J-A06025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: T. W. , A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.W., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 453 MDA 2018

               Appeal from the Dispositional Order May 17, 2017
    In the Court of Common Pleas of Susquehanna County Criminal Division
                      at No(s): CP-58-JV-0000008-2017


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 12, 2019

        Appellant T.W., a minor, appeals from the dispositional order entered

following his adjudication of committing the acts constituting indecent assault

without consent, indecent assault–person less than thirteen years of age, and

indecent assault–person less than sixteen years of age.1 Appellant asserts

that trial counsel was ineffective for failing to object to certain evidence as

hearsay and as inappropriate expert testimony. We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3126(a)(1), (a)(7), and (a)(8), respectively. Appellant was
found not to have committed acts constituting rape, 18 Pa.C.S. § 3121(c),
statutory sexual assault–4 to 8 years older, 18 Pa.C.S. § 3122.1(a)(1), sexual
assault, 18 Pa.C.S. § 3124.1, and aggravated indecent assault–complainant
less than 16 years old, 18 Pa.C.S. § 3125(a)(8).
J-A06025-19



      The juvenile court summarized the relevant background to this matter

as follows:

      M.J., an eight year old female, testified that she was attending
      elementary school and was . . . a second grader. M.J. testified
      that her parents were separated and that her father was remarried
      . . . When she visited with her father and stepmother, [Appellant,
      her older stepbrother,] was also present. M.J. testified that she
      would spend time and play with [Appellant] when she was staying
      at her father's residence. M.J. testified that [Appellant] “did
      something bad” to her while she was staying at her father’s
      residence. Through the use of anatomical drawing, M.J. testified
      that [Appellant] touched her between her legs (front and back)
      with his “private part.” M.J. stated that [Appellant] would remove
      her pants and underwear - and occasionally he would remove all
      of her clothes. M.J. indicated that [Appellant] would remove his
      pants and underwear but would not take his shirt off. M.J.
      described the inappropriate touching as [Appellant] rubbing his
      private part against her and that it would hurt. While [Appellant]
      was engaging in these acts, he would ask M.J. if it “felt good” and
      she told him “no.” M.J. also testified that [Appellant] also touched
      her chest area with his hands. In estimating how many times this
      occurred, M.J. testified that it happened more than 10 times in
      both her room and [Appellant’s] room. M.J. told her mother and
      her sister (H.J.) what happened. [Appellant’s counsel cross-
      examined M.J. regarding times she had lied, and M.J. admitted to
      lying to her teacher about her sister dying in a car accident the
      previous year.]

      Dr. Susan Fort Sordoni, the medical director of the Children’s
      Advocacy Center of Lackawanna County, was accepted by the trial
      court as an expert in the field of family medicine. Dr. Sordoni
      examined M.J. and also observed a good portion of M.J.’s forensic
      interview. Dr. Sordoni testified that M.J. informed her that T.W.
      had “put his wee wee in her pee pee and also in her butt and that
      water came out.” Dr. Sordoni also recalled that M.J. told her that
      M.J. indicated that T.W.’s acts caused her pain. Dr. Sordoni
      conducted a medical examination and found no physical evidence
      of sexual abuse. Dr. Sordoni testified to “psychological markers”
      related to M.J.’s increasingly disruptive behavior. [Dr. Sordoni
      suggested that the literature in this area indicated that a child
      would not lie about sexual abuse.] Although Dr. Sordoni was


                                     -2-
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     accepted as an expert witness, she was never asked to provide
     any expert opinion during the course of her testimony.

     Kelly Flaherty, a caseworker for Wyoming County Human
     Services, testified that she conducted a minimal fact interview
     [with] M.J. upon receiving the referral of potential sexual abuse.
     Flaherty stated that M.J. had told her that T.W. had “put his
     privates in her privates” or “that he put his wiener in [her]
     privates.” Flaherty also recalled that M.J. told her that she would
     go and sleep in her sister’s room to [be] safe from [Appellant].
     Flaherty also observed the forensic interview at the Children's
     Advocacy Center and Flaherty indicated that M.J. had disclosed
     that [Appellant] had “sex” with her, that he had put his penis by
     her buttocks and that he had peed on her.

