J-S41018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RONALD SMITH,                             :
                                           :
                    Appellant              :   No. 3502 EDA 2017

            Appeal from the Judgment of Sentence June 15, 2017
     In the Court of Common Pleas of Bucks County Criminal Division at
                      No(s): CP-09-CR-0004929-2016


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 23, 2018

      Appellant, Ronald Smith, appeals from the judgment of sentence

entered on June 15, 2017, as made final by the denial of Appellant’s post-

sentence motion on September 29, 2017.         We sua sponte vacate the trial

court’s June 15, 2017 order, which found Appellant to be a sexually violent

predator (“SVP”), and remand the case to the trial court for the sole purpose

of issuing the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to

Appellant’s tier-based registration obligations under SORNA. However, in all

other respects, we affirm.

      The trial court provided us with a comprehensive and well-written

summary of the facts and procedural posture of this case. We thank the trial

court and quote this section of the trial court’s opinion at length:

        This case involves numerous instances of Appellant sexually
        abusing his two stepdaughters, juveniles S.A. and D.A, over
        the course of several years. At the time of trial, S.A. and
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41018-18


       D.A. were tenth and ninth grade students[, respectively]. . .
       . [N.T. Trial, 1/10/17, at 5 and 220-221].

       The following is a summary of S.A.'s testimony regarding the
       assaults against her. The first incident occurred when S.A.
       was six years old, and was living in a single room with two
       beds at the Neshaminy Inn in Bensalem, Bucks County, with
       her mother, two sisters, stepbrother, and the Appellant. [Id.
       at 5 and 9-11]. S.A. remembered that she was in
       kindergarten because a school bus picked her up at the
       Neshaminy Inn during that time. Id. at 10-11. The family
       lived in that motel room for just under one year. Appellant
       was S.A.'s mother's boyfriend during that time. Id. at 9-11.
       S.A. entered the bathroom of the motel room with the
       Appellant, and he shut the door and put his penis in her
       mouth while she was on her knees. Id. at 14-16.

       About one year later, when S.A. was in the first grade, she
       and her family moved in with the Appellant's mother. . . . Id.
       at 17-18. S.A. and her family would stay in the attic of the
       home, but they subsequently moved out in the summer
       following her fourth grade year. Id. at 17-20.

       The second and third incidents occurred in the basement of
       [Appellant’s mother’s] home, while S.A. was in the first or
       second grade. [Id. at 25 and 28]. During the first incident,
       the Appellant shut the door and put his penis in S.A.'s mouth.
       [Id. at 25 and 27]. A few months later, the Appellant took
       S.A. into the basement and penetrated her with his penis,
       although she was unsure whether the intercourse was anal
       or vaginal at the time. [Id. at 28-29]. Subsequently, on three
       separate occasions, Appellant forced S.A. to perform oral sex
       upon his penis in the master bedroom. Id. at 32-33. Either
       before or after these encounters, Appellant told S.A. that he
       would "call CPS [Child Protective Services] or hurt mom." Id.
       at 35. Although S.A. did not understand the meaning of CPS
       at the time, the Appellant explained, "[t]hey would take us
       away." Id. at 35. S.A. was afraid that the Appellant would
       hurt her mother or have her and D.A. taken away if she
       disclosed the sexual abuse. Id. at 36.

       On a night towards the end of her stay at [Appellant’s
       mother’s house], Appellant drove S.A. to an "abandoned
       house" that belonged to his brother on Race Street, Bristol

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       Borough, Bucks County. Id. at 40. He took S.A. up to a
       room on the second floor, and engaged in anal intercourse
       with her on a box spring mattress. Id. at 44-45. At that
       time, S.A. knew that the Appellant had penetrated her anus
       and that it hurt. Id. at 45-46.

       In the summer between S.A.'s fourth and fifth grade year,
       she, her family, and the Appellant moved down the street [to
       another house on Spruce Street]. Id. at 49. The family lived
       in that home for three years, until the October of S.A.'s eighth
       grade year; the victims and their younger sister again shared
       a bedroom in the attic of the home. [Id. at 51-52 and 56].
       During that time, Appellant repeatedly called S.A. into his
       bedroom, pulled her head down towards his lap, and forced
       her to perform oral sex on his penis. Id. at 53-57. This
       occurred over twenty times in that same bedroom. Id. at
       54-57. The Appellant would shut the door each time, and
       threatened to hurt S.A.'s mother if she disclosed the abuse.
       Id.

