J-S48013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID HUERTAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 605 EDA 2019

Appeal from the PCRA Order Entered February 4, 2019

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0001251-2015

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.: FILED JANUARY 24, 2020

David Huertas appeals from the February 4, 2019 order denying his 

petition for relief under the Pennsylvania Post-Conviction Relief Act, (the 

“PCRA”). After careful review and consideration, we affirm.

A jury convicted Appellant of various offenses related to serial sexual 

assaults he perpetrated against his minor stepdaughters, L.M. and N.D. The 

underlying factual history of this case was well-summarized by a prior panel 

of this Court that adjudicated Appellant’s direct appeal:

In the instant case, the testimony at trial revealed that L.M. is a 

15 year old girl, with a date of birth [in] May 2000. Additionally, 

N.D. is a 13 year old girl, with a date of birth [in] September 2002. 

[Appellant] is L.M.’s and N.D.’s stepfather. Appellant was the only 

father whom L.M. and N.D. knew, as he had been in their lives 

since they were very young.

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* Retired Senior Judge assigned to the Superior Court.
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Starting in the summer of 2011, when L.M. was approximately 

eleven (11) years old, Appellant called her into his bedroom and 

touched her “in ways that she did not like.” At that time, L.M. was 

living at 714 Washington Street, Allentown, Lehigh County, 

Pennsylvania. . . . [A]t one time, there were fourteen (14) people 

living in the residence.

During the time that L.M. lived at the residence on Washington 

Street, Appellant frequently would touch her breasts under and 

over her clothes. He also would frequently touch her vagina, both 

over and under her clothes. By "touch", L.M. explained that 

Appellant would use his hand and his penis to glide over and 

penetrate the inside of her vagina. This "touching" would occur 

when Appellant was alone with L.M. in his bedroom, and happened 

multiple times. Appellant instructed L.M. to do certain things, 

such as touch his penis. L.M. testified that Appellant’s penis was 

big and hard to the touch. In addition, L.M. explained that she 

also "touched" Appellant’s penis with her mouth. This occurred 

nearly every time. Even though L.M. did not want to do such 

actions, she was afraid to say "no" to her stepfather. She feared 

that Appellant would get mad and exhibit an attitude and take his 

anger out on everyone around him. L.M. did not report this 

"touching" to anyone, because she did not think that anyone 

would believe her.

There were times when L.M.'s sister, N.D., was also present. L.M. 

witnessed N.D. "touching" Appellant’s penis as to Appellant

instructed her to so do. On November 1, 2013, L.M., N.D. and 

their family moved to a residence located at 1739 Hanover 

Avenue, Allentown, Lehigh County, Pennsylvania. As on 

Washington Street, L.M. and N.D. were living with Appellant, their 

mother, their younger sister, and their brother. Appellant’s

mother lived with them on Hanover Avenue as well.

The "touching" continued to occur at the Hanover residence. 

Appellant would frequently call L.M. and/or N.D. into his bedroom, 

and make L.M. and/or N.D. touch his penis. He would make them 

take off their clothes and he would touch L.M.'s breast and butt. 

Appellant would glide over and penetrate L.M.'s vagina with his 

penis. He would also rub his penis against the outside of N.D.'s 

vagina. After he was "satisfied" and ejaculated, he would wipe off 

the ejaculation. 
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At times, when L.M. was 13 or 14 years old, and N.D. was 11 or 

12 years old, Appellant had N.D. hold his penis with her hand while 

L.M. put her mouth on Appellant’s penis. Appellant also had N.D. 

put her mouth on his penis while L.M. held his penis.

N.D. was also "touched" by Appellant when L.M. was not present.

N.D. specifically recounted that when she was 11 years old, 

Appellant "touched" her and had her put his penis in her mouth. 

Appellant had instructed her to take off her clothes and he had 

pulled his pants down, but not all the way off. Appellant touched 

her in her private parts using his hands and his penis. Although 

he never penetrated her vagina, he would rub his penis against 

her. N.D. testified that she did not want to do such acts, but that 

Appellant offered her money to do them.

In November of 2014, N.D. confided in her best friend at school 

about the "touching" that was going on with Appellant. She 

mentioned it again to this friend in January of 2015. Thereafter, 

on February 4, 2015, at approximately 7:39 A.M., L.M. sent her 

aunt, Eraka Rivera Cruz, a text message, implying that someone 

was "touching" her. When L.M. actually spoke with her aunt on 

the telephone, she told her that Appellant had been touching her.

