J-S66013-19
2020 PA Super 117
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
T.B.
Appellant No. 2294 EDA 2018
Appeal from the Judgment of Sentence entered July 24, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-CR-0006214-2017
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
OPINION BY STABILE, J.: FILED MAY 18, 2020
Appellant, T.B., appeals from his judgment of sentence of nine to
eighteen years’ imprisonment for rape of a child, unlawful contact with a
minor, aggravated indecent assault of a child, indecent assault of a person
less than thirteen years old, and endangering the welfare of a child.1
The trial court summarized the evidence adduced during trial as follows:
On June 12, [2017],2 at approximately 4:30 p.m., [T.B., the
victim’s mother (“Mother”)3], Donald Myers (Mother’s husband),
and Myers’ son left their apartment at 2601 North 6th Street to
run some errands. Appellant (the victim’s father), who had been
temporarily living with [Mother] and Myers, was left to supervise
the [five-year-old] victim (“L.B.”). While supervising [L.B.],
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1 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1), 2705, 3126(a)(7) and 4304(a)(1),
respectively.
2 The trial court misidentified the year as 2018 in its opinion.
3 Appellant and the victim’s mother have the same initials, T.B. To avoid
confusion, we refer to the victim’s mother as “Mother.”
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Appellant used lotion to digitally penetrate L.B.’s vaginal area.
Appellant also penetrated L.B.’s labia with his penis.
[Mother], Myers, and their son returned approximately 30 minutes
later. [Mother] entered the apartment first and saw Appellant
sitting on a couch in the living room with his shirt undone and the
zipper of his pants down. Moreover, L.B. was not wearing any
pants, and her underwear was hanging around one leg. A bottle
of lotion was on the couch. Myers made the same observations
as [Mother]. [Mother] asked Appellant what he had done and
quickly grabbed a shirt to cover L.B. [Mother] then took L.B., who
began crying, to another room to question her about what had
occurred. When asked whether Appellant had hurt her, L.B.
replied, “yes, and that it was hurting, and she asked him to stop.”
[Mother] asked L.B. where Appellant had touched her, and she
pointed to her vaginal area. [Mother] then ran from the bedroom
and hit the Appellant in the head.
[Mother] subsequently called the police, and Officer Matthew
McCarthy responded. After [Mother] described what she had
witnessed, Officer McCarthy took L.B. into a bedroom alone and
asked her to describe what had occurred. L.B. told him that
Appellant had touched her “woo-woo.” When McCarthy asked L.B.
to point to her “woo-woo,” she indicated her crotch area.
Appellant was subsequently arrested, and L.B. and her family
were taken to the Special Victims Unit (“SVU”). While at SVU,
L.B. spoke with a forensic interviewer (Carolina Castano) about
what had occurred. L.B. was then taken to St. Christopher’s
Hospital for a physical examination and sexual abuse testing.
Trial Court Opinion, 4/23/19, at 3-4.
The four eyewitnesses to the incident at the apartment testified during
trial. Three of these witnesses—L.B., Mother, and Myers—accused Appellant
of sexual assault. The fourth witness, Appellant, denied any wrongdoing, and
he also presented character witnesses who testified as to his reputation in the
community for being law-abiding and peaceful. There was no physical
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evidence of sexual abuse. Castano, a forensic interview specialist who
interviewed L.B., testified for the Commonwealth as a fact witness.
Following a four-day trial, the jury found Appellant guilty of all charges.
After sentencing, Appellant filed this timely appeal, and both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
[1.] Did the court err in allowing a lay witness to give expert
testimony?
[2.] Did the court err in allowing the prosecutor to ask a leading
question regarding a crucial part of testimony that had been
previously answered twice in the negative which prejudiced
Appellant?
Appellant’s Brief at 3.
In his first argument, Appellant asserts that the trial court erred by
permitting a Commonwealth witness, Carolyn Castano, to give expert
testimony relating to her forensic interview with L.B. without qualifying her as
an expert. Appellant claims the trial court permitted Castano to offer an
expert opinion that L.B. was a victim of sexual assault based upon the Team
Interview Summary Report (Exhibit CW-8) she completed after interviewing
L.B. Appellant claims the trial court permitted the testimony after it
determined Castano was qualified to do so based upon her experience
interviewing over 1,000 children in the past and her observations of them
during the interview process. Appellant’s Brief at 10. There is no indication
in the record that the Commonwealth notified Appellant prior to or during trial
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that it intended to present Castano as an expert witness. Nor did the
Commonwealth request during trial that the court find Castano qualified to
give expert testimony. We review this issue for abuse of discretion.
