J-S31026-15; J-S31027-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KENNETH MACONEGHY, JR.,

                         Appellant                   No. 1493 MDA 2014


       Appeal from the Judgment of Sentence entered July 21, 2014,
          In the Court of Common Pleas of Lackawanna County,
           Criminal Division at No(s): CP-38-CR-0001450-2012


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KENNETH MACONEGHY, JR.,

                         Appellant                   No. 2191 MDA 2014


       Appeal from the Judgment of Sentence entered July 21, 2014,
          in the Court of Common Pleas of Lackawanna County,
           Criminal Division at No(s): CP-38-CR-0001450-2012



BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN J.:                                FILED JUNE 12, 2015

      Kenneth Maconeghy Jr. (“Appellant”) appeals from the judgment of

sentence imposed after a jury found him guilty of rape by forcible

compulsion, rape of a child, statutory sexual assault, aggravated indecent

assault of a child less than thirteen years of age, endangering the welfare of

a child, indecent assault of a child less than thirteen years of age, corruption
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of minors, and unlawful contact or communication with a minor.1          We are

constrained to vacate Appellant’s judgment of sentence and remand for a

new trial.

       The pertinent facts and procedural history are as follows: the charges

against Appellant resulted from offenses that allegedly occurred in the

summer of 2005, when Appellant was home with his 11-year-old step-

daughter while her mother was at work. Trial Court Opinion, 10/30/14, at

2; Affidavit of Probable Cause, 4/12/12. Appellant was arrested and a jury

trial was held on January 21, 22 and 23, 2014, at the conclusion of which

the jury rendered its guilty verdicts.

       The trial court convened a sentencing hearing on July 21, 2014, and

sentenced Appellant to an aggregate term of 10½ to 30 years of

incarceration.

       By order dated January 23, 2014, the trial court ordered Appellant to

undergo assessment by the Sexual Offenders Assessment Board, and on July

21, 2014, the trial court found Appellant to be a sexually violent predator

subject to lifetime registration. 42 Pa.C.S.A. § 9799.10 et. seq.

       Appellant filed a post-sentence “Motion for New Trial” on July 30,

2014, pursuant to Pa.R.Crim.P. 720(B)(2) and Pa.R.Crim.P. 607, thereby




____________________________________________


1
  18 Pa.C.S.A. §§ 3121(a)(1), 2121(c),           2122.1,   3125(a)(7),    4304,
3126(a)(7), 6301(a)(1), 6318(a)(1).


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extending the time for filing an appeal until the trial court ruled on the post-

sentence motion, or the expiration of 120 days. See Pa.R.Crim. P. 720.

         In addition to the post-sentence motion requesting a new trial,

Appellant on July 30, 2014 also filed a separate “Motion for Reconsideration

of Sentence,” which the trial court denied that same day. The July 30, 2014

order denying Appellant’s motion for reconsideration erroneously stated that

Appellant had thirty days to file an appeal; as noted above, Appellant’s post-

sentence motion for new trial, which was pending, extended the appeal

period pursuant to Pa.R.Crim. P. 720(A)(2).

        Nevertheless, although a decision on his post-sentence motion was still

pending, Appellant, on August 28, 2014, filed a notice of appeal.2       3
                                                                             The

appeal was docketed by this Court at 1493 MDA 2014 on September 8,

2014, and Appellant’s new counsel, Attorney Donna M. DeVita, of the

Lackawanna County Public Defender’s Office, filed with this Court an Anders

brief and “Petition to Withdraw as Counsel” at Docket No. 1493 MDA 2014.

        On October 30, 2014, the trial court filed an opinion and order denying

Appellant’s post-sentence motion for a new trial. On November 17, 2014,

Appellant filed another notice of appeal. This second notice of appeal was
____________________________________________


2
  On August 29, 2014, Appellant’s trial counsel, Attorney Joseph S.
Toczydlowski, filed a motion to withdraw, which the trial court granted, and
that same day, the trial court filed an order directing the appearance of the
Office of the Public Defender of Lackawanna County.

3
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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docketed by this Court at No. 2191 MDA 2014 on December 19, 2014. The

trial court did not direct Appellant to file a concise statement of errors

complained of on appeal.    On November 18, 2014, the trial court filed an

opinion pursuant to Pa.R.A.P. 1925(a).

