J-S32025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

MICHAEL L. LINDSTROM,

                           Appellant                No. 1828 WDA 2014


            Appeal from the Judgment of Sentence of October 24, 2014
                 In the Court of Common Pleas of Warren County
               Criminal Division at No(s): CP-62-CR-0000085-2014

BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                FILED JULY 2, 2015

      Appellant, Michael L. Lindstrom, appeals from the judgment of

sentence entered on October 24, 2014. We affirm.

      The factual background of this case is as follows.     On February 28,

2014, two-year-old D.D. (“Victim”) was living with Appellant’s girlfriend, N.J.

(“Mother”).     Appellant watched Victim while Mother went to the grocery

store. Upon returning home, Mother noticed new bruising on Victim’s face

and head.      Mother and Appellant eventually transported Victim to Warren

General Hospital. At the hospital, Mother asked Victim who had caused his

injuries.    Victim twice responded that Appellant had caused the injuries.

Victim was later questioned by a forensics interviewer; however, no usable

evidence was gathered from that interview.
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        The relevant procedural history of this case is as follows.   Appellant

was charged via criminal information with simple assault,1 endangering the

welfare of a child,2 and harassment.3       On September 30, 2014, Appellant

filed a motion in limine seeking to preclude physician’s assistant Matthew

Minarik (“Minarik”) from testifying regarding causation. On October 3, 2014,

the Commonwealth filed a motion in limine pursuant to the Tender Years

Hearsay Act (“TYHA”), 42 Pa.C.S.A. § 5985.1. On October 6, 2014, the trial

court denied Appellant’s motion in limine.       After the requisite in camera

hearing, on October 7, 2014, the trial court granted the Commonwealth’s

motion in limine.      A one-day jury trial occurred on October 9, 2014.

Appellant was found guilty of endangering the welfare of a child and

harassment.       On October 24, 2014, Appellant was sentenced to an

aggregate term of one to three years’ imprisonment.         This timely appeal

followed.4

        Appellant raises two issues for our review:



1
    18 Pa.C.S.A. § 2701(a)(1).
2
    18 Pa.C.S.A. § 4304(a)(1).
3
    18 Pa.C.S.A. § 2709(a)(1).
4
  On October 28, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 17, 2014, Appellant filed his concise
statement. On December 29, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.


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      1. Did the trial court err in permitting physician’s assistant
         Matthew Minarik to testify at trial regarding medical
         causation, as he lacked the specialized scientific knowledge
         to render an expert opinion in that area?

      2. Did the trial court err in admitting the hearsay statements of
         the alleged victim, as they were testimonial in nature and did
         not have adequate indicia of reliability?

Appellant’s Brief at 7.

      In his first issue, Appellant contends that the trial court erred by

admitting Minarik as an expert witness. Minarik testified as to his opinion

that the bruises on Victim were similar to marks that could have been

created by fingers and that the bruises were caused by blunt trauma.

“[Q]ualification of a witness as an expert rests within the sound discretion of

the trial court, and the court’s determination in this regard will not be

disturbed absent an abuse of discretion.”           Commonwealth v. Malseed,

847 A.2d 112, 114 (Pa. Super. 2004), appeal denied, 862 A.2d 1254 (Pa.

2004) (citation omitted). “The standard for qualifying an expert witness is a

liberal one: the witness need only have a reasonable pretension to

specialized    knowledge   on   a   subject   for    which   expert   testimony   is

admissible.”    Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa. Super.

2014) (en banc) (citation omitted).

      Appellant concedes that a non-doctor may be qualified as an expert

witness regarding medical issues.      See Miller v. Brass Rail Tavern, 664

A.2d 525, 528-529 (Pa. 1995). For example, lay medical examiners, Ph.D.’s

in neuroscience, police officers, and nurses have all been qualified as experts


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and permitted to testify regarding medical issues.      Freed v. Geisinger

Med. Ctr., 5 A.3d 212, 220 (Pa. 2010); McClain ex rel. Thomas v.

Welker, 761 A.2d 155, 158-159 (Pa. Super. 2000); Miller, 664 A.2d at

528-529; Commonwealth v. Gonzalez, 546 A.2d 26, 31 (Pa. 1988).

Nonetheless, Appellant argues that Minarik should not have been admitted

as an expert witness.

     Minarik testified that he is a licensed physician’s assistant in Ohio,

Michigan, and Pennsylvania. N.T., 10/9/14, at 33. He attended Ohio State

University and Cuyahoga Community College.        Id.   He then attended a

master’s program at Still University, an osteopathic medical school. Id. He

engaged in clinical programs for a year in various areas, including

emergency medicine and general practice.       Id.   He has practiced as a

physician’s assistant in Ohio, Michigan, the District of Columbia, and

Pennsylvania. Id. at 33-34. He specializes in emergency care. Id. at 34.

