Doctor May Not Provide Opinion That Child Was Sexually Assaulted Without Physical Evidence of Abuse

Expert Opinions in Sexual Assault Cases

In Commonwealth v. Maconeghy, the Pennsylvania Supreme Court has just held that a child sexual abuse evaluator may not testify to his opinion that a child was sexually assaulted where the opinion is based solely on the evaluator’s apparent acceptance of the child’s reporting and description of the abuse.

In Maconeghy, the defendant’s sixteen year old stepdaughter reported that she had been raped and otherwise sexually abused on multiple occasions by the defendant when she was eleven years old. Based on her statement, the defendant was arrested and charged with various sex offenses, including rape by forcible compulsion and rape of a child. At trial, the Commonwealth presented the testimony of both the complainant and a pediatrician who evaluated the complainant to determine whether she suffered from sexual abuse.

The Testimony at Trial

After the complainant testified to the abuse, the Commonwealth called the pediatrician to testify to the results of his interview and examination of the complainant. He testified that he had conducted a physical exam of the complainant, and that the physical exam did not reveal any evidence of abuse. In his opinion, however, a physical examination was unlikely to detect evidence of the abuse outside of the first seventy-two hours following an occurrence of a sexual assault.

On cross-examination, the defense attorney repeatedly asked the doctor to concede that there was no physical or medical evidence of abuse. The doctor refused to concede this point, replying that based on the history provided by the complainant, it was clear that she had been sexually abused. Further, on questioning from the prosecution, the doctor testified that he strongly believed that the child had been victimized.

The Appeal

Based on this testimony, the defendant was convicted. Shortly thereafter, the defendant appealed. The Pennsylvania Superior Court reversed the sexual assault convictions, finding that although the defense had opened the door to some of the doctor’s personal opinion by questioning him on cross-examination, the prosecution had pushed it too far on re-direct examination.

The Pennsylvania Supreme Court has now upheld the Superior Court’s decision to reverse the conviction. The Court held that an expert witness may not express an opinion that a particular complainant was the victim of a sexual assault based upon witness accounts couched as history, at least in the absence of evidence of physical abuse. The Court recognized that such opinion testimony from an expert witness usurps the function of the jury. In other words, it is the jury’s job to determine whether or not the crime was committed. The doctor cannot testify that the crime was committed without intruding on that key function of the jury.

Instead, the doctor may testify only to the medical findings of the examination – that is, whether there was evidence of physical abuse and whether evidence of physical abuse would always be present following an allegation of sexual assault. The Court held that it is extremely important to limit the purported medical testimony because of the potential power and persuasiveness of testimony “by those clothed with the mantle of professional expertise,” meaning it will be very difficult for a jury to disregard the testimony of a respected medical doctor.  

Accordingly, the Court upheld the decision of the Superior Court, and the defendant will receive a new trial. The Court declined to rule on whether a doctor would be permitted to testify to this type of opinion in a case with actual physical evidence of abuse. Thus, that remains an open question.

The Impact of the Court's Decision in Child Rape and Sexual Assault Cases

The Court’s decision in Maconeghy is extremely important because it is very common for the prosecution to call these types of expert witnesses in rape and sexual assault cases. This is particularly true in cases involving allegations of child abuse and sexual assault on children. In many cases, complainants wait years after the alleged incident to make any reports to the authorities, and therefore, the case will often come down to the word of the complainant versus the word of the defendant.

By calling respected medical doctors to testify to their opinion that the complainant is telling the truth, the Commonwealth is often able to improperly shroud the testimony of the complainant in a shield of authority and credibility because of the impressive credentials and respectability of the medical doctor. The real question in these cases is whether the jury should believe the complainant’s testimony, but permitting doctors to testify that they believe the complainant makes it much harder for the jury to keep an open mind and reject false testimony. Therefore, this opinion will make it possible for many defendants to have a fair trial by limiting the improper influence of a medical doctor who has no specialized training in determining whether or not a complainant is lying.

