J-A10016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

DAVID HIGGINBOTHAM,

                           Appellant                    No. 7 WDA 2015


        Appeal from the Judgment of Sentence November 13, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0017178-2013


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

DAVID HIGGINBOTHAM,

                           Appellant                   No. 250 WDA 2015


        Appeal from the Judgment of Sentence November 13, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0017178-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED AUGUST 09, 2016

     Appellant,    David    Higginbotham,   appeals    from   the   judgment   of

sentence of an aggregate term of 20-40 years’ incarceration, imposed

following his conviction for twelve sexual offenses committed against two

minor victims.    Appellant alleges multiple claims of error regarding the trial

court’s permitting certain expert rebuttal testimony, the court’s failure to
J-A10016-16



issue a proposed jury instruction, the court’s imposition of an illegal

sentence, and the court’s improper grading of an offense.          Appellant also

contends that the trial court abused its discretion by imposing an ostensibly

unreasonable sentence. After careful review, we vacate Appellant’s sentence

and remand for a new trial.

       The trial court provided the following brief summary of the facts

adduced at trial:

       [T]he evidence presented at trial established that Erika
       Higginbotham, the [Appellant]'s daughter-in-law, worked as a
       nanny to sisters [S.C. and E.C.], ages 13 and 12 at trial,
       respectively. During the summer months, Erika Higginbotham
       would take [S.C. and E.C.] to the [Appellant]'s home so they
       could swim in his pool. Beginning when [S.C.] was in 4th grade
       and [E.C.] was in 3rd grade, the [Appellant] would take the girls
       into his home office to play computer games. While in his office
       with the girls, the [Appellant] touched their breasts and vaginas,
       both over and under their clothes and made both girls touch his
       erect penis. Additionally, the [Appellant] would get in the pool
       with the girls, and would touch their breasts and vaginas both
       over and under their bathing suits. [S.C.] also testified that the
       [Appellant] licked her vagina and made her lick his penis.

Trial Court Opinion (TCO), 7/20/15, at 2.

       Appellant was initially charged with seventeen offenses arising out of

his sexual abuse of E.C. and S.C.              Two of those charges were dropped

immediately prior to trial.1         Ultimately, following a jury trial ending on

____________________________________________


1
   The Commonwealth withdrew one count of statutory sexual assault
(graded as a first-degree felony), 18 Pa.C.S. § 3122.1(b), and one count of
statutory sexual assault (graded as a second-degree felony), 18 Pa.C.S. §
3122.1(a).



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August 28, 2014, Appellant was convicted of two counts of aggravated

indecent assault of a child (AIAC), 18 Pa.C.S. § 3125(a)(1) & (b); two

counts of unlawful contact with a minor (UCM), 18 Pa.C.S. § 6318(a)(1);

two counts of indecent assault, 18 Pa.C.S. § 3125(a)(7) (person less than

thirteen years of age); two counts of corruption of minors (graded as a

third-degree felony), 18 Pa.C.S. § 6301(a)(1)(ii) (course of conduct); two

counts of corruption of minors (graded as a first-degree misdemeanor), 18

Pa.C.S. § 6301(a)(1)(i); and two counts of indecent exposure, 18 Pa.C.S. §

3127.      Appellant was acquitted of one count of involuntary deviate sexual

intercourse, 18 Pa.C.S. § 3123(b), and two counts of statutory sexual

assault.

        On September 14, 2014, the Commonwealth filed notice of its intent to

pursue two, ten-year mandatory minimum sentences pursuant to 42 Pa.C.S.

§ 9718 for Appellant’s two convictions for AIAC.       On November 10, 2014,

Appellant filed a pre-sentence memorandum in response, arguing, inter alia,

that Section 9718 was unconstitutional, and that several offenses were

improperly     graded   based   upon   discrepancies   between   the   criminal

information and the charges put before the jury.