Commonwealth v. Yocolano, 169 A.3d 47, 61, 63 (Pa. Super. 2017).
“Discretion is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence or the record.”
Commonwealth v. Akhmedov,
216 A.3d 307, 316 (Pa. Super. 2019).
The record reveals that Castano is a forensic interview specialist for the
Philadelphia Children’s Alliance (“PCA”), which she described as a “nonprofit
organization that provides a multidisciplinary response to people who may
have been victims of abuse.” N.T., 3/29/18, at 4-5. PCA “conduct[s]
interviews,” “provide[s] therapy [and] victim advocacy,” and “ha[s] an onsite
clinic.” Id. at 5. At the time of trial, Castano had been a PCA employee for
three years. Id. She has a master’s degree in forensic science from Drexel
University and has participated in a forty-hour program at the National
Children’s Advocacy Center in Huntsville, Alabama. Id. at 6. She participates
in continuing education to learn the most up-to-date research on forensic
interviewing, the nature of the disclosure process, and age-appropriate and
developmentally-appropriate children’s behaviors. Id. at 6-7.
On June 12, 2017, Castano conducted a videotaped forensic interview
with L.B. Castano identified Exhibit CW-24 as a videotape of her forensic
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interview with L.B. Id. at 12. The video was played for the jury. Id. at 13.
Castano identified Exhibit CW-8 as the Team Interview Summary Report that
she prepared after interviewing L.B. Id. at 11. In a section of the report
entitled “Forensic Interview Impressions,” Castano checked off a box that L.B.
“provided sensory details” of the incident. Id. When asked to explain the
significance of this detail, Castano testified as follows:
COMMONWEALTH: Can you just explain to us why you checked
the box for sensory detail? What is a sensory detail and why
did you check it?
CASTANO: So during a forensic interview, some of the
information we’re looking for is anything that answers questions
about any of the senses. The way things smell, the way things
felt, any sounds which L.B. provided a lot of that during her
interview.
COMMONWEALTH: Why is that significant?
CASTANO: It goes to a child’s ability to describe—
DEFENSE COUNSEL: Your Honor, this is the backdoor way to get
in expert testimony. I’m going to object.
THE COURT: All right. I’ll give her a little latitude and if she
continues, counsel, you can object and I probably will sustain the
objection. We’ll give her a little bit.
COMMONWEALTH: Can you just—to the last question finish that
answer.
CASTANO: Sure. So a child’s ability to describe a situation with
that much detail—
DEFENSE COUNSEL: Your Honor, I’m going to object because
this is like child psychology and I’m—
THE COURT: I just made my ruling, counsel. You may answer.
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CASTANO: So a child’s ability—
THE COURT: You’ve done over 1,000 forensic interviews, right?
CASTANO: Yes, I have.
THE COURT: So you’re qualified to answer this question.
CASTANO: A child’s ability to describe a situation, including
details of how something sounded or something tasted or
something felt, speaks to an experience having occurred.
Id. at 16-18 (emphasis added).
In rejecting Appellant’s first argument, the trial court in its Pa.R.A.P.
1925 opinion stated:
Castano’s testimony was relevant to explain to the jury about the
information and techniques she used to conduct her forensic
interview. The court did not abuse its discretion when allowing
Castano (a qualified forensics expert) to testify about the
information she considered when interviewing L.B. Moreover,
Castano’s testimony merely helped the jury to better understand
how L.B. was interviewed.
Trial Court Opinion, 4/23/19, at 13. We find no abuse of discretion in this
ruling.
In sexual assault cases, expert testimony is governed by 42 Pa.C.S.A.
§ 5920, which states in pertinent part:
(1) In a criminal proceeding subject to this section, 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, that will assist the trier
of fact in understanding the dynamics of sexual violence, victim
responses to sexual violence and the impact of sexual violence on
victims during and after being assaulted.
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(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.
Id. It cannot be disputed that if offered as an expert, Castano would have
been qualified to offer an opinion regarding victim responses and behaviors to
sexual violence. As stated, Castano was not offered as an expert to provide
expert opinions. However, the failure to qualify Castano as an expert did not
preclude her from explaining why the interview explores sensory detail.
Pennsylvania Rule of Evidence 701, regarding “Opinion Testimony by Lay
Witnesses” provides,
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701. “[T]echnical expertise does not ipso facto convert a fact witness,
who might explain how data was gathered, into an expert witness, who
renders an opinion based on the data[.]” Branham v. Rohm & Haas Co.,
19 A.3d 1094, 1110 (Pa. Super. 2011). “Fact testimony may include opinion
or inferences so long as those opinions or inferences are rationally based on
the witness’s perceptions and helpful to a clear understanding of his or her
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testimony.” Brady by Brady v. Ballay, 704 A.2d 1076, 1082 (Pa. Super.