       The next assault occurred on a Saturday before Christmas.
       S.A. remembered that it was Christmas because the living
       room had a Christmas tree and because her mother took her
       sisters and stepbrother to "Shop with a Cop." Id. at 67. S.A.
       was lying on her stomach in the middle of that living room
       floor. After the Appellant locked the front and rear doors to
       the home, he engaged in anal intercourse with her. Id. at 68-
       71. Appellant reiterated that he would hurt S.A.'s mother if
       she disclosed the assault. Id. at 71. An additional incident
       occurred one night in the attic while S.A. was sleeping on her
       bed. S.A. remembered that it was the night before her
       birthday because the Appellant gave her three chocolate eggs
       the following morning. Id. at 79. The Appellant lay down
       behind her while she was sleeping on her side. Id. at 75. As
       she lay on her side, S.A. pretended to sleep while the
       Appellant used his hand to rub the area around her vagina
       above her clothing. Id. at 75-78.

       S.A. also described several incidents that occurred in the
       parking lot of Silver Lake Park in Bristol Borough, Bucks
       County. On at least five separate occasions, the Appellant
       would drive S.A. in his truck to the park during the day and
       park away from other cars. Id. at 95. The Appellant would
       pull down his pants and force S.A., who was in the passenger

                                    -3-
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       seat, to bend over the center console and perform oral sex
       on his penis. Id. at 91-96. During the same time period, the
       Appellant began to abuse S.A.'s younger sister, juvenile D.A,
       who also testified at trial. D.A. testified that she was cleaning
       her room . . . when the Appellant called her to come down to
       his bedroom. Id. at 240. There, Appellant told D.A. to lock
       the bedroom door behind her and sit on the bed beside him.
       He told her, "just remember that I have guns." [Id. at 240-
       241]. Appellant then pulled out his penis, pushed D.A.'s head
       onto his lap, and forced her to perform oral sex on his penis.
       [Id. at 242].

       A second incident with D.A. occurred a few weeks later in the
       same bedroom. D.A. was already in the room watching
       television when the Appellant walked in and locked the
       bedroom door. Id. at 245. Appellant sat next to her on the
       bed and said, "you have to do this for me or people you love
       are going to get hurt." Id. at 246. He then pulled out his
       penis, pushed D.A.'s head onto his lap, and forced her to
       perform oral sex on his penis to the point of ejaculation. Id.
       The Appellant cleaned up his ejaculate by wiping it on his
       pants. Id. D.A. did not disclose these incidents because the
       Appellant told her not to do so, and because she was afraid
       of him. Id. at 247.

       Both victims described an incident when the Appellant abused
       them simultaneously. S.A. testified that she and D.A. were
       grounded when the Appellant called them into his bedroom,
       ostensibly to "unground" them. Id. at 86-87. When she and
       her sister arrived in the bedroom, Appellant told one of them
       to lock the door and instructed them to sit on either side of
       him. Id. at 249. S.A. testified that Appellant was seated on
       the bed, while D.A. testified that Appellant sat in a computer
       chair between the two sisters. Id. at 88-90, 249. The
       Appellant then pulled out his penis and said, "you guys know
       what to do." Id. at 250. The Appellant forced both S.A. and
       D.A. to perform oral sex on his penis; he forced S.A. to go
       first, and then told D.A. to perform the same act after a few
       minutes. [Id. at 89-90 and 250]. S.A. testified that the
       Appellant sexually abused her and her sister simultaneously
       "a little more than three" times, while D.A. testified that this
       act occurred only once. [Id. at 91-92, 251 and 257]. S.A.
       testified that the two sisters discussed the abuse and
       promised each other that they would not disclose it. Id. at

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       102. S.A. further stated that the Appellant and her mother
       had a "violent relationship" and that she feared that the
       Appellant would hurt her mother if she disclosed any abuse.
       Id. at 102-103.

       The final incident with S.A. occurred on Halloween during her
       eighth grade year. She, her sisters and mother were moving
       out of the [] Spruce Street home that day because her
       mother had ended her relationship with the Appellant. Id. at
       98-101. While the rest of the family moved their belongings
       into the car, Appellant forced S.A. to perform oral sex on his
       penis in the master bedroom. Id. at 98-100.

