J-S66013-19


                                  2020 PA Super 117

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                              Appellee

                         v.

    T.B.

                              Appellant                  No. 2294 EDA 2018


            Appeal from the Judgment of Sentence entered July 24, 2018
               In the Court of Common Pleas of Philadelphia County
                   Criminal Division at No: CP-CR-0006214-2017


BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY STABILE, J.:                                     FILED MAY 18, 2020

           Appellant, T.B., appeals from his judgment of sentence of nine to

eighteen years’ imprisonment for rape of a child, unlawful contact with a

minor, aggravated indecent assault of a child, indecent assault of a person

less than thirteen years old, and endangering the welfare of a child.1

           The trial court summarized the evidence adduced during trial as follows:
           On June 12, [2017],2 at approximately 4:30 p.m., [T.B., the
           victim’s mother (“Mother”)3], Donald Myers (Mother’s husband),
           and Myers’ son left their apartment at 2601 North 6th Street to
           run some errands. Appellant (the victim’s father), who had been
           temporarily living with [Mother] and Myers, was left to supervise
           the [five-year-old] victim (“L.B.”). While supervising [L.B.],
____________________________________________


1 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1), 2705, 3126(a)(7) and 4304(a)(1),
respectively.

2   The trial court misidentified the year as 2018 in its opinion.

3 Appellant and the victim’s mother have the same initials, T.B.          To avoid
confusion, we refer to the victim’s mother as “Mother.”
J-S66013-19


      Appellant used lotion to digitally penetrate L.B.’s vaginal area.
      Appellant also penetrated L.B.’s labia with his penis.

      [Mother], Myers, and their son returned approximately 30 minutes
      later. [Mother] entered the apartment first and saw Appellant
      sitting on a couch in the living room with his shirt undone and the
      zipper of his pants down. Moreover, L.B. was not wearing any
      pants, and her underwear was hanging around one leg. A bottle
      of lotion was on the couch. Myers made the same observations
      as [Mother]. [Mother] asked Appellant what he had done and
      quickly grabbed a shirt to cover L.B. [Mother] then took L.B., who
      began crying, to another room to question her about what had
      occurred. When asked whether Appellant had hurt her, L.B.
      replied, “yes, and that it was hurting, and she asked him to stop.”
      [Mother] asked L.B. where Appellant had touched her, and she
      pointed to her vaginal area. [Mother] then ran from the bedroom
      and hit the Appellant in the head.

      [Mother] subsequently called the police, and Officer Matthew
      McCarthy responded. After [Mother] described what she had
      witnessed, Officer McCarthy took L.B. into a bedroom alone and
      asked her to describe what had occurred. L.B. told him that
      Appellant had touched her “woo-woo.” When McCarthy asked L.B.
      to point to her “woo-woo,” she indicated her crotch area.
      Appellant was subsequently arrested, and L.B. and her family
      were taken to the Special Victims Unit (“SVU”). While at SVU,
      L.B. spoke with a forensic interviewer (Carolina Castano) about
      what had occurred. L.B. was then taken to St. Christopher’s
      Hospital for a physical examination and sexual abuse testing.

Trial Court Opinion, 4/23/19, at 3-4.

      The four eyewitnesses to the incident at the apartment testified during

trial. Three of these witnesses—L.B., Mother, and Myers—accused Appellant

of sexual assault. The fourth witness, Appellant, denied any wrongdoing, and

he also presented character witnesses who testified as to his reputation in the

community for being law-abiding and peaceful.         There was no physical




                                     -2-
J-S66013-19


evidence of sexual abuse.      Castano, a forensic interview specialist who

interviewed L.B., testified for the Commonwealth as a fact witness.

      Following a four-day trial, the jury found Appellant guilty of all charges.

After sentencing, Appellant filed this timely appeal, and both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      [1.] Did the court err in allowing a lay witness to give expert
      testimony?

      [2.] Did the court err in allowing the prosecutor to ask a leading
      question regarding a crucial part of testimony that had been
      previously answered twice in the negative which prejudiced
      Appellant?

