J-A06017-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                          Appellee        :
                                          :
                 v.                       :
                                          :
ROD L. JONES, JR.                         :
                                          :
                         Appellant        :   No. 1636 WDA 2016

           Appeal from the Judgment of Sentence June 28, 2016
    in the Court of Common Pleas of Allegheny County Criminal Division
                     at No(s): CP-02-CR-0008782-2015

BEFORE:     BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:                   FILED JULY 27, 2018

      Although I join the learned Majority’s memorandum in all other resp

ects, I respectfully dissent regarding two issues: (1) the trial court’s error in

admitting Detective Holzwarth’s opinion as to typical responses by child

sexual abuse victims, which was based upon specialized knowledge he

acquired as a police officer, without qualifying Detective Holzwarth as an

expert; and (2) the trial court’s abuse of discretion in sentencing Appellant

outside of the sentencing guidelines to a maximum sentence without stating

sufficient justification for deviating from the guidelines pursuant to 42

Pa.C.S. § 9721(b).

      With respect to the first issue, the Majority concludes that Detective

Holzwarth’s testimony was rationally based on his experience, was helpful to




*Retired Senior Judge assigned to the Superior Court.
J-A06017-18

the trier of fact, and was not based on scientific, technical, or other

specialized knowledge. I respectfully disagree.

      In this case, Detective Holzwarth, without any attempt to qualify him

as an expert in the area of child sexual abuse, testified that based upon his

training and experience, child victims often (1) have difficulty remembering

each incident when sexual abuse is ongoing, (2) have difficulty remembering

specific dates, and (3) mix up details of specific incidents with others. 1 N.T.,

4/5/2016 - 4/7/2016, at 100-01.

      In Commonwealth v. Dunkle, 602 A.2d 830, 836-38 (Pa. 1992), our

Supreme Court held that the reasons why sexually-abused children may not

recall or provide certain details of the assault, or may delay reporting the

incident, are within the range of common experience, easily understood by

lay people, and do not require expert analysis. While at first glance Dunkle

is dispositive of this issue, Dunkle predates our legislature’s enactment of

42 Pa.C.S. § 5920. This statute provides as follows:

      § 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

1
   Detective Holzwarth also testified that based upon his training and
experience, it is not uncommon for child victims to delay reporting sexual
assaults, and opined as to some of the reasons why. N.T., 4/5/2016 -
4/7/2016, at 103-04. I recognize, however, that while the trial court had
already overruled his prior objection regarding Detective Holzwarth’s
testifying as an expert, Appellant did not object to this specific testimony.


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            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).

     (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).

     Our Supreme Court has described section 5920 as providing the

substantive authorization to present expert testimony regarding specific

types of victim responses and behaviors.          Commonwealth v. Olivo, 127

A.3d 769, 780 (Pa. 2015).       To date, no court has expressly held that by

enacting   section   5920,   the   General      Assembly      legislatively   overruled

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Dunkle’s holding regarding testimony about child victim responses as being

within the knowledge of an average layperson.           See Commonwealth v.

Maconeghy, 171 A.3d 707, 709 n.2 (Pa. 2017) (noting that Dunkle is

“impacted by the enactment of [s]ection 5920 of the Judicial Code, which

now permits certain expert witnesses to testify to facts and opinions

regarding specific types of victim responses and behaviors,” but stating a

discussion of the specific effect of the statute on Dunkle was beyond the

scope of the opinion); Olivo, 127 A.3d at 781 (describing the portion of

Dunkle regarding child victim responses being within the knowledge of a lay

juror as a holding based upon “then-current research,” but not addressing

whether   the   holding   was   still    valid   in   light   of   section   5920);

Commonwealth v. Carter, 111 A.3d 1221, 1223-224 (Pa. Super. 2015)

(observing that Dunkle pre-dates section 5920, holding that trial court

properly permitted expert to testify regarding child victim responses

pursuant to section 5920, and rejecting Carter’s argument that General

Assembly had enacted legislation on an issue previously ruled upon by the

Supreme Court in an area specifically consigned to its authority, thereby

violating separation of powers). In my opinion, Dunkle’s holding regarding

specialized knowledge is no longer valid in light of the legislative enactment

of section 5920 because section 5920 classifies such knowledge, when

acquired through experience, training, or education in criminal justice

related to sexual violence, as specialized. See 42 Pa.C.S. § 5920(b)(1), (2).



