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                              2015 PA Super 55

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
CHRISTOPHER JACKSON CARTER,             :         No. 1391 EDA 2014
                                        :
                        Appellant       :


          Appeal from the Judgment of Sentence, March 31, 2014,
             in the Court of Common Pleas of Monroe County
             Criminal Division at No. CP-45-CR-0002272-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 19, 2015

      Christopher Jackson Carter appeals from the judgment of sentence of

March 31, 2014, following his conviction of various sexual offenses.      We

affirm.

      Following a jury trial held October 21-22, 2013, appellant was found

guilty of one count of rape by forcible compulsion, five counts of involuntary

deviate sexual intercourse (“IDSI”) -- person less than sixteen years of age,

five counts of aggravated indecent assault, four counts of indecent assault,

five counts of endangering the welfare of a child, and five counts of

corruption of minors. The charges resulted from the victim’s disclosure that

she had been sexually abused by appellant during the years 1990 through

1994. Appellant was sentenced to an aggregate term of 240 to 480 months’

imprisonment; this timely appeal followed.      Appellant has complied with
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Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion.

      Appellant has raised the following issues for this court’s review:

            [1.]   Did the trial court err by permitting the
                   Commonwealth to call an expert to testify that
                   bolstered the credibility of the complaining
                   witness?

            [2.]   Were [appellant]’s constitutional rights violated
                   by the Commonwealth proceeding against him
                   in violation of the Statute of Limitations that
                   was in place at the time the offenses were
                   alleged to have been committed?

            [3.]   Has the Commonwealth failed to demonstrate
                   any reason why the applicable statute of
                   limitations of two and five years was tolled
                   pursuant to 42 Pa.C.S.A. Section 5554[?]

Appellant’s brief at 11.

      In   his   first   issue   on   appeal,   appellant   complains   that   the

Commonwealth should not have been permitted to call Ms. Carol Haupt as

an expert witness to explain the victim’s delay in reporting the sexual abuse.

Appellant argues that this improperly bolstered the victim’s credibility and

invaded the province of the jury.

      “The admission of expert testimony is a matter of discretion [for] the

trial court and will not be remanded, overruled or disturbed unless there was

a clear abuse of discretion.”         Blicha v. Jacks, 864 A.2d 1214, 1218

(Pa.Super. 2004). “Expert testimony is permitted as an aid to the jury when

the subject matter is distinctly related to a science, skill, or occupation



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beyond    the    knowledge   or   experience    of   the   average   layman.”

Commonwealth v. Lopez, 854 A.2d 465, 470 (Pa. 2004), quoting

Commonwealth v. Auker, 681 A.2d 1305, 1317 (Pa. 1996). “Conversely,

expert testimony is not admissible where the issue involves a matter of

common knowledge.” Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa.

2000) (citation omitted).

     42 Pa.C.S.A. § 5920 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
                        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


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                        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.A. § 5920 (footnote omitted).1

      Ms. Haupt testified that it is common for child sexual abuse victims to

delay in reporting. (Notes of testimony, 10/21/13 at 121-122.) Ms. Haupt

expounded upon some of the reasons why a child sexual abuse victim may

delay in reporting. (Id. at 122-124.) However, she did not testify regarding

this victim specifically or whether or not the alleged incidents actually

occurred. (Id. at 125.) Ms. Haupt did not offer any opinion regarding the



1
  “Section 2 of 2012, June 29, P.L. 656, No. 75, effective in 60 days
[Aug. 28, 2012], provides that ‘[t]he addition of 42 Pa.C.S. § 5920 shall
apply to actions initiated on or after the effective date of this section.’” Id.,
historical and statutory notes. The criminal complaint in this case was filed
on September 7, 2012. Therefore, Section 5920 applies.


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victim’s credibility.    Under Section 5920, her testimony was clearly

admissible.

      In a related argument, appellant contends that Section 5920 violates

separation of powers because only the Pennsylvania Supreme Court may

promulgate rules of procedure.        We addressed a similar argument in

Commonwealth v. Presley, 686 A.2d 1321 (Pa.Super. 1996), appeal

denied, 694 A.2d 621 (Pa. 1997):

                     Presley next claims that Section 6354(b)(4)
              [(of the Juvenile Act, amended in 1995 to permit use
              of a juvenile adjudication in a subsequent criminal
              proceeding under certain circumstances)] violates
              the concept of separation of powers under
              Pennsylvania’s Constitution.       To support this
              argument, Presley directs our attention to Article V,
              Section 10(c) which provides that:

                   The Supreme Court shall have the power
                   to prescribe general rules governing
                   practice, procedure and the conduct of all
                   courts. . . . All laws shall be suspended
                   to the extent that they are inconsistent
                   with rules prescribed under these
                   provisions.