      We are thus in the unusual position of having two appeals at two

different docket numbers from the same judgment of sentence.              For

purposes of clarity and ease of analysis, we will first address the issues

raised by Appellant in the appeal filed at Docket No. 2191 MDA 2014,

following the denial of Appellant’s post-sentence motion. Appellant presents

three issues:

      A. Whether the [trial] court erred in denying the Appellant’s
      request to strike Dr. Novinger’s testimony wherein he stated that
      “I really believe strongly that was my medical conclusion that
      this child was victimized,” since this opinion was:

            1. not base[d] upon medical evidence;

            2. encroached upon the jury’s province of determining
               whether a sexual assault had occurred; and/or

            3. improperly bolsters the victim’s credibility, and, as
               such, the prejudicial impact of the testimony outweighs
               its probative value.


      B. Whether the verdict was against the weight of the evidence?

      C. Whether there was sufficient evidence to support the verdicts
      of guilt of rape forcible compulsion, of rape of a child, of
      statutory sexual assault, of aggravated indecent assault, of
      endangering the welfare of a child, of indecent assault, of
      corrupting the morals of a minor, and of unlawful contact or
      communication?


Appellant’s Brief at 4.
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      Appellant first claims that the trial court erred when it denied his

motion to strike the testimony of the Commonwealth’s expert. Appellant’s

Brief at 20-26.     Specifically, Appellant objects to the portion of Dr.

Novinger’s testimony stating: “I really believe strongly that was my medical

conclusion that this child was victimized”, and Dr. Novinger’s statement that

he based his opinion on “the history [she] provided to me [which] pretty

clearly indicated that she was sexually abused.” N.T., 1/21/14 at 219, 229.

Appellant’s counsel did not immediately object to Dr. Novinger’s testimony,

but the following day, moved to strike it. N.T., 1/22/14, at 21-23. The trial

court denied Appellant’s motion to strike, explaining:

      My recollection of that question and answer, and I don’t think it
      was isolated to one question and one answer, was that the
      opinions that he expressed were based on many things, not just
      the physical exam, but also the history that was taken, the
      consultation of the other reports and all of the other information.
      And that if he were asked to say could he express an opinion as
      to whether or not there was abuse strictly by physical findings,
      his answer was he could not; however, when he looked at the
      whole picture as to all of the information to be considered, it was
      his opinion that abuse had taken place.

              So your objection is noted. You had the opportunity to
      cross-examine at th[at] point in time. I did specifically ask
      whether or not you had any objection to the doctor being
      excused at that point in time and you indicated that you did not.
      But I think it would cause und[ue] emphasis on a single portion
      of the doctor’s testimony for me to now refer to it and then order
      it stricken or modified in any way so your objection is noted but
      overruled.




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N.T., 1/22/14, at 22-23.4

       “The admission of expert testimony is a matter of discretion [for] the

trial court and will not be remanded, overruled or disturbed unless there was

a clear abuse of discretion. Expert testimony is permitted as an aid to the

jury when the subject matter is distinctly related to a science, skill, or

occupation beyond the knowledge or experience of the average layman.

Conversely, expert testimony is not admissible where the issue involves a

matter of common knowledge.” Commonwealth v. Minerd, 753 A.2d 225,

230 (Pa. 2000) (citations and internal quotations omitted).


____________________________________________


4
   Although Appellant’s counsel did not contemporaneously object to Dr.
Novinger’s testimony at the earliest possible opportunity, we conclude that
Appellant has not waived appellate review of this claim. “The purpose of
contemporaneous objection requirements respecting trial-related issues is to
allow the court to take corrective measures and, thereby, to conserve limited
judicial resources.” Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa.
2011). Here, although the objection to Dr. Novinger’s testimony was lodged
the day after Dr. Novinger testified, the trial court still had the opportunity
to take corrective measures and thus was not deprived of the opportunity to
correct a possible error. Accordingly, we find this claim appropriately
preserved for appellate review. See also Commonwealth v. Johnson,
456 A.2d 988, 994 (Pa. Super. 1983) (explaining that “although in the vast
majority of cases a ‘timely objection’ means a ‘contemporaneous objection’
... contemporaniety of objection is not insisted upon as a value in itself,
rather it is required as the most convenient method of preventing a party
from permitting error to insinuate itself into the record and complaining
thereafter”; thus it is improper for counsel, deliberately, as a strategic
decision, to refrain from objecting, but where there was “no attempt to
‘insinuate error into the record and complain thereafter’, and counsel
strenuously attempted to excise the error, to find such an objection untimely
would indeed be to ‘insist upon contemporaneity as a value in itself’”);
Pa.R.Crim.P. 720(B)(1)(c) (“Issues raised before or during trial shall be
deemed preserved for appeal whether or not the defendant elects to file a
post-sentence motion on those issues.”).


