                           [J-17-2017] [MO: Saylor, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                 :   No. 81 MAP 2016
                                              :
                     Appellant                :
                                              :   Appeal from the Order of the Superior
                                              :   Court dated June 12, 2015 at No. 2191
              v.                              :   MDA 2014, vacating the Judgment of
                                              :   Sentence of July 21, 2014 of the Court
                                              :   of Common Pleas of Lackawanna
KENNETH MACONEGHY, JR.,                       :   County, Criminal Division, at No. CP-35-
                                              :   CR-0001450-2012 and remanding
                     Appellee                 :
                                              :   ARGUED: March 8, 2017

                                 DISSENTING OPINION

JUSTICE TODD                                            DECIDED: October 18, 2017
       The majority holds that Dr. Novinger’s expert opinion that C.S. was sexually

abused was inadmissible because it was founded solely on his crediting her reports of

the abuse and, thus, in the majority’s view, invades the jury’s province as the sole

arbiter of witness credibility. In my view, the majority overlooks an important distinction

between expert testimony on the subject of witness credibility, which is inadmissible,

and expert testimony on other subjects which are merely founded on assessments of

witness credibility, which are not ipso facto inadmissible.      I am concerned that the

majority’s holding will lead to the exclusion of myriad types of salutary expert testimony

which would not infringe upon the jury’s role, but, rather, would assist the jury in its

execution of its duties as the finder of fact. I further fear that the majority’s holding is

particularly troublesome in the context of prosecutions for child sexual abuse, where

pediatricians frequently rely on non-physical evidence of such abuse, where physical

evidence is exceedingly rare, and where juries commonly labor under outdated myths to
the contrary. Accordingly, I respectfully dissent, and would reverse the Superior Court’s

order and reinstate Appellee’s convictions and judgment of sentence.

      As the majority summarizes, in 2011, C.S. reported that, in the summer of 2005,

when she was 11 years old, Appellee repeatedly raped and otherwise sexually abused

her over a period of several months, at times when her mother and siblings were absent

from their home.    In the ensuing investigation, C.S. was referred to the Children’s

Advocacy Center of Northeastern Pennsylvania (“CAC”), where she underwent a

forensic interview with a certified forensic interviewer, detailing the abuse, which was

observed by the CAC’s former director and then-consulting pediatrician, Dr. Novinger.

C.S. then underwent a forensic medical examination performed by Dr. Novinger, who

ultimately determined that C.S. was sexually abused.

      Appellee was arrested and charged with, inter alia, rape, rape of a child, statutory

sexual assault, aggravated indecent assault of a person less than 13 years of age,

endangering welfare of children, indecent assault of a person less than 13 years of age,

corruption of minors, and unlawful contact with a minor,1 and proceeded to a jury trial, at

which C.S. testified at length to the details of the abuse. Specifically, C.S. indicated

that, during the summer of 2005, she lived with Appellee, who was unemployed, her

mother, who worked during the day, and her siblings.         C.S. testified that, after her

mother left for work, Appellee would send her siblings to a relative’s house or otherwise

isolate her, whereupon he would force her to bathe with him and engage in vaginal

intercourse and other sexual conduct in their bath, on their couch, and in his bedroom.

C.S. further testified that she did not understand that his behavior was abnormal, but

that, by 2011, she had begun to appreciate the nature of her abuse. C.S. explained

1
  18 Pa.C.S. §§ 3121(a)(1), 3121(c), 3122.1, 3125(a)(7), 4304(a), 3126(a)(7),
6301(a)(1), and 6318(a)(1), respectively.



                            [J-17-2017] [MO: Saylor, C.J.] - 2
that, around that time, she was spending the weekend with her biological father and his

girlfriend, and they were watching a television show which turned to the subject of rape,

causing her to cry.    According to C.S, her father then asked her if she had been

victimized, and she ultimately disclosed what Appellee had done.