Award-Winning Philadelphia Criminal Defense Lawyers


If you are facing criminal charges or allegations of sexual assault, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully represented thousands of clients. We offer a free criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation for a crime. We are experienced and understanding professionals who are well versed in recent case law and who will fight to use the law to your benefit. Call 267-225-2545 to speak with one of our defense attorneys today.

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PA Superior Court: Child Porn Convictions Arising Out of Same Case Do Not Trigger Lifetime Megan’s Law Registration  

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Leonard. In Leonard, the Court found that the trial court erred when it required the defendant to register as a Tier III, lifetime Megan’s Law offender after the defendant pleaded guilty to multiple counts of distribution of child pornography, possession of child pornography, and criminal use of a communication facility. Because distribution of child pornography, which was the most serious charge in terms of SORNA registration, is only a Tier II offense, the trial court should have required the defendant to register as a Tier II offender for 25 years.

In Leonard, the defendant pleaded guilty to various counts of distributing and possessing child pornography as well as criminal use of a communications facility (“CUCF”). At sentencing, the defense attorney argued that the defendant should be treated as a Tier II sex offender because all of the convictions arose from the same criminal episode and the defendant was convicted of all offenses on the same date. The court ruled that defendant would be sentenced as a Tier III, lifetime offender under the SORNA provision which finds that if the defendant “has two or more convictions of offenses listed as Tier I or Tier II sexual offenses,” the defendant becomes a Tier III offender and must register for life. The court did allow the defendant to preserve the issue for appeal.

The defendant was sentenced and filed a notice of appeal. While the appeal was pending, the Pennsylvania Supreme Court decided the case of A.S. v. Pennsylvania State Police, holding that the previously mentioned language dealing with multiple convictions requires separate convictions. Thus, in A.S. (and the companion case of Commonwealth v. Lutz-Morrison­), the Supreme Court held that a defendant who had been convicted of multiple counts of Tier I possession of child pornography at the same time must only register for fifteen years as a Tier I offender.  

In Leonard, the Superior Court held that the same rule applies for when multiple Tier II and Tier I offenses are combined as part of the same case and are part of an ongoing course of conduct. Therefore, the Court remanded the case for re-sentencing with an order that the trial court require the defendant to register only as a Tier II offender. The Court rejected the prosecution’s argument that the defendant improperly challenged his registration by filing a notice of appeal directly to the Pennsylvania Superior Court. The prosecution argued that the defendant should have challenged his registration classification by filing suit against the Pennsylvania State Police in the Commonwealth Court as the Commonwealth Court has jurisdiction over lawsuits against state agencies. The Superior Court rejected this argument, finding that because the defendant was still in the process of serving his sentence and had filed a timely direct appeal, the Superior Court could review the issue of whether the trial court had imposed a legal sentence. Accordingly, the Superior Court remanded the case so that the trial court could re-sentence the defendant as a Tier II offender.

Philadelphia Criminal Defense Attorneys

Philadelphia Sex Crimes Defense Lawyers

Philadelphia Sex Crimes Defense Lawyers

If you are facing criminal charges or believe you may have been improperly required to register under Megan’s Law, we can help. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with one of our award-winning Philadelphia Criminal Defense Lawyers.

PA Superior Court Rejects Good Faith Exception to Exclusionary Rule in Birchfield Cases

Commonwealth v. Carper

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carper. In Carper, the Court held that prosecutors may not introduce illegally obtained blood test results in Driving Under the Influence (“DUI”) cases despite the fact that the police relied on then-settled law which permitted warrantless blood testing of DUI suspects. The Superior Court specifically rejected the application of the “good faith exception” and held that the evidence remains inadmissible despite the fact that the police officers may have acted in good faith and not realized that they were violating the law. 

Carper involved a relatively straight-forward DUI case. A Pennsylvania State Police Trooper pulled Carper over in October 2014 for an expired inspection sticker. During the ensuing stop, the Trooper began to suspect Carper of driving under the influence of a controlled substance. The Trooper arrested Carper, transported him to the hospital, and informed him that if he did not consent to a blood draw, he would face increased criminal penalties. Carper agreed to the blood draw, and the blood draw showed the presence of a controlled substance.

