                            [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
                                               :   MDA 2014, reargument denied August
              v.                               :   13, 2015, 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 MUNDY                                            DECIDED: October 18, 2017
       I join Justice Todd’s dissenting opinion and share her concerns that the Majority’s

holding in this case will improperly limit expert testimony that would assist juries in their

fact-finding role. It is a fundamental practice in patient care for a physician to obtain a

patient history which includes a patient’s presenting complaints and symptoms of illness

or injury for use in the diagnosis and treatment of a patient. Hence, a patient history is

an integral foundation on which a physician’s medical opinion is based. The majority’s

holding that a treating physician in a child sexual assault case may not offer a medical

opinion as to whether a sexual assault occurred absent physical evidence improperly

infringes upon the treating physician’s ability to articulate the basis for his or her medical

opinion.

       I note that the contested testimony in this appeal was provided by the

Commonwealth’s expert witness, Dr. Novinger, during cross examination by defense
counsel. I further note that defense counsel did not contemporaneously object to the

testimony, but opted to raise an objection the following day, well after Dr. Novinger had

left the Courtroom. A timely objection to Dr. Novinger’s testimony would have provided

the trial court with an opportunity to rule on its admissibility, and if necessary issue a

curative instruction at the time it occurred. Although this issue is not addressed by the

Majority, because it is inextricably connected to the issue presently before us, I find it

necessary to address it.

       The Superior Court determined Appellee had properly preserved his objection in

the following footnote.

                      Although         [Appellee]’s    counsel    did     not
              contemporaneously object to Dr. Novinger’s testimony at the
              earliest possible opportunity, we conclude that [Appellee]
              has not waived appellate review of this claim. “The purpose
              of contemporaneous objection requirements respecting trial-
              related issues is to allow the court to take corrective
              measures and, thereby, to conserve limited judicial
              resources.” Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa.
              2011). Here, although the objection to Dr. Novinger’s
              testimony was lodged the day after Dr. Novinger testified,
              the trial court still had the opportunity to correct a possible
              error.      Accordingly, we find this claim appropriately
              preserved for appellate review. See also Commonwealth v.
              Johnson, 456 A.2d 988, 994 (Pa. Super. 1983) (explaining
              that “although in the vast majority of cases a ‘timely
              objection’ means a ‘contemporaneous objection’ . . .
              contemporaneity of objection is not insisted upon as a value
              in itself, rather it is required as the most convenient method
              of preventing a party from permitting error to insinuate itself
              into the record and complaining thereafter”; thus it is
              improper for counsel, deliberately, as a strategic decision, to
              refrain from objecting, but where there was “no attempt to
              ‘insinuate error into the record and complain thereafter’, and
              counsel strenuously attempted to excise the error, to find
              such an objection untimely, would indeed be to ‘insist upon
              contemporaneity as a value in itself’”); Pa.R.Crim.P.
              720(B)(1)(c) (“Issues raised before or during trial shall be
              deemed preserved for appeal whether or not the defendant
              elects to file a post-sentence motion on those issues.”).


                            [J-17-2017] [MO: Saylor, C.J.] - 2
Commonwealth v. Maconeghy, 2191 MDA 2014, slip op., 2015 WL 7078462 at *6 (Pa.

Super. June 12, 2015).

      In Sanchez, the appellant failed to object to the introduction of discrepancy

evidence which he challenged for the first time on appeal. As noted by the Superior

Court, this Court held, “[t]he purpose of contemporaneous objection requirements

respecting trial-related issues is to allow the court to take corrective measures and,

thereby, to conserve limited judicial resources.” Sanchez 36 A.3d at 42. However, this

Court went on to hold “Appellant failed to raise any objection here and, instead, raised

the issue for the first time via his Rule 1925(b) statement of matters complained of on

appeal, in the guise of a sufficiency argument.” Id. Therefore, Sanchez is inapplicable

to the circumstances in this matter, where defense counsel failed to raise a

contemporaneous objection but rather only lodged an objection the following day.