       At issue herein, the Commonwealth elicited the testimony of Dr. Novinger, who

testified at length to his experience as a pediatrician, and, particularly, as a pediatrician

experienced in the evaluation and treatment of child sexual abuse victims. Specifically,

Dr. Novinger indicated that he had 37 years of experience as a practicing, board-

certified pediatrician, which included, inter alia, chairing the Department of Pediatrics at

Geisinger Wyoming Valley Medical Center, externing with a Children’s Advocacy Center

in San Diego, California, founding a clinic at Geisinger for the evaluation and treatment

of child sexual abuse victims, serving as CAC’s medical director for several years, and

holding numerous seminars for medical and educational professionals concerning child

sexual abuse. Dr. Novinger estimated that he had evaluated between 500 and 1000

children for signs of abuse, and that he had testified in myriad civil and criminal cases

involving child sexual abuse.

       Based on this experience, the Commonwealth offered, and the trial court

certified, Dr. Novinger as an expert in the fields of pediatrics and child abuse. Dr.

Novinger indicated generally that his forensic medical examination consisted of

observing C.S.’s forensic interview, taking her medical history, including her account of

the abuse, and conducting a physical examination, which yielded no physical evidence

of the abuse.     Dr. Novinger clarified that the lack of physical evidence neither

corroborated nor undermined the Commonwealth’s allegations. Indeed, Dr. Novinger

explained that the “overwhelming majority” of physical examinations involving similar

abuse reveal no physical evidence of the same:




                             [J-17-2017] [MO: Saylor, C.J.] - 3
[The Commonwealth:]        Doctor, I am going to get you . . .
                           to the area that I am most
                           concerned about. You indicated
                           on your report that everything
                           seemed to be normal. Could you
                           tell me a little bit about what
                           we’re looking for when you’re
                           looking at something in the
                           hymeneal ring?

[Dr. Novinger:]            We’re looking for evidence of
                           acute, chronic, or healed trauma
                           in light of the history that we’re
                           provided. We know that children
                           – girls who are victimized, the
                           overwhelming majority of their
                           exams will be normal, and that’s
                           what we expect to find if it’s
                           greater than 72 hours. If it is less
                           than 72 hours – in other words,
                           we see the child less than 72
                           hours     after   they’ve      been
                           victimized – then about 70
                           percent will be normal. And so
                           our expectation . . . is that the
                           exam would be entirely normal.

[The Commonwealth:]        Okay. But when you’re going in
                           on an examination based on the
                           disclosure like you had in this
                           case, what is your expectation?
                           Do you think you’re going to find
                           something? Is there a red flag
                           that waves around at the hymen
                           as to a huge indicator flashing
                           sign saying this person has been
                           abused?

[Dr. Novinger:]            No. I mean we’re objective in
                           trying to -- our goal is to identify
                           and objectively examine and
                           describe what we find. The truth
                           of the matter is that the
                           overwhelming       majority       of
                           children, adolescent girls, who
                           present with the sort of complaint



              [J-17-2017] [MO: Saylor, C.J.] - 4
                                           that [C.S.] did their exam is
                                           normal.

              [The Commonwealth:]          So is there a certain like
                                           watermark that you would think
                                           that you would see in patients
                                           that    presented       with this
                                           disclosure that [C.S.] had?

              [Dr. Novinger:]              No. No. I would expect that her
                                           exam would be normal.
N.T. Trial, 1/21/14, at 203-05 (R.R. at 86a-88a). Dr. Novinger went on to explain that

the reason that physical evidence is rare is because children who are abused frequently

sustain no injuries during, or heal after, the abuse, contrary to long-held cultural beliefs:

              [Dr. Novinger:]              [W]e know that the hymen and
                                           the surrounding structures of . . .
                                           the vagina is the mucosa, similar
                                           to the mucosa that is inside your
                                           mouth. We know that this part of
                                           the body heals up very quickly
                                           should there be an injury. We
                                           know that in the event we see a
                                           child very early after an incident
                                           in which she is sexually
                                           assaulted, and there is evidence
                                           of trauma, that if you check the
                                           same child three weeks later, the
                                           trauma is completely healed and
                                           there really is no residual finding
                                           whatsoever,      and    over     the
                                           majority of the time that is the
                                           case. So I think there’s an idea
                                           of a culture belief in virginity,
                                           which is really a myth. In other
                                           words, in children and in anyone
                                           who experiences sexual activity,
                                           the idea that they’re changed in
                                           some way as a result is really a
                                           myth. That the overwhelming
                                           majority of times they’re really not
                                           changed in any way. As I show