The aunt advised her to inform her mother of same. L.M. took her 

aunt's advice and told her mother. That day, both Appellant and 

the mother picked L.M. up from school. Appellant took L.M.'s cell 

phone when she entered the vehicle. Her mother yelled at her 

when they returned home. When N.D. supported her sister's 

account of what had been transpiring, her mother yelled at her 

and slapped her. The next day, L.M. borrowed a telephone from 

her friend at school and called her aunt again. Her aunt notified 

the police of what L.M. had confided in her, and subsequent 

medical examinations were performed on L.M. and N.D.

Commonwealth v. Huertas, 178 A.3d 169 (Pa.Super. Sept. 19, 2017) 

(unpublished memorandum)

The remaining procedural history of this case was aptly summarized by 

the PCRA court as follows:

At the conclusion of a jury trial conducted from December 1, 

2015[,] through December 3, 2015, [Appellant] was found guilty 

of rape of a child, two (2) counts of involuntary deviate sexual
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intercourse with a person less than 16 years of age, involuntary 

deviate sexual intercourse with a child, aggravated indecent 

assault with complainant less than 16 years of age, two (2) counts 

of corruption of minors with defendant age 18 or above, and 

indecent assault of a person less than 16 years of age. Thereafter, 

on April 29, 2016, [the trial court] sentenced [Appellant] to an 

aggregate term of state imprisonment of less than sixty (60) years 

nor more than one hundred forty (140) years. Thereafter, on May 

9, 2016, [Appellant] filed a timely motion for post[-]sentence 

relief pursuant to Pennsylvania Rule of Criminal Procedure Rule 

720. In his post[-]sentence motion, the Defendant filed a motion 

in arrest of judgment challenging both the sufficiency and weight 

of the evidence, a motion for new trial based on after-acquired 

evidence, and a motion for new trial due to errors in the conduct 

of trial.[1] [The trial court] denied Defendant’s motion for post[-

]sentence relief on June 1, 2016. Then, on June 23, 2016, the 

Defendant filed a notice of appeal. Subsequently, on September 

19, 2017, the Superior Court of Pennsylvania affirmed [the trial 

court’s] judgment and sentence.

PCRA Court Opinion, 2/5/19, at 1-2 (unnecessary capitalization omitted). 

____________________________________________

1

 Appellant preserved an argument that the trial court “committed error by 

allowing the Commonwealth’s expert witness to testify that she believed the 

victims’ testimony of sexual assault thereby allowing the expert witness to 

testify beyond her admissible scope and render an opinion as to the truth of 

the victims’ testimony.” Appellant’s Motion for Post-Sentence Relief, 5/9/16, 

at ¶ 8. This claim for relief was denied by the trial court. See Trial Court 

Opinion, 6/2/16, at 13 (“It was not improper for [Dr. Jenssen] to answer 

defense counsel’s direct question and opine that, based on studies and 

statistics, she believed the statements made by L.M. and N.D. and took them 

at face value.”). This claim was abandoned on direct appeal despite being 

included in Appellant’s Rule 1925(b) statement. Compare Appellant’s Rule 

1925(b) Statement, 7/19/16, at ¶ 5(c), with Commonwealth v. Huertas, 

178 A.3d 169 (Pa.Super. Sept. 19, 2017) (unpublished memorandum). A 

similar issue has been raised in this appeal under the auspices of 

ineffectiveness. For the purposes of this appeal, Appellant’s claim is not

considered “previously litigated” under the PCRA. See Commonwealth v. 

Smith, 995 A.2d 1143, 1150 (Pa. 2005) (“[I]neffectiveness claims are distinct 

from claims raised on direct appeal, and must be treated as wholly 

independent of underlying claim of error.”). 
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On September 10, 2018, Appellant filed a timely, pro se PCRA petition. 

The PCRA court appointed counsel to represent Appellant, who prepared and 

filed a timely amended PCRA petition. In relevant part, Appellant argued that 

“trial counsel rendered ineffective assistance of counsel as a result of his 

failure to object to certain portions of Dr. Debra Esernio-Jenssen’s testimony 

during direct examination and his failure to properly cross-examined [Dr. 

Jenssen].” Appellant’s Amended PCRA Petition, 12/18/18, at ¶ 15. On 

January 28, 2019, a PCRA hearing was held at which trial counsel testified and 

argument was presented. The PCRA court denied Appellant’s petition on 

February 4, 2019, and Appellant filed a timely notice of appeal. Thereafter, 

the PCRA court directed Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant timely 

complied, and the PCRA court entered its Rule 1925(a) opinion. This case is 

now ripe for our review.