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     In the instant case, the trial court and the Majority fail to discuss

Dunkle or section 5920.       The trial court explained that it overruled

Appellant’s objection because “the Commonwealth was entitled to question

Detective Holzw[a]rth regarding his experience with child victims” based

upon Appellant’s defense, which involved his counsel “paint[ing Victim] as a

liar, with emphasis on her inability to remember exact dates and some

confusion between which types of intercourse happened in which rooms of

the house.” Trial Court Opinion, 5/5/2017, at 8-10. This explanation relates

to the relevancy of the Commonwealth’s evidence, but fails to address

whether Detective Holzwarth’s testimony was based upon specialized

knowledge within the meaning of Pa.R.E. 702.

     Nevertheless, the Majority concludes that Detective        Holzwarth’s

testimony was not based upon specialized knowledge, and thus was

“permissible lay opinion testimony regarding his observations with similar

victims of sexual abuse.” Majority Memorandum at 8. However, Detective

Holzwarth rendered his opinion regarding typical victim responses based

upon his training and experience as a police officer investigating sexual

assaults. See Commonwealth v. Huggins, 68 A.3d 962, 969 (Pa. Super.

2013) (“[A]n officer testifies as an expert when he brings the wealth of his

experience as an officer to bear on those observations and makes

connections for the jury based on that specialized knowledge.”) (quoting

United States v. Christian, 673 F.3d 702, 708-09 (7th Cir. 2012));



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Commonwealth v. Powell, 171 A.3d 294 (Pa. Super. 2017) (holding a

police officer may testify as an expert based upon knowledge gained from

practical and occupational training).   In fact, the Commonwealth expressly

relied upon Detective Holzwarth’s experience and training when asking him

to formulate his opinion.    N.T., 4/5/2016 - 4/7/2016, at 100-03.         Thus,

Detective Holzwarth’s testimony appears to fall squarely within subsection

5920(b)(1) as “specialized knowledge beyond that possessed by the average

layperson based on the witness’s experience with, or specialized training or

education in, criminal justice … related to sexual violence, that will assist the

trier of fact in understanding the dynamics of … victim responses to sexual

violence.”   42 Pa.C.S. § 5920(b)(1).     A witness “may testify to facts and

opinions regarding specific types of victim responses and victim behaviors” if

such witness is “qualified as an expert.” 42 Pa.C.S. § 5920(b)(2). Although

it likely could have qualified Detective Holzwarth as an expert, the

Commonwealth failed to do so.           Thus, I dissent from the Majority’s

memorandum on this issue, and would grant relief to Appellant in the form

of a new trial.

      Second, I dissent from the Majority’s holding that the trial court did

not abuse its discretion in sentencing Appellant to a maximum-term,




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outside-the-guidelines sentence that, in the aggregate, resulted in a

sentence of 27 to 60 years of incarceration.2

      At the sentencing hearing, the trial court noted that it had read and

considered the pre-sentence investigation report.     N.T., 6/28/2016, at 9.

The trial court then stated that “[t]he guidelines have been submitted

indicating that” Appellant’s prior record score was zero and the offense

gravity score of the crimes was 12. The court then referenced the following

factors regarding its sentence: (1) the “number of violent sexual activities”

committed by Appellant; (2) the step-daughter/step-father relationship and

the violation of a position of trust; (3) the occurrence of the acts “from the

time [the victim] was 11 until the time she was 17”; 3 and (4) the impact



2
  The trial court sentenced Appellant to 9 to 20 years’ incarceration at each
count, to be served consecutively. With an offense gravity score of 12, and
a prior record score of zero, the guidelines recommend a mitigated range
sentence of 3 to 4.5 years; a standard range sentence of 4 to 5.5 years; and
an aggravated range sentence of 5 to 6.5 years. 204 Pa. Code § 303.16(a).
The statutory maximum for crimes that constitute felonies of the first degree
is 20 years’ imprisonment. 18 Pa.C.S. § 1103.

3  When stating the reasons for its sentence, the trial court stated
erroneously that Appellant perpetrated sexual abuse upon the victim from
the age of 11 to the age of 17. N.T. 6/28/2016, at 10. The record plainly
indicates that the abuse of the victim began at age 13. See N.T., 4/5/2016 -
4/7/2016, at 46, 85. The trial court repeats its error in its Rule 1925(a)
opinion, despite Appellant specifically addressing this issue as part of its
concise statement of matters complained of on appeal, and despite stating
earlier in the opinion that the abuse began at age 13. Trial Court Opinion,
5/5/2017, at 2, 11.