     H.J., a thirteen year old female, testified that she was the half-
     sister to the victim, M.J. She indicated that she and M.J. would
     go for visits to her father’s house in Meshoppen. At her father’s
     residence, H.J. had a room that adjoined M.J.’s room and was
     separated by a short hallway.         H.J. reported that she had
     experienced a problem with [Appellant] trying to get into bed with
     her as well, but this ended when H.J. told [Appellant] to get out
     of her room.

     H.J. testified that a M.J.’s behavior began to change in 2016 and
     she became quieter.        M.J. began spending more time with
     [Appellant,] which surprised H.J. because M.J. normally stayed
     with her. M.J. told H.J. that [Appellant] was having “sex” with her
     and that he was going into her room at night. H.J. reported that
     M.J. began sleeping in H.J.’s room because she was scared.

     M.J.’s mother, [A.K.], testified that she also noticed that in the fall
     of 2015 M.J.’s behavior became more defiant and she had a “bad
     attitude.” As a result of her behavior, M.J. began seeing a
     counselor in November 2015. In March 2016, [A.K.] indicated
     that M.J. disclosed to her that [Appellant] had “put his thing into
     her private area.” [A.K.] called M.J.’s father and M.J. repeated
     the disclosure to her father. M.J. has not had any contact with
     [Appellant] since the disclosure and her behavior is improving.
     Prior to this disclosure, [A.K.] had never heard M.J. mention
     anything of a sexual nature.

     Pennsylvania State Trooper Youngblood testified that he began his
     investigation into this matter in April 2016. Youngblood testified
     that he was present for the forensic interview of M.J. and that she
     disclosed that [Appellant] had sex with her, that she used “age

                                      -3-
J-A06025-19


     appropriate terminology,” that the abuse occurred at her father’s
     residence, and that [Appellant] had “peed on her.” Youngblood
     interviewed [Appellant] and he denied any inappropriate sexual
     contact with M.J. Based upon [Appellant’s] demeanor and body
     language, Youngblood opined that [Appellant] was not telling the
     truth.

     N.W., the fifteen year old sister of [Appellant], testified that all of
     the children tended to congregate in [Appellant’s] room. N.W.
     indicated that she had never seen [Appellant] go into M.J.’s room
     and that she had never observed [Appellant] touch anyone
     inappropriately. N.W. testified that M.J. would “constantly lie”
     about things that other people had done. N.W. testified further
     that [Appellant] had no interest in M.J. and that he would kick M.J.
     out of his room. N.W. also recalled that M.J. would play with dolls
     and have the dolls engage in sexual acts while M.J. made “sex
     noises.”

     [Me.J.], M.J.’s stepmother and the mother of [Appellant], testified
     that M.J. had lied on a previous occasion about being spanked,
     had lied about having homework, and that she had lied about her
     sister’s death. She also stated that M.J. had made a prior false
     accusation where she contended one of the other children had
     touched her breast.

     [Me.J.] indicated that all of the children would spend time in
     [Appellant’s] room. There were occasions when M.J. was told to
     leave [Appellant’s] room because she was irritating the other
     children.   [Me.J.] never saw any inappropriate conduct by
     [Appellant]. She testified that [Appellant] was [a] well-behaved
     child and there were no issues with him.

     [Me.J.] questioned M.J. about using her dolls in a sexual manner
     and M.J. had explained that she had seen her mother and her
     mother’s paramour engaging in such activities and that she had
     seen similar sexual acts on television. [Me.J.] also testified that
     M.J. had gotten possession of H.J.’s book that described puberty
     on several occasions.

     [R.J.], the father of M.J., testified that prior to M.J.’s disclosure,
     he had a joint custody agreement as it related to M.J. [R.J.]
     confirmed that M.J.[’]s behavior deteriorated over the course of
     time. He indicated that M.J.’s teacher informed him that M.J.’s
     behavior in class was inappropriate and that M.J. was not telling
     the truth. [R.J.] testified that M.J. made up stories in order to get
     attention.

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J-A06025-19


        [Appellant] testified that all of the children tended to play in his
        room because it had more room. [Appellant] indicated that he
        would kick M.J. out of his room when she was misbehaving.
        [Appellant] testified that M.J. was not truthful. [Appellant] denied
        ever touching M.J. in any inappropriate sexual manner.