Appellant has presented a well-reasoned summary of his claim for relief:

The [PCRA] court erred in failing to find trial counsel ineffective 

when trial counsel repeatedly elicited testimony from an expert 

witness as to the credibility of witnesses, which bolstered the 

witnesses’ credibility and improperly invaded the province of the 

jury, and is inadmissible pursuant to 42 Pa.C.S. § 5920(b)(3). 

Trial counsel raised no objections to statements from the 

[Commonwealth’s expert] testimony which improperly vouched 

for and/or bolstered the testimony of witnesses. Trial counsel had 

no reasonable strategic basis for his actions and but for counsel’s 

actions, a reasonable probability exists that the outcome of the 

proceedings would have been different.
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Appellant’s brief at 12. Thus, Appellant is requesting a new trial due to his 

trial counsel’s allegedly ineffective assistance. 

Our standard and scope of review in the context of a petition for relief 

pursuant to the PCRA is well-established under existing precedent. Our 

standard of review is “limited to determining whether the PCRA court’s findings 

are supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013). Furthermore, “[o]ur scope of review 

is limited to the findings of the PCRA court and the evidence of record, viewed 

in the light most favorable to the prevailing party at the PCRA court level.” 

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). The PCRA court’s 

credibility determinations are binding upon this Court to the extent that they 

are supported by the record. See Commonwealth v. Spotz, 18 A.3d 244, 

259 (Pa. 2011) (“Spotz I”). However, we will apply a de novo standard of 

review with regard to the PCRA court’s legal conclusions. Id.

Section 5920 sets forth the scope of testimony of experts in criminal 

proceedings that concern sexual offenses at 18 Pa.C.S. §§ 3101-44, and/or 

offenses for which registration is required pursuant to 42 Pa.C.S. §§ 9799.10-

.42. See 42 Pa.C.S. §§ 5920(a)(1)-(2). This statute permits experts to offer

their “opinions regarding specific types of victim responses and victim 

behaviors,” but specifically precludes opinions addressing “the credibility of 

any other witness, including the victim.” Commonwealth v. Cramer, 195 

A.3d 594, 608 (Pa.Super. 2018).
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In pertinent part, § 5920 provides as follows:

(b) Qualifications and use of experts.—

(1) In a criminal proceeding subject to this section, a 

witness may be qualified by the court as an expert if the 

witness has specialized knowledge beyond that possessed 

by the average layperson based on the witness’s experience 

with, or specialized training or education in, criminal justice, 

behavioral sciences or victim services issues, related to 

sexual violence, that will assist the trier of fact in 

understanding the dynamics of sexual violence, victim 

responses to sexual violence and the impact of sexual 

violence on victims during and after being assaulted.

(2) If qualified as an expert, the witness may testify to facts 

and opinions regarding specific types of victim responses 

and victim behaviors.

(3) The witness’s opinion regarding the credibility of any 

other witness, including the victim, shall not be admissible. 

42 Pa.C.S. 5920(b). 

Instantly, Appellant’s claim relates to testimony adduced by both the 

Commonwealth and Appellant’s own trial counsel from Dr. Jenssen, who was 

qualified as an expert in the areas of pediatrics and child abuse pediatrics by 

the trial court. See N.T. Trial II, 12/2/2015, at 74. In addition to being an 

expert in the above-noted fields, Dr. Jenssen also examined L.M. and N.D. on 

two separate occasions with the assistance of a nurse practitioner. The 

examination commenced with a full history from both victims, followed by a

general physical examination and an ano-genital exam to ascertain whether 

there was any physical evidence of sexual abuse. Id. at 75-78. 
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In relevant part, Dr. Jenssen’s direct testimony included the following 

portions of relevant testimony that were flagged as problematic during oral 

argument before the PCRA court, see N.T. PCRA Hearing II, 1/28/19, at 7-14, 

and in Appellant’s briefing before this Court, see Appellant’s brief at 8-9. That 

testimony began as follows: 

Q: When L.M. was giving her history did you notice anything 

about her demeanor?

A: Yes.

Q. What did you notice?

A: She was very – she had a very sad affect. She was often 

very tearful when she was providing [her] history.

Q: Okay. And what was the history she provided to you?

A: She provided that she had – he knew why she was there, 

that she had had [sic] – she was sexually abused by an individual 

that she named as David Huertas. I don’t know if I’m saying it 

correctly. I can spell it – H-U-E-R-T-A-S. She said he was about 

45 years old and he was her stepfather.