Motion to Suppress

Carper moved to suppress the evidence under the Fourth Amendment of the United States Constitution. Notably, Carper did not move to suppress the blood results under the Pennsylvania Constitution. The trial court held a suppression hearing, and the Commonwealth introduced evidence in an attempt to show that it complied with both the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Following the hearing, the United States Supreme Court decided Birchfield v. North Dakota, and then Carper filed a post-suppression hearing brief in which he also argued that the blood results should be suppressed under the Pennsylvania Constitution. Likewise, the Commonwealth filed a brief in which it argued that the Pennsylvania Constitution did not bar the introduction of the blood results into evidence. 

Birchfield v. North Dakota made it illegal for states to impose criminal penalties on DUI suspects who refuse a warrantless blood draw. Thus, the trial court granted the Motion to suppress, agreeing with the defense that the police illegally coerced the defendant into consenting to the blood draw by informing the defendant that he would face more severe criminal penalties if he refused chemical testing. 

The Good Faith Exception to the Exclusionary Rule

The Commonwealth appealed. In its appeal, the Commonwealth argued for the application of the good faith exception to the Exclusionary Rule. In the federal system, prosecutors may still use unlawfully seized evidence if police acted in good faith when they obtained the evidence. For example, courts have found that officers acted in good faith where they arrested a defendant on what they believed to be a valid warrant despite the fact that the warrant had actually been lifted. Likewise, federal courts have held that police act in good faith when they rely on existing case law when conducting a search even if later case law subsequently changes the legality of the search. Thus, the Commonwealth asked the Superior Court to find that the good faith exception applies in Birchfield cases because police relied on well-established case law. The Commonwealth also argued that the defendant failed to properly preserve his state law challenge to the blood draw because defense counsel moved to suppress the evidence only under the United States Constitution prior to the hearing and never mentioned the state law claim until the defense filed its post-hearing brief.     

The Superior Court rejected both of the Commonwealth’s arguments. First, the Court recognized that Pennsylvania appellate courts have repeatedly found that there is no good faith exception to the exclusionary rule in Pennsylvania. Thus, while the good faith exception may apply in federal court, it does not apply in Pennsylvania state courts. The only issue is whether officers violated the law; it does not save the Commonwealth’s case that the officers relied on the law at the time. Second, the Court rejected the Commonwealth’s argument that Carper waived the state law claims by failing to mention them in the initial motion. This would have led to the motion being denied because under the federal law claims, the good faith exception would have applied. Nonetheless, the Court rejected this argument as well, finding that the Commonwealth had not been prejudiced because the Commonwealth extensively briefed the state law issues and presented testimony relating to the issue of coercion at the suppression hearing. Further, the defense preserved the issue by filing the post-hearing brief and allowing the trial court to rule on it. Therefore, the Court rejected both of the Commonwealth’s appellate issues.  

Following Carper, it is clear that the good faith exception does not apply in Birchfield DUI cases. States may not penalize DUI suspects for refusing to submit to blood testing without a search warrant. Although prosecutors continuously ask the appellate courts to adopt a good faith exception in Pennsylvania, the courts have fortunately refused to do so thus far.  

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If you are facing DUI charges or fighting any other criminal case, we can help. Our award-winning criminal defense attorneys have successfully represented thousands of clients in all types of criminal cases. Don't just assume you have to plead guilty and are going to lose your license. Call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our Philadelphia DUI Defense Attorneys and Criminal Lawyers.

What is a preliminary hearing? What happens after a preliminary hearing if I get held for court?

Preliminary Hearings

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC represent clients who are facing all types of criminal charges in Pennsylvania and New Jersey. Our attorneys have a proven track record of obtaining successful results for our clients in preliminary hearings in Pennsylvania state courts. In Pennsylvania cases, our efforts on behalf of our clients often begin with the preliminary hearing.