Juvenile Ct. Op., 4/10/18, at 1-5 (citations and footnotes omitted).

        Appellant was charged with committing delinquent acts that constitute

the crimes of rape, statutory sexual assault–4 to 8 years older, sexual assault,

aggravated indecent assault–complainant less than 16 years old, and indecent

assault charges. Appellant was adjudicated delinquent on the indecent assault

charges on February 22, 2017, and a dispositional order was entered May 17,

2017.

        On July 31, 2017, Appellant filed a motion for nunc pro tunc relief

seeking the right to file timely post-dispositional motions or reinstatement of

the right to appeal to this Court. Mot. for Nunc Pro Tunc Relief, 7/31/17, at 3

(unpaginated). The juvenile court granted the motion on November 6, 2017,

permitting Appellant to file a post-dispositional motion within ten days.2

____________________________________________


2   As the juvenile court noted,

        [t]his case has a unique procedural history.           The initial
        adjudication proceeding occurred in Wyoming County in front of
        President Judge Russell Shurtleff, and the matter was then
        transferred to Susquehanna County as it was T.W.’s county of
        residence. T.W. filed a nunc pro tunc post-dispositional motion in
        this court seeking to challenge the adjudication.              The
        Commonwealth did not object to the consideration of [the] post-
        dispositional motion nunc pro tunc and did not object to this court
        considering the motion.




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       Appellant filed post-dispositional motions on November 16, 2017,

asserting that his counsel at the adjudication hearing3 (adjudication counsel)

was ineffective for failing to object to inadmissible testimony presented by the

Commonwealth.          See Post-Dispositional Mot., 11/16/17, at ¶¶ 20-43.

Appellant argued that Trooper Youngblood improperly testified regarding

Appellant’s credibility where the Trooper indicated that he thought Appellant

was not being truthful during his interview. Id. at ¶ 31 (citing N.T., 2/22/17,

at 63).

       Appellant also asserted that Dr. Sordoni testified to “allegations not

testified to by [M.J.] during the adjudicatory hearing.      For example, she

stated, ‘the perpetrator had put his wee wee in her pee pee and also in her

butt and that water came out.’” Id. at ¶ 23 (quoting N.T., 1/4/17, at 52).

Additionally, Children and Youth Services caseworker Kelly Flaherty testified

that M.J. had informed her that T.W. had “put his privates in her privates.”

Id. at ¶ 24 (quoting N.T., 1/4/17, at 74). M.J.’s mother and sister testified to

hearing M.J. describe similar events. Id. at ¶¶ 25-26; see N.T., 2/22/17, at

14, 34. Appellant argued that “to present hearsay evidence of [M.J.]’s prior

statements, reasonable notice and an opportunity to test the reliability of such
____________________________________________


Juvenile Ct. Op., 4/10/18, at 1 n.1. References to the juvenile court indicate
the Susquehanna County Court of Common Pleas unless otherwise noted.
3 The Public Defender Office of Wyoming County represented Appellant during
adjudication, and a private attorney, Mark Darmofal, Esq., represented
Appellant in the post-dispositional phase of the case. On appeal, Appellant is
represented by another attorney, Helen Stolinas, Esq.


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hearsay evidence must be provided. . . . [T]here were no proceedings under

the Tender Years Hearsay Act, 42 Pa.C.S. [§] 5985.1, prior to the adjudicatory

hearing.” Post-Dispositional Mot., 11/16/17, at ¶ 27.

      Appellant further claimed that Dr. Sordoni provided expert testimony

when she improperly testified “regarding behavioral changes arising in

children who have been sexually victimized.” Id. at ¶ 35. Appellant alleges

that adjudicatory counsel was ineffective for failing to object when Dr. Sordoni

stated that literature in this area indicates that children “don’t lie” in these

situations. Id. at ¶ 38 (quoting N.T., 1/4/17, at 56). Additionally, Appellant

took issue with Dr. Sardoni testifying that the results of a later psychological

exam indicated several markers and behaviors that can occur after a sexual

assault. Id. at ¶ 36, 39 (citing N.T., 1/4/17, at 56).