Id. at 78-79. 

Thereafter, Dr. Jenssen testified that L.M.’s physical exam was 

inconclusive and did not disclose any direct physical evidence of sexual abuse. 

Nonetheless, Dr. Jenssen opined that L.M.’s history and physical exam were 

consistent with the allegations, particularly because such physical evidence 

typically does not endure when reporting of abuse is delayed. Id. at 80-82. 

Dr. Jenssen’s testimony then continued regarding N.D.’s examination:

Q: Okay. And you got a history from N.D.?
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A: Yes.

Q: What history did N.D. provide you?

A: Well, initially N.D. didn’t even want to talk about it. And 

then she kind of just blurted out that [Appellant], her stepfather, 

had done inappropriate things to her.

Q: She talked about him touching her bottom with his hands

and that she had to see his penis. But she was very sad and really 

did not want to talk about it.

Id. at 83. 

Dr. Jenssen also testified that N.D., likewise, exhibited no physical signs 

of abuse upon examination. Id. at 84-85. Thereafter, Dr. Jenssen explicitly 

addressed N.D.’s seeming reluctance to discuss the allegations:

Q: I want to talk about one of the things you said in your report 

specifically with N.D. You said in you report, “Disclosure of sexual 

abuse is a process, especially when the abuser is a parent or 

stepparent.” Do you remember saying that in your report?

A: Yes.

Q: What do you mean by that?

A: Intra-familial abuse is one of the most devastating things 

for a child. We know that based on evidence-based studies, 

advanced literature, that more than 50 percent of children that 

are abused as children don’t disclose it until they’re adults. 

Children are most often sexually abused by people they know, 

they love, and they trust. That can be very confusing to a child 

when the person who they care about, or other people like or love, 

it can be devastating to them in terms of establishing a trusting 

relationship with – in future relationships or even with adults. 

Sometimes there is implicit or explicit, like with both of these girls, 

pressure not to disclose. Sometimes there’s threats, like for L.M., 

that she – [Appellant] would beat them if she told. And sometimes 

or older children they understand or they’re fearful of what the 

consequences of their disclosure will bring. You know, in this case, 

it’s their stepfather. Their mother was very much in love with this 
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man who was very kind to her. Or their relationship with him, it’s 

still a parent figure.

Id. at 85-86. Dr. Jenssen then discussed the delayed reporting in this case, 

and expressed concern regarding L.M. and N.D.’s mother, who did not believe 

the allegations against Appellant: 

Q: Also, going back to your statement that disclosure of sexual 

abuse is a process, and maybe this is just my interpretation, but 

tell me if I’m interpreting this correctly. Sometimes when they 

disclose they don’t disclose everything right away.

A: Oh, that’s very typical. In fact, not only is that so typical 

for adolescents, that’s even very typical for adults who disclose 

sexual abuse that happened to them as a child. They test the 

waters. They test, like, is this a trustworthy person that I’m 

disclosing to? Are they going to believe me? They just give a 

little bit, you know, to test the waters. It was very clear to me, 

in my experience when I was talking with N.D., I felt that she was 

not yet ready to give her full disclosure. It was too painful for her. 

I felt that her sister was more forthright with what was going on.

. . . .

In this particular case, what they disclosed about their mother was 

very concerning to me, as I’m a provider and my responsibility is 

to ensure the safety and well-being – not only the physical safety 

and well-being but the emotional safety and well-being of the child 

– and I felt their mother reacted by not believing them, hitting 

them, and then just denying as if anything happened. And as a 

result of that they were not brought to medical attention until, you 

know, sometime after the disclosure.

Id. at 88-89 (emphasis added). Dr. Jenssen concluded her direct testimony 

by stating that all of her opinions recited above were rendered “to a reasonable 

degree of medical certainty.” Id. at 89.
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Appellant’s trial counsel then engaged in the following line of questioning

while cross-examining Dr. Jenssen concerning the truthfulness of the 

allegations made by L.M. and N.D. during their examinations:

Q: When you say her mother had concerns, did you speak with 

her mother?

A: I don’t recall speaking with her mother. So I’m assuming it 

was arranged through the social worker or somebody that works 

in my office.

Q: Okay. So, then, you’re also assuming that the girls’ mother 

hit them, or beat them, or did whatever it is that they told you 

she did.

A: They told us she did.

Q: When they – they told you that.

A: That is correct.

Q: That there was – you didn’t inquire of the mother if this 

happened.