1997).
In Branham, a case we find instructive, the Dow Chemical Company
appealed from an order denying its motion to quash a subpoena to compel the
deposition of a Dow corporate designee concerning vinyl chloride studies and
related communications upon the basis that the subpoena sought to compel
expert testimony. The issue required that we examine the record to determine
whether the objected-to material constituted expert opinion. In rejecting
Dow’s claim, we held that the appellee was not seeking a Dow witness to
render an opinion on the data, or testify about hypothetical situations based
on the data. Rather, the appellee was seeking factual evidence of how the
studies were composed and why certain individuals may have been excluded.
We rejected Dow’s claims that a witness with technical proficiency would be
required to explain the study data. In doing so, we held that
technical expertise does not ipso facto convert a fact witness, who
might explain how data was gathered, into an expert witness, who
renders an opinion based on the data. Factual evidence of a
scientifically flawed or manipulated study, vel non, is readily
distinguishable from subsequent expert testimony rendering an
opinion on the consequences of any such facts.
Id. at 1110. We concluded that the trial court’s determination that the
appellee was not seeking expert testimony from Dow was reasonable and
supported by the record, and that there was no error of law or abuse of
discretion.
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We followed Branham in Crespo v. Hughes, M.D., 167 A.3d 168 (Pa.
Super. 2017), where we held that, under Pa.R.E. 701, it was not error for a
plastic reconstructive surgeon who treated plaintiff to clarify a note on his
medical records regarding the cause of devitalization in the plaintiff’s fingers.
The surgeon testified that “[he] felt that the treatment rendered previously
and the acid caused these injuries.”
Id. at 182. The surgeon was asked only
to clarify his own notes on medical records that he made at the time of
rendering treatment to plaintiff as a treating physician. See also Deeds v.
University of Pennsylvania Medical Center,
110 A.3d 1009 (Pa. Super.
2015) (physician testimony that plaintiff did not have preeclampsia was based
on his treatment and observation of plaintiff, and was helpful to a clear
understanding of his testimony; physician did not render any opinion as to
whether there was violation as to standard of care, and therefore, trial court
did not err in admitting his testimony as factual).
Instantly, we do not find that the trial court abused its discretion in
admitting Castano’s testimony. The Team Interview Summary Report was
admitted into evidence. Castano was asked to explain how the interview of
L.B. was conducted, the use of the interview form, and the processes
underlying the forensic interview. In essence, as in Branham, the
Commonwealth was seeking factual evidence of how the study, or interview
here, was composed. Castano was asked to explain what sensory detail is
and why that is important to an interview. She appropriately explained that
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sensory detail speaks to an experience having occurred. She did not offer any
opinion testimony, and in particular, any opinion that based upon L.B.’s report
of sensory detail that L.B. was the victim of sexual abuse by the Appellant.
Her testimony regarding the incorporation of sensory detail in a forensic
interview was helpful to a clear understanding of L.B.’s interview. The fact
Castano possessed the qualifications of a forensic examiner to explain the
technical details of a forensic interview for the jury’s understanding of that
process did not require that she first be qualified as an expert to render expert
opinion testimony. The trial court’s recognition that Castano was qualified to
answer the question regarding the significance of sensory detail in a forensic
interview merely acknowledged the witness possessed the necessary
foundation to respond to the inquiry. Castano’s technical expertise did not
convert her from a fact witness into an expert witness. As in Branham,
Castano testified as to how the interview was composed. Moreover, in its
instructions to the jury the court expressly admitted two other witnesses as
experts in specific fields,4 and later gave detailed instructions about the
parameters of their testimony.5 N.T., 4/2/18, at 171. Importantly, the
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4 N.T., 3/29/18, at 56 (court declared Marita Lind, M.D. an expert “in the field
of child sexual abuse and pediatrics”); N.T., 4/2/18, at 5 (court stated that
Craig Judd “is a forensic DNA analyst and . . . an expert to testify in that
field”).
5 During closing instructions, the court charged the jury as follows:
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identification of those experts and the instruction given did not mention
Castano. Appellant is not entitled to relief on his first issue.