The preliminary hearing is the first substantive hearing in the criminal justice process, and we have successfully represented clients in hundreds, if not thousands, of these critical hearings. In many cases, we have been able to have some or all of the charges dismissed at the preliminary hearing. Even in matters where the case proceeds beyond the preliminary hearing, we are often able to use our cross examination skills to obtain testimony which will be useful in defending the case at later proceedings such as a motion to suppress or trial. This article explains both what happens at a preliminary hearing and what will happen if a case is "held for court" following testimony and argument. If you are facing criminal charges, call 267-225-2545 to speak with one of our defense attorneys for a free, 15-minute criminal defense strategy session.

What Is A Preliminary Hearing?

Philadelphia criminal defense lawyer Zak T. Goldstein, Esq. explains what happens at a preliminary hearing in Pennsylvania.

The preliminary hearing is an extremely important step in the criminal justice process, and our criminal attorneys have successfully moved for dismissal of some or all of the charges at countless preliminary hearings. In most cases, the preliminary hearing offers the first opportunity for our criminal defense lawyers to challenge the evidence and charges against you. Although the preliminary hearing is a critical step in the process, it can also be frustrating and confusing for the defendant because the preliminary hearing differs significantly from the trial. 

The preliminary hearing sort of looks like a trial, but it is not the actual trial. A judge, prosecutor, defense attorney, court reporter, and court clerks are all likely to be there. However, despite the appearance of a trial, it is not the same thing. Instead, the preliminary hearing (sometimes called a  probable cause hearing) is a relatively brief court appearance in which a Philadelphia Municipal Court judge or suburban Magisterial District Justice, depending on the venue of the case, will usually hear from one or two of the main Commonwealth witnesses in order to determine whether the prosecution can introduce enough evidence that the case should proceed to trial. Under the current rules, which are in the process of being challenged in the Pennsylvania Supreme Court, the Commonwealth generally must put on some live testimony and typically will not proceed on hearsay alone. Even in the counties where prosecutors are more often allowed to use hearsay, the preliminary hearing still provides the defense with the opportunity to cross examine the lead detective or police officer in the case. Therefore, it is a critical step in the process because the preliminary hearing provides the first chance for our defense attorneys to challenge the charges against you.

The Burden of Proof at a Preliminary Hearing 

At the preliminary hearing, the prosecutor or police must produce enough evidence to prove a prima facie case for each charge. This standard requires the District Attorney to prove that it is more likely than not that a crime was committed and that the defendant did it. The prosecutor will try to do this by calling witnesses and presenting evidence in much the same manner as the prosecutor would at trial. The defense lawyer then has the opportunity to cross examine the witnesses. If the prosecution does not introduce enough evidence to prove a prima facie case for any given charge, then the defense may move for dismissal of that charge and that charge should be dismissed. It is important to remember that the prima facie case standard does not require the Commonwealth to prove the case beyond a reasonable doubt. Therefore, you should not assume that just because a case was held for court at the preliminary hearing that you will be convicted at trial. 

Is Hearsay Admissible at the Preliminary Hearing? 

Although there is a right to cross examine prosecution witnesses and present defense witnesses at a preliminary hearing, the rules are very different. For example, the rules of evidence do not apply with the same force as they do at trial. The evidence rules are much more loosely enforced, and it is clear under Pennsylvania law that at least some hearsay is permitted at a preliminary hearing.

The Supreme Court has held that the Commonwealth may not prove the charges against the defendant solely through the use of hearsay, but a recent Superior Court opinion in Commonwealth v. Ricker called that holding into question. Although the Superior Court cannot overrule the Supreme Court, the Supreme Court refused to either affirm or overturn the Superior Court's holding in that case. Additional litigation is still ongoing in the Supreme Court in the hopes of resoling the issue. Therefore, the amount of hearsay that the preliminary hearing judge will permit the Commonwealth to introduce really depends on the judge. In some counties, many of the magistrates will let the Commonwealth proceed entirely or almost entirely on hearsay by allowing the assigned detective to testify to what the other witnesses told him. In Philadelphia, the judges typically require the prosecution to introduce live witness testimony from the actual eyewitnesses to the alleged crime.