       The victims eventually disclosed the abuse shortly after
       moving out of [the Spruce Street home]. S.A., a ninth-grader
       at the time, was at the Oxford Valley Mall in Bucks County
       with her mother, sisters, stepbrother, and Tasha Davis, a
       family friend and neighbor. Id. at 103-105. Ms. Davis
       testified that she had previously observed S.A. fidget with her
       sweatshirt, suck her thumb, and become "very agitated"
       when anyone would speak about the Appellant in her
       presence. Id. at 260-261. When the Appellant telephoned
       S.A.'s mother at the Oxford Valley Mall, Ms. Davis observed
       that S.A. became angry while listening to the conversation.
       This observation "raised a really big red flag" for Ms. Davis,
       and prompted her to invite S.A. to her apartment to speak
       privately. Id. at 262-264. Ms. Davis expressed her suspicions
       to S.A., and asked her if she had ever been touched by
       anyone. [Id. at 106-107 and 264]. At first, S.A. did not want
       to disclose the abuse because she promised her sister that
       she would not, but she eventually disclosed to Ms. Davis that
       the Appellant had abused her. [Id. at 106-107 and 265-266].
       S.A. cried and shook during the approximately one-and-one-
       half hour conversation. [Id. at 108 and 266].

       With S.A.'s permission, Ms. Davis invited S.A.'s mother to the
       apartment, followed by D.A. Id. at 268-269. After disclosing
       the abuse to her mother, S.A. told D.A. that it was "okay to
       say something now [be]cause it's already out." Id. at 112.
       At first, D.A. said that nothing happened to her. Id. at 269.
       After Ms. Davis repeatedly questioned her about whether the
       Appellant had touched her, D.A. finally disclosed that he did.
       Id. at 254. Ms. Davis testified that D.A. was only able to
       discuss the abuse a few months after that initial conversation,

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J-S41018-18


       and that her affect was "very flat" throughout those
       conversations. Id. at 269-270. Both victims testified that
       they were afraid to disclose the abuse and had difficulty
       discussing the incidents. [Id. at 109-111, 113, and 255].

       Following this disclosure, Detective William Davis of the
       Bristol Borough Police Department referred the victims for
       interviews at the Children's Advocacy Center in Fairless Hills,
       Bucks County. Id. at 133. Detective Davis subsequently
       obtained permission from S.A. to perform a "cellphone
       takeover," in which he would portray himself as S.A. and,
       using her cellphone, contact the Appellant via text message
       to elicit a conversation. Id. at 135. On May 17, 2016, and
       June 9, 2017, Detective Davis used S.A.'s cellphone to
       contact the Appellant by text message and attempted to elicit
       a conversation regarding the sexual abuse. Screenshots of
       the text messages were admitted into evidence. Id. at 135-
       157.

       Following the initial cellphone takeover, Detective Davis,
       along with Lieutenant Robert Gorman of the Bucks County
       Detectives, attempted to use S.A.'s cellphone to place a
       recorded phone call to the Appellant. Id. at 212. On May 17,
       2016, S.A. placed a recorded phone call to the Appellant. [Id.
       at 218-219; Commonwealth Exhibit 38]. In response to a
       discussion regarding a doctor's visit for her sister, S.A. said,
       "You know what you did though." Id. The Appellant
       responded, "I don't remember what you're talking about,"
       and told S.A. that he would call her back. Id. Before he hung
       up, the Appellant said, "they're setting me up for the kill." Id.
       When the Appellant failed to return her call, S.A. attempted
       to place three additional phone calls to the Appellant over the
       next several weeks, but they went unanswered. Id. at 213-
       215.

       Bristol Township Detective Timothy Fuhrmann subsequently
       obtained a search warrant to extract logical data, including
       text messages, from the Appellant's cellphone. Id. at 175-
       178. On October 21, 2016, Detective Fuhrmann conducted
       the extraction and downloaded the cellphone's data. Id. at
       191. Using search terms based on S.A.'s first name, Detective
       Fuhrmann searched for all voice and text communications
       between Appellant and S.A. on the cellphone; the extraction
       report did not yield any text message communications

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       between Appellant and S.A. on either May 17, 2016, or June
       9, 2016. [Id. at 185-186 and 191-193]. Detective Fuhrmann
       testified that, in light of the previously conducted cellphone
       takeover, the absence of these text messages on those dates
       indicated that the cellphone operator deleted the text
       messages. Id. at 194.

                                     ...