                     Presley correctly notes that the above
              provision generally prohibits the legislature from
              “tell[ing] the Judiciary how to hear and decide
              cases.” Appeal of Borough of Churchill, 525 Pa.
              80, 88, 575 A.2d 550, 554 (1990) (citing In re 42
              Pa.C.S. Section 1703, 482 Pa. 522, 394 A.2d 444
              (1978)). Nevertheless, “[i]t is well settled that the
              legislature of a state has the power to prescribe new
              rules of evidence, providing that they do not deprive
              any person of his constitutional rights.” Dranzo v.
              Winterhalter, 395 Pa.Super. 578, 589, 577 A.2d
              1349, 1354 (1990), alloc. denied, 526 Pa. 648,
              649, 585 A.2d 468 (1991). This principle was settled


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            nearly sixty years ago, when our Supreme Court
            stated that “[w]e recognize the right of the
            legislature to create or alter rules of evidence.” Rich
            Hill Coal Co. v. Bashore, 334 Pa. 449, 485, 7 A.2d
            302, 319 (1939).           More recently, the Court
            reaffirmed this holding by stating that “[s]ubject only
            to constitutional limitations, the legislature is always
            free to change the rules governing the competency
            of witnesses and the admissibility of evidence.”
            [Commonwealth v.] Newman, [633 A.2d 1069,
            1071 (Pa. 1993)].

                  Further, the state constitution, itself, does not
            provide a complete proscription against laws which
            regulate practice, procedure and the conduct of
            courts. To the contrary, the constitution mandates
            that such laws shall only be prohibited “to the extent
            that they are inconsistent with rules prescribed” by
            the Supreme Court. Since the Supreme Court has
            not yet adopted a rule concerning the issue
            addressed in Section 6354(b)(4) and our Supreme
            Court has held that the legislature may properly
            create rules of evidence, we cannot find that
            42 Pa.C.S.A. § 6354(b)(4) violates Article V,
            Section 10(c) of our state constitution.

Id. at 1324-1325.

      Instantly, Section 5920 is really a rule regarding the admissibility of

evidence, not a procedural rule. Furthermore, it is not in direct conflict with

any existing rule of the Pennsylvania Supreme Court.        Appellant claims it

conflicts with Pa.R.E. 702, in that the reasons why a child may not promptly

report a sexual assault is not beyond the ken of the average layperson.

Appellant also cites to Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa.

1992) (“Not only is there no need for testimony about the reasons children

may not come forward, but permitting it would infringe upon the jury’s right



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to determine credibility.”) (emphasis in original) (citations omitted). Dunkle

held that it is error to allow expert testimony on the issue of prompt

complaint, which impermissibly interferes with the jury’s function to judge

credibility. Id. at 837-838. See also, e.g., Commonwealth v. Alicia, 92

A.3d 753 (Pa. 2014) (holding that expert testimony on the phenomenon of

false confessions would impermissibly invade the jury's exclusive role as the

sole arbiter of credibility).

      Appellant argues that our supreme court has ruled on precisely this

issue, in an area specifically consigned to its authority. (Appellant’s brief at

20-21.)    However, Dunkle predates Section 5920 and was not based on

constitutional grounds but on existing case law and rules of evidence.       As

such, we determine that Section 5920 does not violate separation of powers.

      Next, appellant argues that the charges should have been dismissed as

being beyond the applicable statute of limitations. This claim is waived.

      In Commonwealth v. Rossetti, 863 A.2d 1185 (Pa.Super. 2004),

appeal denied, 878 A.2d 864 (Pa. 2005), this court found the defendant’s

statute of limitations claim raised in post-sentence motions to be waived,

stating,

             In Commonwealth v. Darush, 501 Pa. 15, 20 n.4,
             459 A.2d 727, 730 n.4 (1983), the Pennsylvania
             Supreme Court held that a statute of limitations
             claim is waived if not raised in a pretrial omnibus
             motion seeking dismissal of the charges. Id. In two
             decisions following Darush, this Court found statute
             of limitations claims to be waived when not raised at
             the first available opportunity and when raised after


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           the imposition of sentence.      Commonwealth v.
           Groff, 378 Pa.Super. 353, 548 A.2d 1237, 1244-45
           (1988); Commonwealth v. Stover, 372 Pa.Super.
           35, 538 A.2d 1336, 1339 (1988). In Stover, we
           stated that a defendant had from the expiration date
           of the statute of limitations until the date of
           sentencing to raise the issue of statute of limitations
           and that the failure to raise it in a timely fashion
           constituted a waiver of the claim. Stover, 538 A.2d
           at 1339.

Id. at 1190.

     Instantly, the issue was not raised until after sentencing, in appellant’s

Rule 1925(b) statement. Accordingly, it is deemed waived.2

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/19/2015




2
  We note that the issue is clearly without merit for the reasons discussed in
the trial court opinion. (See trial court opinion, 7/8/14 at 6-10) (discussing
tolling of the statute where the victim is less than 18 years of age when the
offenses were committed).


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