        Sentencing was held on November 13, 2014.          However, due to a

dispute over whether a Sexually Violent Predator (SVP) status hearing would

occur prior to sentencing (Appellant alleged that he was not afforded notice

that the Commonwealth was seeking the designation), the SVP matter was




                                       -3-
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deferred until January 20, 2015. The trial court then sentenced Appellant to

an aggregate term of 20-40 years’ incarceration.2

        Appellant filed a timely post-sentence motion on November 21, 2014,

which was denied by the trial court on December 3, 2014.                 Despite the

pending SVP hearing, Appellant cautiously filed a notice of appeal from the

judgment of sentence on December 22, 2014, which was docketed in this

Court as 7 WDA 2015.               At the January 20, 2015 SVP hearing, the

Commonwealth declined to pursue an SVP designation.3                On January 29,

2015,     Appellant    filed   a   second      post-sentence   motion,   which   was

substantively identical to the motion filed on November 21, 2014.4               The

duplicative post-sentence motion was denied by order dated February 5,

2015. Thereafter, on February 11, 2015, Appellant filed his second notice of

appeal in this case, which was docketed by this Court as 250 WDA 2015.

____________________________________________


2
  Appellant was sentenced to 5-10 years’ incarceration for each of the two
counts of UCM, and to 5-10 years’ incarceration for each of the two counts of
AIAC, and all sentences were ordered to run consecutive to one another. At
all remaining counts, the trial court sentence Appellant to no further penalty.
3
   Appellant contends the Commonwealth was precluded from doing so
because it “never filed any paperwork to schedule or to initiate an SVP
determination hearing.” Appellant’s Brief, at 21. However, any such dispute
is rendered moot given the Commonwealth’s abandonment of the matter.
4
 Appellant was concerned because a substantial minority of members of this
Court has expressed its belief that a sentence is not finalized for purposes of
appeal until SVP proceedings are concluded. See Commonwealth v.
Masker, 34 A.3d 841, (Pa. Super. 2011) (en banc) (Bowes, J. concurring
and dissenting) (joined by Judges Donahue and Freedberg).



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      By order dated March 13, 2015, this Court sua sponte consolidated the

appeals at 7 WDA 2015 and 250 WDA 2015. On March 20, 2015, Appellant

filed a court-ordered, Pa.R.A.P. 1925(b) statement. The trial court issued its

Rule 1925(a) opinion on July 20, 2015.

      Appellant now presents the following questions for review:

      I. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE
      COMMONWEALTH TO INTRODUCE THE TESTIMONY OF A
      PHYSICIAN AS REBUTTAL EVIDENCE WHERE THE TESTIMONY
      DID NOT REBUT OR CONTRADICT ANY EVIDENCE PRESENTED
      BY [APPELLANT] OR HIS WITNESSES?

      II. WHETHER THE TRIAL COURT ERRED BY NOT PRECLUDING
      THE EXPERT TESTIMONY AND OPINION OF A PHYSIC[I]AN
      WHERE THE COMMONWEALTH FAILED TO DISCLOSE THAT THE
      PHYSICIAN WOULD BE TESTIFYING AS AN EXPERT AND FAILED
      TO DISCLOSE HER EXPERT OPINION PRIOR TO TRIAL,
      RESULTING IN A DISCOVERY VIOLATION AND PREJUDICE TO
      [APPELLANT]?

      III. WHETHER THE TRIAL COURT ERRED IN FAILING TO
      PROVIDE [APPELLANT]'S REQUESTED JURY INSTRUCTIONS ON
      (i) 23 Pa. C.S. § 6311 AND 49 Pa. Code § 41.71 AND (ii)
      UNLAWFUL CONTACT WITH MINORS AS WELL AS CORRUPTION
      OF MINORS?

      IV. WHETHER THE TRIAL COURT ERRED BY IMPOSING
      MANDATORY   MINIMUM    SENTENCES    UPON  [APPELLANT]
      PURSUANT TO 42 Pa. C.S. § 9718, AN UNCONSTI[TUTI]ONAL
      STATUTE?

      V. WHETHER THE TRIAL COURT ERRED IN GRADING
      [APPELLANT]'S CONVICTIONS FOR UNLAWFUL CONTACT WITH
      MINORS AS FIRST-DEGREE FELONIES?

      VI. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
      IMPOSING UNREASONABLE AND OUTSIDE THE AGGRAVATED
      RANGE SENTENCES FOR [APPELLANT]'S UNLAWFUL CONTACT
      WITH MINORS CONVICTIONS?

Appellant’s Brief, at 10-11.


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      Appellant’s first two claims concern the testimony of Dr. Jennifer

Wolford.   Dr. Wolford was the attending physician at the Division of Child

Advocacy at Children’s Hospital of Pittsburgh who examined E.C. and S.C.