       Bristol Borough Police arrested and charged Appellant on
       June 13, 2016. On January 9, 2017, [the trial c]ourt
       entertained pre-trial motions regarding the admissibility of
       expert testimony. On January 7, 2017, Appellant moved to
       preclude expert testimony offered by the Commonwealth
       regarding    child   sex   abuse.   Specifically,     Appellant
       acknowledged that the Commonwealth intended to call this
       expert for two purposes: first, to offer medical testimony,
       and, second, to offer testimony regarding a child's behavior
       in response to sexual abuse. [N.T. Hearing, 1/9/17, at 10-
       11]. Appellant affirmed that he was not seeking to preclude
       the expert's medical testimony as part of his pre-trial motion.
       Id. at 11.

       In response, the Commonwealth argued that the expert
       witness would testify regarding victim responses and
       reactions to sexual assault pursuant to [42 Pa.C.S.A. § 5920.
       Id. 12-13 and 15]. Appellant argued that [the trial court]
       should exclude the testimony because it would improperly
       bolster the Commonwealth witness' credibility, because the
       proffered testimony was not specialized knowledge requiring
       an expert opinion, and because the testimony would be more
       prejudicial than probative. Id. at 11. The Commonwealth
       responded that the expert would limit her testimony to
       whether certain general behaviors of victims are consistent
       with sexual assault.      Id. at 15-17. [The trial court]
       subsequently denied Appellant's motion. Id. at 17.

       At trial, the Commonwealth offered the expert testimony of
       Dr. Maria McColgan, a child abuse pediatrician. [N.T. Trial,
       1/11/17, at 11-12]. Dr. McColgan testified that she was
       certified as a child abuse pediatrician and general pediatrician
       by the American Board of Pediatrics since 2009, and that she
       personally performed 300 to 400 child sexual abuse
       examinations per year. Id. at 13, 21. Dr. McColgan further

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       testified that she oversaw several thousand other child sexual
       abuse examinations performed by other doctors, nurses and
       nurse practitioners over the course of her career. Id. She
       described her teaching and publishing experience, and stated
       that she testified as an expert witness in over 300 cases in
       various Pennsylvania county courts. Id. at 14-15. Finally,
       Dr. McColgan testified that, in addition to observing and
       performing frequent child abuse examinations, she received
       a significant amount of training in the dynamics of sexual
       abuse, children's responses to sexual abuse, and the impact
       of sexual abuse on children. Id. at 25-26. [The trial court]
       subsequently received Dr. McColgan as an expert in child
       abuse pediatrics, general pediatrics, the dynamics of sexual
       violence, and victim responses to sexual abuse. Id.

       Dr. McColgan first testified to administering a comprehensive
       physical examination of each child, including a genital
       examination, at the Child Protection Program at St.
       Christopher's Hospital in Philadelphia. Id. at 28-32. There,
       Dr. McColgan supervised Elizabeth Grund, the nurse
       practitioner that performed the physical examinations, and
       subsequently reviewed Ms. Grund's report. Id. at 31. Dr.
       McColgan testified that both physical examinations were
       "normal," meaning that neither examination yielded any
       evidence of injury or scarring to the genitals, anus, or mouth.
       Id. at 32-36. Specifically, based on D.A.'s allegations of
       performing oral sex three separate times, Dr. McColgan
       testified that she would not expect to see any physical
       injuries during the examination due to the delay in disclosure
       and the physical characteristics of the mouth:

          MS. VAUGHAN: Now, Doctor, I think we began discussing
          [D.A.]. [D.A.] has been here and testified that on three
          separate occasions she was required by [Appellant] to
          perform oral sex on him. Based on that information,
          would you expect [D.A.] to have any physical injuries?

          DR. MCCOLGAN: No.

          MS. VAUGHAN: And why is that?

          DR. MCCOLGAN: Because several reasons. First of all, oral
          penetration doesn't typically lead to physical trauma. It
          can lead to other forms of trauma, but not typically

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          physical trauma. And with oral penetration, sometimes
          we can see petechia[,] which are little teeny, tiny bruises
          to the back of the mouth, but even if they are there they
          would go away within hours to days. Anybody who knows
          that any injury inside of your cheek, if you have injury, it
          typically heals really, really quickly. You can actually, you
          know, bite the inside of your cheek pretty significantly,
          and within a couple days it heals without any signs of
          scarring. That's because of the type of tissue that it is.
          And so in these children's case, the disclosure of sexual
          abuse, there was a delay in the time between the last
          episode of sexual abuse and the examinations, and so any
          injury that might have been there, even though it's pretty
          unlikely that there would have been injury from oral
          penetration would have healed in that time frame.

