J-A19018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

DAVID GEORGE

                        Appellant                   No. 504 WDA 2014


         Appeal from the Judgment of Sentence February 11, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0016817-2012


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 25, 2015

     David George was charged with rape and indecent assault against a 10

year old child, N.M.    In George’s first trial, the jury found him guilty of

indecent assault, but the jury deadlocked on the rape charge. In his second

trial, the jury acquitted him of rape. The trial court sentenced George to 42-

84 months’ imprisonment for indecent assault. He filed timely post-sentence

motions, which the court denied.    George filed a timely direct appeal, and

both George and the trial court complied with Pa.R.A.P. 1925.

     For the reasons that follow, we remand for a hearing on whether the

Commonwealth’s expert testimony on the behavior of sexual abuse victims

is admissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

     George raises two issues in this appeal:



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        1. Did the lower court err in upholding the constitutionality of 42
        Pa.C.S. § 5920,[1] as it clearly and plainly infringes upon the
        judiciary’s exclusive rulemaking power regarding courtroom
        procedure?

        2. If [42 Pa.C.S. §] 5920 withstands a constitutional challenge,
        did the lower court abuse its discretion by admitting expert
        testimony that failed to satisfy the requirements of [Pa.R.E.]
        702[2] [] and failed to satisfy a Frye analysis?
____________________________________________


1
    42 Pa.C.S. § 5920 provides in relevant part:

        (b) Qualifications and use of experts.--

        (1) In a criminal proceeding [relating to sexual offenses], 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 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. § 5920(b).
2
    Pa.R.E. 702 provides:

        A witness who is qualified as an expert by knowledge, skill,
        experience, training, or education may testify in the form of an
        opinion or otherwise if:
(Footnote Continued Next Page)


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Brief For Appellant, at 4.

        For purposes of this appeal, the two crucial witnesses against George

were N.M., the alleged victim, and Jacqueline Block Goldstein, the

Commonwealth’s expert witness on sexual abuse victim behavior.3             We

summarize each witness’s testimony below.

        N.M.’s trial testimony. N.M. testified that George was her mother’s

boyfriend, and George was around N.M. “too many times to count.”           Trial

Transcript, at 28-29.4 One night in 2010, N.M.’s mother was not home, and

she was at home with George and her brothers. Id. at 29. She fell asleep

in her mother’s room while her brothers were in a different room watching

television. Id. at 45. She woke up later with “David George’s penis in my

vagina” but did not feel his penis enter her vagina (contradicting her

testimony during the preliminary hearing that she felt his penis enter her).

Id. at 32, 46-47. She saw George on top of her, moving back and forth,
                       _______________________
(Footnote Continued)


        (a) the expert's scientific, technical, or other specialized
        knowledge is beyond that possessed by the average layperson;
        (b) the expert's scientific, technical, or other specialized
        knowledge will help the trier of fact to understand the evidence
        or to determine a fact in issue; and
        (c) the expert's methodology is generally accepted in the
        relevant field.

Id.
3
    George did not testify during trial.
4
    The two days of trial proceedings are in one transcript.



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and her shorts and underwear were around her ankles. Id. at 32-33. She

pushed George off of her, ran into her room, shut the lights off, and closed

the door. Id. at 33. She was not bleeding. Id. at 50. George opened her

bedroom door, stuck his head in, and said: “Don’t tell nobody.” Id. at 56.

She kept her clothes on until showering the next morning, and she and her

mother had an uneventful breakfast with George. Id. at 51. Her mother

washed her clothes later. Id. at 34.

      N.M.    testified   that   the    incident   occurred   in   2010,   but   she

acknowledged telling an interviewer at Children’s Hospital that it took place

in 2011.     Trial Transcript, at 42.     She testified that she told her cousin,

Taquayah, about the incident “a couple of weekends after,” but instructed

Taquayah not to tell anybody. Id. at 35-36. Taquayah eventually disclosed

N.M.’s report to N.M.’s mother, who contacted the police.            Id. at 36-37.

N.M. did not know the date she told her mother or Taquayah about the

incident.    Id. at 43.    When N.M. was with her mother and Taquayah,

Taquayah asked why N.M. had not told her mother before, and N.M. told her

mother that the incident never happened. Id. at 44.

      On an unspecified date, N.M. and her mother went to Allegheny

General Hospital, and then Children’s Hospital, where a doctor examined

N.M. Trial Transcript, at 37-38. N.M. returned to Children’s Hospital at a

later date for another physical and verbal examination, and she later told a

detective about the events. Id. at 39.