Appellant’s Brief at 3.

      In his first argument, Appellant asserts that the trial court erred by

permitting a Commonwealth witness, Carolyn Castano, to give expert

testimony relating to her forensic interview with L.B. without qualifying her as

an expert.   Appellant claims the trial court permitted Castano to offer an

expert opinion that L.B. was a victim of sexual assault based upon the Team

Interview Summary Report (Exhibit CW-8) she completed after interviewing

L.B. Appellant claims the trial court permitted the testimony after it

determined Castano was qualified to do so based upon her experience

interviewing over 1,000 children in the past and her observations of them

during the interview process. Appellant’s Brief at 10. There is no indication

in the record that the Commonwealth notified Appellant prior to or during trial


                                      -3-
J-S66013-19


that it intended to present Castano as an expert witness.         Nor did the

Commonwealth request during trial that the court find Castano qualified to

give expert testimony.     We review this issue for abuse of discretion.

Commonwealth v. Yocolano, 169 A.3d 47, 61, 63 (Pa. Super. 2017).

“Discretion is abused when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will, as shown by the evidence or the record.”

Commonwealth v. Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019).

     The record reveals that Castano is a forensic interview specialist for the

Philadelphia Children’s Alliance (“PCA”), which she described as a “nonprofit

organization that provides a multidisciplinary response to people who may

have been victims of abuse.”      N.T., 3/29/18, at 4-5.     PCA “conduct[s]

interviews,” “provide[s] therapy [and] victim advocacy,” and “ha[s] an onsite

clinic.” Id. at 5. At the time of trial, Castano had been a PCA employee for

three years. Id. She has a master’s degree in forensic science from Drexel

University and has participated in a forty-hour program at the National

Children’s Advocacy Center in Huntsville, Alabama. Id. at 6. She participates

in continuing education to learn the most up-to-date research on forensic

interviewing, the nature of the disclosure process, and age-appropriate and

developmentally-appropriate children’s behaviors. Id. at 6-7.

     On June 12, 2017, Castano conducted a videotaped forensic interview

with L.B.   Castano identified Exhibit CW-24 as a videotape of her forensic


                                    -4-
J-S66013-19


interview with L.B. Id. at 12. The video was played for the jury. Id. at 13.

Castano identified Exhibit CW-8 as the Team Interview Summary Report that

she prepared after interviewing L.B. Id. at 11. In a section of the report

entitled “Forensic Interview Impressions,” Castano checked off a box that L.B.

“provided sensory details” of the incident. Id. When asked to explain the

significance of this detail, Castano testified as follows:

      COMMONWEALTH: Can you just explain to us why you checked
      the box for sensory detail? What is a sensory detail and why
      did you check it?

      CASTANO: So during a forensic interview, some of the
      information we’re looking for is anything that answers questions
      about any of the senses. The way things smell, the way things
      felt, any sounds which L.B. provided a lot of that during her
      interview.

      COMMONWEALTH: Why is that significant?

      CASTANO: It goes to a child’s ability to describe—

      DEFENSE COUNSEL: Your Honor, this is the backdoor way to get
      in expert testimony. I’m going to object.

      THE COURT: All right. I’ll give her a little latitude and if she
      continues, counsel, you can object and I probably will sustain the
      objection. We’ll give her a little bit.

      COMMONWEALTH: Can you just—to the last question finish that
      answer.

      CASTANO: Sure. So a child’s ability to describe a situation with
      that much detail—

      DEFENSE COUNSEL: Your Honor, I’m going to object because
      this is like child psychology and I’m—

      THE COURT: I just made my ruling, counsel. You may answer.


                                       -5-
J-S66013-19


      CASTANO: So a child’s ability—

      THE COURT: You’ve done over 1,000 forensic interviews, right?

      CASTANO: Yes, I have.

      THE COURT: So you’re qualified to answer this question.

