                                  [J-30-2015]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

                SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :               No. 127 MAP 2014
                              :
                 Appellant    :               Appeal from the Order of the Berks County
                              :               Court of Common Pleas, Criminal Division,
                              :               at No. CP-06-CR-0004662-2012 dated
           v.                 :               August 27, 2013.
                              :
                              :               ARGUED: May 5, 2015
JOSE LUIS OLIVO,              :
                              :
                 Appellee     :


                                        OPINION


MR. JUSTICE BAER                                        DECIDED: November 18, 2015
      In this case, the trial court suspended as unconstitutional a recently enacted

statute allowing expert testimony regarding victims’ responses to sexual violence, 42

Pa.C.S. § 5920.1   The trial court concluded that Section 5920 violated this Court’s

1
      In full, Section 5920 provides:

             § 5920. Expert testimony in certain criminal proceedings

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

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

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

(continuedB)
exclusive control over judicial procedures pursuant to Article V, Section 10(c) of the

Pennsylvania Constitution.2 Accordingly, we have jurisdiction pursuant to 42 Pa.C.S.

(Bcontinued)
            (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 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 (footnote omitted).

2
      Article V, Section 10 of the Pennsylvania Constitution provides as follows:

            (c) The Supreme Court shall have the power to prescribe
            general rules governing practice, procedure and the conduct
            of all courts, justices of the peace and all officers serving
            process or enforcing orders, judgments or decrees of any
            court or justice of the peace, including the power to provide
            for assignment and reassignment of classes of actions or
            classes of appeals among the several courts as the needs of
            justice shall require, and for admission to the bar and to
            practice law, and the administration of all courts and
(continuedB)

                                    [J-30-2015] - 2
§ 722(7) (providing the Pennsylvania Supreme Court with exclusive jurisdiction over

“[m]atters where the court of common pleas has held [a statute] invalid as repugnant to

the Constitution . . . .”). After review, we conclude that Section 5920 does not infringe

on our constitutional authority to govern the procedures of the courts. Accordingly, we

reverse the trial court and remand for further proceedings.

       The facts in this case are limited as it comes to us on preliminary motions.

Appellee-Defendant Jose Luis Olivo was arrested on September 17, 2012, and charged

with two counts of rape and involuntary deviant sexual intercourse and one count each

of indecent assault, indecent exposure, endangering the welfare of children, and

corruption of minors.3 The charges arose from allegations that he sexually abused his

paramour’s daughter, starting in January 2009 when the victim was four and continuing

until February 2012, when she was seven.

       On July 26, 2013, four days prior to the scheduled start of trial, Olivo presented a

motion in limine to prevent the Commonwealth from presenting expert testimony

(Bcontinued)
            supervision of all officers of the Judicial Branch, if such rules
            are consistent with this Constitution and neither abridge,
            enlarge nor modify the substantive rights of any litigant, nor
            affect the right of the General Assembly to determine the
            jurisdiction of any court or justice of the peace, nor suspend
            nor alter any statute of limitation or repose. All laws shall be
            suspended to the extent that they are inconsistent with rules
            prescribed under these provisions. Notwithstanding the
            provisions of this section, the General Assembly may by
            statute provide for the manner of testimony of child victims or
            child material witnesses in criminal proceedings, including
            the use of videotaped depositions or testimony by closed-
            circuit television.

PA. CONST. art. V, § 10(c).

3
       18 Pa.C.S. §§ 3121, 3123, 3126, 3127, 4304, and 6301, respectively.



                                     [J-30-2015] - 3
pursuant to Section 5920 regarding child victim responses to sexual violence. Section

5920 applied to Olivo’s September 2012 criminal complaint in the case at bar because

the Legislature made it effective for prosecutions filed on or after August 28, 2012. The

court continued the trial to allow the presentation of argument regarding the motion in

limine.

          As will be discussed in detail in the summary of his arguments to this Court, Olivo

contended that the statute unconstitutionally infringed this Court’s authority over

procedural rules pursuant to Article V, Section 10(c).        Assuming arguendo that the

Legislature could enact evidentiary rules generally, Olivo asserted that Section 5920

was improper because it conflicted with this Court’s prior decision in Commonwealth v.

Dunkle, 602 A.2d 830 (Pa. 1992).

          A detailed review of our decision in Dunkle is necessary to understand the

arguments presented by Olivo.           In Dunkle, this Court held inadmissible “expert

testimony concerning typical behavior patterns exhibited by sexually abused children,”

where that testimony did not relate to the specific child at issue. Id. at 831. Our holding

was supported by our consideration of the “Child Sexual Abuse Syndrome,” which the

Court judged not to be a generally accepted diagnostic tool for purposes of Frey v.