 In a footnote, the Majority downplays the error regarding the starting age
of abuse as a misstatement. Majority Memorandum, at 14 n.5. But the trial
(Footnote Continued Next Page)

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upon the victim and her mother. In its Pa.R.A.P. 1925(a) opinion, the court

references its considerable discretion in sentencing and ability to run

sentences consecutively; notes its consideration of the PSI and the

presumption that it weighed information regarding the defendant’s character

and mitigating factors; and contends it considered Appellant’s potential for

rehabilitation, the severity of the present offense, and unspecified factors

when fashioning Appellant’s sentence. Trial Court Opinion, 5/5/2017, at 11-

12.

      Despite its reference to the guidelines on the record, the trial court has

never acknowledged, even implicitly, that it sentenced Appellant outside of

the sentencing guidelines, much less provided a statement setting forth the

reasons for the deviation.             The trial court referenced the reasons why it

imposed Appellant’s sentence in general, but does not specify which, if any,

of the listed reasons compelled the court to impose a sentence so far outside

of the guidelines.           Additionally, on the Pennsylvania Commission on

Sentencing Guideline Sentence Forms included in the record, the trial court


(Footnote Continued)   _______________________



court gives us no indication that this was a mere slip of the tongue. While
any sexual abuse of a child at any age is unacceptable, in terms of
sentencing, improper consideration of two additional years of abuse at an
even younger age is significant. Sentencing courts may not rely upon
factually   erroneous     information    when    imposing     a    sentence.
Commonwealth v. Melvin, 172 A.3d 14, 25 (Pa. Super. 2017).
Nevertheless, Appellant did not preserve this issue by objecting to the
misstatement at the sentencing hearing or including it as an issue in his
post-sentence motion. Thus, the issue is waived.


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indicated that the 9-to-20-years sentence at counts one through three was a

standard range sentence, when such a sentence clearly is not. See 204 Pa.

Code § 303.16(a).

        Although the sentencing guidelines are advisory, the sentencing court

must at least “consider” the guidelines and provide a contemporaneous

statement setting forth its reasons for deviating from the guidelines. 4   42

Pa.C.S. § 9721(b); Commonwealth v. Wells, 926 A.2d 957, 962-63 (Pa.

2007); Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999)

(“[W]e hold that when imposing sentence, a trial court has rendered a

proper ‘contemporaneous statement’ under [sub]section 9721(b) of the

Sentencing Code, so long as the record demonstrates with clarity that the

court considered the sentencing guidelines in a rational and systematic way

and made a dispassionate decision to depart from them.”). Even considering

the trial court’s listed reasons, nothing in the record indicates with clarity

4   Subsection 9721(b) provides, in relevant part, that

        [i]n every case in which the court imposes a sentence for a
        felony or misdemeanor …, the court shall make as a part of the
        record, and disclose in open court at the time of sentencing, a
        statement of the reason or reasons for the sentence imposed.
        In every case where the court imposes a sentence … outside the
        guidelines adopted by the Pennsylvania Commission on
        Sentencing … the court shall provide a contemporaneous written
        statement of the reason or reasons for the deviation from the
        guidelines to the commission…. Failure to comply shall be
        grounds for vacating the sentence … and resentencing the
        defendant.

42 Pa.C.S. § 9721(b).


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that the trial court considered the guidelines and dispassionately departed

from them for justified reasons.   C.f. Commonwealth v.        Antidormi, 84

A.3d 736, 761 (Pa. Super. 2014) (holding that the sentencing court

demonstrated due consideration for the statutory considerations, and stated

adequate reasons on the record to support the imposition of a sentence

outside of the standard guidelines by referencing Antidormi’s criminal

history, his resistance to treatment, his risk for recidivism, and the

seriousness of his crime).

      Further, although a Pa.R.A.P. 1925(a) opinion is not a substitute for

the contemporaneous statement required by subsection 9721(b), there is

nothing in the trial court’s Rule 1925(a) opinion that gives me confidence

that the trial court did actually consider the guidelines during sentencing and

dispassionately departed from them.     Once again, the trial court does not

acknowledge that it sentenced Appellant outside the guidelines or provide a

reason for doing so.    The trial court simply hides behind boilerplate law

regarding its general discretion in sentencing. Notwithstanding a trial court’s

considerable discretion in sentencing, the trial court still must comply with

subsection 9721(b), especially because “[f]ailure to comply [is] grounds for

vacating the sentence … and resentencing the defendant.”         42 Pa.C.S. §

9721(b). Thus, I would vacate the sentence and remand for resentencing.




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