      CASTANO: A child’s ability to describe a situation, including
      details of how something sounded or something tasted or
      something felt, speaks to an experience having occurred.

Id. at 16-18 (emphasis added).

      In rejecting Appellant’s first argument, the trial court in its Pa.R.A.P.

1925 opinion stated:

      Castano’s testimony was relevant to explain to the jury about the
      information and techniques she used to conduct her forensic
      interview. The court did not abuse its discretion when allowing
      Castano (a qualified forensics expert) to testify about the
      information she considered when interviewing L.B. Moreover,
      Castano’s testimony merely helped the jury to better understand
      how L.B. was interviewed.

Trial Court Opinion, 4/23/19, at 13. We find no abuse of discretion in this

ruling.

      In sexual assault cases, expert testimony is governed by 42 Pa.C.S.A.

§ 5920, which states in pertinent part:

      (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.


                                       -6-
J-S66013-19


      (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.

Id.   It cannot be disputed that if offered as an expert, Castano would have

been qualified to offer an opinion regarding victim responses and behaviors to

sexual violence.   As stated, Castano was not offered as an expert to provide

expert opinions. However, the failure to qualify Castano as an expert did not

preclude her from explaining why the interview explores sensory detail.

Pennsylvania Rule of Evidence 701, regarding “Opinion Testimony by Lay

Witnesses” provides,

      If a witness is not testifying as an expert, testimony in the form
      of an opinion is limited to one that is:

         (a) rationally based on the witness’s perception;

         (b) helpful to clearly understanding the witness’s testimony
         or to determining a fact in issue; and

         (c) not based on scientific, technical, or other specialized
         knowledge within the scope of Rule 702.

Pa.R.E. 701. “[T]echnical expertise does not ipso facto convert a fact witness,

who might explain how data was gathered, into an expert witness, who

renders an opinion based on the data[.]” Branham v. Rohm & Haas Co.,

19 A.3d 1094, 1110 (Pa. Super. 2011). “Fact testimony may include opinion

or inferences so long as those opinions or inferences are rationally based on

the witness’s perceptions and helpful to a clear understanding of his or her


                                     -7-
J-S66013-19


testimony.” Brady by Brady v. Ballay, 704 A.2d 1076, 1082 (Pa. Super.

1997).

      In Branham, a case we find instructive, the Dow Chemical Company

appealed from an order denying its motion to quash a subpoena to compel the

deposition of a Dow corporate designee concerning vinyl chloride studies and

related communications upon the basis that the subpoena sought to compel

expert testimony. The issue required that we examine the record to determine

whether the objected-to material constituted expert opinion.      In rejecting

Dow’s claim, we held that the appellee was not seeking a Dow witness to

render an opinion on the data, or testify about hypothetical situations based

on the data. Rather, the appellee was seeking factual evidence of how the

studies were composed and why certain individuals may have been excluded.

We rejected Dow’s claims that a witness with technical proficiency would be

required to explain the study data. In doing so, we held that

      technical expertise does not ipso facto convert a fact witness, who
      might explain how data was gathered, into an expert witness, who
      renders an opinion based on the data. Factual evidence of a
      scientifically flawed or manipulated study, vel non, is readily
      distinguishable from subsequent expert testimony rendering an
      opinion on the consequences of any such facts.

Id. at 1110.   We concluded that the trial court’s determination that the

appellee was not seeking expert testimony from Dow was reasonable and

supported by the record, and that there was no error of law or abuse of

discretion.




                                     -8-
J-S66013-19


      We followed Branham in Crespo v. Hughes, M.D., 167 A.3d 168 (Pa.

Super. 2017), where we held that, under Pa.R.E. 701, it was not error for a

plastic reconstructive surgeon who treated plaintiff to clarify a note on his

medical records regarding the cause of devitalization in the plaintiff’s fingers.

The surgeon testified that “[he] felt that the treatment rendered previously

and the acid caused these injuries.” Id. at 182. The surgeon was asked only

to clarify his own notes on medical records that he made at the time of

rendering treatment to plaintiff as a treating physician. See also Deeds v.