United States, 293 F. 1013 (D.C. 1923). We additionally concluded, based on the then-

current research in the field, that the evidence regarding the syndrome was inadmissible

as it was not specifically probative of childhood sexual assault as opposed to other

types of trauma and merely invited speculation. Next, we deemed inadmissible expert

testimony concerning delays and omissions in reporting by child victims of sexual

assault because we concluded that the delays and omissions were “easily understood

by lay people and did not require expert analysis.” Dunkle, 602 A.2d at 836.




                                        [J-30-2015] - 4
       While the bulk of our analysis focused upon basic evidentiary determinations, we

further opined:

               [W]e do not think it befits this Court to simply disregard
               longstanding principles concerning the presumption of
               innocence and the proper admission of evidence in order to
               gain a great number of convictions. A conviction must be
               obtained through the proper and lawful admission of
               evidence in order to maintain the integrity and fairness that is
               the bedrock of our jurisprudence.
Id. at 838.4

       While arguably dicta, Olivo relied upon this Court’s brief reference to the

presumption of innocence quoted above to argue that Dunkle constituted an exercise of

our constitutional authority over judicial procedure, despite any reference to Article V,

Section 10(c) in the text of the opinion.5

       The Commonwealth opposed Olivo’s motion in limine. As detailed below, the

Commonwealth asserted that Section 5920 is consistent rather than in conflict with our

rulemaking authority under Article V, Section 10(c) and the Pennsylvania Rules of

Evidence, especially Rule 101(b), which recognizes that rules of evidence may be

“governed by statute.”     Pa.R.E. 101 cmt.6     The Commonwealth additionally refuted

4
       Three justices in Dunkle dissented, arguing in favor of the admissibility of the
expert testimony.

5
        Olivo additionally presented a challenge pursuant to Frey, which was rejected by
the trial court and has not been pursued on appeal to this Court.

6
     Rule 101 entitled “Scope; Adoption and Citation” provides in full as follows, with
emphasis added to highlight the language relied upon by the Commonwealth:

               (a) Scope. These rules of evidence govern proceedings in all
               courts of the Commonwealth of Pennsylvania's unified
               judicial system, except as otherwise provided by law.

(continuedB)

                                       [J-30-2015] - 5
Olivo’s argument that this Court’s decision in Dunkle was based on constitutional


(Bcontinued)
            (b) Adoption and Citation. These rules of evidence are
            adopted by the Supreme Court of Pennsylvania under the
            authority of Article V § 10(c) of the Constitution of
            Pennsylvania, adopted April 23, 1968. They shall be known
            as the Pennsylvania Rules of Evidence and shall be cited as
            “Pa.R.E.”

               Comment: A principal goal of these rules is to construct a
               comprehensive code of evidence governing court
               proceedings in the Commonwealth of Pennsylvania.
               However, these rules cannot be all-inclusive. Some of our
               law of evidence is governed by the Constitutions of the
               United States and of Pennsylvania. Some is governed by
               statute. Some evidentiary rules are contained in the Rules
               of Civil and Criminal Procedure and the rules governing
               proceedings before courts of limited jurisdiction.
               Traditionally, our courts have not applied the law of evidence
               in its full rigor in proceedings such as preliminary hearings,
               bail hearings, grand jury proceedings, sentencing hearings,
               parole and probation hearings, extradition or rendition
               hearings, and others. Traditional rules of evidence have also
               been relaxed to some extent in custody matters, see, e.g.,
               Pa.R.C.P. No. 1915.11(b) (court interrogation of a child), and
               other domestic relations matters, see, e.g., Pa.R.C.P. No.
               1930.3 (testimony by electronic means).

               Decisional law is applicable to some evidentiary issues not
               covered by these rules. This would include for example, the
               corpus delicti rule, see Commonwealth v. Fears, 575 Pa.
               281, 836 A.2d 52 (2003); the collateral source rule, see
               Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A. 2d 259
               (1963); and the parol evidence rule, see Yocca v. Pittsburgh
               Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004). The
               Pennsylvania Rules of Evidence are not intended to
               supersede these other provisions of law unless they do so
               expressly or by necessary implication . . . .

Pa.R.E. 101.



                                      [J-30-2015] - 6
concerns, instead arguing that the case primarily addressed the admissibility of specific

evidence under our evidentiary rules.

       The trial court granted Olivo’s motion in limine to bar the expert testimony

regarding child victim responses and behaviors offered by the Commonwealth pursuant

to Section 5920. Before coming to its conclusion, the court recognized that “[t]he expert

would carefully avoid testifying regarding the credibility of this particular victim/witness

and only testify as to the general attributes of child sexual assault victims as to delay in

reporting, piecemeal reporting and the dynamics of victim’s abuse at the hands of older

trusted family members.” Tr. Ct. Op. at 3.