Appellant claims Dr. Wolford’s testimony was not properly admitted as

rebuttal testimony, and that it was not properly admitted as expert

testimony due a purported discovery violation.

      The admission of rebuttal testimony is within the sound discretion of

the trial court, and the appropriate scope of rebuttal evidence is defined by

the evidence that it is intended to rebut. Commonwealth v. Ballard, 80

A.3d 380, 401-02 (Pa. 2013).             “It is not proper to submit on rebuttal,

evidence   which       does   not   in   fact   rebut   the   opponent's   evidence.”

Commonwealth v. Hickman, 309 A.2d 564, 567 (Pa. 1973).

      Dr. Wolford did not testify during the Commonwealth’s case-in-chief.

Instead, Dr. Wolford was called as a rebuttal witness, over Appellant’s

vigorous and repeated objections, and essentially testified that it is rare that

victims of sexual abuse present with physical symptoms of the abuse.

Specifically, the pertinent and allegedly prejudicial portions of Dr. Wolford’s

testimony were as follows:

      Q. Does the fact that the [victims’] exam[s] came back as
      normal surprise you?

      A. Not at all.

      Q. Why not?

      A. We know that in the field of child abuse, which really in the
      realm of sexual abuse, that actually more than 95 percent of the


                                          -6-
J-A10016-16


     exams on children are normal. So for every 20 exams I would
     do, 19 of them would be normal.

     Q. What are the reasons for that, if you can just explain to the
     jury?

     A. Sure. So partially, so there’s several reasons. The first one is
     that child abuse, typically child sexual abuse is not meant to hurt
     or to overpower or there isn’t often a struggle, so there’s less
     likely to be physical injury. Often the abuse is repeated and so
     by hurting the child or harming them, that would likely prevent
     further opportunity. Additionally, if there is penetration, we
     know that a woman’s body is meant to stretch. And so even if
     there was penetration, that the body heals, that a woman’s
     anatomy is set up for both things to enter and speaking about
     the vaginal area, as well as later in life to exit, such as birthing a
     baby.

     Q. Doctor, if it’s rare that there are physical findings, why do you
     still conduct these exams?

     A. Well, the first reason is to make sure and the one in 20 times
     that there are any injuries, to make sure that these are healing
     properly. In some of the victims it’s important that we do STD
     testing which was completed. But the most important reason is
     that we think that when you get to the part of the medical exam
     there’s already been disclosure of the abuse. That could have
     gone on for long periods of time before that or a long time prior
     to the physical exam. So our point is really one of the most
     rewarding things I do in my field in that it’s to remind these
     young girls that they’re normal and that their bodies are okay.
     So I do a full physical exam, ears, eyes, mouth, and so that at
     the end I can say from the top of your head to the bottom of
     your feet you’re okay. And I think that’s really, we hope that it’s
     one of the ways that victims can begin their healing and to know
     that they’re okay.

Notes of Testimony, 8/25/14-8/28/14, at 255-257 (hereinafter “N.T.”).

     The trial court explained its decision to permit Dr. Wolford’s rebuttal

testimony as follows:

     After the Commonwealth rested, [defense counsel] made
     statements to the media respecting the evidence presented by
     the Commonwealth, specifically that the Commonwealth

                                     -7-
J-A10016-16


     presented no medical evidence and affirming [Appellant]'s
     innocence. Having already rested its case, the Commonwealth
     sought to call Dr. Wolford to discuss the absence of physical
     findings in her experience generally and in this case in particular.

TCO, at 3 (citation omitted).    Thus, the trial court acknowledges that it

admitted Dr. Wolford’s testimony to rebut defense counsel’s statements to

the media.

     The trial court does not identify which evidence Dr. Wolford’s

testimony was admitted to rebut, and it is obvious to this Court that a

defense attorney’s statement to the media does not constitute evidence.

Furthermore, there is no evidence of record that the jury was even aware of

counsel’s media statement, nor does the trial court indicate that it engaged

in any efforts to make such a determination. Moreover, the trial court does

not cite to any legal authority suggesting that rebuttal testimony is

permissible to respond to a party’s out-of-court statements to the media.

Indeed, the Commonwealth concedes that the trial court could not permit

rebuttal testimony based solely on defense counsel’s statements to the

media. See Commonwealth’s Brief, at 13 (“This attorney understands that

the Commonwealth needs to be consistent in its arguments throughout the

course of litigation but cannot bring himself to argue that a comment by the

defense attorney to the media, where there is no evidence that the jury

learned of the comment, can be the basis of the admissibility of this

evidence.”).   This clear legal error was an abuse of the trial court’s

discretion. See Commonwealth v. Jones, 826 A.2d 900, 907 (Pa. Super.