       Id. at 36-37. Additionally, in light of S.A.'s allegation that the
       Appellant either anally or vaginally penetrated her with his
       penis when she was approximately ten years old, Dr.
       McColgan again testified that she would not expect to see any
       physical injuries for the same reasons:

          MS. VAUGHAN: Now, [S.A.] has been here, Doctor, and
          testified that as to one instance when she was at best ten
          years old to anal or vaginal intercourse, she couldn't tell
          because she didn't know I think what was happening.
          Would you expect any injury based on that report?

          DR. MCCOLGAN: No.

          MS. VAUGHAN: And why is that?

          DR. MCCOLGAN: Again, the majority of children who have
          been sexually abused, even when there's vagina or anal
          penetration, have normal examinations, and that's for a
          long list of reasons.

          The first, as we already mentioned, is the delay in
          disclosure and the subsequent delay in the time the
          medical examination is done since the last time anything
          occurred. I already explained to you that the tissues of
          the genital structures and the anus are similar to the
          tissues of inside of your cheek. If there is any injury at
          all, it heals very quickly, and oftentimes, the vast majority

                                     -9-
J-S41018-18


          of the times, without any scar at all. So that plays a big
          role in why the exam would be perfectly normal.

          Second of all, the tissues of the anus are meant to stretch
          significantly. That's how we pass a stool. Anybody who
          has seen a small two year old, for example, go to the
          bathroom and you look in the toilet and go, oh my God,
          how could that possibly have come out of him, but if you
          look at their anus, you know, two minutes later there's no
          injury. Those tissues are meant to stretch. It's designed
          to stretch. If something can come out without injury, then
          something can go in without significant injury.

          The tissues of the genital structures, in [S.A.]'s case she
          got her period when she was about 12 years old, which
          means that when she was ten she probably was already
          starting to go through puberty, and so as you already
          heard, if she didn't know if it was in the anus or the
          vagina, it's -- that's not uncommon in that age group.
          Children will say in and not exactly know where it goes.
          And, in fact, most adult women don't really know, you
          know, their genital anatomy very well unless you've
          actually looked down there so that's not surprising that
          she may not know where it went, she just knows that
          something – that it was down there. Oftentimes, too,
          when a child says it was in, there's types of sex called
          vulvar coitus and gluteal coitus. That's where the male
          rubs their penis in between the labia majora and labia
          minora, and it may go through the hymen somewhat but
          maybe not all the way through the hymen like adult sex
          or it may be rubbed in between the butt cheeks and go
          into the anus either partially or fully, but to that child it's
          still in. It's still in their genito-anal structures. And so for
          all of those reasons we wouldn't expect to see any
          findings.

          And, furthermore, once you start to go through puberty,
          as I said earlier, the hymen becomes sort of more
          stretchy, kind of like a scrunchy, and you wouldn't
          necessarily see injury even if there was penetration.

       Id. at 41-44. Dr. McColgan noted that, generally, she only
       finds injury in less than five percent of cases of anal or vaginal
       penetration of a child. Id. at 44.

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       In conclusion, Dr. McColgan opined that the results of S.A.'s
       physical examination were consistent with her allegation that
       Appellant anally penetrated her three times prior to the age
       of twelve:

          MS. VAUGHAN: And so could you tell us, to a reasonable
          degree of medical certainty, if [S.A.]'s report that she was
          forced to have anal sex with the defendant three times
          prior to the age of 12 is consistent with her physical
          examination?

          DR. MCCOLGAN: Yes, it's completely consistent.

       Id. at 44-45. She further opined that the results of D.A.'s
       physical examination were consistent with her allegation that
       Appellant forced her to perform oral sex on him:

          MS. VAUGHAN: Doctor, if we could move to-well, does the
          lack of physical injury on [D.A.], I think that's where we
          started, mean that she was not forced to have oral sex
          with the defendant?

          DR. MCCOLGAN: No

          MS. VAUGHAN: And so is the lack of physical injury
          consistent with her account of what happened to a degree
          of reasonable medical certainty?

          DR. MCCOLGAN: Yes, of course.

       Id. at 40-41. On cross-examination, Dr. McColgan testified
       that the absence of injury to both victims was also consistent
       with "nothing ever happening:"

          MS. JANNETTI: Okay. And essentially you are aware-one
          moment, Your Honor that the allegation would be that
          there was multiple instances of anal intercourse; is that
          correct, with [S.A.]?

          DR. MCCOLGAN: Yes.

          MS. JANNETTI: And that she experienced bleeding and
          pain as a result. Is that correct?