       The trial court interpreted Dunkle as holding that the admission of expert

testimony on child victim response and behaviors “would violate the presumption of

innocence offered a defendant in every jury trial and notions of fundamental fairness

inherent in due process.” Id. at 4. The trial court opined that the “proper admission of

evidence” was “solely in the province of the Pennsylvania Supreme Court under Article

V, [Section] 10 of the Pennsylvania Constitution.” Id. The trial court recognized that this

Court has suspended statutes that impinge upon our rulemaking authority, citing

Commonwealth v. McMullen, 961 A.2d 842, 848 (Pa. 2008) (striking as unconstitutional

a statute granting the right to a jury trial in indirect criminal contempt cases), and Payne

v. Commonwealth Department of Corrections, 871 A.2d 795 (Pa. 2005) (finding

unconstitutional aspects of the Prison Litigation Reform Act as violative of Supreme

Court’s rulemaking authority).7

       While the court believed that the introduction of the expert witness testimony

would be helpful to juries, it felt constrained to suspend Section 5920 because “the

Supreme Court of Pennsylvania has spoken in this specific area in Dunkle and has

7
       See infra at 16 and 18 for discussion of Payne and McMullen, respectively.



                                      [J-30-2015] - 7
indicated their ruling implicated Constitutional precepts.” Tr. Ct. Op. at 5. The trial

court, nonetheless, signaled that it found the dissenting arguments in Dunkle persuasive

in light of the research since Dunkle.

       The Commonwealth filed a notice of appeal in September 2013.8 As stated

above, this Court has direct review of a trial court’s decision to suspend a statute as

unconstitutional pursuant to 42 Pa.C.S. § 722(7).

       The Commonwealth asserts that the trial court erred in suspending Section 5920

as unconstitutional. First, the Commonwealth addresses this Court’s authority under

Article V, Section 10(c). It then proceeds to refute the trial court’s interpretation of

Dunkle. The Commonwealth recognizes this Court’s exclusive constitutional authority

over rules of procedure. It observes that, while the legislature is tasked with defining

substantive crimes, this Court has authority to determine the procedure underlying the

adjudication of criminal actions.    Commonwealth Brief (Com. Brief) at 12 (quoting

McMullen, 961 A.2d at 847 (concluding that “substantive law creates, defines, and

regulates rights; procedural law addresses the method by which those rights are

enforced”)). The Commonwealth further concedes that “the enactment of a procedural

statute is unconstitutional.” Id. at 13 (citing McMullen, 961 A.2d at 848).

       The Commonwealth maintains, however, that evidentiary rules are exceptions,

which this Court has recognized in the comments to the Rules of Evidence and in

Commonwealth v. Newman, 633 A.2d 1069, 1071 (Pa. 1993). The Commonwealth

observes that that the comment to Pa.R.E. 101, quoted above, demonstrates this

8
        The Commonwealth initially filed its appeal in the Superior Court. The notice of
appeal, inter alia, certified that the trial court’s “ruling substantially handicaps the
prosecution of this case,” Notice of Appeal of Sept. 26, 2013, and, thus, asserted an
interlocutory appeal as of right under Pa.R.A.P. 311(d). The case was eventually
transferred to this Court based upon our exclusive jurisdiction under 42 Pa.C.S.
§ 722(7).



                                         [J-30-2015] - 8
Court’s acknowledgement that some rules of evidence are governed by statute.                It

further highlights our statement in Newman, discussed further herein, that “[s]ubject only

to constitutional limitations, the legislature is free to change the rules governing

competency of witnesses and admissibility of evidence.” Com. Brief at 10 (quoting

Newman, 633 A.2d at 1071). The Commonwealth asserts that the legislature may

enact rules of evidence so long as they are not inconsistent with constitutional

limitations. Moreover, it emphasizes that Section 5920 tracks Pa.R.E. 702, addressing

the requirements for expert testimony, which further supports the conclusion that the

evidence does not offend constitutional principles.9        Accordingly, it maintains that

Section 5920 is a constitutional legislative enactment.

       The Commonwealth also asserts that the question presented in this case,

regarding the constitutionality of the legislative enactment of Section 5920, is

distinguishable from the evidentiary decision set forth by this Court in Dunkle. Initially, it

emphasizes that the testimony in this case did not involve the “Child Sexual Abuse

Syndrome” criticized in Dunkle as unreliable under Frey. Likewise, the Commonwealth

9
       Pa.R.E. 702. Testimony by Expert Witnesses

              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:

              (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.