2003) (“An abuse of discretion is not merely an error of judgment, but if in

                                    -8-
J-A10016-16



reaching a conclusion 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, discretion is

abused.”) (emphasis added).

       However, the Commonwealth contends that Dr. Wolford’s testimony

was admissible on an independent basis, arguing that Appellant opened the

door to Dr. Wolford’s rebuttal testimony during defense counsel’s cross-

examination of S.C. and the victims’ mother.      Assuming, arguendo, that

defense counsel’s cross-examination of a Commonwealth witness during the

Commonwealth’s case-in-chief could permit the Commonwealth to introduce

rebuttal testimony after both the Commonwealth and the defense had

rested,5 we still conclude that there was no independent basis upon which to

permit such testimony.
____________________________________________


5
   The Commonwealth fails to offer any explanation regarding why Dr.
Wolford was not called during the Commonwealth’s case-in-chief to rebut
any matters raised by defense counsel during the cross-examination of the
Commonwealth’s witnesses, other than to assert the legal rule that such is
not alone grounds for reversal as the order of presentation of evidence, if
otherwise relevant, is left to the discretion of the trial court.
Commonwealth’s Brief, at 12-13 (citing Commonwealth v. Mangini, 386
A.2d 482 (Pa. 1978), and Hickman, supra). Nevertheless, because we
ultimately conclude that Appellant did not open the door to Dr. Wolford’s
rebuttal testimony during those cross-examinations, we decline to address
the propriety of the timing of her testimony in this regard. The evidence
was admitted as rebuttal evidence, and no argument was made to the trial
court regarding its general relevancy. Mangini is factually inapposite, as
that case dealt with rebuttal evidence which was arguably relevant in the
case-in-chief; in that case, the ‘rebuttal’ evidence was an opinion that
footprints left in fresh snow could not have been left before the snowfall.
(Footnote Continued Next Page)


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      The Commonwealth first points to the testimony of S.C., who was

asked by defense counsel if she and her sister had seen a medical doctor,

and S.C. responded that they both had.              N.T. at 97, 103.   Dr. Wolford’s

testimony did not serve to rebut anything said by S.C. with regard to this

question. This exchange between defense counsel and S.C. did not, as the

Commonwealth suggests, establish that there was no report of abuse by a

doctor so as to create an impression in the jurors’ minds that would justify

rebuttal evidence of the nature provided by Dr. Wolford’s testimony.            The

scope of defense counsel’s question did not include any suggestion of a lack

of physical evidence or symptoms of sexual abuse, nor did counsel even

reference the results (or lack of results) from the physical examinations at

all. Defense counsel merely asked if the girls had seen a doctor, and that

line of inquiry ended with S.C.’s affirmative response.            Accordingly, we

disagree that defense counsel’s cross-examination of S.C. opened the door

to Dr. Wolford’s rebuttal testimony.

      The Commonwealth also points to defense counsel’s cross-examination

of the victims’ mother. Defense counsel questioned her as follows:

      Q. And from 2008 to 2013, you didn’t have any inkling of
      anything being wrong with either or your daughters?

      A. Actually, that’s not correct. I had a lot of concerns about
      them. I had taken [S.C.] to two different psychologists. I had
                       _______________________
(Footnote Continued)

Here, the ‘rebuttal’ evidence/expert opinion is a general statistic that does
not directly support any element of the crimes charged, but instead simply
served to bolster the victims’ credibility.



                                           - 10 -
J-A10016-16


     taken them to their pediatricians. And during the months of
     September and October, [S.C.] saw her pediatrician, she saw a
     specialist. [E.C.] was having difficulties with headaches. She
     saw her pediatrician. We took her to Children’s Hospital for
     MRIs, and she also saw a neurologist.

     Q. She did?

     A. (Witness nods)

     Q. And in any of those doctors, in all of those people, was there
     ever a report or were you presented with any type of abuse?

     A. They were inconclusive. They didn’t know what was wrong
     with them.

     Q. There was never a diagnosis at all?

     A. No diagnosis. They told me to give them vitamins and more
     sleep?

     Q. Vitamins and more sleep. Including the psychologist?

     A. I was not allowed to speak to the psychologist. Those were
     private conversations with the children.

N.T. at 110-11.