A: I think that they are both bright, you know, 12 and 14 

year olds. I think they could speak for themselves.

Q: You didn’t inquire of the mother if she did that, right?

A: Why would I?

Q: Well, you are coming in here today and you’re telling 

these people that you’ve been told something. And you’re 

telling these people that obviously these children are 

telling you the truth. That’s what you’re telling them.

A: Yes.

. . . .

Q: You just take what they tell you at face value.
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A: When I am doing a medical evaluation and speaking to a 

child we ask the questions in an open-ended way. I am not saying

to the child, “Did your mother hit you?” This was information that 

they provided freely to me. So yes, in this particular case, I 

believe what they were telling me.

Q: You just accepted what they told you.

A: Yes, other than what I said before about N.D. I felt that she 

was holding back, which, it’s not me. It’s what scientific studies 

have shown. Evidence based medicine have shown that disclosure 

is so delayed and such a difficult process because society doesn’t 

want to believe children. This is why children delay until adulthood 

to disclose their childhood abuse. Sexual abuse is very common. 

About ten percent of the population is sexually abused and yet the 

majority wait until adulthood. It is because the people – the 

reason why they don’t disclose is for just this, is because they 

don’t feel that somebody is going to believe them.

. . . .

Q: Okay. And is it your position to the jury that no child has 

ever lied about being abused, sexually abused?

. . . .

A: It is my position, and what is published in the 

literature, that very few children lie about sexual abuse, 

less than four percent.

Q: Okay.

A: And most of the circumstances are involved with children 

who come from divorced or separation – ongoing divorce or 

separation. That’s what’s in the medical literature.

Q: I asked – I simply asked you for your opinion, what you 

were telling the jury.

A: Yes. And that’s where – my opinion is based on my 

knowledge of, you know, and my ongoing knowledge of what’s in 

the medical literature.

Q: Okay.
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A: So it is extremely unusual for children to lie, less than 

four percent in published studies.

Q: May I continue?

A: Yes, please.

* * *

Q: Okay. The second examination of L.M. says that her mother 

is better now. Do you recall that?

A: Yes.

Q: She seems to care now?

A: That’s what the child said.

Q: Do you remember that?

A: Yes.

Q: And, so, do you believe, since everything else that the 

children told you you believe, you believe that as well[?]

A: I believe what the child was telling me, yes.

Q: Okay. So after the second examination everything between 

mother and daughter was better now, right? They were the 

words.

A: Whatever words exactly I put in my note. I don’t remember 

specifically other than that she did say that things were better 

with her mother.

Q: And she – her mom seems to care now.

A: That’s what she said.

Id. at 96-102 (emphasis added).
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Based on the foregoing testimony, Appellant avers that trial counsel’s

decision not to object under § 5920 to Dr. Jenssen’s testimony regarding the 

credibility of L.M. and N.D. on both direct and cross examination, coupled with 

trial counsel’s strange decision to adduce additional testimony along the same 

lines, constitutes ineffective assistance of counsel under the PCRA.

To prevail in a PCRA proceeding upon a claim of ineffectiveness of 

counsel, i.e., to establish that such assistance so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place, Appellant must establish: (1) that the claim is of arguable 

merit; (2) that counsel had no reasonable strategic basis for his or her action 

or inaction; and (3) that, but for the errors and omissions of counsel, there is 

a reasonable probability that the outcome of the proceedings would have been 

different. 2 See Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).

3

As a general proposition, “[c]ounsel is presumed to be effective and [the 

appellant] has the burden of proving otherwise.” Commonwealth v. Rivers, 

786 A.2d 923, 927 (Pa. 2001). Finally, “[f]ailure to meet any prong of the 

____________________________________________

2

 See 42 Pa.C.S. § 9543(a)(2)(ii), regarding eligibility for relief from 

ineffective assistance of counsel.

3

 This standard derives from the holdings in Strickland v. Washington, 466 

U.S. 668 (1984), and Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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test will defeat an ineffectiveness claim.” Commonwealth v. Wright, 961 

A.2d 119, 149 (Pa. 2008).

The lynchpin of Appellant’s argument is Commonwealth v. 