                                       [J-30-2015] - 9
contends that, in Dunkle, the Court concluded that expert testimony regarding delayed

responses of child victims was inadmissible because the information was within the

knowledge of lay jurors, based upon the research available at that time.10

       The Commonwealth emphasizes that our decision in Dunkle does not speak to

constitutional concerns regarding this Court’s Article V, Section 10(c) authority over

procedural rules. It rejects the trial court’s interpretation of Dunkle as implicating our

constitutional jurisprudence, noting that the phrase “long-standing principles concerning

the presumption of innocence” to be the decision’s sole reference to constitutional

principles.   Com. Brief at 17 (quoting Dunkle, 602 A.2d at 838).          Absent from our

analysis in Dunkle, the Commonwealth observes, is any particularized discussion of

why this genre of evidence would have offended the presumption of innocence so

pervasively as to doom Section 5920. Indeed, the Commonwealth maintains that expert

testimony under Section 5920 does not offend the presumption of innocence because

the expert is not permitted to opine upon the credibility of the specific victim in the case.

       The Commonwealth is supported by amicus curiae briefs filed by the

Pennsylvania District Attorneys Association and the Pennsylvania Coalition Against

Rape (PCAR). In addition to the arguments discussed above, the District Attorneys

Association further asserts that Section 5920 “creates a substantive right to introduce a

particular type of expert witness” and does not address a procedure for a court to follow.

District Attorneys Association Brief at 29-30 (citing as support Commonwealth v. Carter,

111 A.3d 1221 (Pa. Super. 2015) (holding, as discussed below, that Section 5920 does

10
        Moreover, it contends that the Court’s evidentiary determination in Dunkle is
outdated given the developed research regarding sexual assault victims over the last
two decades. Com. Brief at 16 (citing State v. Obeta, 796 N.W.2d 282, 292-93 (Minn.
2011) (observing that all jurisdictions other than Pennsylvania, which have addressed
this issue, “have allowed some form of expert” testimony regarding victim responses to
sexual assault)).



                                      [J-30-2015] - 10
not infringe on this Court’s exclusive constitutional authority over procedural

rulemaking)).

      PCAR additionally observes that court-made rules of evidence have long

coexisted with legislative actions addressing evidence, such that to prohibit the

legislature from enacting laws implicating evidence would “upend centuries of

jurisprudence.”   PCAR Brief at 30.     The District Attorneys Association and PCAR

provide a list of Pennsylvania statutes addressing evidentiary matters including the

competency of witnesses and the admissibility of testimony.11



11
        Specifically, the District Attorneys Association cites the following statutory
provisions: 18 Pa.C.S. §§ 308 (Intoxication or drugged condition); 3104 (Evidence of a
victim’s sexual conduct); 6104 (Evidence of intent); 40 P.S. § 1303.512 (Expert
qualifications); and 42 Pa.C.S. §§ 5911 (Competency of witnesses generally); 5912
(Effects of prior convictions); 5913 (Spouses as witnesses against each other
(criminal)); 5917 (Notes of testimony at former trial); 5924 (Spouses as witnesses
against each other (civil)); 5933 (Competency of surviving party). District Attorneys
Association Brief at 8-10.

       Amicus PCAR adds the following statutes addressing evidentiary issues: 23
Pa.C.S. § 5104 (Blood test to determine paternity); 35 Pa.C.S. § 450.810 (Records:
Evidentiary sufficiency); 42 Pa.C.S. §§ 5328 (Proof of official records); 5916
(Confidential communications to attorney); 5918 (Examination of defendant as to other
offenses); 5921 (Interest not to disqualify); 5922 (Disqualification by perjury); 5929
(Physicians not to disclose information); 5930 (Surviving party as witness, in case of
death, mental incapacity, etc.); 5942 (Confidential communications to news reporters);
5943 (Confidential communications to clergymen); 5944 (Confidential communications
to psychiatrists or licensed psychologists; 5945 (Confidential communications to school
personnel); 5945.1 (Confidential communications with sexual assault counselors);
5945.2 (Confidential communications to crime stopper or similar anticrime program);
5945.3 (Confidential communications with human trafficking caseworkers); 5948
(Confidential communications to qualified professionals); 5985.1 (Admissibility of certain
statements); 6103 (Proof of official records); 6106 (Certified exemplifications of
records); 6108 (Business records); 6111 (Handwriting); and 75 Pa.C.S. §§ 1547
(Chemical testing to determine amount of alcohol or controlled substance); 3368 (Speed
timing device). PCAR Brief at 28-29.