                             [J-17-2017] [MO: Saylor, C.J.] - 5
                                          there, the hymeneal rim, it’s
                                          actually . . . not a membrane and
                                          therefore it’s not something that
                                          necessarily is traumatized by
                                          penetration. It’s made of tissue,
                                          which is very elastic. And I mean
                                          obviously this is where a baby
                                          comes from and the good Lord
                                          made that part of the body to
                                          stretch. And so we know that
                                          adolescents       can   experience
                                          stretching there either as a
                                          [result] of sexual assault or even
                                          as the result of [a] speculum
                                          exam . . . and have no evidence
                                          of any trauma.
Id. at 205-06 (R.R. at 88a-89a). Doctor Novinger then explained that, because physical

examinations typically reveal no physical evidence of abuse, physicians forming expert

opinions on whether a child was sexually abused rely largely on the child’s provided

history, explaining that his experience and a series of medical publications similarly

refute the notion that one’s “virginity” can be determined by resort to physical

examination:

               [The Commonwealth:]        Doctor, I’m just going to back you
                                          up a little bit. You touched upon
                                          the fact that you’re talking about
                                          whether this idea that we have as
                                          a society of a virgin, what have
                                          you had in your experience and
                                          in the medical literature that says
                                          that the examination of a person
                                          who has had intercourse versus
                                          the examination of a person who
                                          hasn’t had intercourse, how you
                                          would be able to differentiate the
                                          difference between those two?

               [Dr. Novinger:]            Really by history only. There is
                                          really no physical difference


                             [J-17-2017] [MO: Saylor, C.J.] - 6
                           between the two, and in the
                           context of medical literature
                           today, the term virgin would not
                           be used because it really has no
                           medical basis. The idea that a
                           virgin is someone who has not
                           had the change of someone who
                           had experienced a sexual
                           experience or sexual assault is
                           really a long, long standing myth.
                           It’s a cultural belief that [the]
                           medical field just does not
                           support.

[The Commonwealth:]        Where do you get this information
                           from when you’re talking about
                           the medical literature?

[Dr. Novinger:]            Besides my personal experience
                           at the CAC, there’s a published
                           peer review in medical literature
                           that at this point universally
                           supports the significant fact that
                           the hymenal ring is typically not
                           changed by any penetration.

[The Commonwealth:]        Doctor, when you authored your
                           report . . . with regard to what
                           your findings were with [C.S.],
                           you would expect them to be
                           normal, right?

[Dr. Novinger:]            Yes.

[The Commonwealth:]        Do you cite this book, Child
                           Abuse, Medical Diagnosis and
                           Management as a reference to
                           say that you would expect that
                           examination to be normal based
                           on her disclosure?

[Dr. Novinger:]            Yes.



              [J-17-2017] [MO: Saylor, C.J.] - 7
[The Commonwealth:]        Is this a book that you find to be
                           authoritative and that others in
                           your profession would find
                           authoritative in the area of child
                           abuse?

[Dr. Novinger:]            Yes.

[The Commonwealth:]        Doctor, is there a specific article
                           that you mentioned in your report
                           . . . that basically describes that
                           whole idea of virgin in the context
                           of medical research?

[Dr. Novinger:]            Yes. I have to emphasize there’s
                           a number of different articles.
                           There is one particular one in
                           2004 published by Nancy Kellogg
                           and others in which they
                           examined 36 adolescent girls, all
                           of whom were pregnant. So by
                           definition they have had sexual
                           experience and described their
                           hymenal anatomy, and the
                           overwhelming majority of these
                           pregnant adolescents, hymenal
                           anatomy was completely normal.
                           There was no evidence of acute
                           trauma, blunt trauma, notching,
                           anything like that that you would
                           expect from a belief that
                           somehow they’re changed by a
                           sexual experience. . . . Two of the
                           36 were not normal, and actually
                           one of the 36 had — it was
                           actually her second child. I think
                           there was a belief that somehow
                           the hymen disappears after their
                           first sexual experience, and
                           again, that’s a cultural myth that
                           is part of a young woman’s
                           anatomy. It doesn’t go away.