Maconeghy, 171 A.3d 707 (Pa. 2017), wherein our Supreme Court affirmed 

our conclusion that expert testimony addressing the credibility of minor 

victims in a similar context was improperly admitted under § 5920.4 

Maconeghy, however, had not yet been decided when Appellant’s trial took 

place, which significantly undercuts Appellant’s heavy reliance upon that 

precedent. See Appellant’s brief at 16-24 (drawing numerous parallels 

between the instant case and Maconeghy). Furthermore, Appellant’s claim 

sounds in the context of ineffective assistance of counsel rather than trial court 

error, and he “must demonstrate that counsel was incompetent under the law 

____________________________________________

4

In Maconeghy, the defendant was convicted of sexually assaulting his 

stepdaughter. Id. at 708. In addition to other testimony, the Commonwealth 

presented expert testimony from a physician, who conducted a review of the 

victim’s medical history and a physical examination. Id. The physician 

discovered no physical evidence of abuse. During cross examination, defense 

counsel “repeatedly attempted to secure a concession that the medical 

evidence did not support a determination of abuse.” Id. In response, the 

physician replied: “The history she provided to me pretty clearly indicated that 

she was sexually abused.” Id. The physician also opined that his “medical 

encounter” with the child “indicated the child had been victimized.” Id. 

Finally, on redirect, the physician stated: “I really strongly believe that was 

my medical conclusion that this child was victimized.” Id. Based upon this 

testimony, our Supreme Court held that “an expert witness may not express 

an opinion that a particular complainant was a victim of sexual assault based 

upon witness accounts couched as a history, at least in the absence of physical 

evidence of abuse. We find that such testimony intrudes into the province of 

the jury . . . .” Id. at 779.
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in existence at the time of trial.” Commonwealth v. Gribble, 863 A.2d 455, 

464 (Pa. 2004). It is practically axiomatic under Pennsylvania law that

“[c]ounsel cannot be deemed ineffective for failing to predict developments or 

changes in the law.” Id. The Supreme Court’s guidance in Maconeghy was 

simply not available to Appellant’s counsel (or, indeed, to anyone) at the time 

of trial, and we cannot evaluate counsel’s actions in the light of that precedent. 

This is not altogether fatal to Appellant’s claims, as Appellant also relies 

upon § 5920(b)(3)’s independent prohibition against the admission of 

credibility opinions by experts in cases such as this one. Additionally, relevant 

precedent from both this Court and the Pennsylvania Supreme Court that was

operative at the time of Appellant’s trial also suggests such a prohibition is 

also recognized at Pennsylvania’s common law. See Commonwealth v. 

Seese, 517 A.2d 920, 922 (Pa. 1986) (“[I]t was error to admit expert 

testimony as to the credibility of . . . the crime victim. . . . That testimony 

was necessar[ily] prejudicial to the appellant due to the fact that the 

prosecution relied primarily upon the perceived veracity of the victim to 

establish its case.”); see also Commonwealth v. Hernandez, 615 A.2d 

1337, 1340 (Pa.Super. 1992) (“We are mindful that the admissibility of expert 

testimony in child abuse cases must be evaluated cautiously in order to 

prevent encroachment upon the jury’s function by the unfair enhancement of 

a child victim’s credibility.”). Appellant’s claim for relief will have to find 
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purchase solely within the confines of § 5920 and the case law interpreting it 

that existed at the time of his trial. See Gribble, supra at 464. 

Evaluating the arguable merit of Appellant’s claims in the proper 

temporal posture, it appears that much of the complained-of testimony was

specifically permitted pursuant to the “safe harbor” afforded by the statute, 

which collectively provides that “the witness may testify to facts and opinions 

regarding specific types of victim responses and victim behaviors” such as “the 

dynamics of sexual violence, victim responses to sexual violence[,] and the 

impact of sexual violence on victims during and after being assaulted.” 42 

Pa.C.S. §§ 5920(b)(1)-(2). Upon close inspection, Dr. Jenssen’s testimony 

during her direct examination by the Commonwealth appears to fall entirely 

within this category of permissible testimony. In relevant part, Dr. Jenssen 

shared her expert knowledge to explain the lack of physical evidence of sexual 

assault in this case, and delineate typical behaviors exhibited by minor victims 

of interfamilial abuse such as delayed reporting and reluctant disclosure. See

N.T. Trial II, 12/2/2015, at 78-89. Although Dr. Jenssen certainly discussed 

her expert opinions and relevant professional sources in the context of her 

experiences examining L.M. and N.D., such testimony appears5to be 

____________________________________________

5

 This Court has concluded that § 5920’s remit distinguishes a number of 

precedents concerning the admissibility of expert testimony, including 

Commonwealth v. Dunkle, 602 A.2d 830, 837 (Pa. 1992) (“Not only is there 

no need for testimony about the reasons children may not come forward, but 

permitting it would infringe upon the jury’s right to determine credibility.” 
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admissible under § 5920(b)(2). See 42 Pa.C.S. § 5920(b)(2) (allowing 

testimony regarding “specific types of victim responses and behaviors”).