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        Goldstein’s pretrial testimony. Prior to trial, George filed a motion

in limine to preclude Goldstein’s testimony. During a hearing on the motion

in limine, Goldstein testified that she is the Associate Director and Child

Forensic Interview Specialist at the Philadelphia Children’s Alliance, which

provides forensic interviewing, victim support services, and on-sight health

services for children who allege sexual abuse. N.T., 6/24/13, at 5. She has

received a Bachelor of Arts in psychology and a Masters degree in Social

Work.     Id. at 6.   Not only has she conducted as many as 1,500 forensic

interviews, but she trains school officials about dynamics of sexual abuse

cases and has been called many times as a guest lecturer at universities.

Id. at    9, 12-13.   She has co-authored a chapter currently in publication

through Pittsburgh Oxford University Press on the dynamics of child sexual

abuse, particularly the Child Sexual Abuse Accommodation Syndrome

(“CSAAS”).      Id. at 15.     She is a member of multiple professional

organizations on child abuse.     Id. at 17-18.   Though she has come into

contact with around 6,000 cases in her career, she testified “there’s no one

typical pattern of behavior.” Id. at 23.

        On   cross-examination,   Goldstein   admitted   having   no   clinical,

psychiatric or sociology-type degree. N.T., 6/24/13, at 31. She was aware

of the work of Roland Summit, who developed CSAAS in 1983, and she

agreed that CSAAS has come under heavy criticism in the last 30 years on

the ground that it lacked any statistical or numerical component to support

Summit’s conclusions.     Id. at 31-33.    She testified: “There are concerns

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about that; and, again, the misuse of the term ‘syndrome’ with it, that it was

misused in terms of diagnosing children that have been abused.” Id. at 33.

Goldstein was familiar with a paper written by Summit stating that CSAAS

was never meant as a diagnostic tool.      She was asked if Summit stated:

“Had I known the legal consequences of the word ‘syndrome at the time, I

might have chosen a better name, like Child Sexual Abuse Accommodation

Pattern to avoid any pathological or diagnostic implications.” Goldstein

answered: “Yes, absolutely.” Id. at 33-34.

     Goldstein was not familiar with Dr. William O’Donahue, Chair of the

Psychology Department at University of Nevada, and one of the leading

critics of CSAAS. N.T., 6/24/13, at 34-35. Dr. O’Donahue contends that the

entire pattern Summit attempted to utilize was based on myth rather than

observation. Id. Goldstein was not familiar with Dr. O’Donahue’s assertions

in a 2012 Scientific Review of Mental Health article that CSAAS has not

undergone any scientific testing in the quarter century since its conception,

and that no published peer-review articles support its accuracy. Id. at 35.

      Goldstein’s report in this case stated that “most children who have

experienced child sexual abuse never disclose their experiences.”        N.T.,

6/24/13, at 36. Defense counsel asked Goldstein what constitutes “most,”

and she responded: “It’s a good question. There’s no specific number as I

read recently.”   Id.   Her report also said that “many do not disclose right

away.” Id. When asked what constituted “many,” Goldstein testified that

she “[did not] know of one specific number that’s been reached through all

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of those studies.” Id. at 37. Goldstein knew that the Governor’s task force

concluded that of the 24,378 reports of suspected abuse within Pennsylvania

since 2011, only 14% of these accusations were deemed “substantiated,”

while 20,970 — 86% of all accusations — were unfounded. Id. at 37-38.

      According     to   Goldstein,   of    the    1,500    forensic   interviews   she

performed, “it’s rare that they would disclose immediately.” N.T., 6/24/13,

at 40. Asked to defined “rare” with statistics, she responded, “I can’t define

with a hard statistic.” Id. On the other hand, she testified that a University

of Southern California study indicated that 75% of those surveyed in the

United States did not tell anyone about abuse in their childhood. Id. at 42.

She then answered “yes,” or “correct” to the questions: “Some are

consistent throughout?” “Some are constantly inconsistent?” “Some offer a

story and then recant, right?” “Some don’t recant?” Id. at 44.

      Counsel for George argued that Goldstein’s testimony is inadmissible

under Frye.      The trial court answered that 42 Pa.C.S. § 5920 supersedes

both Frye and Pa.R.E. 702, rendering Frye inapplicable. Counsel for George

replied   that   Pa.R.E.   702   augments         section   5920   and   requires   the

Commonwealth to

      not only establish [that the evidence] is beyond what the
      average layperson fully understands and comprehends, but that
      the methodology used, must also be generally accepted in the
      particular field … I don’t think the Legislature by its very nature
      can simply ignore Rule 702 and say, if the Court feels her
      qualifications are, otherwise, acceptable, that then the
      Commonwealth need not then satisfy that it’s generally
      acceptable.