              [J-17-2017] [MO: Saylor, C.J.] - 8
                                         And in most       cases   it’s   not
                                         changed.
Id. at 206-09 (R.R. at 89a-92a).

      On cross-examination, Appellee’s counsel attempted to characterize Dr.

Novinger’s testimony as indicating that the medical evidence did not corroborate the

Commonwealth’s allegations of abuse, but Dr. Novinger rejected the characterization,

noting that a portion of the “medical evidence” — C.S.’s medical history — indicated she

was abused:

              [Appellee’s Counsel:]      Dr. Novinger, you testified at
                                         length about this exam.         Of
                                         course you started the testimony
                                         by agreeing that the medical
                                         evidence that you observed in
                                         this alleged victim did not support
                                         an allegation that there was
                                         sexual abuse.

              [Dr. Novinger:]            The history she provided to me
                                         pretty clearly indicated that she
                                         was sexually abused.
Id. at 218-19 (R.R. at 101a-02a).      Appellee’s counsel clarified that, by “medical”

evidence, he was referring to physical evidence, and, ultimately, asked Dr. Novinger

whether he could offer an opinion as to whether C.S. was sexually abused based solely

thereon. Dr. Novinger responded that he could not, but that his opinion, based on the

forensic medical examination as a whole, was that C.S. had been sexually abused:

              [Appellee’s Counsel:]      Based      on    your     physical
                                         examination, you can’t testify
                                         here today to a degree of medical
                                         certainty as to whether or not this
                                         particular victim was sexually
                                         assaulted.




                            [J-17-2017] [MO: Saylor, C.J.] - 9
              [Dr. Novinger:]              I really can’t speak to the different
                                           parts of the medical encounter.
                                           [The]      [m]edical      encounter
                                           included a history as well as a
                                           physical exam. As I said, the
                                           physical exam was normal.
                                           Clearly the medical encounter
                                           indicated the child had been
                                           victimized.
Id. at 228 (R.R. at 111a).

       On redirect examination, the Commonwealth sought to emphasize that the lack

of physical evidence did not undermine its allegations, and Dr. Novinger agreed,

restating his conclusion that C.S. had been sexually abused:

              [The Commonwealth:]          [W]hen you’re saying that your
                                           examination is normal, you’re not
                                           saying that nothing happened,
                                           are you?

              [Dr. Novinger:]              That’s correct. I really believe
                                           strongly that was my medical
                                           conclusion that this child was
                                           victimized.
Id. at 229 (R.R. at 112a). Notably, Dr. Novinger at no point identified Appellee, or any

other specific individual, as the perpetrator of C.S.’s abuse.

       Although not objecting at that time, the next day, Appellee's counsel made an

oral motion to strike this testimony as “inappropriate opinion testimony that’s not based

on medical evidence or . . . medical expertise.” N.T. Trial, 1/22/14, at 22 (R.R. at 115a).

The trial court denied the motion, reasoning that the testimony was an admissible

medical opinion, based on the forensic medical examination as a whole, that C.S. had

been sexually abused.

       Ultimately, Appellee was convicted of the aforementioned offenses and

sentenced to a term of 10½ to 30 years imprisonment. He appealed to the Superior



                             [J-17-2017] [MO: Saylor, C.J.] - 10
Court, arguing that the trial court erred in denying his motion to strike because Dr.

Novinger’s testimony, founded solely upon his crediting C.S.’s reports of the abuse,

indirectly vouched for C.S.’s credibility and invaded the jury’s purview as the sole arbiter

of credibility.   The Superior Court agreed, reversing and remanding for further

proceedings, and the Commonwealth sought allocatur, which we granted.