                                    [J-30-2015] - 11
       Olivo responds in support of the trial court’s conclusion that Section 5920 violates

the separation of powers by infringing upon this Court’s constitutional authority over

courtroom practice and procedure. Olivo reiterates that Article V, Section 10(c) entrusts

to this Court authority over judicial procedure except where the Constitution provides

otherwise. He observes that we have stated that “the judiciary alone” has “power over

rulemaking.” Olivo Brief at 7 (quoting, indirectly, In re 42 Pa.C.S. § 1703, 394 A.2d 444,

451 (Pa. 1978)). Olivo further relies upon In re 42 Pa.C.S. § 1703, discussed below,

where this Court, based upon our Article V, Section 10(c) authority, refused to comply

with provisions of the Public Agency Open Meeting Law, which made the law applicable

to the rule-making functions of the Supreme Court. Olivo additionally observes that an

amendment to Article V, Section 10, was necessary to provide the legislature with

specific authority to enact a procedural statute allowing child victims to testify via close-

circuit television.12   He argues that a similar constitutional amendment would be

required to provide authority for the legislature to address the admissibility of expert

testimony pertaining to victim responses to sexual violence.          As no constitutional

provision addresses this subject, he contends that Section 5920 “clearly, palpably, and

plainly violates the Constitution as an unlawful exercise of judicial power.” Olivo Brief at

8.

       He rejects the suggestion that Section 5920 is not a procedural rule.           Olivo

observes that in Payne we addressed both proper substantive statutes and


12
        Specifically, the 2003 amendment provided for the following language to be
added to Section 10(c): “Notwithstanding the provisions of this section, the General
Assembly may by statute provide for the manner of testimony of child victims or child
material witnesses in criminal proceedings, including the use of videotaped depositions
or testimony by closed-circuit television.” See also Bergdoll v. Kane, 731 A.2d 1261,
1270 (Pa. 1999) (striking a prior attempt to add similar language to the constitution as
violative of the single subject rule).



                                      [J-30-2015] - 12
unconstitutional procedural sections. As noted below, we found provisions governing

the dismissal of prison reform petitions to be substantive, but a provision addressing

automatic dissolution of a temporary restraining order procedural. Olivo additionally

observes that in Commonwealth v. Sorrell¸ 456 A.2d 1326 (Pa. 1982), and McMullen,

961 A.2d 842, we held that the right to a jury trial is a procedural right. In contrast, Olivo

notes that the authority to issue a stay of execution was deemed substantive in

Commonwealth v. Morris, 771 A.2d 721 (Pa. 2001). He argues that Section 5920 is not

substantive because it does not define the relief to which a litigant is entitled nor does it

define, enlarge, or restrict any elements of an offense.

       He contends instead that Section 5920 is a procedural rule intended to supplant

this Court’s holding in Dunkle, which has been reaffirmed by this Court.                Olivo

Response Brief at 5-6 (citing Commonwealth v. Alicia, 92 A.3d 753, 761-63 (Pa. 2014)

(citing Dunkle); Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988) (finding expert

testimony regarding “rape trauma syndrome” inadmissible); and Commonwealth v.

Seese, 517 A.2d 920 (Pa. 1986) (holding inadmissible expert testimony regarding child

sexual assault victims)). He argues that only this Court has the authority to overrule

Dunkle and to promulgate procedural rules of evidence. Olivo emphasizes that we held

in McMullen that if “the legislature enacts a procedural statute, that statute is

unconstitutional,” regardless of whether the statute conflicts with court-made rules.

McMullen, 961 A.2d at 848. Olivo faults the Superior Court’s reasoning in Carter, relied

upon by amici and discussed below, because that court did not address the separation

of powers issue but merely cited a prior Superior Court decision stating that the

legislature can enact evidentiary rules without fully considering the distinctions between

substantive and procedural rules. He further argues that citation to the quotation in

Newman suggesting that “the legislature is always free to change the rules governing




                                      [J-30-2015] - 13
competency of witnesses and admissibility of evidence” is flawed because the parties in

that case did not raise a separation of powers issue.          Olivo Response Brief at 17

(quoting Newman, 633 A.2d at 1071). Instead, Olivo points to a distinction between

what he views as substantive provisions regarding “privileges provided to spouses” in

Newman and procedural provisions relating to “the method [of] introducing evidence to

prove a criminal offense” in the case at bar. Olivo Response Brief at 18.

       Additionally, Olivo claims that Section 5920 conflicts with this Court’s decision in

Dunkle, holding inadmissible expert testimony regarding victim responses to sexual

assaults. He argues that the evidence the Commonwealth sought to introduce under

Section 5920 is indistinguishable from the expert testimony deemed inadmissible in

Dunkle, where the Court found error in permitting “an expert to explain why sexually

abused children may not recall certain details of an assault, why they may not give

complete details, and why they may delay reporting the incident.” Olivo Brief at 9

(quoting Dunkle, 602 A.2d at 831). He observes that the Court continued, “[W]e hold

that the expert should not have been permitted to testify about behavior patterns

generally exhibited by abused children and that the error requires reversal.” Olivo Brief

at 10 (quoting Dunkle, 602 A.2d at 836).         He contends that the legislature cannot

overrule Dunkle through the enactment of Section 5920.