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          DR. MCCOLGAN: Yes.

          MS. JANNETTI: And it's your testimony that the absence
          of that injury basically means nothing?

          DR. MCCOLGAN: No, I didn't say it basically means
          nothing.

          MS. JANNETTI: Well, if I can just clarify for myself, you're
          saying that it could mean that the-it's consistent with
          what she's saying?

          DR. MCCOLGAN: Yes.

          MS. JANNETTI: But it could also be consistent with
          nothing ever happening?

          DR. MCCOLGAN: Yes.

       Id. at 55-56. Finally, Dr. McColgan testified that sexual abuse
       with anal penetration could be one of the causes, among
       many, of S.A.'s reported constipation prior to the age of 12.
       Id. at 46.

       Regarding victim responses to sexual abuse, Dr. McColgan
       testified generally that the majority of children delay
       disclosure of abuse, and described several reasons for this
       delay, including fear, embarrassment, and guilt. Id. 37-39.
       She also testified that, "more than 90 percent of the time,"
       the abuser is well known to the child victim, which results in
       the child continuing to see or visit their abuser even after an
       assault. Id. at 38-40, 46-47. She opined that the above
       factor further contributes to a child's delayed disclosure. Id.
       at 38-40. Dr. McColgan also testified that it was common for
       child victims to engage in piecemeal disclosures of abuse over
       time, and noted that she has seen "every range of emotional
       affect" in child victims when confronted with disclosure,
       including outright denial. Id. at 47-50.

       The Commonwealth additionally offered the testimony of
       Lieutenant Gorman regarding his role in diagraming and
       photographing the interiors of the . . . homes [where the
       abuse occurred. N.T. Trial, 1/9/17, at 57-58]. Both victims'

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J-S41018-18


         recollections of the then-existing furniture and appearances
         of the rooms in which the abuse occurred were consistent
         with the various diagrams and photographs taken by
         Lieutenant Gorman. [Id. at 66, 68, 74, 80, 82-83, and 90;
         N.T. Trial, 1/10/17, at 21, 36-40, 61-65, 69, 81-83, 85, 227-
         230, and 233-238].

         Appellant offered the expert testimony of Dr. William L.
         Manion, a forensic pathologist. [N.T. Trial, 1/11/17, at 61-
         65]. Dr. Manion[] testified that the majority of his experience
         involved performing autopsies on deceased adults and
         children, and that he has not physically examined a living
         child since his pediatric rotation in medical school. Id. at 73-
         74. He opined that he would expect to see some kind of
         injury, scarring or laceration of some kind in nearly every
         case of child sexual abuse involving anal penetration of the
         child. [Id. at 77-79 and 88-89].

         Finally, Appellant's daughter testified on his behalf. She
         resided with the Appellant and two victims in the same room
         at the Neshaminy Inn [and the Spruce Street houses] during
         the same period of time the victims described. Id. at 96-100.
         She testified that she did not witness or otherwise have
         knowledge of any inappropriate behavior between Appellant
         and the two victims during that time. Id.

         After a three-day trial, a jury found Appellant guilty of the
         following crimes: three counts of rape of a child, seven
         counts of involuntary deviate sexual intercourse with a child
         less than 13 years of age, involuntary deviate sexual
         intercourse with a person less than 16 years of age, indecent
         assault of a person less than 13 years of age, and indecent
         assault of a person less than 16 years of age.[1] On June 15,
         2017, [the trial] court sentenced Appellant to an aggregate
         [term of] 30 to 80 years' incarceration. [Further, that same
         day, the trial court determined that “the Commonwealth has
         met its burden in establishing that [Appellant] does meet the
         criteria to be classified as a sexually violent predator.” N.T.
         Sentencing, 6/15/17, at 57]. Appellant filed a timely Motion
____________________________________________


1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3123(a)(7), 3126(a)(7), and 3126(a)(8),
respectively.


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        to Reconsider Sentence on June 23, 2017, which [the trial]
        court denied after a hearing on September 29, 2017.
        Appellant filed a timely notice of appeal to the Superior Court
        on October 26, 2017.

Trial Court Opinion, 3/23/18, at 1-14 (internal footnotes and some internal

capitalization omitted).

      Appellant raises one claim on appeal:

        Was it an error to admit testimony by the Commonwealth’s
        expert which improperly bolstered the testimony of the
        victims and was premised on the expert’s apparent
        acceptance of the children’s report[?]

Appellant’s Brief at 5.