       Before us, the Commonwealth argues, consistent with the trial court’s analysis,

that Dr. Novinger’s testimony did not express an opinion on C.S.’s credibility, but, rather,

expressed a medical opinion based on the forensic medical examination as a whole,

that C.S. had been sexually abused.          The majority rejects the Commonwealth’s

arguments based on the view, shared by some other jurisdictions, that an expert opinion

that an individual was sexually abused, founded solely on the expert’s crediting the

individual’s reports of the abuse, is “inextricably tied to [the expert’s] belief in the

complainant’s veracity” and, thus, constitutes “indirect vouching” for the individual’s

credibility. Majority Opinion at 8-9. The majority further reasons that, because this

Court has previously forbidden “expert testimony concerning general characteristics of

sexual assault victims,” “[i]t would be incongruous indeed for the Court to now forge a

minority pathway on the opposite side of the spectrum by sanctioning the admission of

evidence having a more direct bolstering effect specific to the complainant.” Id. at 11

(citing Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000)).

       In my view, the majority’s analysis in this regard conflates two distinct categories

of expert testimony: expert opinions on the subject of witness credibility, which this

Court has held inadmissible, and expert opinions on other subjects founded on a

witness’s prior statements, which are not ipso facto inadmissible. Indeed, this Court has

not hesitated to reject expert testimony merely corroborating a witness’s testimony or

offering reasons why a witness (or class of witnesses) is credible. See Commonwealth




                            [J-17-2017] [MO: Saylor, C.J.] - 11
v. O’Searo, 352 A.2d 30 (Pa. 1976) (rejecting expert psychological testimony

corroborating a defendant’s testimony concerning his lack of malice in shooting his

victim); Commonwealth v. Rounds, 542 A.2d 997 (Pa. 1988) (rejecting an expert’s

testimony that she believed a complaining witness); Commonwealth v. Seese, 517 A.2d

92 (Pa. 1986) (rejecting expert testimony that prepubescent children do not typically

fabricate abuse of being sexually abused because they lack sufficient knowledge of

sexual behavior to do so); Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992) (rejecting

expert testimony explaining why child sexual abuse victims may delay reporting their

abuse).2

      However, with respect to the latter category — i.e., expert opinions on other

subjects which are merely founded upon credited reports of others — we have charted

a somewhat different course. In Rounds, supra, we addressed a defendant’s claim that

his counsel was ineffective in failing to object to a medical opinion, based solely on the

alleged victim’s history, that the alleged victim had been sexually abused, on the ground

that the expert had failed to state the basis for her opinion. Rounds, 542 A.2d at 997-

99. Notably, we expressly rejected, albeit in dicta, the expert’s explicit testimony that

she believed the alleged victim, as an inadmissible expert opinion on her credibility, see

id. at 997 n.4 (citing Seese, but noting the issue was not raised); however, we did not

suggest that her opinion itself was inadmissible because it was based solely on the

alleged victim’s history. Rather, we appeared to reject the proposition, opining that it

was counsel’s duty to elicit from the expert that her opinion was rooted solely in the




2
  Notably, following Dunkle, the General Assembly enacted a provision permitting the
introduction of such expert testimony under certain circumstances, provided experts do
not opine on the subject of witness credibility. See 42 Pa.C.S. § 5920.



                           [J-17-2017] [MO: Saylor, C.J.] - 12
alleged victim’s statement, and then to challenge the opinion as unreliable by

challenging the statement as unreliable:

              [W]e must conclude that trial counsel was ineffective. There
              is no reason that can be offered for permitting the damaging
              opinion of [the expert] to be admitted without the facts upon
              which it was being considered. How could a jury evaluate
              the expert opinion without even knowing the facts upon
              which it was based[?] [The expert] testified that the case
              history was the single most important factor in reaching her
              conclusion. If the jury believed that the case history she
              received was inaccurate or false, surely this would affect the
              validity of her opinion.
Id. at 999.

       The majority acknowledges that Rounds “may provide some inferential evidence

that the Court was then not consciously inclined to disapprove expert witness opinions

that abuse has occurred within the contours of the case as it had developed,” but

nevertheless rejects the import of this passage on the ground that the court offered “no

developed reasoning . . . on this subject.” Majority Opinion at 13. In my view, the more

sound reading of the passage is as embracing the notion advanced by the

Commonwealth herein: that expert testimony on a subject other than witness credibility

is not transformed into an opinion on the subject of credibility solely because it is

founded on a witness’s prior statements.