      On February 9, 2018, following a hearing, the juvenile court denied

Appellant’s post-dispositional motion. Appellant filed a timely notice of appeal

and court-ordered Pa.R.A.P. 1925(b) statement. The juvenile court complied

with Rule 1925(a). In its opinion, the juvenile court stated that

      [e]ven assuming that there was inadmissible evidence that was
      presented without objection from defense counsel, in order for
      [Appellant] to be entitled to relief, he would have to demonstrate
      that the inadmissible evidence contributed to the adjudication
      itself. In this case, both the Commonwealth and the defense were
      attacking the credibility of M.J. All of her prior statements –
      consistent and inconsistent – were elicited by both parties and




                                     -7-
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       presented to the factfinder.[4] In the end, President Judge
       Shurtleff heard from both M.J. and [Appellant] and had to judge
       the credibility of both witnesses. . . . [T]o the extent that some
       inadmissible evidence may have inadvertently been entered into
       the record, there is [a] presumption that President Judge Shurtleff
       ignored such evidence. Moreover, even if this presumption did
       not exist, the record demonstrates that any such inadmissible
       evidence would have been de minimis in nature and would not
       have prejudiced [Appellant].

                                       *       *    *

       [Regarding Dr. Sordoni, she] admitted that there was no “proof”
       that the psychological markers definitely demonstrate that sexual
       abuse occurred. . . . Dr. Sordoni simply referenced literature
       concerning the credibility of children making sexual assault
       reports, but clarified that she was “probably” being presented to
       demonstrate that M.J. was making consistent statements
       regarding the abuse. When considered in this context, there was
       nothing about this testimony that would meet the standard
       applicable to expert testimony. Given the long-standing rule that
       a trial judge is presumed to ignore inadmissible evidence, it is
       clear that Dr. Sordoni’s relating to “literature” and “psychological
       markers” would not have been considered by the trial judge as it
       was far too speculative to constitute appropriate expert testimony.

Juvenile    Ct.   Op.,   4/10/18,     at   8,      10-11   (footnote   omitted)   (citing

Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015)).

       Appellant raises the following questions for our review, which we have

reordered for ease of disposition:

       [1.] Whether testimony regarding the State Trooper’s opinion of
       the minor’s credibility at the time of his interview with police was
       inadmissible and unfairly prejudicial?


____________________________________________


4 In the juvenile court’s order denying Appellant’s post-dispositional motion,
the trial court indicated that “defense counsel aggressively attacked the
credibility of the child victim. As such the prior consistent statements of the
child victim were plainly admissible under Pennsylvania Rule of Evidence
613(c).” Order, 2/9/18, at 1 n.1.

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J-A06025-19


       [2.] Whether testimony regarding the complainant’s prior
       statements violated the Tender Years Hearing Act, and constituted
       inadmissible hearsay?

       [3.] Whether the opinion testimony of the examining physician
       that the complainant was a victim of a sexual assault, absent
       physical evidence on exam, was inadmissible and unfairly
       prejudicial?

       [4.] Whether failure to object [to] numerous instances of hearsay,
       irrelevant, and unfairly prejudicial evidence constituted ineffective
       assistance of counsel by undermining the truth determining
       process such that no reliable adjudication could take place?

       [5.] Whether the prejudicial and inadmissible evidence entered
       without defense objection constitute[s] reversible error in light of
       the fact that a Common Pleas judge served as the fact finder?

Appellant’s Brief at 4.5

____________________________________________


5 The questions on appeal differ from those raised in Appellant’s Rule 1925(b)
statement, which included the following issues:

       1. The court erred in denying the minor’s post dispositional
          motion alleging ineffectiveness of counsel on the basis that the
          trial judge would have disregarded inadmissible evidence. Due
          to the amount and nature of the inadmissible evidence, the
          cumulative effect resulted in prejudice to the defendant,
          particularly in light of the fact that the evidence of guilt was
          not conclusive.

       2. With respect to the hearsay evidence presented by the
          Commonwealth through Dr. S[o]rdoni in violation of the Tender
          Years Act, said testimony prejudiced [Appellant’s] right to a fair
          trial because it alerted the finder of fact that there were more
          serious allegations during the investigation which were
          suggestive of penetrative assault, and which were not testified
          to by the complainant during the adjudicatory hearing.

