J-S48013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                         :    IN THE SUPERIOR COURT
  PENNSYLVANIA,                           :       OF PENNSYLVANIA
                                          :
                         Appellee         :
                                          :
                    v.                    :
                                          :
  DAVID HUERTAS,                          :
                                          :
                         Appellant        :     No. 605 EDA 2019


           Appeal from the PCRA Order Entered February 4, 2019
               in the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0001251-2015

BEFORE:    BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

                                                  FILED JANUARY 24, 2020

      I agree with the Majority that Appellant’s issue on appeal has arguable

merit.   Appellant contends that the questioning by trial counsel of the

Commonwealth’s expert, Dr. Jenssen, improperly bolstered her testimony and

violated the statute regarding the admissibility of expert opinion regarding the

credibility of witnesses. Trial counsel’s questioning permitted Dr. Jenssen to

state over and over again that she indeed believed the victims. See N.T.,

12/2/2015, at 96-102. It has long been the law of this Commonwealth that

“[i]t is an encroachment upon the province of the jury to permit admission of

expert testimony on the issue of a witness’ credibility.” Commonwealth v.

Seese, 517 A.2d 920. 922 (Pa. 1986). “Indeed, to permit expert testimony


* Retired Senior Judge assigned to the Superior Court.
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for the purpose of determining the credibility of a witness would be an

invitation for the trier of fact to abdicate its responsibility to ascertain the facts

relying upon the questionable premise that the expert is in a better position

to make such a judgment.” Id. (internal quotation marks omitted).

      Having concluded that Appellant’s issue has arguable merit, I now

consider whether trial counsel had a reasonable basis for engaging in this line

of questioning.    At the PCRA hearing, trial counsel testified about why he

questioned Dr. Jenssen regarding whether she believed the victims. According

to counsel, his strategy was to show that Dr. Jenssen “was biased. Before she

ever looked at these children, she had a preconceived notion that, in fact, they

had been molested. Before the[y] ever stepped into her room, she believed

they had been molested.” N.T., 1/28/2019, at 11. Trial counsel conceded

that some questions he asked would have been inadmissible had they been

asked by the Commonwealth, but it was his position that because he was

asking the questions on cross-examination and for a specific purpose, he was

not ineffective. See id. at 16.

      “When assessing whether counsel had a reasonable basis for his act or

omission, the question is not whether there were other courses of action that

counsel could have taken, but whether counsel’s decision had any basis

reasonably designed to effectuate his client’s interest.” Commonwealth v.

Williams, 141 A.3d 440, 463 (Pa. 2016).




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       Here, counsel offered a cogent reason for the line of questions at issue.

Accordingly, I agree with the PCRA court that trial counsel’s strategy satisfies

the standard for being reasonable. Based on the foregoing, trial counsel’s

representation of Appellant was not ineffective, and I agree with the Majority

and the PCRA court that Appellant is not entitled to relief.1




____________________________________________
1 Because trial counsel’s actions in questioning Dr. Jenssen had a reasonable
basis, we need not reach the issue of whether Appellant was prejudiced by
counsel’s questioning. I note, however, that the Majority places a virtually
unattainable burden on Appellant, relying on Commonwealth v. Spotz, 84
A.3d 294 (Pa. 2014). At one point, the Majority opines that “[a] defendant
raising a claim of ineffective assistance of counsel is required to show actual
prejudice; that is, that counsel’s ineffectiveness was of such magnitude that
it could have reasonably had an adverse effect on the outcome of the
proceedings.” Majority, at 21. I agree with this standard. However, the
Majority then concludes that Appellant has failed to establish this prong
because his “claims regarding prejudice are confined to … speculation
regarding how Dr. Jenssen’s testimony might have impacted the proceedings
below.” Majority, at 22 (emphasis in original). Short of getting affidavits from
all the jurors, which of course is impermissible, there is no way any appellant
could say conclusively that the verdict actually would have been different.
The Majority then compounds its error by essentially noting that the
Commonwealth presented sufficient evidence to support Appellant’s
conviction and therefore, Appellant has failed to demonstrate actual
prejudice. The Majority conflates the standards for sufficiency of the evidence
and prejudice where counsel is alleged to be ineffective.

      Instantly, as in many cases of sexual abuse, the only witnesses to the
abuse are the perpetrator and the victim or victims. Additionally, as in many
cases of sexual abuse, the victim or victims delay in reporting the abuse and
there is no physical evidence that the abuse occurred. This is such a case.
Under such circumstances, even where the evidence is sufficient to sustain
the convictions, as it is here, it is impossible to say the evidence is
overwhelming. Accordingly, it is improper under these circumstances to
dismiss a claim for ineffective assistance of counsel merely because the
Commonwealth indeed presented sufficient evidence at trial.


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