       Additionally, in Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000), we

considered whether a medical expert’s testimony that the absence of physical trauma is

nevertheless consistent with the alleged sexual abuse was inadmissible expert

testimony as to credibility, ultimately adopting the view that it was proper, even if it

tended to support a witness’s credibility, in part because the expert did not opine directly

as to any witness’s credibility. Id. at 227-30 (“In this case, [the expert’s] testimony was

probative of the veracity of [the alleged victims]. However, [she] was neither asked for,


                            [J-17-2017] [MO: Saylor, C.J.] - 13
nor did she express, any opinion as to whether the children were telling the truth about

being sexually abused.”). Admittedly, as the majority highlights, we also noted that the

expert’s testimony “only explained the significance of the results of the physical

examination,” and that her opinion was “inconclusive as to whether any abuse had even

occurred.” Id. However, in my view, these distinctions are insignificant: because the

expert offered no opinion as to a witness’s credibility, it did not invade the jury’s

province as the sole arbiter of credibility.

       Given this distinction between expert opinions about credibility and expert

opinions on other subjects rooted in the expert’s credibility judgments, I am likewise

unpersuaded by the majority’s reliance on our preclusion, in Balodis, of “expert

testimony concerning general characteristics of sexual assault victims,” as supporting its

analysis herein. Majority Opinion at 11. Simply put, the testimony in Balodis concerned

“the general characteristics of child sexual abuse victims as those traits relate to a

failure to promptly report abuse.” Balodis, 747 A.2d at 343. That is, the testimony was

offered to explain why child sexual abuse victims engage in conduct that would

otherwise form a basis for attacking their credibility, and was not, like Dr. Novinger’s

testimony herein, an opinion on another subject which was merely rooted in crediting a

witness’s prior statements.

       Moreover, the majority’s apparent view that an expert opinion is inadmissible

merely because it is rooted in the expert’s assessment of the veracity of third-party

statements is itself anomalous, as our Rules of Evidence and numerous decisions of

this Court have essentially delegated the question of proper methodology for deriving,

and the proper foundation of, expert opinions to the judgment of experts themselves,

reflecting this Court’s reluctance to substitute its judgment on those methodological

questions for those of individuals learned and experienced in their respective




                              [J-17-2017] [MO: Saylor, C.J.] - 14
specialized fields. See Pa.R.E. 702(c) (requiring that an “expert’s methodology” be

“generally accepted in the relevant field”); Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1044-

45 (Pa. 2003) (noting that “[o]ne of the primary reasons” for deferring to professional

judgments concerning methodology is “its assurance that judges would be guided by

scientists when assessing the reliability of a scientific method” and that the rationale

applies with greater force over time due to “the ever-increasing complexity of scientific

advances”); Pa.R.E. 703 (“If experts in the particular field would reasonably rely on . . .

facts or data in forming an opinion on the subject, they need not be admissible for the

opinion to be admitted.”); cf. Commonwealth v. Thomas, 282 A.2d 693, 698 (Pa. 1971)

(noting that medical experts may testify to opinions based upon “reports of others which

are not in evidence, but which the expert customarily relies upon in the practice of his

profession”).

       Indeed, I find myself largely in agreement with the Superior Court’s decision in

Commonwealth v. Hernandez, 615 A.3d 1337 (Pa. Super. 1992), which the

Commonwealth relies on in its brief. In that case, a criminal defendant raised a claim

that his trial counsel was ineffective in failing to object to a medical expert’s testimony

that “assuming the truthfulness of the victim’s history, the physical facts from a medical

examination . . . were consistent with the victim’s allegation.” Id. at 1338. The court

rejected the defendant’s claim, opining that a medical expert is free to base his opinion

on methods and foundational facts or data that are reasonably relied upon in the field of

medicine:

                The general rule governing admissibility of expert testimony
                is that “[e]xpert testimony is permitted only as an aid to the
                jury when the subject matter is . . . beyond the knowledge or
                experience of the average layman.           Where the issue
                involves a matter of common knowledge, expert testimony is
                inadmissible.” Commonwealth v. O’Searo, 352 A.2d [at 32].