       3. Additional hearsay evidence was presented to cast the minor
          and his family in a poor light in suggesting that he would have
          had the propensity to commit these offenses because of alleged
          possession of and exposure to pornographic material, mother's



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J-A06025-19




____________________________________________


          prior incarceration, [Appellant’s] placement in a foster home,
          and the allegation that he had been previously abused.

       4. The court erred in finding that Dr. S[o]rdoni did not present
          expert testimony. Although Dr. S[o]rdoni did not testify to “a
          degree of professional certainty”, she did testify as an expert—
          she was qualified as an expert in family medicine, and her
          testimony was based on her knowledge and experience, and
          certainly would qualify as opinion testimony. The court would
          have understood it as such, and there was no other purpose
          for the portions of her testimony regarding behavioral changes,
          psychological markers and behaviors consistent with sexual
          abuse and her assertions that “children don’t lie”.

       5. In the absence of physical abuse, an expert witness may not
          express an opinion that the complainant was a victim of sexual
          assault based upon witness accounts couched as a history.
          Commonwealth v. Maconeghy, No. 81 MAP 2016, 2017 Pa.
          LEXIS 2466 (Oct. 18, 2017)[.]

       6. The Court erred in failing to decide whether Dr. S[o]rdoni’s
          [testimony] would have been admissible during the
          adjudicatory hearing, presuming that if it was inadmissible, the
          factfinder would have disregarded this testimony.

       7. Maconeghy was not decided until October 18, 2017, nearly
          eight months after the hearing in this matter. However, counsel
          should have objected to the Commonwealth’s introduction of
          the testimony because allocator had been granted in
          Maconeghy on August 5, 2016—well in advance of the
          adjudicatory hearing, on the following question:

              “Whether the Superior Court erred in finding that Dr.
              Novinger’s statement that he believed the child was
              victimized encroached on the jury’s function as sole
              arbiter of credibility when the case law that the Superior
              Court relied on does not warrant such a result.”

       8. There is nothing of record to suggest that the fact finder
          disregarded the testimony of Dr. Sardoni, or was aware of its
          inadmissibility, particularly given the fact that allocator had



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       First, Appellant asserts that Trooper Youngblood improperly testified to

his opinion that Appellant was not being honest during his interview.

Appellant’s Brief at 22.      According to Appellant, adjudicatory counsel “was

ineffective in failing to object to this testimony, and had no reasonable

strategic basis for inaction.” Id. at 23. However, we note that Appellant failed

to include this claim regarding counsel’s ineffectiveness or otherwise mention

Trooper Youngblood in his Rule 1925(b) statement.           See Rule 1925(b)

Statement, 4/5/18. Nor did the juvenile court address the issue. Accordingly,

this issue is waived.6 See In Interest of C.E.H., 167 A.3d 767, 772 (Pa.

Super. 2017) (noting that where an issue has not been preserved in a Rule

1925(b) statement and it is raised for the first time on appeal, the issue is

waived).

       In his next three issues, Appellant asserts that his adjudicatory counsel

was ineffective for failing to object to certain evidence at the adjudicatory

hearing. Accordingly, we address these issues together.
____________________________________________


           been granted on the legal issue and counsel did not alert the
           court to the legal issue.

       9. The court’s premise that even if inadmissible evidence was
       presented, the fact finder, a jurist, would have disregarded the
       evidence, should not apply here, where there was not
       overwhelming evidence of guilt.

Rule 1925(b) Statement, 4/5/18, at 1-3 (unpaginated).

6Even if this issue were not waived, for the reasons outlined below, Appellant
would not be entitled to relief on this issue.




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        Initially, we note that Appellant’s ineffective assistance of counsel (IAC)

claims are properly before this Court, since this is a juvenile matter, and the

Post Conviction Relief Act7 does not apply. In re K.A.T., Jr., 69 A.3d 691,

697 (Pa. Super. 2013) (noting that “[b]ecause of a juvenile’s lack of access to

collateral review, we have concluded that it is necessary to review a juvenile’s

ineffective assistance of counsel claims on direct appeal, when properly

raised” (citation omitted)). Here, Appellant preserved his IAC claims in the

trial court by filing his post-dispositional motion under Pa.R.J.C.P. 620. See

Pa.R.J.C.P. 620(A).

