Philadelphia Criminal Defense Blog
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.
Read the Opinion:
http://www.pacourts.us/assets/opinions/Supreme/out/25655768.pdf?cb=1
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.
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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 who is under investigation or facing active criminal charges. We also offer a $100 Megan's Law consultation if you believe that you may be improperly classified under SORNA. Call 267-225-2545 to speak with one of our award-winning Philadelphia Criminal Defense Lawyers.
PA Superior Court: Defendant Must Be Permitted To Rebut Commonwealth's 404(b) Prior Bad Acts Evidence
The Pennsylvania Superior Court has just decided the case of Commonwealth v. Yocolano, holding that the defendant's conviction must be reversed because the trial court improperly prevented the defendant from rebutting the Commonwealth's 404(b) Prior Bad Acts evidence. Under the Pennsylvania Rules of Evidence, prosecutors may file a motion asking the trial court to allow them to introduce evidence of "prior bad acts" or crimes committed by a defendant. This type of evidence can be extremely prejudicial to the defendant, and the Superior Court has now ruled that the defense must be permitted to call witnesses to rebut this highly prejudicial testimony when such witnesses are available.
Commonwealth v. Yocolano
In Yocolano, the defendant was charged with Aggravated Assault and various sexual assault charges against his paramour, who is referred to in the opinion as A.A. The testimony established that Mr. Yocolano and A.A. were in an on-again, off-again romantic relationship dating back to 2010 and had a child together. Throughout their relationship, there were multiple alleged instances of domestic violence. The police were called on several occasions. For example, in 2010, the police responded to a call that Mr. Yocolano had an altercation with A.A. where he chased her and caused damage to A.A.’s father’s house. In 2012, the police were called on several occasions including: an incident where police were called after Mr. Yocolano threatened A.A. with a machete; an argument between A.A. and Mr. Yocolano; A.A. calling the police on Mr. Yocolano after expressing suicidal thoughts after an argument between the two; A.A. filing a police report against Mr. Yocolano after he threatened and choked her; and Mr. Yocolano punching A.A. in the head and threatening to kill her and her family. In October of 2012, A.A. obtained a Protection from Abuse “PFA” against Mr. Yocolano. This incident led to the charges in question, and Mr. Yocolano was subsequently arrested.
Both before and during the trial, the Commonwealth filed multiple 404(b) motions in Mr. Yocolano’s case. Specifically, the Commonwealth sought to introduce evidence from the 2010 incident and three incidents from 2012. The prosecutors also sought to introduce two PFA’s against Mr. Yocolano filed by women other than A.A. on the fourth day of trial, and the trial court permitted the prosecution to introduce all of the prior bad acts evidence.
What is a 404(b) Prior Bad Acts Motion?
In most cases, a prosecutor may only use evidence against a defendant relating to the crimes alleged in the complaint. This means that prosecutors cannot simply tell a judge or jury that the defendant is a criminal or has a criminal record. A 404(b) Motion, commonly referred to as a “Prior Bad Acts Motion,” allows the Commonwealth to introduce prior acts against a defendant in the present criminal case against him under certain limited circumstances. A 404(b) motion cannot be used to prove a person’s character (i.e. that because a defendant did something bad once in their life, they are a bad person and thus did this crime), but rather it can be used to show motive, opportunity, intent, absence of mistake, knowledge, lack of accident, preparation, and plan. In domestic violence cases, 404(b) motions are common, and appellate courts have held that in some cases, they may be used to show “the continual nature of abuse and to show the defendant’s motive, malice, intent and ill-will toward the victim.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. Ct. 2016). Accordingly, prosecutors routinely argue that prior convictions or allegations of violence between the defendant and the complainant provided the defendant with the motive for the criminal behavior alleged in the current case or would show that the injuries could not have been caused as the result of an accident.
Defending Against 404(b) Motions
Obviously, prosecutors gain a tremendous advantage when they are permitted to inform a judge or jury of a defendant's prior record. The judge or jury become much less likely to be sympathetic and far more likely to believe that if the defendant committed a crime before, he or she must have committed a crime again. However, it is possible in many cases to successfully oppose these motions or limit the damage. In some cases, it may be possible to show a lack of similarity between the conduct or that the prejudicial effect would substantially outweigh any probative value. It also may be possible to successfully argue that the prior conviction does not establish any of the requirements which the Commonwealth must show. In other cases, it may be possible to call eyewitness from the other incidents to show that the other allegations are also false. Therefore, if you are charged with a crime and a prosecutor is seeking to introduce prior bad acts against you, it is imperative that you have a skilled attorney who can litigate a motion to prevent these prior bad acts from being introduced into trial or attempt to limit the damage by thoroughly investigating the allegations. In Mr. Yocolano’s case, his attorney was unsuccessful in opposing the three incidents from 2012, the incident from 2010, and the prior PFA’s which were filed by other women.
Although the defense could not keep this highly prejudicial evidence out, the defense had thoroughly investigated the case and located a number of witnesses which were ready to rebut the prior bad act allegations. During the trial, the defense attempted to introduce evidence that would rebut the 2010 incident. However, the trial court precluded the defense from introducing evidence to rebut the claim, holding that it was “collateral.” Specifically, the trial court only allowed the defendant to introduce evidence that would rebut the allegations from December 6, 2012 (the day on which the crimes for which he was on trial allegedly took place) and was not allowed to introduce any evidence that would rebut the “prior bad acts” that the trial court had found admissible. Given all of this prejudicial testimony from other incidents, the defendant was ultimately convicted and sentenced to 18-36 years of incarceration.