      In Johnson, the defense counsel failed to timely object to the admission of an

officer’s testimony regarding undisclosed evidence. The following morning the defense

moved for a mistrial. The trial court paused proceedings and conducted a suppression

hearing. The Superior Court in Johnson ultimately determined the objection was timely

and specific because it was made when defense counsel had become aware of the

evidence previously unknown to them, and the trial court had taken swift action to

remedy the situation by holding a suppression hearing.1 The court went on to note that

“a new trial is additionally, and particularly, required in view of the Commonwealth's

failure to disclose the statement, in violation of Pa.R.Crim.P. 305 B(1)(b).” Johnson,

456 A.2d at 993.


1
  Notably, the dissent disagreed in this circumstance and would have found the issue
waived for failure to lodge the objection contemporaneous to the admission of the
previously undisclosed evidence. Johnson, 456 A.2d at 993 (Brosky, J., dissenting).



                           [J-17-2017] [MO: Saylor, C.J.] - 3
      In the instant matter, the trial court expressed its hesitancy to sustain defense

counsel’s objection the following day because no one could recall the exact language of

the testimony and because it would place undue emphasis on Dr. Novinger’s testimony.

Specifically, the following exchange occurred.

             Defense Counsel:     . . . One last thing for the record, as a
                                  trial attorney, we certainly hope we
                                  always act quickly on our feet; however,
                                  yesterday there was at the conclusion of
                                  Doctor . . . Novinger’s testimony, there
                                  was a question asked of him and I can’t
                                  remember the exact phrase but the
                                  question was that isn’t it true that based
                                  on the physical examination, you are
                                  unable to render an opinion to a degree
                                  of medical certainty as to whether this
                                  alleged victim had been abuse[d]? Dr.
                                  Novinger went on to state an opinion
                                  that he believed the victim was abused
                                  but that that was based on the history
                                  provided by the alleged victim.             I
                                  certainly should have made an
                                  immediate motion to strike that
                                  testimony      because     I    think    it’s
                                  inappropriate opinion testimony that’s
                                  not based on medical evidence or his
                                  medical expertise. I think that the jury
                                  hearing that could be certainly
                                  prejudicial to my client, and although it’s
                                  somewhat late at this point, I would
                                  make a motion to strike that testimony
                                  as it relates to his opinion as it was not
                                  based on medical testimony and to
                                  instruct the jury to disregard that opinion
                                  testimony.

             The Court:           My recollection of that question and
                                  answer, and I don’t think it was isolated
                                  to one question and one answer, was
                                  that the opinions that he expressed
                                  were based on many things, not just the
                                  physical exam, but also the history that
                                  was taken, the consultation of the other


                           [J-17-2017] [MO: Saylor, C.J.] - 4
                                   reports and all of the other information.
                                   And that if he were asked to say could
                                   he express an opinion as to whether or
                                   not there was abuse strictly by physical
                                   findings, his answer was he could not;
                                   however, when he looked at the whole
                                   picture as to all of the information to be
                                   considered, it was his opinion that
                                   abuse had taken place.

                                   So your objection is noted. You had the
                                   opportunity to cross-examine at the
                                   point in time. I did specifically ask
                                   whether or not you had any objection to
                                   the doctor being excused at that point in
                                   time and you indicated that you did not.
                                   But I think it would cause undo
                                   emphasis on a single portion of the
                                   doctor’s testimony for me to now refer to
                                   it and then order it stricken or modified
                                   in any way so your objection is noted
                                   but overruled.
N.T., 1/22/14, at 21-23.

       Unlike Johnson, defense counsel was not blindsided by undisclosed information,

should have been prepared for Dr. Novinger’s testimony, and conceded his objection

was untimely. Additionally, contrary to the trial court’s actions in Johnson, the trial court

took no remedial action and the trial continued. In my view, in light of long standing

precedent in this Commonwealth, Appellee’s issue was waived for failure to offer a

timely objection.   Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008)

(holding “it is axiomatic that issues are preserved when objections are made timely to

the error or offense[]”); Commonwealth v. Carpenter, 515 A.2d 531, 535 (Pa. 1986)

(holding a failure to object to a witnesses testimony while the witness was on the stand

justified overruling a motion for a mistrial made several witnesses later).




                            [J-17-2017] [MO: Saylor, C.J.] - 5
      Despite defense counsel’s failure to timely object during his own questioning of

the witness, Appellee is now rewarded with a new trial.

      Accordingly, I dissent.




                           [J-17-2017] [MO: Saylor, C.J.] - 6