____________________________________________
The next charge is one as it relates to expert testimony. That
charge is as follows. I permitted Dr. Marita Lind and also Craig
Judd, the forensic scientist, to testify as expert witnesses. An
expert witness is a person who has special knowledge or skill in
some science, art, profession, occupation or subject that the
witness acquired by training, education or experience. Because
an expert has “special,” that is “out of the ordinary knowledge or
skill,” he or she may be able to supply jurors with specialized
information, explanations, and opinions that will help them decide
a case. Regular witnesses are bound by two limitations that do
not apply to an expert. First, regular witnesses generally can
testify only about things that they personally perceived, that is
things that they saw or heard themselves. Second, regular
witnesses are not allowed to express opinions about matters that
require special knowledge or skill. By contrast, an expert is
allowed to express an opinion about a matter that is within the
area of his or her expertise. Furthermore, while an expert may
base an opinion on things personally perceived, he or she may
also base an opinion on factual information learned from other
sources. If an expert witness bases an opinion on things not
personally perceived, he or she can describe the information on
which he or she relies and identify its source when explaining the
opinion. However, remember that you, jurors, are the sole judges
of the credibility and the weight of all 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. When you
are determining the credibility and weight of an expert’s testimony
and opinions, consider all the factors which I described earlier that
are relevant when evaluating the testimony of any witness. You
should also consider all other things bearing on credibility and
weight including the training, education, experience and ability of
each expert, the factual information on which he or she based an
opinion, the source and reliability of that information and the
reasonableness of any explanation he or she gave to support the
opinion.
N.T., 4/2/18, at 171-73.
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In his second and final argument, Appellant asserts the trial court
committed reversible error when it allowed the Commonwealth to ask L.B.
leading questions. Specifically, Appellant directs our attention to the following
line of questioning by the Commonwealth, as permitted by the trial court:
Commonwealth: Okay. And when you say that [Mother] came in
and your clothes were off, which clothes were off?
L.B.: My pants.
Commonwealth: Okay. Whether they all the way off or just a
little bit off or something different?
L.B.: All the way off.
Commonwealth: Okay. Were you wearing any underwear?
L.B.: Yes.
Commonwealth: Was your underwear on or off or something
different?
L.B. Off.
Commonwealth: How did your pants get taken off?
L.B.: Pop-pop [Appellant] took them off.
Commonwealth: Did he say why?
L.B. No.
Commonwealth: Okay. After pop-pop took your pants off, did
something happen next?
L.B.: No.
Commonwealth: Okay. How were pop-pop’s clothes when your
pants were off?
L.B.: His clothes was unbuttoned.
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Commonwealth: Okay. When you say his clothes were
unbuttoned, which clothes?
L.B. His pants.
The Court: Try to keep your voice up, okay?
L.B.: Uh-huh.
Commonwealth: All right. And did something happen to your
body when your clothes were off and pop-pop’s pants were
undone?
L.B.: No.
Commonwealth: Did something happen that you didn’t like
while—
Defense Counsel: objection, asked and answered, Your
Honor.
The Court: I’ll allow this question.
N.T., 3/29/18, at 53-54. At this point in her testimony L.B. then went on to
testify that Appellant took baby lotion and put it inside of her “jay-jay” (her
vagina) with his fingers and that it “hurted.” Id. at 56-57.
Initially, we observe trial counsel did not preserve this issue. The
objection counsel raised during trial was that the question “Did something
happen that you didn’t like while—” was asked and answered. The argument
presented now on appeal is that the question was leading. Failure to raise a
contemporaneous objection to the evidence at trial waives that claim on
appeal. Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super. 1996)
(citing Pa.R.A.P. 302(a)). Further, a litigant may not raise a new theory for
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an objection made at trial in his appeal. Id. Nonetheless, we would find no
abuse of discretion in the trial court permitting the question asked. The court
explained that interrogated children sometimes get confused and self-correct.
In the above testimony, a child victim, L.B., described Appellant undressing
her and himself. It was obvious L.B. did not understand what the prosecutor
was asking when asked if something happened to her body. The court allowed
the Commonwealth to rephrase the question to inquire whether something
happened that L.B. did not like. This prompted L.B. to describe the remainder
of the sexual assault. The prosecutor did not unfairly influence L.B.’s
testimony but merely clarified the record. Opinion at 17. Further, were we
to address Appellant’s argument that the question was leading, we would find
no merit to the issue. A leading question is one that puts the desired answer
in the mouth of the witness. Commonwealth v. Chambers,
599 A.2d 630,
640 (Pa. 1991). The question asked by the Commonwealth, “Did something
happen that you didn’t like while—”, was not a leading question. It did not
suggest to L.B. that she was sexually assaulted by Appellant. The issue
warrants no relief.
Judgment of sentence affirmed.
President Judge Emeritus Ford Elliott joins the opinion.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/20
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