University of Pennsylvania Medical Center, 110 A.3d 1009 (Pa. Super.

2015) (physician testimony that plaintiff did not have preeclampsia was based

on his treatment and observation of plaintiff, and was helpful to a clear

understanding of his testimony; physician did not render any opinion as to

whether there was violation as to standard of care, and therefore, trial court

did not err in admitting his testimony as factual).

      Instantly, we do not find that the trial court abused its discretion in

admitting Castano’s testimony. The Team Interview Summary Report was

admitted into evidence. Castano was asked to explain how the interview of

L.B. was conducted, the use of the interview form, and the processes

underlying the forensic interview.       In essence, as in Branham, the

Commonwealth was seeking factual evidence of how the study, or interview

here, was composed. Castano was asked to explain what sensory detail is

and why that is important to an interview. She appropriately explained that


                                      -9-
J-S66013-19


sensory detail speaks to an experience having occurred. She did not offer any

opinion testimony, and in particular, any opinion that based upon L.B.’s report

of sensory detail that L.B. was the victim of sexual abuse by the Appellant.

Her testimony regarding the incorporation of sensory detail in a forensic

interview was helpful to a clear understanding of L.B.’s interview. The fact

Castano possessed the qualifications of a forensic examiner to explain the

technical details of a forensic interview for the jury’s understanding of that

process did not require that she first be qualified as an expert to render expert

opinion testimony. The trial court’s recognition that Castano was qualified to

answer the question regarding the significance of sensory detail in a forensic

interview merely acknowledged the witness possessed the necessary

foundation to respond to the inquiry. Castano’s technical expertise did not

convert her from a fact witness into an expert witness.           As in Branham,

Castano testified as to how the interview was composed. Moreover, in its

instructions to the jury the court expressly admitted two other witnesses as

experts in specific fields,4 and later gave detailed instructions about the

parameters of their testimony.5           N.T., 4/2/18, at 171.   Importantly, the

____________________________________________


4 N.T., 3/29/18, at 56 (court declared Marita Lind, M.D. an expert “in the field
of child sexual abuse and pediatrics”); N.T., 4/2/18, at 5 (court stated that
Craig Judd “is a forensic DNA analyst and . . . an expert to testify in that
field”).

5   During closing instructions, the court charged the jury as follows:




                                          - 10 -
J-S66013-19


identification of those experts and the instruction given did not mention

Castano. Appellant is not entitled to relief on his first issue.


____________________________________________


       The next charge is one as it relates to expert testimony. That
       charge is as follows. I permitted Dr. Marita Lind and also Craig
       Judd, the forensic scientist, to testify as expert witnesses. An
       expert witness is a person who has special knowledge or skill in
       some science, art, profession, occupation or subject that the
       witness acquired by training, education or experience. Because
       an expert has “special,” that is “out of the ordinary knowledge or
       skill,” he or she may be able to supply jurors with specialized
       information, explanations, and opinions that will help them decide
       a case. Regular witnesses are bound by two limitations that do
       not apply to an expert. First, regular witnesses generally can
       testify only about things that they personally perceived, that is
       things that they saw or heard themselves. Second, regular
       witnesses are not allowed to express opinions about matters that
       require special knowledge or skill. By contrast, an expert is
       allowed to express an opinion about a matter that is within the
       area of his or her expertise. Furthermore, while an expert may
       base an opinion on things personally perceived, he or she may
       also base an opinion on factual information learned from other
       sources. If an expert witness bases an opinion on things not
       personally perceived, he or she can describe the information on
       which he or she relies and identify its source when explaining the
       opinion. However, remember that you, jurors, are the sole judges
       of the credibility and the weight of all testimony. The fact that the
       lawyers and I may have referred to certain witnesses as experts
       and that the witnesses may have special knowledge or skill does
       not mean that their testimony and opinions are right. When you
       are determining the credibility and weight of an expert’s testimony
       and opinions, consider all the factors which I described earlier that
       are relevant when evaluating the testimony of any witness. You
       should also consider all other things bearing on credibility and
       weight including the training, education, experience and ability of
       each expert, the factual information on which he or she based an
       opinion, the source and reliability of that information and the
       reasonableness of any explanation he or she gave to support the
       opinion.