However, even in Philadelphia, the rules permit the prosecution to introduce ownership and non-permission testimony through the use of an "ONP Form" or through testimony from one of the investigating officers. For example, if the defendant is pulled over in a stolen car, the Commonwealth may proceed at the ensuing Receiving Stolen Property preliminary hearing by calling only the arresting officers to testify. The Commonwealth is not required to produce the owner of the car to testify that that person owned the car and did not give the defendant permission to drive it. This is a relatively limited exception to the rule against hearsay which is unique to the preliminary hearing, and at trial, the Commonwealth must still call the owner of the car to testify that the car was stolen. 

Additionally, because of the relatively brief nature of the hearing and its limited scope, cross examination is much more limited than it would be at trial. For example, when it becomes clear that the defense is really seeking to establish the grounds for a motion to suppress, the judge will likely rein in the questioning because the motion to suppress cannot be litigated until later. Whether the police illegally stopped and searched the defendant is not relevant to whether the defendant committed a crime. Instead, that issue must typically be litigated at the motion to suppress hearing. However, in many cases, it is possible to ask some questions of the officers about the reasons for the stop which could be helpful for the motion if the case makes it beyond the preliminary hearing.

Finally, the defense may not argue that the case should be dismissed because witnesses are lying. Credibility is not an issue at a preliminary hearing. Instead, the judge is instructed by law to accept the testimony of Commonwealth witnesses as true because the judge is simply evaluating whether there is enough evidence for the Commonwealth to proceed to trial. The judge is not permitted to make a credibility decision as to whether the witnesses are telling the truth or the Commonwealth will win at trial. Nonetheless, there are many defenses which can be argued at a preliminary hearing. 

Defenses at a Preliminary Hearing

Zak T. Goldstein, Esq. - Criminal Defense Lawyer in Philadelphia

Zak T. Goldstein, Esq. - Criminal Defense Lawyer in Philadelphia

Despite the fact that many of the differences between a preliminary hearing and a trial favor the prosecution, these hearings are still a critical stage in the criminal justice process for the defense. The defense may not argue that a witness is lying, but the defense may argue that the case should be dismissed for legal reasons. For example, a case could be dismissed or charges could be downgraded if the prosecutor fails to establish all of the elements of the statute in question. In a case involving Possession with the Intent to Deliver charges, it could be possible to argue that the felony charge should be dismissed if the police failed to stop any alleged buyers because the Commonwealth will not be able to prove that the defendant was actually selling drugs. Likewise, in a circumstantial case in which there were no eyewitnesses to the crime, it may be possible to argue that there is simply not enough evidence that the police got the right guy and have all charges dismissed. Thus, the preliminary hearing is a critical tool to challenge cases in which the prosecution has overcharged the defendant or in which the evidence is circumstantial and weak.

Finally, the defense has the right to present evidence or witnesses at a preliminary hearing, but it is very uncommon for the defense to do so. It is usually better to wait and see what the evidence looks like before presenting potential defense witnesses. This is because the defense typically will not have access to the discovery until after the preliminary hearing. 

Following the testimony, the defense attorney and prosecutor may make argument about whether the charges should be dismissed or whether the defendant should be held for court. It is very common for prosecutors to overcharge defendants, particularly in cases where the defendant has been arrested before. Therefore, we are often able to have some charges or even entire cases dismissed at the preliminary hearing.

Bail Motions At The Preliminary Hearing

Additionally, if the defendant has not been able to make bail, then our criminal defense attorneys may make a motion for a bail reduction at the preliminary hearing. Finally, some cases are dismissed at the preliminary hearing level because witnesses fail to appear. In Philadelphia, the Commonwealth typically has three listings to get ready for the hearing. If the Commonwealth is not ready after three listings, most judges will dismiss the case. The Commonwealth may, however, re-file the case and proceed even after a case has been dismissed, and in some cases, the Commonwealth may obtain an arrest warrant for their witnesses so that the police can bring the witnesses to court by force. 