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      Our case law is clear that while “[e]xpert testimony is generally

admissible in any case, where such testimony goes to a subject requiring

special knowledge, skill or intelligence beyond that possessed by the

ordinary juror[,] a determination of whether or not a witness is telling the

truth is a subject well within the ordinary knowledge and experience of the

average juror.” Commonwealth v. Balodis, 747 A.2d 341, 345 (Pa. 2000)

citing Commonwealth v. Seese, 517 A.2d 920, 921-922 (Pa. 1986). Thus,

“the question of a witness’ credibility has routinely been regarded as a

decision reserved exclusively for the jury” and “[i]t is an encroachment upon

the province of the jury to permit admission of expert testimony on the issue

of a witness’ credibility.”   Seese, 517 A.2d at 922 (awarding defendant a

new trial where the expert testified as to the veracity of the victim and the

prosecution relied primarily on the victim’s perceived veracity to establish its

case).

      Accordingly, “the admissibility of expert testimony in child abuse cases

must be evaluated cautiously in order to prevent encroachment upon the

jury’s function by the unfair enhancement of a child victim’s credibility.”

Commonwealth v. Hernandez, 615 A.2d 1337, 1341 (Pa. Super. 1992).

“This Court has stated that the key criteria in determining whether such

expert testimony is admissible is the purpose for which the testimony is

offered; if it is offered solely to sustain the credibility of the victim, it should

not be admitted.”       Id.   See also Minerd, 753 A.2d at 225 (expert

testimony of pediatrician in child sexual abuse case was admissible where
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the expert was not asked and did not express any opinion as to whether the

children were telling the truth about being sexually abused); Balodis, supra

(expert testimony that child victims of sexual abuse normally do not

immediately disclose the abuse was inadmissible because it invaded the

jury’s province); Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super.

1997); Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992) (expert

testimony that the victim displayed behavior patterns consistent with those

typically displayed by sexually abused children was inadmissible because it

encroached on the province of the jury to determine witness credibility);

Commonwealth v. Rounds, 542 A.2d 997 (Pa. 1988); Commonwealth v.

Ferguson, 546 A.2d 1249, 1253 (Pa. Super. 1987). See also Pa.R.E. 702.

      In 2012, our legislature enacted 42 Pa.C.S.A. § 5920, pertaining

specifically to expert testimony in certain criminal proceedings involving sex

offenses. Section 5920 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) [42 Pa.C.S.A. § 9799.10 et seq.].

              (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 by the average layperson based on
                    the witness's experience with, or specialized
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                  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 (emphasis added).

      Section 5920 thus upholds the longstanding prohibition precluding

expert witnesses from testifying about the credibility of a child sexual abuse

victim, although permitting experts to testify as to “specific types of victim

responses and victim behaviors.” 42 Pa.C.S.A. § 5920 (b)(2) and (3). See

Commonwealth v. Carter, --- A.3d --- (Pa. Super. Mar. 19, 2015).

Through the language of section 5920(b)(3), our legislature has made clear

that “[t]he witness's opinion regarding the credibility of ... the victim, shall

not be admissible.”

      Here, Appellant argues that Dr. Novinger’s testimony that he believed

the victim was sexually abused, which was based on the victim’s statements

to that effect, improperly constituted an opinion as to whether the victim

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was telling the truth, and intruded into the jury’s function to assess the

credibility of witnesses. Upon careful review of the record, we must agree.

       Appellant    specifically    challenges     the   portion   of   Dr.   Novinger’s

testimony in which he stated verbatim: “I really believe strongly that was

my medical conclusion that this child was victimized.”              N.T., 1/21/14, at

229.5 Appellant maintains that, in light of Dr. Novinger’s testimony that the

physical examination of the victim was inconclusive, Dr. Novinger’s

statement that he believed the child was victimized, constituted an expert

opinion as to the credibility of the victim, particularly given that the victim

displayed no physical signs of abuse, and the only evidence of such abuse

was the victim’s testimony.