Overall, Dr. Jenssen’s direct testimony never explicitly addressed whether or 

not the complained-of sexual assaults in this case actually ever took place, 

and expressed no opinion regarding the overall truthfulness of L.M. or N.D. 

As such, Appellant’s claims regarding trial counsel’s failure to object to Dr. 

Jenssen’s direct testimony are without arguable merit.

6

 See Commonwealth 

v. Carter, 111 A.3d 1221, 1223 (Pa.Super. 2015) (concluding that expert 

____________________________________________

(emphasis in original)) and Commonwealth v. Balodis, 747 A.2d 341, 345-

46 (Pa. 2000) (relying upon Dunkle to disapprove of expert testimony 

regarding the “general characteristics of child victims of sexual abuse”). See 

Commonwealth v. Carter, 111 A.3d 1221, 1224 (Pa.Super. 2015). Our 

Supreme Court has agreed with this general conclusion, see Commonwealth 

v. Olivo, 127 A.3d 769, 780-81 (Pa. 2015) (adjudicating the constitutionality 

of § 5920 under Art. V, § 10(c) of the Pennsylvania Constitution), but has 

declined to specifically delineate the extent to which such prior precedent 

continues to constitute “good” law. See Commonwealth v. Maconeghy, 

171 A.3d 707, 776 n.2 (Pa. 2017) (“The decisions in at least Dunkle and 

Balodis are impacted by the enactment of Section 5920 of the Judicial Code 

. . . . It is beyond the scope of this opinion to discuss the specific effect of the 

statute on these cases.”).

 

6

 This Court has recently suggested a more-stringent “best practice” under 

§ 5920 that would potentially render Dr. Jenssen’s testimony in this case 

objectionable due to her direct familiarity with the underlying allegations: “The 

Commonwealth did not provide [the expert witness] with a factual account of 

the allegations against Appellant, and she testified without knowing anything 

about the allegations, the [v]ictim, or [the appellant] in order to comply with 

Section 5920.” Commonwealth v. Cramer, 195 A.3d 594, 608 (Pa.Super. 

2018). Instantly, Cramer is inapplicable in evaluating trial counsel’s 

effectiveness, as it post-dates Appellant’s trial. See Commonwealth v. 

Gribble, 863 A.2d 455, 464 (Pa. 2004) (“Counsel cannot be deemed 

ineffective for failing to predict developments or changes in the law.”). 
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testimony regarding delayed reporting in child sexual assault victims was 

admissible under § 5920 where the expert “did not testify regarding this victim 

specifically or whether or not the alleged incidents actually occurred”); see 

also Commonwealth v. Hernandez, 615 A.2d 1337, 1344 (Pa.Super. 1992)

(“[D]efense counsel cannot be deemed ineffective for not raising a meritless 

objection.”).

We must conclude, however, that Appellant has established arguable 

merit with respect to significant portions of trial counsel’s cross-examination 

of Dr. Jenssen, which undeniably adduced testimony directly speaking to the 

credibility of L.M. and N.D. Although Dr. Jenssen never explicitly stated 

whether or not she personally believed that a sexual assault had taken place 

in this case,7 she repeatedly stated that she “believed” what L.M. and N.D.

told her during their examinations and also vouched for them as “bright” 

children that were capable of speaking for themselves. See N.T. Trial II, 

12/2/15, at 96-102. Facially, this testimony falls within the ambit of the 

statutory and common law prohibitions against experts offering credibility 

opinions in their testimony and would likely be inadmissible given a timely 

objection. See 42 Pa.C.S. § 5920(b)(3); see also Seese, supra at 922. 

____________________________________________

7 Although Dr. Jenssen spoke, generally, to the credibility of L.M. and N.D., 

her statements of belief are explicitly limited to whether or not she had taken 

their accounts of their mother striking them at “face value.” As such, she 

never explicitly addressed whether or not she believed the allegations of 

sexual abuse.
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Consequently, we must assess whether Appellant’s claim satisfies the 

remaining two prongs of the ineffectiveness standard.

Although we have serious concerns regarding the strategic basis of trial 

counsel’s actions, we need not make a determination regarding that prong of 

the Strickland test for ineffectiveness.