He completes 200 hours of continuing education every year. Id. at 35.

     As is clear by this recitation of Minarik’s qualifications, he possessed

specialized knowledge outside of that held by the general public.         He

attended school for several years while learning about medicine. He served

as a physician’s assistant in four jurisdictions during which he treated many

patients. He is subject to continuing education requirements and has spent,

on average, four hours per week fulfilling those continuing education




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requirements.     A member of the general public would not have this

specialized knowledge.5

       Appellant focuses on the fact that Minarik has not published any

journal articles nor has he previously been admitted as an expert witness.

These factors, however, are not dispositive.      “[A] witness qualified as an

expert by knowledge, skill, experience, training[,] or education may testify

thereto in the form of an opinion or otherwise.” Pa.R.Evid. 702. In other

words, there are several manners in which an expert witness can obtain his

or her specialized knowledge.       In this case, it is evident from Minarik’s

testimony that he obtained such specialized knowledge by education and

experience.   An expert need only receive his or her specialized knowledge

from one of the above listed means – not all of them.          The absence of

published material in Minarik curriculum vitae goes to the weight of his

testimony, not its admissibility.

       Appellant cites a line of cases in which this Court held that a doctor in

one specialized field was not qualified as an expert regarding another

specialized field. Those cases, however, are distinguishable from the case at

bar.   Almost all of those cases arose in the medical malpractice area.      In

Pennsylvania, an expert witness in a medical malpractice case must be of


5
  Minarik certainly had more education than the police officer in Gonzalez
who testified as to the effect that alcohol had on the body. In Gonzalez,
our Supreme Court noted that the police officer had merely taken several
classes related to pharmacology and toxicology of alcohol. Gonzalez, 546
A.2d at 32.


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the same specialty as the defendant doctor.        Anderson v. McAfoos, 57

A.3d 1141, 1144 (Pa. 2012), citing 40 P.S. § 1303.512(c). There is no such

requirement for testimony regarding medical causation in a criminal case.

      Furthermore, Appellant’s attempt to carve out medical causation as a

specialty is unavailing.      All forms of medicine deal with causation.    For

example, a podiatrist testifying regarding injuries to a foot does not need

specialized knowledge in medical causation in order to be admitted as an

expert to testify as to whether a certain incident was the medical cause of a

foot injury.    Similarly, a cardiologist does not need specialized training in

medical causation to know whether a particular diet was the medical cause

of a heart attack. Instead, medical causation is at the heart of any medical

professional’s knowledge in his or her field.       In this case, Minarik had

training   in   general    medicine   and   emergency   medicine.   Specialized

knowledge in these two areas was sufficient to qualify him as an expert

regarding bruising.       Accordingly, we conclude that the trial court did not

abuse its discretion in admitting Minarik as an expert witness.

      In his second issue on appeal, Appellant contends that the trial court

erred by granting the Commonwealth’s motion in limine and admitting

Victim’s statements under TYHA.         “We will not reverse the trial court’s

decision to admit evidence pursuant to [TYHA] absent an abuse of

discretion.”    Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super.

2006), appeal denied, 927 A.2d 622 (Pa. 2007) (citation omitted).



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      TYHA provides, in relevant part, that:

      (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 [a series of offenses,
      inter alia, those at issue in this case,] 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.

      (a.1) Emotional distress.--In order to make a finding under
      subsection (a)(2)(ii) that the child is unavailable as a witness,
      the court must determine, based on evidence presented to it,
      that testimony by the child as a witness will result in the child
      suffering serious emotional distress that would substantially
      impair the child’s ability to reasonably communicate. In making
      this determination, the court may do all of the following:

      (1) Observe and question the child, either inside or outside the
      courtroom.

      (2) Hear testimony of a parent or custodian or any other person,
      such as a person who has dealt with the child in a medical or
      therapeutic setting.

42 Pa.C.S.A. § 5985.1.

      Appellant first contends, at least implicitly, that the trial court erred by

concluding that Victim was unavailable.        We disagree.   At the in camera

hearing, the trial court asked Mother what the effect on Victim would be if he

were called to the witness stand.           N.T., 10/7/14, at 54-55.      Mother



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responded, “It wouldn’t be good.”    Id. at 55. She explained that “I think

that he would cry or sit here and be completely silent.”        Id.   From that

testimony, the trial court reasonable concluded that Victim was unavailable

due to emotional distress.