     In the above-cross-examination, it was the witness, not defense

counsel, who brought up the matter of S.C.’s and E.C.’s doctors’ visits.

Furthermore, defense counsel’s subsequent question—“And in any of those

doctors, in all of those people, was there ever a report or were you

presented with any type of abuse?”—did not inquire as to what symptoms of

sexual abuse the girls presented, but only whether sexual abuse was

suspected. Certainly, had the girls reported sexual abuse verbally to those

medical professionals, some sort of official or unofficial reporting would be

expected. Moreover, the victims’ mother had referenced both psychologists

and a neurologist, not just a pediatrician. No reasonable juror would have


                                   - 11 -
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expected that psychologists and neurologists would have been conducting

genital exams on the victims in order to look for physical signs of sexual

abuse.

     Given that the topic of the girls’ doctors’ visits was broached by the

witness and not by defense counsel, and that defense counsel only asked a

single follow up question from which the inference—that there ‘should’ be

physical symptoms of sexual abuse—arises only tenuously, we conclude that

the cross-examination of the victims’ mother also did not ‘open the door’ to

Dr. Wolford’s rebuttal testimony. Accordingly, we cannot conclude that the

trial court’s permitting Dr. Wolford’s rebuttal testimony was permissible on

an alternative basis from the one stated. Thus, we hold that the trial court

abused its discretion in permitting Dr. Wolford’s testimony in these

circumstances.

     Appellant also claims that Dr. Wolford’s testimony was barred because

the Commonwealth ostensibly failed to disclose, through pre-trial discovery,

the nature and content of Dr. Wolford’s expert testimony.         However,

Appellant “submits that if this Court finds that Dr. Wolford should not have

been permitted to testify as a rebuttal witness pursuant to [the improper

rebuttal argument], the Court need not address the instant argument.”

Appellant’s Brief, at 45 n.1. We agree. Having concluded that Dr. Wolford’s

testimony was not permitted as rebuttal evidence, we need not address

whether her testimony was impermissible under the discovery rules (or,




                                   - 12 -
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relatedly, whether the remedy offered by the court was adequate to address

any discovery violation).

      Nevertheless, we must address the Commonwealth’s contention that

the admission of Dr. Wolford’s testimony was harmless error, or whether a

new trial is required.

      As we explained in [Commonwealth v. Thornton, 431 A.2d
      248 (Pa. 1981)], “[t]he doctrine of harmless error is a technique
      of appellate review designed to advance judicial economy by
      obviating the necessity for a retrial where the appellate court is
      convinced that a trial error was harmless beyond a reasonable
      doubt. Its purpose is premised on the well-settled proposition
      that ‘[a] defendant is entitled to a fair trial but not a perfect
      one.’” Thornton, supra at 251. Accord, Commonwealth v.
      Drummond, 775 A.2d 849, 853 (Pa. Super. 2001).                  In
      Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062
      (2007), our highest court reaffirmed that an error may be
      considered harmless only when the Commonwealth proves
      beyond a reasonable doubt that the error could not have
      contributed to the verdict. Whenever there is a “reasonable
      possibility” that an error “could have contributed to the verdict,”
      the error is not harmless. Commonwealth v. Passmore, 857
      A.2d 697, 711 (Pa. Super. 2004). “An error may be deemed
      harmless, inter alia, where the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.”
      Commonwealth v. Moore, supra at 1073. Harmless error
      exists when the error did not prejudice the defendant or the
      prejudice was de minimis or the erroneously admitted evidence
      was merely cumulative of other untainted evidence, which was
      substantially similar to the erroneously admitted evidence.
      Commonwealth v. Passmore, supra at 711.

Commonwealth v. Koch, 39 A.3d 996, 1006-07 (Pa. Super. 2011).

      The Commonwealth argues that the admission of Dr. Wolford’s

testimony was harmless error because Appellant knew, per the medical


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records provided during discovery, that a normal genital exam would not

rule out sexual abuse, information that—the Commonwealth avers—

Appellant was willing to put before the jury via stipulation.              The

Commonwealth further claims that Dr. Wolford’s actual testimony differed

only slightly from this information when she stated that “95 percent of the

exams on children are normal.           So for every 20 exams I would do, 19 of

them would be normal.” N.T. at 255 (hereinafter, “contested statement”).