        Appellant first asserts that certain hearsay testimony regarding M.J.’s

statements describing the incidents with Appellant violated the Tender Years

Hearsay Act, which requires notice and an in camera hearing to determine the

reliability of such statements. Appellant’s Brief at 19. According to Appellant,

no notice was provided and no hearing was held, and therefore the

Commonwealth should not have been able to introduce the testimony of Dr.

Sordoni, Kelly Flaherty, M.J.’s mother, or her sister, which indicated

statements M.J. had made about being abused. Id. Adjudicatory counsel did

not object to these statements.           According to Appellant, his adjudicatory

counsel “should have been objecting to efforts by the Commonwealth which

improperly bolstered [M.J.’s] credibility.” Id. at 28.




____________________________________________


7   42 Pa.C.S. §§ 9541-9546.

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      With regard to IAC claims, we presume that counsel is effective, and

Appellant bears the burden of proving ineffectiveness. K.A.T., 69 A.3d at 699.

We use the following three-pronged test to determine whether counsel was

ineffective:

      [W]e must first consider whether the issue underlying the charge
      of ineffectiveness is of arguable merit. If not, we need look no
      further since counsel will not be deemed ineffective for failing to
      pursue a meritless issue. If there is arguable merit to the claim,
      we must then determine whether the course chosen by counsel
      had some reasonable basis aimed at promoting the client’s
      interests. Further, there must be a showing that counsel’s
      ineffectiveness prejudiced Appellant’s case. The burden of
      producing the requisite proof lies with Appellant.

Id. (citation omitted). “To establish prejudice, an appellant must demonstrate

that there is a reasonable probability that the outcome of the proceedings

would have been different, but for counsel’s action or inaction.” Id. at 703

(citation omitted). “The failure to meet any one prong of the ineffectiveness

test, including the prejudice prong, defeats the entire claim.” Id. (citation

omitted).

      In general, “[a]ll relevant evidence is admissible . . . . Evidence that is

not relevant is not admissible.”    Pa.R.E. 402.    “Hearsay is not admissible

except as provided by [the rules of evidence], by other rules prescribed by

the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.         Hearsay is

defined as a statement that

      (1) the declarant does not make while testifying at the current
      trial or hearing; and

      (2) a party offers in evidence to prove the truth of the matter
      asserted in the statement.

                                     - 13 -
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Pa.R.E. 801.

      The Tender Years Hearsay Act provides the following:

      (a) General Rule.—An out-of-court statement made by a child
      victim or witness, who at the time the statement was made was
      12 years of age or younger, describing any of the offenses
      enumerated in 18 Pa.C.S. [Chapter] . . . 31 (relating to sexual
      offenses), . . . not otherwise admissible by statute or rule of
      evidence, is admissible in evidence in any criminal or civil
      proceeding if:

         (1) the court finds, in an in camera hearing, that the
         evidence is relevant and that the time, content and
         circumstances of the statement provide sufficient indicia of
         reliability; and

         (2) the child either:

            (i) testifies at the proceeding; or

            (ii) is unavailable as a witness.

42 Pa.C.S. § 5985.1(a).

      Pennsylvania Rule of Evidence 613 provides that

      [e]vidence of a witness’s prior consistent statement is admissible
      to rehabilitate the witness’s credibility if the opposing party is
      given an opportunity to cross-examine the witness about the
      statement and the statement is offered to rebut an express or
      implied charge of:

         (1) fabrication, bias, improper influence or motive, or faulty
         memory and the statement was made before that which has
         been charged existed or arose; or

         (2) having made a prior inconsistent statement, which the
         witness has denied or explained, and the consistent
         statement supports the witness’s denial or explanation.

Pa.R.E. 613. A prior consistent statement in this context may only be admitted

when the prior consistent statement “predate[s] the alleged ‘fabrication, bias,

improper influence or motive, or faulty memory.’” Commonwealth v. Bond,

                                     - 14 -
J-A06025-19



190 A.3d 664, 669 (Pa. Super. 2018) (quoting Pa.R.E. 613(c)(1)).

Additionally, prior consistent statements may be used to “only to rehabilitate

the witness,” rather than as substantive evidence. See Pa.R.E. 613 cmt.