       We agree with Appellant that Dr. Novinger’s statement that he

believed the child was victimized, encroached on the jury’s function as the

sole arbiter of credibility. As our Supreme Court observed in Seese, “[s]uch
____________________________________________


5
 Appellant also takes issue with Dr. Novinger’s statement that “the history
she provided to me pretty much indicated that she was sexually abused,”
thus intruding on the ultimate issue of the victim’s credibility.       N.T.,
1/21/14, at 219; Appellant’s Brief at 22, 26. Our review of the record
reveals, however, that this statement by Dr. Novinger was elicited by
Appellant’s own counsel on cross-examination. “It is well settled that the
defendant must assume the risk of his counsel's questions and he cannot
benefit on appeal when his own cross-examination elicited an unwelcome
response.” Commonwealth v. Gilliard, 446 A.2d 951, 954 (Pa. Super.
1982) (rejecting the appellant’s claim that trial court improperly denied his
motion for mistrial after witness testified that the appellant had other
charges pending against him when such testimony was elicited by
appellant’s own counsel).



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testimony, admitted as evidence, would encourage jurors to shift their focus

from determining the credibility of the particular witness who testified at

trial, allowing them instead to defer to the so-called ‘expert’ assessment ...

In addition, such testimony would imbue the opinions of ‘experts’ with an

unwarranted appearance of reliability upon a subject, veracity, which is not

beyond the facility of the ordinary juror to assess.” Seese, 517 A.2d at 922.

Dr. Novinger’s expert testimony pertaining to the credibility of the victim

was therefore inadmissible. Moreover, the trial court declined to issue any

curative instruction to the jury to mitigate the impact of the impermissible

statement. We are constrained to find, therefore, that Appellant is entitled

to a new trial. See id.

      Although we are vacating Appellant’s judgment of sentence and

remanding this case for a new trial, we will address Appellant’s remaining

weight and sufficiency claims at Docket No. 2191 MDA 2014.

      When presented with a claim that the evidence was insufficient to

sustain a conviction,

      an appellate court, viewing all the evidence and reasonable
      inferences therefrom in the light most favorable to the
      Commonwealth as the verdict winner, must determine whether
      the evidence was sufficient to enable the fact finder to find that
      all of the elements of the offenses were established beyond a
      reasonable doubt.


Commonwealth        v.    Hawkins,   701   A.2d    492,   499   (Pa.   1997).

“Furthermore, it is axiomatic that [t]he Commonwealth may sustain its

burden by proving the crime's elements with evidence which is entirely
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circumstantial and the trier of fact, who determines credibility of witnesses

and the weight to give the evidence produced, is free to believe all, part, or

none of the evidence. In the case of sexual offenses, the testimony of the

victim alone is sufficient to convict, and medical evidence is not required if

the fact finder believes the victim.”     Commonwealth v. Jette, 818 A.2d

533, 534 (Pa. Super. 2003) (citations and internal quotations omitted).

      With regard to weight of the evidence challenges, our Courts have

made clear:

      The testimony of a sexual assault victim standing alone is
      sufficient weight to support a conviction.            Furthermore, in
      reviewing a weight of the evidence claim we look to see if the
      verdict was so contrary to the evidence as to shock one's sense
      of justice and make the award of a new trial imperative. The
      decision whether to grant a new trial is within the trial court's
      discretion, and we review that decision under an abuse of
      discretion standard. Furthermore, since issues of credibility are
      left to the trier of fact, the trial court, sitting as fact finder, [is]
      free to accept all, part, or none of a witness's testimony.

Commonwealth v. Strutt, 624 A.2d 162, 164 (Pa. Super. 1993) (citations

and internal quotations omitted).

      Here, even absent the expert testimony of Dr. Novinger, the testimony

of the victim alone was sufficient and of adequate weight to support the

verdicts.   The victim testified as to numerous incidents where Appellant

raped and sexually assaulted her beginning when she was eleven years old,

detailing the circumstances surrounding the incidents, including the various

locations in the house where the assaults occurred, and the manner in which

Appellant regularly initiated sexual contact with her by inducing her to bathe


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with him. N.T., 1/21/14, at 68-88. This testimony, if believed by the jury,

was sufficient and of adequate weight to support Appellant’s convictions.

Appellant’s weight and sufficiency claims therefore fail.

      At Docket No. 1493 MDA 2014, Appellant’s issues pertain solely to the

discretionary aspects of his sentence.        Given our determination that

Appellant is entitled to a new trial, we need not address the discretionary

sentencing claims raised by Appellant in the Anders Brief filed at Docket No.

1493 MDA 2014.       Additionally, given our disposition, we deny counsel’s

petition to withdraw at Docket No. 1493 MDA 2014.

      Judgment of sentence vacated and case remanded.            Petition to

withdraw at Docket No. 1493 MDA 2014 denied. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2015




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