The Commonwealth also argues that the statistic contained in the contested

statement is virtually unassailable,6 and notes that Appellant has not

suggested that it could have been disputed.

       Appellant counters that 1) he only offered to stipulate to similar facts

contained in the medical records after the trial court had ruled to allow Dr.

Wolford’s rebuttal testimony; 2) that the question of harmless error is

directed at whether the jury might have been unduly affected by Dr.

Wolford’s testimony, not whether Appellant could have, or should have, been

better prepared to cross-examine her or otherwise refute the ‘truth’ of her

expert testimony.




____________________________________________


6
  The Commonwealth provides extra-record studies in its brief to support
this statistic, but does not appear to have sought, much less received,
permission to supplement the record in this fashion. Ultimately, however,
the Commonwealth’s failure to do so does is not dispositive to our
disposition in this matter.



                                          - 14 -
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      Initially, we agree with Appellant’s framing of the harmless error

question. The Commonwealth focuses an undue amount of attention on the

‘truth’ of Dr. Wolford’s contested statement—that victims of sexual assault

rarely present physical symptoms of sexual abuse—and the ‘fairness’ of

allowing such testimony in terms of whether Appellant should have been

better prepared to refute or mitigate the impact of that testimony given

what was disclosed by the Commonwealth prior to trial. However, both of

those issues predominately go to the merits of whether Dr. Wolford’s

testimony should have been permitted in the context of the alleged

discovery violation, not to whether the testimony, as received by the jury,

might have impacted the verdict in this case.

      Nevertheless, we acknowledge the veracity of Dr. Wolford’s statement

cannot be said to be completely immaterial to the harmless error question.

Certainly, there are times when truthful information is so prejudicial that its

disclosure to the jury risks impacting the verdict in a negative manner. For

instance, it is axiomatic that the government cannot use evidence that a

defendant has committed unrelated crimes as substantive proof of another

crime, because “[t]he presumed effect of such evidence is to predispose the

minds of the jurors to believe the accused guilty, and thus effectually to strip

him of the presumption of innocence.” Commonwealth v. Trowery, 235

A.2d 171, 172 (Pa. Super. 1967).

      That does not mean, however, that exposing a jury to false

information does not present a greater chance of impacting a verdict in a

                                     - 15 -
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negative manner.           In the above circumstance, we might forgive an

inadvertent, indirect, and fleeting reference to a defendant’s prior record as

harmless error, but it seems reasonable that we would be less inclined to do

so if the ‘fact’ alluded to was demonstrably or categorically false. Similarly,

we can imagine a scenario where the revelation of an inadmissible, but

largely innocuous fact, i.e., that a defendant, accused of shooting from the

back seat of a vehicle in a drive-by shooting, did not own that vehicle used

to commit that crime, would be less likely to affect a jury than the admission

of evidence that falsely suggests his ownership of that vehicle.               This is

because inadmissible, but true facts risk impermissibly weak inferences,

whereas no valid inference can flow from a false factual foundation. Thus,

while we agree with Appellant that the truthfulness of Dr. Wolford’s

contested statement does not automatically render its admission as

harmless error, we disagree with Appellant to the extent that he suggests

that the contested statement’s truthfulness is completely immaterial to our

harmless error analysis, even if it is a minor factor in the context of this

case.

        With   this   in   mind,   we   must     weigh   1)   the   strength   of    the

Commonwealth’s case, against 2) the potential impact of Dr. Wolford’s

contested statement (and related explanation) given its nature and the

circumstances of its presentation.        See generally, Koch, supra.               With

respect to the weight of evidence in this case, Appellant avers:




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         This case lacked medical or other scientific evidence, such as
         semen, fingerprints, hair, skin, or DNA. No audio or video
         recordings captured any of the alleged sexual abuse. No e-mails
         or text messages evidenced improper conduct on behalf of
         [Appellant]. No admissions or confessions existed. Credibility
         was the key issue. The[] jury was forced to determine who was
         telling the truth based on oral testimony alone. Dr. Wolford
         helped to justify the lack of medical or scientific evidence,
         explaining that such simply does not exist in over 95 percent of
         child sexual assault cases, which, while shedding absolutely
         no light on whether E.C. or S.C. were actually abused,
         permitted the jury to feel more comfortable in believing E.C. and
         S.C., despite some of their incredible claims, see e.g., ([N.T. at
         72-75] (including testimony about (i) molestation at a crowded
         chorus concert and (ii) mutual oral sex while driving a moving
         automobile from the chorus concert to E.C.'s and S.C.'s home)).