       Moreover, Olivo argues that allowing the expert’s testimony would devolve into a

battle of the experts that would interfere with the jury’s interpretation of the victim’s non-

verbal conduct and any inconsistencies in the testimony.            Olivo Brief at 10.    He

reiterates the trial court’s conclusion that testimony admissible under Section 5920

“would violate the presumption of innocence offered a defendant in every jury trial and

notions of fundamental fairness inherent in due process.” Id. (quoting Tr. Ct. Op. at 4).

Accordingly, he seeks our affirmance of the trial court’s conclusion that Section 5920 is




                                      [J-30-2015] - 14
an unconstitutional encroachment of this Court’s authority over judicial procedure, that it

violates our holding in Dunkle, and that it violates the presumption of innocence.

       The Commonwealth presents a pure issue of law, which we review de novo.

Commonwealth v. Ludwig, 874 A.2d 623, 628 n.5 (Pa. 2005). As we have repeatedly

observed, “a legislative enactment enjoys the presumption of constitutionality.” Payne,

871 A.2d at 800. A party challenging a legislative action bears the heavy burden of

demonstrating that the statute “clearly, palpably, and plainly violates the constitution.”

Id.

       As noted, this case requires our consideration of whether Section 5920’s

provision allowing for expert testimony regarding victim responses to sexual assaults

violates our exclusive constitutional “power to prescribe general rules governing

practice, procedure and the conduct of all courts” under Article V, Section 10(c) of the

Pennsylvania Constitution. See, e.g., Payne, 871 A.2d at 801 (recognizing this Court's

exclusive power over judicial procedure). For the following reasons, we conclude that

Section 5920 does not constitute an impermissible procedural rule but rather is a proper

exercise of legislative authority to enact a rule of evidence.

       During the early years of our Commonwealth, our authority over procedural

rulemaking initially was “inherent in the constitutional scheme,” but later became explicit

through a legislative grant of authority in 1937, as codified at 17 P.S. § 61, which

provided that any inconsistent statute would be suspended. In re 42 Pa.C.S. § 1703,

394 A.2d at 447.       In 1968, however, this Court’s authority gained constitutional

imprimatur through the adoption of Article V of the Pennsylvania Constitution. Article V

“vests in the Supreme Court ‘general supervisory and administrative authority over all

the courts,’ PA. CONST. art. V, § 10(a).” Payne, 871 A.2d at 800. The section further

provides that “[a]ll laws shall be suspended to the extent that they are inconsistent with




                                      [J-30-2015] - 15
rules prescribed under these provisions.” PA. CONST. art. V, § 10(c); see also In re 42

Pa. C. S. § 1703, 394 A.2d at 447.

      In considering similar challenges to legislative acts, we have opined that “the

threshold inquiry in determining whether a particular statute violates Article V, Section

10(c), is whether the statute is procedural or substantive in nature.” Payne, 871 A.2d at

801. We have often recognized that the distinction between procedural and substantive

actions engenders little consensus. Id. Nonetheless, we have opined that, “[a]s a

general rule, substantive law is that part of the law which creates, defines and regulates

rights, while procedural laws are those that address methods by which rights are

enforced.” Id. (citations omitted); see also McMullen, 961 A.2d at 847.

      Our relatively recent decision in Payne v. Commonwealth Department of

Corrections, 871 A.2d 795 (Pa. 2005), provides an excellent starting point as that case

presented several provisions of the Prison Litigation Reform Act, which arguably

straddled the line between substantive and procedural.            We deliberated on the

constitutionality of 42 Pa.C.S. § 6602(e), providing for a court to dismiss prison

condition litigation if an allegation of indigency was untrue or if the litigation was

frivolous or malicious. We held that the statute did not violate our Article V, Section 10

authority because the statute was substantive rather than procedural in nature:

             A cursory review of this section may lead one to believe that
             the Legislature is creating a procedure by which the court
             shall dismiss prison conditions litigation.         Upon closer
             scrutiny, however, we conclude that Section 6602(e) defines
             the rights of prisoners by setting forth the circumstances
             under which the right to file prison condition litigation shall be
             summarily denied. Rather than establishing a method or
             procedure to enforce a substantive right, Section 6602(e)
             regulates the substantive right to file prison conditions
             litigation due to the Legislature's belief that such claims are
             particularly prone to being frivolous and therefore subject to
             summary dismissal.


                                     [J-30-2015] - 16
Payne, 871 A.2d at 802 (citing Morris, 771 A.2d at 738 (holding that a statute regarding

a stay of execution was a substantive act because it “define[d] the appropriate

circumstances for securing the substantive right” to a stay rather than setting forth a

process for enforcing the stay)) (emphasis omitted).