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N.T., 6/24/13, at 26-27.         The trial court declined to apply Frye, denied

George’s motion in limine and permitted Goldstein to testify as an expert at

trial.

         Goldstein’s   trial     testimony.      Goldstein   testified   for   the

Commonwealth as an expert in “victim behavior”. She testified that the

         vast majority of people who have experienced child sexual abuse
         never disclose, particularly to authorities. So when they look at
         the studies of adults with confirmed abuse ... over 90 percent of
         them state that as kids they never said anything ... [a]nd those
         that do say that something happened often don’t tell right away.

Trial Transcript, at 90.       She stated that children who initially deny abuse

often claim abuse later: “We see it all the time. They’re just not

psychologically ready to talk about what has happened.”              Id. at 91.

Children are able to recall child abuse by “recall[ing] the specific … act. The

sexual act. Or they’ll encode something that was particularly worrisome or

scary to them because that’s what was important in the moment. Peripheral

details that they weren’t really focused on don’t get encoded in their

memory.”       Id. at 93.      Children abused by someone close to them “are

correlated with less disclosures, so they don’t disclose as much. When they

do disclose, they delay the disclosure longer.” Id. at 94.

         Goldstein based her opinion on the “combination of experience and

research, synthesis of literature.”      Trial Transcript, at 86.   She admitted

never having been the leader in any research or having conducted any

independent research.          Id. at 86-87.     She has never formulated a

hypothesis and subjected it to testing, or written a study or opinion

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regarding this material subject to peer review.     Id. at 87.   Nor could she

state to a degree of certainty the specific number of children that waited to

disclose.   She   claimed   she    could   “approximate   a   percentage”   but

acknowledged she does not “currently track the number that delay.” Id. at

100. She could only say that some children wait to tell, and some children

do not. Id. at 103. She added that it was “absolutely true” that delayed

disclosure is not limited to truthful accusations. Id. at 101. There “certainly”

were reasons somebody might fabricate abuse, most commonly when a

preteen or teenager makes allegations to deflect attention from their own

misconduct.   Id. at 102-03.      Some children are consistent about the core

aspects of their allegations, while some are inconsistent. Id. at 103-04.

      George’s first argument on appeal is that 42 Pa.C.S. § 5920 is

unconstitutional under Article V, § 10(c) of the Pennsylvania Constitution.

This claim fails because we recently held in Commonwealth v. Carter, 111

A.3d 1221 (Pa.Super.2015), that section 5920 is constitutional under Article

V, § 10(c). Carter reasoned:

      Section 5920 is really a rule regarding the admissibility of
      evidence, not a procedural rule. Furthermore, it is not in direct
      conflict with any existing rule of the Pennsylvania Supreme
      Court. Appellant claims it conflicts with Pa.R.E. 702, in that the
      reasons why a child may not promptly report a sexual assault is
      not beyond the ken of the average layperson. Appellant also
      cites to Commonwealth v. Dunkle, [] 602 A.2d 830, 837
      (1992) (“Not only is there no need for testimony about the
      reasons children may not come forward, but permitting it would
      infringe upon the jury’s right to determine credibility.”)
      (emphasis in original) (citations omitted). Dunkle held that it is
      error to allow expert testimony on the issue of prompt

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       complaint, which impermissibly interferes with the jury’s function
       to judge credibility. Id. at 837–838. See also, e.g.,
       Commonwealth v. Alicia, [] 92 A.3d 753 (2014) (holding that
       expert testimony on the phenomenon of false confessions would
       impermissibly invade the jury’s exclusive role as the sole arbiter
       of credibility).

       Appellant argues that our [S]upreme [C]ourt has ruled on
       precisely this issue, in an area specifically consigned to its
       authority ... However, Dunkle predates Section 5920 and was
       not based on constitutional grounds but on existing case law and
       rules of evidence. As such, we determine that Section 5920 does
       not violate separation of powers.

Id. at 1223-24.5

       George’s second argument on appeal is that the trial court abused its

discretion by failing to hold a Frye hearing before permitting Goldstein to

present expert testimony on victim behavior.       We conclude that the trial

court abused its discretion by failing to apply Frye.

       Under Frye, “novel scientific evidence is admissible if the methodology

that underlies the evidence has general acceptance in the relevant scientific

community.”      Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa.2003).