Appellant’s Brief, at 41 (citation omitted, emphasis in original).

         Appellant’s summary is apt. This was a classic, he-said/she-said case,

with one notable variant: there were two, closely related victims whose

testimonies, generally speaking, corroborated one another. Apart from the

victims, however, the Commonwealth’s only other witnesses were: 1) the

victims’ mother, whose brief testimony only addressed the circumstances

surrounding the victims’ disclosure of the allegations of sexual abuse; 2)

Police    Officer   Scott   Rick,   who   testified   regarding   the   circumstances

surrounding the receipt of the victims’ complaints of sexual abuse; and 3)

Dr. Wolford, whose brief rebuttal testimony did not extend far beyond the

contested statement, despite being listed as the victims’ attending physician

at Children’s Hospital.

         Appellant testified on his own behalf, and he flatly denied molesting

either victim and, furthermore, his testimony contradicted many of the



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attendant facts alleged by the victims.7           Erika Higginbotham testified that

she was the caretaker for the victims during the summers between 2008-

2013, and would frequently take them to Appellant’s home to swim during

that period. She was extremely close with E.C. and S.C., so much so that

she thought of the girls “as if they were [her] two children.” N.T. at 162.

Despite this, she testified that the girls never complained about going to

Appellant’s home during those five years.

       Appellant’s wife testified that she never recalled a time when either

E.C. or S.C. were alone with Appellant at their home, id. at 181, including a

specific occasion when E.C. had slept over at their home per E.C.’s own

request (but after Appellant had purportedly already molested her), id. at

177. She also did not recall Appellant ever taking S.C. to a chorus concert.

Id. at 182.

       On its face, the evidence of Appellant’s guilt was not overwhelming.

The victims’ testimonies included some detailed and plausible descriptions of

abuse, but also some implausible accusations.8            The accusations of sexual
____________________________________________


7
   For instance, Appellant testified that he and his wife would not have
allowed either victim to be upstairs in their home during the girls’ visits
(where some of the abuse was alleged to have occurred). N.T. at 203, 206.
He also testified that he never attended a chorus concert with S.C. Id. at
204.
8
  As noted by Appellant, S.C. alleged that Appellant digitally penetrated her
in the presence of “a lot of people” while the two inexplicably attended a
chorus concert together. Id. at 73. How he engaged in such behavior while
in the presence of countless other attendees, without drawing any attention,
(Footnote Continued Next Page)


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abuse were sometimes corroborated by the other victim, but no evidence of

abuse was corroborated by any other evidence or testimony beyond the

testimony of the two sibling-victims.            Indeed, the Commonwealth makes no

effort to suggest that the evidence was overwhelming in this case, despite

their burden to demonstrate harmless error beyond a reasonable doubt.

       Thus, this case turned only on questions of credibility, yet there was

nothing objectively implausible about Appellant’s defense, and there were

multiple portions of the victims’ testimonies that appear implausible.

Nevertheless, the jury convicted Appellant of most of the charges against

him.    In such circumstances, and despite the ultimate verdict, this was

clearly a close case.            It most certainly was not a case involving

overwhelming evidence of guilt, nor was it a case where the primary issue

was the degree of Appellant’s culpability.

       With that in mind, we must consider whether Dr. Wolford’s testimony,

and in particular the contested statement, and her associated explanation of

that statement, did not affect the outcome of this case beyond a reasonable

doubt. Such a conclusion is impossible in these circumstances. While the

                       _______________________
(Footnote Continued)

is ultimately unexplained.        No evidence or other testimony even
corroborated that they attended a chorus concert together, or why only S.C.,
but not also her sister, would have gone with Appellant to such an event.
S.C. also testified that, on the return trip in Appellant’s car, she performed
oral sex on him, and he performed oral sex on her, both while Appellant was
driving. Id. at 73-74.




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J-A10016-16



statement by Dr. Wolford may have been truthful,9 it was not responsive to

any argument or testimony made by the defense or the defense witnesses.

It appears only to have bolstered the victims’ testimony, suggesting to the

jury that the absence of physical symptoms of sexual abuse was normal.