                             [J-17-2017] [MO: Saylor, C.J.] - 15
                We are unaware of any precedent that establishes that an
                expert . . . may not explain the assumptions on which he
                bases his opinion. . . . [A] medical expert may base his
                opinion upon facts which are in the record and reports of
                others which are . . . customarily relied upon in practicing
                medicine, including the observations of lay persons. It
                follows that a pediatrician . . . may testify that the physical
                facts observed and reported by the treating physician were
                consistent with the allegation . . . set forth in the history of
                the child. The medical history of a patient is customarily
                relied upon in practicing medicine. Consequently, it is not
                error for the expert to testify . . . that his opinion assumes the
                truthfulness of the history supplied by the victim.
Id. at 1343.3

       Finally, I am concerned that the majority’s holding will undermine the admissibility

of myriad forms of salutary expert opinion evidence. Indeed, one can readily imagine

numerous kinds of appropriate expert opinions, rooted solely in the statements of

others, that may now be prohibited.            Doctors may be forbidden from testifying

concerning their patients’ diseases where their diagnoses are made on the basis of

patients’ or other medical professionals’ statements or reports.                     Psychiatric

professionals, whose diagnoses often rely solely on their evaluation of their patients’

mental states as evidenced by their verbal statements, may be precluded. These and

numerous other experts may be forbidden from offering opinions based on third-parties’

statements, even where their professions routinely rely on such statements. In my view,


3
  In his brief, Appellee claims that Hernandez is distinguishable in that, therein, the
expert based his opinion on both physical observations and the victim’s history, and
testified only that the data was consistent with abuse, rather than offering an affirmative
opinion that abuse occurred. However, I do not find those distinctions to alter the
appropriate answer to the salient question of whether the prohibition on expert opinions
on witness credibility applies to opinions that are on subjects other than witness
credibility, but founded in assessments of the credibility of witnesses’ prior statements.




                              [J-17-2017] [MO: Saylor, C.J.] - 16
the exclusion of such expertise from the courts of this Commonwealth would deprive

jurors of guidance they need.      Moreover, as observed in Grady, supra, the ever-

increasing complexity of modern life counsels toward greater deference to communities

of experts as to the proper foundations of their expert opinions.

       Such deprivation is particularly pernicious in the context of prosecutions for child

sexual abuse. There is an extremely narrow temporal window for the collection of

physical evidence of child sexual abuse like that which was alleged to have occurred in

this case, such that the discovery of physical evidence is the exception, rather than the

rule. See, e.g., Bernd Herrmann, et al., Physical Examination in Child Sexual Abuse:

Approaches and Current Evidence, Deutsches Arzteblatt International, 692-703, 700

(2014) (noting that physical examinations “reveal only normal findings in 90-95% of

cases”); id. at 695 (explaining that “‘[n]ormal’ does not mean ‘nothing happened’” and

that “[n]ormal findings are the rule, not the exception, in victims of child sexual abuse,

with or without penetration”).4 That narrow window almost always closes before a child

has time to cognitively and emotionally process his or her abuse – much less overcome

the all-too-frequent confusion, embarrassment, guilt, and shame that accompany it –

and to report it to anyone, including medical professionals.          Moreover, medical

professionals are comfortable and experienced in arriving at a diagnosis without

physical evidence, and the absence of such evidence is often given too great of weight,

outside of the medical profession, based on outdated cultural myths about virginity. See

also id. at 700 (noting that “[t]he diagnosis of sexual abuse is usually based on a


4
  Notably, Dr. Novinger testified that, even if a child victimized in the manner C.S. was
allegedly victimized does manage to comprehend and report his or her victimization
within a mere three days, medical professionals still expect an absence of physical
evidence in approximately 70 percent of cases. N.T. Trial, 1/21/14, at 204 (R.R. at
87a).