      In K.A.T., the defendant’s counsel failed to object to hearsay evidence

that established a timeline for when the defendant entered a convenience

store. K.A.T., 69 A.3d at 703. Although the evidence was hearsay and there

was no reasonable basis for counsel’s failure to object, the defendant could

not establish prejudice because other, independent evidence established the

timeline, making the improperly admitted evidence cumulative. Id. at 704.

Accordingly, the defendant’s counsel was not ineffective. Id.

      Additionally, since the proceeding in K.A.T. “was not a jury trial, and we

presume that a judge does not consider evidence improperly, the defendant

[could not] establish prejudice.” Id. at 707 (Bowes, J., concurring) (citation

omitted); see also In re J.H., 737 A.2d 275, 279 (Pa. Super. 1999) (noting

that in a proceeding where the judge is the fact-finder, he or she is presumed

to consider evidence for its proper purpose and “is equipped, through training

and experience, to assess the competency and relevance of proffered evidence

and to disregard that which is prejudicial” (citation omitted)).

      Instantly, Appellant is correct that the Tender Years Hearsay Act’s

provisions were not followed in permitting M.J.’s out-of-court statements to

be entered into evidence for the truth of the matters asserted. See 42 Pa.C.S.

5985.1(a).




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      Additionally, we disagree with the trial court that M.J.’s out-of-court

statements were admissible under Pa.R.E. 613(c).            While Appellant’s

adjudicatory counsel questioned M.J. regarding her truthfulness, the timing of

the incident in which M.J. lied to her teacher was prior to her allegations in

this matter and any consistent statements made regarding Appellant’s actions

toward her.   Moreover, the lie that M.J. told did not deal with the subject

matter at hand regarding Appellant allegedly sexually assaulting her. Because

a prior consistent statement can only be used if it predates the fabrication,

Rule 613(c) is inapplicable in the instant matter. See Bond, 190 A.3d at 669.

      Because the Tender Years Hearsay Act did not provide a basis to admit

what was otherwise hearsay, and Rule 613(c) did not provide a basis to admit

the evidence to rehabilitate M.J., Appellant’s claims of ineffectiveness have

arguable merit and there is no apparent reasonable basis for adjudicatory

counsel’s failure to object. See K.A.T., 69 A.3d at 699. However, Appellant

cannot demonstrate prejudice from the admission of M.J.’s prior out-of-court

statements because the evidence was cumulative of her own testimony. See

id. at 704. Moreover, the judge presiding over the adjudication is presumed

to have disregarded evidence that was prejudicial to Appellant. See id. at

707; J.H., 737 A.2d at 279. Accordingly, Appellant’s adjudicatory counsel was

not ineffective for her failure to object to testimony including M.J.’s out-of-

court statements describing the incidents of abuse.




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     Appellant also challenges certain testimony that Dr. Sordoni provided,

arguing that adjudicatory counsel should have objected to it.       Specifically,

Appellant focuses on the following portion of Dr. Sordoni’s testimony:

     This patient being new to me, I didn’t observe any [psychological
     markers], but because we do a fairly extensive history, the
     patient’s mother reported that in the last few months that she had
     been acting out. She was scheduled for a psychological exam on
     April 28th, I believe, three days after she was with us, and that
     she had a few markers and a few behaviors that were really not
     appropriate for an eight year old. She had slapped a child in
     school and had gotten in trouble. She had used foul language in
     an inappropriate place in school. She had–she had been mean to
     her pet at home and she had been lying and disobeying, according
     to the mom’s report. That was new behavior, and you know, we–
     we know for sure that there’s evidence that those kinds of
     behaviors often occur either at the time of or after an assault, a
     sexual assault or a physical assault. There’s no way can prove
     that, but we know that the literature tells us that. The literature
     also tells us that children in those environments under those
     situations don’t lie, and the fact that-the fact that is important and
     probably why I was called here is because she did corroborate
     what she had said in her interview in the medical exam.

N.T., 1/4/17, at 55-56.