However, the defense made no attempt to suggest to the jury that the

absence of physical symptoms of abuse was itself a valid basis for acquitting

Appellant until after the trial court permitted Dr. Wolford’s testimony.10

Instead, the defense had focused on the unreliability of the victims’

testimony based on the implausibility of certain events, inconsistencies in

the accounts of the plausible events, the lack of any corroboration beyond

the victims’ testimonies, and the outright denials by Appellant.

       The circumstances surrounding the introduction of Dr. Wolford’s

testimony also suggest that her statements risked impacting the jury’s

verdict. Dr. Wolford was the last witness heard by the jury, called after the

defense had already presented its last witness (Appellant). Just prior to her
____________________________________________


9
  We have no reason to believe otherwise. However, as discussed above, we
agree with Appellant that the truthfulness of Dr. Wolford’s statement is not
dispositive of whether the improper admission of rebuttal evidence is
harmless error. Moreover, the Commonwealth cites to no legal authority
suggesting that evidentiary error is harmless on that basis.
10
   Defense counsel briefly suggested during closing argument, addressing
Dr. Wolford’s testimony, that the multiple purported digital penetrations of
the victim’s vaginas by Appellant was inconsistent with evidence that the
victims’ hymens appeared intact and showed no indication of healing.
However, no such argument was made at any time prior to Dr. Wolford’s
testimony.



                                          - 20 -
J-A10016-16



testimony, the trial court informed the jury, “The Defense has rested and the

Commonwealth has a rebuttal witness.” N.T. at 254. Thus, Dr. Wolford’s

testimony naturally stood out as the last witness heard by the jury.

Furthermore, as established above, there was no proper basis for rebuttal.

Thus, the jury was left with the impression that the defense had presented a

theory, argument, or fact which required rebuttal, when no such theory,

argument, or fact had been presented.

       Thus, we conclude that Dr. Wolford’s contested statement unfairly

bolstered the victims’ testimony, in circumstances where her testimony was

naturally spotlighted as the last testimony heard by the jury, and in order to

contradict a theory never presented to the jury by the defense.         As this

occurred in a case dominated by questions of credibility, and where such

determinations were not assisted by any physical or strong circumstantial

evidence, we are compelled to hold that the abuse of the trial court’s

discretion, in permitting the rebuttal testimony of Dr. Wolford, was not

harmless error.       Accordingly, we must vacate Appellant’s judgment of

sentence and remand for a new trial.

       Because of our disposition, we will not address Appellant’s remaining

claims, as they would not afford Appellant any greater relief.11
____________________________________________


11
   For the trial court’s benefit, we do note at least one change in the law that
would have compelled resentencing had we not decided to grant a new trial
in this case. In applying mandatory minimum sentences of five years’
incarceration, as set forth in 42 Pa.C.S. § 9718, for each of Appellant’s
(Footnote Continued Next Page)


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      Judgment of Sentence vacated.                 Case remanded for a new trial.

Jurisdiction relinquished.




                       _______________________
(Footnote Continued)

convictions for AIAC, the trial court relied on Commonwealth v. Matteson,
96 A.3d 1064 (Pa. Super. 2014). TCO, at 20-21. In that case, this Court
held that a particular mandatory sentencing provision set forth in Section
9718 did not violate the tenets of Alleyne v. United States, 133 S.Ct.
2151 (2013) (holding that any fact that increases mandatory minimum
sentence for a crime must be submitted to jury as an element of that crime,
and proven beyond a reasonable doubt), because the fact triggering the
mandatory minimum sentence was identical to an element of the underlying
offense. However, as correctly noted by Appellant, Appellant’s Brief at 71,
and as conceded by the Commonwealth, Commonwealth’s Brief at 43,
Matteson was effectively overruled by Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc). See Commonwealth v. Wolfe, 106
A.3d 800, 806 (Pa. Super. 2014) (“Newman abrogated this Court's decision
in Matteson.”). Specifically, as noted in Wolfe, “[f]ollowing Newman's
instructions, we are required to conclude that Section 9718 is also facially
unconstitutional.” Id. at 805 (emphasis added). Because Section 9718 is
facial unconstitutional in its entirety, any sentence issued under that statute
is consequently illegal. Therefore, it is immaterial whether a particular
subdivision of that statute is independently compliant with Alleyne based on
the theory espoused in Matteson.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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