Although it may not seem like it at the time, some of the most successful preliminary hearings for the defense are hearings in which none of the charges are fully dismissed. This is because even if the charges do not get dismissed at the hearing, some of the main witnesses may have testified at the hearing and said things which can be extremely useful later in the process. For example, the police officer may testify to something which can be helpful at a later motion to suppress the physical evidence, or the complainant may say something wildly different from what the complainant said in a statement to detectives. Many of our winning motion to suppress and trial strategies are built through effective cross examination at the preliminary hearing even in cases where the charges are held for court. Further, even a slight change in gradation from an F1 felony to an F2 felony can make an enormous difference as the case proceeds as F1 felonies may carry significant mandatories that no longer exist for F2s. Therefore, the preliminary hearing is an extremely important step in the process.

What Happens if the Case is Held For Court at the Preliminary Hearing? 

If the judge who hears the preliminary hearing finds that the Commonwealth has met its burden, then the judge will hold the defendant for court. This does not mean that the defendant is taken into custody. It simply means that the Commonwealth has met the relatively low burden that it must meet for a preliminary hearing and that the case may proceed to the Court of Common Pleas.

If you are held for court, the next step in the process is arraignment. In most counties and in Philadelphia, very little happens at arraignment, and most private lawyers will waive arraignment so that you do not have to appear. Formal arraignment is a hearing in which a judge or commissioner will advise the defendant of the charges that have survived the preliminary hearing and ask the defendant how he or she pleads. Assuming the defendant pleads not guilty, the case will then be listed for a pre-trial conference before a judge. In some counties, the arraignment is used as an informal pre-trial conference at which plea negotiations may occur or discovery may be exchanged. But in the majority of counties, the arraignment is typically waived for a client who is free on bail and represented by private counsel. Following arraignment, the case will usually proceed to a pre-trial conference in which plea negotiations will be discussed and discovery exchanged. Once discovery is complete and any plea offers have been rejected, the case will be listed for trial. In Philadelphia, a trial before a judge could take place in roughly three to six months after the preliminary hearing. If the defendant wishes to proceed by way of jury trial, it may be a year or more before the case goes to trial. 

Should I Waive the Preliminary Hearing? 

If you are charged with a crime, the preliminary hearing is a critical step in the proceedings against you. In Philadelphia, it is very uncommon to waive the preliminary hearing, and there is very little benefit to doing so. We will typically waive the hearing only when the defendant has already been approved for some sort of diversionary program such as ARD or treatment court.

In the suburban counties, it is much more common for the defendant to waive the preliminary hearing as the prosecutors and police officers often make offers to resolve the case or dismiss some of the charges in exchange for a waiver of the hearing. Once the hearing is waived, however, it becomes much more difficult to fight the case because a valuable opportunity to challenge the prosecution's evidence and cross examine witnesses under oath has been lost. Therefore, whether you should waive the hearing depends on the jurisdiction and the offer made by the government.

Each case is different, and whether you should waive the hearing depends on the facts of your case. Generally, a waiver of the hearing means that the case is headed for some kind of negotiated or open guilty plea. Alternatively, refusing to waive the hearing sends a message to the prosecution to that the defendant plans on fighting the case. Both options have pros and cons which depend on the circumstances of the case and the evidence against the defendant. Therefore, whether you should waive your preliminary hearing is an extremely important decision that should be made only with the advice of experienced criminal defense counsel. 

The Philadelphia Criminal Lawyers of Goldstein Mehta LLC Can Help 

Our Philadelphia Criminal Defense Lawyers offer a 15-minute, complimentary criminal defense strategy session. We know that picking up the phone and calling an attorney can be intimidating, so in this video, I explain what you can expect when you call us. Call 267-225-2545 to speak with one of our criminal defense lawyers.

If you have an upcoming preliminary hearing, you need representation from one of our experienced criminal defense lawyers immediately. We have successfully moved for the dismissal of entire cases and some of the most serious charges on countless occasions. We also use the preliminary hearing to begin building the defense to the charges by getting the witnesses on the record. And in other cases, we have successfully been able to work out the case for a favorable resolution for the defendant. If you are facing criminal charges or under investigation, call 267-225-2545 for a free 15-minute criminal defense strategy session.  

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