887 (Pa. Super. 2020) (unpublished memorandum) (holding PCRA
petitioner’s claim had arguable merit where pediatric expert witness testified
she believed child victims were telling the truth about sexual assault, though
her exam showed no physical evidence; but petitioner failed to demonstrate
actual prejudice, as expert’s improper testimony was not of sufficient
magnitude to undermine confidence in the verdict). As Appellant failed to
establish actual prejudice, his ineffectiveness claim merits no relief.
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Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/17/2025
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