       This Court next grappled in Payne with the constitutionality of the three-strikes

provision of the Prison Litigation Reform Act, 42 Pa.C.S. § 6602(f), under which a court

may dismiss prison condition litigation “[i]f the prisoner has previously filed prison

conditions litigation and . . . three or more of these prior civil actions have been

dismissed” as frivolous or an action was determined to have been filed in bad faith,

absent a credible allegation of imminent danger of serious bodily injury. Payne, 871

A.2d at 803-04. The prisoner in Payne claimed that the statute was procedural and thus

violative of our constitutional authority over judicial procedure under Article V, Section

10. Again, the Court concluded that while the statute appeared to be a procedural

mechanism for the dismissal of prison litigation, at heart it was a “substantive provision

because it defines the parameters under which the right to relief will be denied in a

prison conditions action.” Id. at 804.

       Next, the Court considered Section 6605(a) of the Prison Litigation Reform Act,

authorizing a court to enter a temporary restraining order or preliminary injunction and

for such injunction to expire automatically after ninety days.       Unlike the sections

addressed above, we concluded that this section did not “create, define or regulate

prisoner’s rights” but instead “sets forth a procedure which the court must follow when

preliminary injunctions are entered in a prison conditions case.” Id. at 804. As the

section only spoke to procedure, we deemed this section unconstitutional as violative of

our exclusive authority under Article V, Section 10(c). Id. We observed that the section

also was inconsistent with Pa.R.C.P. 1531, which did not provide for automatic




                                     [J-30-2015] - 17
dissolution of a preliminary injunction. We additionally “emphasize[d] that it is not the

significance of the procedure contained in the statutory provision that is constitutionally

problematic, but rather the fact the statute contains a court procedure.” Id. at 805.

       Finally, we considered Section 6602(a)-(c) of the Prison Litigation Reform Act,

which addressed the payment of filing fees and the method to seek in forma pauperis

status. We held the statute unconstitutional as an attempt to enact a procedural statute

in violation of our exclusive authority where the section “sets forth the method by which

inmates enforce their rights to file prison conditions litigation, i.e., by the payment of a

filing fee.” Id. at 806. We further noted that the section conflicted with this Court’s in

forma pauperis procedure.

       We again considered the procedural-substantive dichotomy in Commonwealth v.

McMullen, 961 A.2d 842 (Pa. 2008), where we held unconstitutional a statute that

provided a right to a jury trial in indirect criminal contempt proceedings involving a

restraining order or injunction and limiting the relevant sentence to fifteen days. We

recognized that we had previously held that the right to a jury trial was “not a

‘substantive right,’ but a right of procedure through which rights conferred by

substantive law are enforced.” Id. at 847-48 (quoting Sorrell, 456 A.2d at 1329). We

notably altered our prior analysis applied in Payne, where we weighed whether a

procedural statute conflicted with any Court promulgated rules. Instead, in McMullen,

we opined that if a statute is procedural it is unconstitutional per se as “[o]therwise, a

clearly unconstitutional procedural statute would be constitutional unless this Court

promulgated a rule inconsistent with it.” Id. at 848.13

13
       In McMullen, we additionally rejected as unconstitutional the legislative attempt to
set the limit of punishment for indirect contempt, which we concluded was within the
power of the courts. We explained that, “[w]hile the legislature generally may determine
the appropriate punishment for criminal conduct, indirect criminal contempt is an offense
(continuedB)

                                      [J-30-2015] - 18
      In the cases set forth above, this Court determined whether various statutes

encroached upon our constitutional authority over judicial procedure. However, these

provisions did not address evidentiary statutes, as in the case at bar. In contrast, in

Commonwealth v. Newman, 633 A.2d 1069 (Pa. 1993), we considered an evidentiary

statute involving the privilege not to testify against one’s spouse.    While Newman

addressed constitutional challenges based on the ex post facto clause, we broadly

opined, “Subject only to constitutional limitations, the legislature is always free to

change the rules governing competency of witnesses and admissibility of evidence.” Id.

at 1071.

      The Superior Court recently addressed a similar separation of powers challenge

to Section 5920 in Commonwealth v. Carter, 111 A.3d 1221 (Pa. Super. 2015). The

court identified its own precedent holding evidentiary statutes constitutional based upon

this Court’s decision in Rich Hill Coal Co. v. Bashore, 7 A.2d 302 (Pa. 1939), where

“[w]e recognize[d] the right of the legislature to create or alter rules of evidence.”14

(Bcontinued)
against the court's inherent authority, not necessarily against the public.” Id. at 850.
Accordingly, we struck the statute as an unconstitutional invasion of our exclusive
authority to punish for indirect criminal contempt. Id.