N.T., 4/2/18, at 171-73.

                                          - 11 -
J-S66013-19


      In his second and final argument, Appellant asserts the trial court

committed reversible error when it allowed the Commonwealth to ask L.B.

leading questions. Specifically, Appellant directs our attention to the following

line of questioning by the Commonwealth, as permitted by the trial court:

      Commonwealth: Okay. And when you say that [Mother] came in
      and your clothes were off, which clothes were off?

      L.B.: My pants.

      Commonwealth: Okay. Whether they all the way off or just a
      little bit off or something different?

      L.B.: All the way off.

      Commonwealth: Okay. Were you wearing any underwear?

      L.B.: Yes.

      Commonwealth: Was your underwear on or off or something
      different?

      L.B. Off.

      Commonwealth: How did your pants get taken off?

      L.B.: Pop-pop [Appellant] took them off.

      Commonwealth: Did he say why?

      L.B. No.

      Commonwealth: Okay. After pop-pop took your pants off, did
      something happen next?

      L.B.: No.

      Commonwealth: Okay. How were pop-pop’s clothes when your
      pants were off?

      L.B.: His clothes was unbuttoned.

                                     - 12 -
J-S66013-19



      Commonwealth: Okay. When               you   say   his   clothes   were
      unbuttoned, which clothes?

      L.B. His pants.

      The Court: Try to keep your voice up, okay?

      L.B.: Uh-huh.

      Commonwealth: All right. And did something happen to your
      body when your clothes were off and pop-pop’s pants were
      undone?

      L.B.: No.

      Commonwealth: Did something happen that you didn’t like
      while—

      Defense Counsel: objection, asked and answered, Your
      Honor.

      The Court: I’ll allow this question.

N.T., 3/29/18, at 53-54. At this point in her testimony L.B. then went on to

testify that Appellant took baby lotion and put it inside of her “jay-jay” (her

vagina) with his fingers and that it “hurted.” Id. at 56-57.

      Initially, we observe trial counsel did not preserve this issue.          The

objection counsel raised during trial was that the question “Did something

happen that you didn’t like while—” was asked and answered. The argument

presented now on appeal is that the question was leading. Failure to raise a

contemporaneous objection to the evidence at trial waives that claim on

appeal. Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super. 1996)

(citing Pa.R.A.P. 302(a)). Further, a litigant may not raise a new theory for


                                    - 13 -
J-S66013-19


an objection made at trial in his appeal. Id. Nonetheless, we would find no

abuse of discretion in the trial court permitting the question asked. The court

explained that interrogated children sometimes get confused and self-correct.

In the above testimony, a child victim, L.B., described Appellant undressing

her and himself. It was obvious L.B. did not understand what the prosecutor

was asking when asked if something happened to her body. The court allowed

the Commonwealth to rephrase the question to inquire whether something

happened that L.B. did not like. This prompted L.B. to describe the remainder

of the sexual assault.    The prosecutor did not unfairly influence L.B.’s

testimony but merely clarified the record. Opinion at 17. Further, were we

to address Appellant’s argument that the question was leading, we would find

no merit to the issue. A leading question is one that puts the desired answer

in the mouth of the witness. Commonwealth v. Chambers, 599 A.2d 630,

640 (Pa. 1991). The question asked by the Commonwealth, “Did something

happen that you didn’t like while—”, was not a leading question. It did not

suggest to L.B. that she was sexually assaulted by Appellant.       The issue

warrants no relief.

      Judgment of sentence affirmed.

      President Judge Emeritus Ford Elliott joins the opinion.

      Judge Nichols concurs in the result.




                                    - 14 -
J-S66013-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/20




                          - 15 -