                           [J-17-2017] [MO: Saylor, C.J.] - 17
statement from the child, obtained in the correct way through sympathetic but not

suggestive questioning”); id. at 695 (explaining that “[t]he medically documented fact

that penetrating abuse may not be associated with any subsequently abnormal physical

findings must be known and understood by the treating personnel and the government

authorities . . . so that the credibility of the victims will not be unjustly put in doubt”).

Against this backdrop, I am troubled that the majority’s departure from ordinary

principles governing expert opinion foundation may only serve to deprive jurors of

necessary expert determinations, demanding more than medical science requires and

insisting on more than is present in all but a few cases of child sexual assault, where

jurors are most in need of specialized knowledge on the subject.

       I acknowledge that expert opinions based in whole or in part on assessments of

the credibility of particular witnesses could conceivably tempt jurors to view those

witnesses as credible. However, I do not view this concern as a sufficient reason to

conclude that such expert opinions are, in and of themselves, opinions on witness

credibility, nor do I think they unavoidably invite the jury to abdicate its role as the arbiter

of credibility. Notably, litigants concerned that expert opinions are rooted in dubious

credibility assessments are free, for example, to challenge those opinions as

methodologically inappropriate in the expert’s field of expertise. See Pa.R.E. 702(c).

Moreover, litigants may argue that such opinions are more unfairly prejudicial than

probative of the facts at issue. See Pa.R.E. 403. Additionally, litigants may take the

course charted in Rounds:        vigorous cross-examination with regard to an opinion’s

foundational components and argument to the finder of fact concerning the reliability of

those components themselves. Indeed, as we indicated in Rounds, the persuasive

value of an expert opinion demonstrably shown to rely solely on a hearsay account will,

if properly explained to a jury, rise and fall with the persuasive value of that hearsay




                             [J-17-2017] [MO: Saylor, C.J.] - 18
account. See Rounds, 542 A.2d at 999 (“If the jury believed that the case history [the

expert] received was inaccurate or false, surely this would affect the validity of her

opinion.”). Appellee availed himself of none of these options.5

        Thus, I would hold that the prohibition of expert testimony on credibility does not

preclude expert opinions which do not opine as to a witness’s credibility, but which

address other subjects and are necessarily based on an expert’s assessment of that

credibility.   Applying that rule herein, Dr. Novinger’s testimony that he “believe[d]

strongly that was [his] medical conclusion that [C.S.] was victimized” was properly

admitted.      Dr. Novinger’s testimony, although based on C.S.’s history, contains no

express opinion that C.S. was credible or incredible, or that children like C.S. are

generally credible or incredible. Moreover, Dr. Novinger’s testimony was not challenged

on the basis that his opinion was rooted in methods or statements not customarily relied

upon in the fields of pediatrics or child abuse, and, at no time did he testify on subjects

irrelevant to his medical inquiry, such as whether Appellee was the perpetrator of the

abuse. Indeed, Dr. Novinger, offered by the Commonwealth and certified by the trial

court as an expert in the fields of pediatrics and child abuse, merely testified to his view,

based on his expertise in those fields, that C.S. had been sexually abused. In my view,

and contrary to the conclusion of the majority, our decisions emphasizing the jury’s role

as arbiter of credibility do not bar such testimony.       Accordingly, I would hold that

Appellee was not entitled to strike the testimony, and that the learned trial court did not


5
  I also note that a party is entitled to a cautionary instruction that such testimony is
meant to establish the opinion’s foundation, and is not substantive evidence. See
Pa.R.E. 705 cmt. (“When an expert testifies about the underlying facts and data that
support the expert's opinion and the evidence would be otherwise inadmissible, the trial
judge upon request must, or on the judge's own initiative may, instruct the jury to
consider the facts and data only to explain the basis for the expert's opinion, and not as
substantive evidence.”).



                             [J-17-2017] [MO: Saylor, C.J.] - 19
err in denying Appellee’s motion to do so, and thus, I would reverse the Superior Court’s

order and reinstate Appellee’s convictions and judgment of sentence.




                           [J-17-2017] [MO: Saylor, C.J.] - 20