      “The admission of evidence is committed to the sound discretion of the

trial court and an appellate court may reverse only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. McFadden, 156

A.3d 299, 309 (Pa. Super. 2017) (internal quotations and citations omitted).

This standard of review is a narrow one. Commonwealth v. Mendez, 74

A.3d 256, 260 (Pa. Super. 2013) (citation omitted). Our case law holds that

“[a]n abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id.

      Appellant   claims   that   the    trial   erred   when   it   permitted   the

Commonwealth’s expert, Dr. Maria McColgan, to testify: 1) that the “lack of

physical injury is consistent with [both S.A. and D.A.’s] account[s] of what

happened” and 2) “that it is common for there to be a delay in the reporting


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J-S41018-18



of sexual abuse and the reasons why various victims may delay their

disclosures.”   Appellant’s Brief at 14-15.   We will consider Appellant’s two

sub-claims in the order presented above.

      First, Appellant claims, the trial court erred when it allowed Dr.

McColgan to testify that the “lack of physical injury is consistent with [both

S.A. and D.A.’s] account[s] of what happened.” Appellant’s Brief at 14. The

trial court found this claim waived, as Appellant failed to raise the issue in his

pre-trial motion and Appellant did not object to Dr. McColgan’s testimony at

trial. See Trial Court Opinion, 3/23/18, at 20. We agree that Appellant has

waived this claim on appeal.

      Pursuant to Pennsylvania Rule of Appellate Procedure 302, “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). With respect to evidentiary rulings, “[e]rror may

not be predicated upon a ruling that admits [ ] evidence unless . . . a timely

objection, motion to strike[,] or motion in limine appears of record, stating

the specific ground of objection, if the specific ground was not apparent from

the context.” Pa.R.E. 103(a)(1).

      Appellant’s motion in limine requested that the trial court preclude any

testimony from the Commonwealth’s expert that dealt with “victim responses

to sexual abuse and the impact of sexual abuse on victims during and after

being assaulted.”    Appellant’s Pre-Trial Motion, 1/5/17, at 1.        Appellant

claimed that this testimony was inadmissible for a number of reasons,




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J-S41018-18



including   that   it   would   “improperly    bolster   the   credibility   of   the

Commonwealth’s witnesses.” Id. at 2.

      On January 9, 2017, the trial court heard oral argument on Appellant’s

motion in limine and, at the beginning of the argument, Appellant’s counsel

clarified the scope of her objection. Counsel declared:

        Your Honor . . . , [i]t’s my understanding that the
        Commonwealth’s expert would be called for two purposes:
        one for medical testimony, which is not a part of this
        motion, but we are seeking to exclude her testimony
        regarding the child’s behavior in response to sexual
        abuse.      We believe that this improperly bolsters the
        credibility of the Commonwealth’s witness, specifically the
        victims that would be testifying in this case.

N.T. Oral Argument, 1/9/17, at 10-11 (emphasis added).

      The trial court denied Appellant’s motion, but informed Appellant’s

counsel that, “if you think the [questions] are beyond what the expert can

opine under the current state of the law, you’ll object.” Id. at 15.

      As noted, during trial, Dr. McColgan testified that she reviewed the

reports from S.A. and D.A.’s medical examinations and testified that both S.A.

and D.A. had “normal” genital examination results. N.T. Trial, 1/11/17, at 31.

Further, Dr. McColgan testified that “the lack of physical injury [was]

consistent with [both S.A. and D.A.’s] account[s] of what happened.” Id. at

40-41 and 44-45. Appellant did not object to any of this testimony. See id.

      Therefore, since Appellant failed to object to Dr. McColgan’s testimony

that “the lack of physical injury [was] consistent with [both S.A. and D.A.’s]

account[s] of what happened” and, since Appellant’s motion in limine did not


                                      - 16 -
J-S41018-18



encompass Dr. McColgan’s medical testimony, but was limited to her

testimony regarding victim “behavior in response to sexual abuse,” Appellant

waived any claim that the trial court erred in permitting Dr. McColgan to testify

that the “lack of physical injury is consistent with [both S.A. and D.A.’s]

account[s] of what happened.”      Appellant’s Brief at 14; see also Pa.R.E.

103(a)(1).

      Next, Appellant claims that the trial court erred when it allowed Dr.

McColgan to testify “that it is common for there to be a delay in the reporting

of sexual abuse and the reasons why various victims may delay their

disclosures.” Appellant’s Brief at 14-15. Appellant claims that this testimony

was inadmissible because it “indirectly vouch[ed] for the reports of the

victims” and “improperly invaded [] the jury’s province to determine the

credibility of the Commonwealth’s witnesses.” Id. Appellant’s claim fails.