        Appellant next contends that Victim’s statements lacked sufficient

indicia of reliability to be admitted under TYHA. It is undisputed that shortly

after arriving at the hospital, Minarik prompted Mother to ask Victim who

caused his injuries.   Id. at 11, 33.      At the in camera hearing, Minarik

testified that Mother asked the question twice, seven minutes apart. Id. at

11. He further testified that, both times Mother asked the question, Victim

responded that Appellant caused his injuries.       Id.   On the other hand,

Mother testified that in response to these questions, Victim gave four

different answers: Appellant, Victim’s grandmother, Victim’s cat, and

Victim’s sister.   Id. at 30, 33.    It is undisputed that after leaving the

hospital, Victim was interviewed by a forensics interviewer and was unable

to name the perpetrator of the offense.       N.T., 10/9/14 at 109.      At the

conclusion of the in camera hearing, the trial court found Minarik’s testimony

to be credible and Mother’s testimony not credible.       Specifically, the trial

court found that Mother’s testimony was biased because she wished to

continue her relationship with Appellant. See Trial Court Opinion, 12/29/14,

at 3.    Thus, the trial court found that Victim gave consistent answers to

Mother’s questions regarding Appellant’s role in causing Victim’s injuries.



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     We ascertain no abuse of discretion in the trial court’s determinations.

The trial court’s credibility determinations regarding Mother and Minarik are

supported   by   the   record.   As   such,   we   may   not   overturn   those

determinations. See Commonwealth v. Simpson, 112 A.3d 1194, 1198

(Pa. 2015) (citation omitted) (“[W]e have emphasized that the lower

tribunal’s . . . credibility determinations which are supported by the record

will not be disturbed on appeal.”).     Furthermore, there were significant

indicia of reliability regarding Victim’s statements in the hospital.       For

example, our Supreme Court has held that consistent repetition of a

statement is an indicator of reliability. Commonwealth v. Walter, 93 A.3d

442, 456 (Pa. 2014), citing Commonwealth v. Delbridge, 855 A.2d 27, 47

(Pa. 2003). In this case, Victim gave the same answer twice, seven minutes

apart.   Another indicator of reliability is when the child’s statements are

given in response to open-ended questions. Commonwealth v. Barnett,

50 A.3d 176, 186 (Pa. Super. 2012), appeal denied, 63 A.3d 772 (Pa. 2013).

In this case, Mother’s questions were open-ended and not leading.          She

merely asked Victim who caused his injuries. Similarly, a good relationship

between the child and the person that he reported the abuse to indicates the

statement is reliable. Commonwealth v. Hunzer, 868 A.2d 498, 511 (Pa.

Super. 2005), appeal denied, 880 A.2d 1237 (Pa. 2005).           In this case,

Mother testified that she had a good relationship with Victim. Finally, when

a child has no incentive to lie, that is an indicator of reliability.      See



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Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005).       In this case, there is no evidence that

Victim had an incentive to lie. Thus, there are several indicia that Victim’s

statements to Mother in the hospital were reliable. Accordingly, we conclude

that the trial court correctly held that Victim’s statements possessed the

requisite indicia of reliability.

      Appellant next argues that the trial court used the TYHA to admit

evidence despite the fact that Victim would not be competent to testify at

trial. Even assuming arguendo that Victim would not have been competent

to testify at trial, that fact is irrelevant. Our Supreme Court has ruled that it

is permissible to admit statements pursuant to TYHA even if the witness

would not otherwise be competent to testify.         Walter, 93 A.3d at 452.

      Finally, Appellant argues that use of TYHA violated his right to

confrontation as guaranteed by the Sixth Amendment to the United States

Constitution. The Supreme Court of the United States has held “that fidelity

to the Confrontation Clause permit[s] admission of testimonial statements of

witnesses absent from trial only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine[.]”

Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713 (2011) (internal

quotation marks, alteration, ellipsis, and citation omitted). “A statement is

testimonial if made for the purpose of establishing or proving some fact in a

criminal proceeding.”      Commonwealth v. Dyarman, 73 A.3d 565, 573



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n.11 (Pa. 2013) (internal quotation marks and citation omitted).         The

statements by Victim were non-testimonial. A two-year-old child would not

realize his statements, to his mother, in a hospital emergency room, may

later be used in a criminal prosecution.    See Ohio v. Clark, 2015 WL

2473372, *6-7 (U.S. June 18, 2015); Commonwealth v. Allshouse, 36

A.3d 163, 181 (Pa. 2012).       Therefore, Victim’s statements were non-

testimonial and do not implicate the Confrontation Clause. As such, the trial

court did not abuse its discretion in admitting Victim’s statements under

TYHA.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/2/2015




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