     Appellant asserts that adjudicatory counsel

     failed to object to Dr. S[o]rdoni’s testimony regarding behavioral
     changes arising in children who have been sexually victimized. . .
     . The testimony that [M.J.’s] history established that she had been
     sexually abused was objectionable because it went beyond the
     scope of the expertise for which the doctor was accepted—she was
     qualified as an expert in family medicine, and not in the dynamics
     and psychological markers of sexual abuse. . . . Additionally, the
     physician was permitted to testify that “children don’t lie” about
     such matters, and she was permitted to testify that the child did
     not appear to be coached. These statements are of the witness’
     opinion on matters outside the scope of the field for which she was
     qualified as an expert, intruded on the province of the fact-finder,
     and were speculative, irrelevant and unfairly prejudicial. The
     testimony went beyond merely explaining the possibility of abuse

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J-A06025-19


      absent physical evidence.     It put a professional “stamp of
      approval” on [M.J.’s] statements.

      In the absence of physical evidence, an expert witness may not
      express an opinion that the complainant was a victim of sexual
      assault based upon witness accounts couched as a history.

Appellant’s Brief at 23-25 (citing Commonwealth v. Maconeghy, 171 A.3d

707 (Pa. 2017)).

      In Maconeghy, which was decided after the adjudication in the instant

matter, our Supreme Court held in a sex abuse case that “expert testimony

opining that a child has been sexually abused—which is predicated on witness

accounts and not physical findings—is inadmissible.”      Commonwealth v.

Maconeghy, 171 A.3d 707, 715 (Pa. 2017).

      Here, Dr. Sordoni was accepted as an expert in family medicine. To the

extent Appellant characterizes Dr. Sordoni’s testimony as stating that M.J.’s

history established that she had been sexually assaulted, this is an incorrect

characterization. Dr. Sordoni did not state that a sexual assault had occurred.

See N.T. 1/4/17, at 55-56. Dr. Sordoni referred to literature indicating that

children do not lie about sexual abuse and stated that M.J. demonstrated

certain psychological markers that might indicate sexual abuse, and these

references were outside the scope of the expertise for which she was qualified.

However, these references in the context of her testimony did not rise to the

level of providing an expert conclusion that such abuse had actually occurred

as in Maconeghy. See Maconeghy, 171 A.3d at 715.

      As to the allegation that Dr. Sordoni’s testimony bolstered M.J.’s account

of the sexual assaults she suffered, and adjudicatory counsel was ineffective

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for failing to object to this testimony, we note that this claim has arguable

merit.   However, the adjudicatory hearing judge is presumed to have

disregarded such improper evidence. See K.A.T., 69 A.3d at 707; J.H., 737

A.2d at 279.     Therefore, Appellant cannot demonstrate prejudice, and

adjudicatory counsel was not ineffective regarding her failure to object to Dr.

Sordoni’s testimony. See K.A.T., 69 A.3d at 699.

      In his final issue, Appellant asserts that the juvenile court could not have

disregarded the improper evidence presented without objection from counsel.

Appellant’s Brief at 31. In support, Appellant argues that a trial court may

make findings of fact based on hearsay evidence to which an objection has

not been made. Id. (citing Jones v. Spidle, 286 A.2d 366 (Pa. 1971) (noting

that when hearsay evidence is admitted without an objection, it may be

accorded the same weight as non-hearsay evidence).

      Notably, Jones was a jury trial, in which no objection was made to

hearsay evidence that was admitted. See Jones, 286 A.2d at 267. Here,

however, the factfinder was a judge, who is presumed to disregard

inadmissible evidence. Therefore, Jones is inapposite in the instant matter.

      Moreover, in this matter, the judge at the adjudicatory hearing did not

adjudicate Appellant delinquent on all charges. In fact, while Appellant was

charged with committing acts constituting the crimes of rape, statutory sexual

assault, and aggravated indecent assault, those charges were dismissed, and

the juvenile court found that Appellant did not commit acts constituting rape

and sexual assault. Instead, Appellant was adjudicated delinquent only as to

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indecent assault charges.   Accordingly, it is not only presumed that the

adjudicatory hearing judge disregarded inadmissible evidence, but in this

matter, the judge actually did so. On this basis, we discern no prejudice to

Appellant based on any failure of adjudicatory counsel to object to the

admission of hearsay evidence. See K.A.T., 69 A.3d at 699.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/12/2019




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