Yocolano appealed, and the Superior Court reversed the conviction. The Court found that the trial court abused its discretion in preventing Mr. Yocolano from introducing evidence that would rebut these claims. The Superior Court cited an important Pennsylvania Supreme Court case called Commonwealth v. Ballard which held that “where the evidence proposed goes to the impeachment of the testimony of his opponent’s witness, it is admissible as a matter of right.” The Superior Court properly recognized that Mr. Yocolano should have been allowed to “test the veracity of A.A.’s version of events.”
Protection from Abuse Orders and Rule 404(b)
The Superior Court also held that the trial court abused its discretion when it permitted the two PFA’s from different women to be introduced. Rule 404(b)(3) states that a prosecutor must provide “reasonable notice” if they seek to introduce these prior bad acts. Reasonable notice typically means that the prosecution must inform the defense in writing and in advance of the intent to introduce prior bad acts evidence. There are exceptions which allow the prosecution to introduce prior bad acts during trial where the prosecution can show good cause for the failure to provide prior notice.
Unfortunately, it is not uncommon for prosecutors to provide the defense with previously undisclosed evidence on the day of trial. Most judges will either permit the defendant to continue the case or preclude the last-minute evidence from being introduced. However, in this case, the Commonwealth provided the unrelated Protection from Abuse Orders against Mr. Yocolono on the fourth day of trial. The Commonwealth stated that the reason for the late discovery was because the prosecutor had just looked in the computer system mid-trial and happened to find the records.
The Superior Court rejected the Commonwealth's argument that this constituted good cause. The Court held that the Commonwealth’s excuse did “not qualify as a valid legal excuse.” Further, the Superior Court was skeptical that these third-party PFA’s would have met the substantive requirements of 404(b). In Mr. Yocolono’s case, the trial court failed to analyze the facts of the two other PFA’s and identify “a close factual nexus sufficient to demonstrative the connective relevance of the third-party PFAs to the crimes in question.” Based on all of these errors, the Superior Court ordered that the sentence be vacated and that the defendant receive a new trial.
Facing Criminal Charges? We Can Help
Philadelphia Criminal Defense Lawyers Demetra Mehta, Esq. and Zak T. Goldstein, Esq.
Domestic violence and other assault cases are often more complicated than they would seem. In cases where the prosecution seeks to introduce prior bad acts evidence, the defense must thoroughly investigate the case and strongly oppose these 404(b) motions both on the law and on the facts. If you are facing criminal charges, you need an attorney who has the knowledge and expertise to defend your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.
PA Supreme Court: Retroactive Application of SORNA (Megan's Law) Unconstitutional
BREAKING NEWS: In the case of Commonwealth v. Muniz, the Pennsylvania Supreme Court has ruled that Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) may not be applied retroactively without violating the Pennsylvania and United States Constitutions. In this new ruling, the Court held:
SORNA’s registration provisions constitute criminal punishment;
Retroactive application of SORNA’s registration provisions violates the federal ex-post facto clause, and
Retroactive application of SORNA’s registration provisions also violates the ex-post facto clause of the Pennsylvania Constitution.
I will write more about the reasoning of this ruling in a later blog post, but for now, the ruling is so ground breaking that we wanted to post this news as quickly as possible.
As some readers have learned through terrible experience, Pennsylvania law required many people to register as sex offenders either a) long after they had completed their sentence and probation, or b) to start registering as a sex offenders even when the offense to which pleaded or were found guilty was not an offense that required registration at the time. Many others found that they had pleaded or been found guilty to offenses which required ten years of registration or even no registration only to learn after a few years that ten years of registration had become a lifetime of Megan's Law registration.
Prior to this new opinion, the Pennsylvania Superior Court repeatedly found that SORNA’s registration provisions should not be considered punishment. Therefore, retroactive application of registration requirements for those convicted of sex offenses prior to SORNA’s effective date did not violate either the federal or state ex-post facto clauses.
As anyone who has been required to register knows, sex offender registration is one of the most severe punishments the law can impose. It is second only to incarceration, and in many cases, may be worse. Sex offender registration requires regular meetings with the State Police, prohibits contact with children (even when the original conviction had nothing to do with children and may not have even involved a sexual act of any kind), and results in the offender's image, place of employment, address, and vehicles being placed on the State Police website for the world to see. Given the severity of the punishment, particularly in the case of lifetime registration, countless people would have taken their cases to trial had they known at the time of the plea that they would later be required to register for life instead of for ten years or not at all. The risk of trial may have been well worth the reward of avoiding lifetime registration. This new ruling should bring relief to those in the position.
This ruling should also help those who were originally required to register as Tier I & Tier II offenders but who have now been informed their offense is now a Tier III offense (required lifetime registration and check-ins with the state police every three months.)
If you pleaded guilty to a crime and were originally not required to register at all or were required to register only for a limited period of time and later found out that your tier changed, call us. We may very well be able to assist you. Your consultation is 100% free and confidential. Call 267-225-2545 to speak with a Philadelphia criminal defense lawyer today.