In applying Frye,

       we have required and continue to require that the proponent of
       the evidence prove that the methodology an expert used is
       generally accepted by scientists in the relevant field as a method
____________________________________________


5
  Our Supreme Court is presently reviewing the constitutionality of section
5920 in Commonwealth v. Olivo, 127 MAP 2014. Because Olivo remains
undecided as of this date, our decision in Carter remains binding precedent.
See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000)
(decision of Superior Court remains precedential until it has been overturned
by Supreme Court).



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     for arriving at the conclusion the expert will testify to at trial.
     This does not mean, however, that the proponent must prove
     that the scientific community has also generally accepted the
     expert’s conclusion. We have never required and do not require
     such a showing. This, in our view, is the sensible approach, for it
     imposes appropriate restrictions on the admission of scientific
     evidence, without stifling creativity and innovative thought.

     Under Pa.R.E. 702, the Frye requirement is one of several
     criteria. By its terms, the Rule also mandates, inter alia, that
     scientific testimony be given by ‘a witness who is qualified as an
     expert by knowledge, skill, experience, training or education....’
     Pa.R.E. 702. Whether a witness is qualified to render opinions
     and whether his testimony passes the Frye test are two distinct
     inquiries that must be raised and developed separately by the
     parties, and ruled upon separately by the trial courts.

     As to the standard of appellate review that applies to the Frye
     issue, we have stated that the admission of expert scientific
     testimony is an evidentiary matter for the trial court’s discretion
     and should not be disturbed on appeal unless the trial court
     abuses its discretion.

Grady, 839 A.2d at 1045-46.

     In this court, unlike in the trial court, the Commonwealth concedes

that expert testimony on victim behavior is inadmissible unless the

Commonwealth proves in the trial court that such testimony satisfies Frye.

Brief For Appellee, at 32-33 (acknowledging that satisfying section 5920 is

not enough, absent precedential ruling by an appellate court that science is

now sufficiently established and has gained general acceptance by relevant

scientific community, or full evidentiary hearing at which Commonwealth

meets its burden of proof under Frye). The Commonwealth further asserts,

however, that the trial court’s Pa.R.A.P. 1925 opinion demonstrates that

Goldstein’s testimony was admissible under Frye standards used in other

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states, and therefore the court’s decision to admit Goldstein’s testimony

must be correct under Pennsylvania’s application of Frye. Alternatively, the

Commonwealth contends, we should only remand this case for a Frye

hearing instead of a new trial.

      We agree with both parties that it is necessary for the Commonwealth

to satisfy Frye, and we further hold that the trial court abused its discretion

by failing to apply Frye to Goldstein’s testimony.             But because of the

importance    of   Goldstein’s    testimony     in   this   case,   we   decline   the

Commonwealth’s invitation to resolve the Frye issue simply by reviewing the

decisions in the trial court opinion. Instead, we direct the trial court to hold

a new evidentiary hearing in which both parties have the opportunity to

present testimony on whether expert testimony on victim behavior is

admissible under Frye.           The Commonwealth will bear the burden of

demonstrating that such testimony is admissible under Frye. See Grady,

839 A.2d at 1045. If the trial court determines that the Commonwealth has

failed to meet its burden, it should vacate George’s judgment of sentence,

order a new trial and exclude expert testimony on victim behavior from

evidence.    If the court determines that the Commonwealth has met its




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burden, the court should deny a new trial and leave George’s judgment of

sentence intact without prejudice to the appellate rights of both parties.6

       Remanded       for    further    proceedings   in   accordance   with   this

memorandum. Jurisdiction relinquished.



Judgment Entered.




____________________________________________


6
  Commonwealth v. Arenella, 452 A.2d 243 (Pa.Super.1982), provides
considerable guidance in fashioning this remedy.        The defendants in
Arenella appealed their convictions for possession with intent to deliver
marijuana, alleging that the trial court improperly denied their request to
have independent expert examination of the substances in question to
determine whether they were in fact marijuana. The defendants also alleged
ineffectiveness assistance of counsel (because this appeal took place before
our Supreme Court ruled that ineffectiveness claims must await PCRA
proceedings). The Aranella court held:

       In sum, we would remand these cases for two purposes: (1)
       expert examination by both appellants of the alleged controlled
       substances, and (2) an evidentiary hearing to dispose of
       appellants' ineffectiveness claims as discussed in this opinion. If,
       following the examination and the evidentiary hearing, it is
       determined that the substances are not marijuana or that
       counsel's failure to object was, in either instance, unreasonable,
       a new trial must be granted. Alternatively, in the event that the
       results of the examination and the evidentiary hearing obviate
       the need for a new trial, the present adjudication is without
       prejudice to the appellate rights of both parties following the
       lower court's disposition on remand.

Id. at 248. We have adapted Aranella’s roadmap for use in the present
case.



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Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2015




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