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

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

KENNETH MACONEGHY, JR.,

Appellee

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No. 81 MAP 2016

Appeal from the Order of the Superior 

Court dated June 12, 2015 at No. 2191 

MDA 2014, reargument denied August 

13, 2015, Vacating the Judgment of 

Sentence of July 21, 2014 of the Court 

of Common Pleas of Lackawanna 

County, Criminal Division, at No. CP-35-

CR-0001450-2012 and Remanding.

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 
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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 trialrelated 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.”).
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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.] - 4

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.] - 5

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.] - 6

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.