      42 Pa.C.S.A. § 5920, entitled “expert testimony in certain criminal

proceedings,” provides:

        (a) Scope.--This section applies to all of the following:

             (1) A criminal proceeding for an offense for which
             registration is required under Subchapter H of Chapter 97
             (relating to registration of sexual offenders).

             (2) A criminal proceeding for an offense under 18 Pa.C.S.
             Ch. 31 (relating to sexual offenses).

        (b) Qualifications and use of experts.--

             (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

                                     - 17 -
J-S41018-18


            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.

            (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.

            (4) A witness qualified by the court as an expert under
            this section may be called by the attorney for the
            Commonwealth or the defendant to provide the expert
            testimony.

42 Pa.C.S.A. § 5920 (internal footnote omitted) (emphasis added).

      The trial court accepted Dr. McColgan as an expert in “child abuse

pediatrics, general pediatrics, and the dynamics of sexual violence and victim

responses to sexual abuse.” N.T. Trial, 1/11/17, at 26. Further, as the trial

court explained, Section 5920 expressly allowed Dr. McColgan to testify “that

it is common for there to be a delay in the reporting of sexual abuse and the

reasons why various victims may delay their disclosures” because Dr.

McColgan “testified generally regarding common child victim responses to

sexual abuse” and she “did not testify regarding any specific victim responses

exhibited by S.A. or D.A. in this case.” Trial Court Opinion, 3/23/18, at 18-

19.   Therefore, in accordance with Section 5920(b)(2) and (3), since Dr.

McColgan “testif[ied] to facts and opinions regarding specific types of victim

                                     - 18 -
J-S41018-18



responses and victim behaviors” – and did not provide an “opinion regarding

the credibility of . . . the victim[s]” – Dr. McColgan’s expert testimony was

admissible and the trial court did not err in denying Appellant’s motion in

limine.

       Before concluding our analysis, however, we are constrained to sua

sponte2 raise the legality of Appellant’s designation as an SVP under the Sex

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§

9799.10-9799.41. A recent panel of this Court recognized:

          In [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)],
          our Supreme Court held that the registration requirements
          under SORNA constitute criminal punishment. Id. at 1218.
          In light of Muniz, this Court determined: “Under Apprendi
          v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United
          States, 570 U.S. 99 (2013) a factual finding, such as whether
          a defendant has a mental abnormality or personality disorder
          that makes him . . . likely to engage in predatory sexually
          violent offenses, that increases the length of registration
          must be found beyond a reasonable doubt by the chosen
          fact–finder.” Commonwealth v. Butler, 173 A.3d 1212,
          1217 (Pa. Super. 2017) (internal quotations and citations
          omitted).      The Butler Court further held “section
          9799.24(e)(3) of SORNA violates the federal and state
          constitutions because it increases the criminal penalty to
          which a defendant is exposed without the chosen fact–finder
          making the necessary factual findings beyond a reasonable
          doubt.” Id. at 1218. The Court therefore concluded that trial
          courts no longer can designate convicted defendants as SVPs
          or hold SVP hearings “until our General Assembly enacts a
          constitutional designation mechanism.” Id. The Butler Court
          directed trial courts to apply only the applicable tier–based
          registration period, as those periods apply based on the
____________________________________________


2 See Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(addressing legality of SVP status sua sponte).


                                          - 19 -
J-S41018-18


        conviction itself, and not due to any additional fact not found,
        under SORNA's procedures, by the fact–finder. The Court
        ultimately reversed the order finding the defendant to be an
        SVP and remanded to the trial court for the sole purpose of
        issuing appropriate notice of the defendant's tier–based
        registration period. Id.

Commonwealth v. Golson, ___ A.3d ___, 2018 WL 2473514, at *7 (Pa.

Super. 2018) (some internal corrections omitted).

      Here, the trial court designated Appellant an SVP on June 15, 2017.

N.T. Sentencing, 6/15/17, at 57. In light of Butler and our Supreme Court’s

decision in Muniz, as summarized above, we are constrained to vacate the

portion of the trial court’s order of June 15, 2017 designating Appellant as an

SVP. We remand the case to the trial court for the sole purpose of issuing the

appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s tier-based

registration obligations under SORNA.

      Judgment of sentence affirmed in part, SVP designation vacated. Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/18




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