14
         It should be noted that while this Court approved generally of the legislative
ability to enact rules of evidence, we nonetheless found various sections of the Workers’
Compensation Act invalid. We further opined that the legislative power to enact
evidentiary statutes was limited as follows:

             (1) It is at least doubtful if the legislature can, under the
             guise of creating a ‘rule of evidence,’ make something
             evidence which is in fact not evidence, (2) If in fact the
             legislature is attempting to regulate a rule of evidence, ‘its
             regulation must be impartial and uniform’.

Rich Hill Coal Co., 7 A.2d at 319 (quoting Cooley on Constitutional Limitations, 8th ed.,
Vol. 2, p. 768.) (emphasis in original).



                                    [J-30-2015] - 19
Carter, 111 A.3d at 1223 (quoting Rich Hill Coal Co., 7 A.2d at 319). The Superior

Court opined that this Court reaffirmed Rich Hill Coal Co. in Newman, where, as noted

above, we held that that “the legislature is always free to change the rules governing the

competency of witnesses and the admissibility of evidence.” Carter, 111 A.3d at 1223-

24 (quoting Newman, 633 A.2d at 1071).

       Applying this precedent, the Superior Court concluded that “Section 5920 is

really a rule regarding the admissibility of evidence, not a procedural rule.” Id. at 1224.

Furthermore, the Superior Court rejected the defendant’s claim that Section 5920

conflicted with Dunkle, which it distinguished by observing that “Dunkle predates

Section 5920 and was not based on constitutional grounds but on existing case law and

rules of evidence.” Id. Accordingly, the Superior Court rejected the defendant’s claim

that Section 5920 violated our constitutional authority over procedural rules. 15

       We agree with the analysis of the Commonwealth and the Superior Court in

Carter. Section 5920 is clearly a rule of evidence, which we have acknowledged can be

“governed by statute.”     Pa.R.E. 101 cmt.; see also Newman, 633 A.2d at 1071.

Moreover, we conclude that Section 5920 is substantive rather than procedural as it

permits both parties to present experts to “testify to facts and opinions regarding specific

types of victim responses and victim behaviors.” 42 Pa.C.S. § 5920. It does not dictate

how the evidence is presented, and thus it is distinguishable from the provision

amended to Article V, Section 10(c) in 2003 providing the General Assembly with the


15
       We acknowledge that the Superior Court in Carter relied in part on its
observation that Section 5920 did not conflict with any rule of procedure. Id. at 1224.
We reject and deem unnecessary this aspect of the Carter rationale based upon our
contrary holding in McMullen. As discussed supra at 18, we opined in McMullen that a
procedural statute is unconstitutional per se because “[o]therwise, a clearly
unconstitutional procedural statute would be constitutional unless this Court
promulgated a rule inconsistent with it.” McMullen, 961 A.2d at 848.



                                     [J-30-2015] - 20
authority to enact statutes to address purely procedural issues involved in “the manner

of testimony of child victims” and specifically allowing for statutes providing for

testimony by videotaped deposition or close-circuit television.     PA. CONST. art. V, §

10(c). Section 5920 by contrast does not provide for the manner of the presentation of

expert testimony but merely provides the substantive authorization to present that

testimony. Accordingly, we find Section 5920 to be a substantive rule of evidence that

does not violate our Article V, Section 10(c) authority over procedural rules.

       Finally, we reject the trial court and Olivo’s reliance on our prior decision in

Dunkle. As stated above, Dunkle provided a thorough review of arguments regarding

the admissibility of expert testimony concerning victim responses to sexual violence.

Our conclusion hinged on the Court’s consideration of the research supporting the

admission of the evidence. The decision was rooted in a factual assessment of the

evidence as a part of a Frey analysis, as well as other admissibility considerations such

as our conclusion that the expert testimony would invite speculation by the jury and that

the information was within the knowledge of a lay juror, based upon the then-current

research. We were not faced with questions regarding the constitutional authority of the

General Assembly to pass a statute providing for the admissibility of this type of expert

testimony.   While it is accurate that we mentioned the defendant’s presumption of

innocence in a brief phrase supporting our holding of inadmissibility, the statement is

dicta and was never intended to control our assessment of the constitutionality of

legislative enactments such as Section 5920.

       We conclude that Section 5920 does not violate our authority under Article V,

Section 10(c) of the Pennsylvania Constitution nor our decision in Dunkle. Accordingly,

we reverse the decision of the trial court suspending 42 Pa.C.S. § 5920 and remand for

further proceedings.




                                     [J-30-2015] - 21
Jurisdiction relinquished.

Madame Justice Todd and Mr. Justice Stevens join the opinion.

Mr. Chief Justice Saylor files a concurring opinion.

Mr. Justice Eakin files a dissenting opinion.




                              [J-30-2015] - 22