8 Ultimately, Appellant’s claim fails

because he has not established prejudice as it is defined in the context of 

____________________________________________

8

 The learned Concurrence has suggested that Appellant’s trial counsel had a 

reasonable strategic basis for his actions. The PCRA court reached the same 

conclusion, construing trial counsel’s line of questioning as an attempt “to 

prove that she believed the allegedly abused children regardless of the 

inconsistencies in their testimony . . . .” PCRA Court Opinion, 2/5/19, at 11. 

We respectfully disagree and take a much dimmer view of trial counsel’s 

questionable decision to adduce testimony: (1) that he knew at the time of 

trial would be inadmissible, see N.T. PCRA Hearing II, 1/28/19, at 15-16; (2) 

that he knew at the time of trial would lead to Dr. Jenssen bolstering the 

victim’s credibility to the detriment of his client, id. at 17-19; (3) without a 

proper foundation to actually impeach Dr. Jenssen’s credibility, id. at 21-22; 

and (4) without seeking any curative instruction from the trial court when this 

attempt at impeachment predictably faltered. Id. at 20. Any utility or 

advantage that might have been gained by impeaching Dr. Jenssen was 

undercut by these significant deficiencies in trial counsel’s strategy. As such, 

Appellant’s trial counsel should have either declined to pursue such a fraught 

strategy altogether, sought curative instructions, or elicited bias testimony 

from Dr. Jenssen with reference to the “thousands” of exams that she had 

conducted over the course of her career. See N.T. Trial II, 12/2/15, at 73. 

Even allowing that trial counsel possessed some strategic intent in this case, 

his plan was not reasonably calculated or executed. See Commonwealth v. 

Rounds, 542 A.2d 997, 999 (Pa. 1988) (opining in the context of expert 

opinion offered regarding the veracity of minor sexual assault victims that 

“[t]here is no reason that can be offered for permitting the damaging opinion 

of [the expert] to be admitted”). As such, I cannot join in the Concurrence’s 

suggestion that trial counsel had a reasonable strategic basis for his actions. 

Such a conclusion is belied by trial counsel’s own testimony.
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these ineffectiveness claims under the PCRA. The central thesis of Appellant’s 

argument concerning prejudice is as follows:

Because the opinion, vouching for L.M.’s and N.D.’s credibility, 

came from a highly qualified and experienced child abuse 

pediatrician, and was buttressed with statements claiming 

scientific and statistical studies supported the opinion, there was 

substantial risk of prejudice for the Appellant. A jury could 

easily be overly impressed or swayed by the opinions of 

experts such as [Dr. Jenssen], particularly when surrounded with 

the hallmarks of the scientific method.

Appellant’s brief at 23-24 (emphasis added). 

Appellant’s argument regarding prejudice has misconstrued the 

extraordinary burden of establishing prejudice under the PCRA. Although 

Appellant has recited an arguably correct standard of review for this question, 

Appellant’s application claims that the “risk of prejudice,” or the mere potential 

that the jury could have been “impressed or swayed” by Dr. Jenssen’s 

testimony, is sufficient to establish prejudice. This claim erroneously asserts 

that trial counsel’s actions were prejudicial under the “harmless error” 

standard. See Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978) 

(“[A]n error cannot be held harmless unless the appellate court determines 

that the error could not have contributed to the verdict. Whenever there is a 

reasonable possibility that an error might have contributed to the conviction, 

the error is not harmless.”). By contrast, ineffectiveness claims under the 

PCRA requires the affirmative demonstration of actual prejudice. See 

Strickland v. Washington, 466 U.S. 668, 686 (1984) (“The benchmark for 

judging any claim of ineffectiveness must be whether counsel’s conduct so 
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undermined the proper functioning of the adversarial process that the trial 

court cannot be relied on as having produced a just result.”). In sum, 

Appellant’s discussion inappropriately conflates “harmless error” with the 

more-exacting “actual prejudice” standard that is applicable under the 

PCRA.9/10 

Our Supreme Court clearly delineated this distinction in 

Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014) (“Spotz II”):

[T]he test for prejudice in the ineffectiveness context is more 

exacting than the test for harmless error, and the burden of proof 

is on the defendant, not the Commonwealth. As a general and 

practical matter, it is more difficult for a defendant to prevail on a 

claim litigated through the lens of counsel ineffectiveness, rather 

than as a preserved claim of trial court error. . . .

A defendant raising a claim of ineffective assistance of counsel is 

required to show actual prejudice; that is, that counsel’s 

ineffectiveness was of such magnitude that it could have 

reasonably had an adverse effect on the outcome of the 

____________________________________________

9

 This is a critical distinction because the precedent relied upon by Appellant 

that resulted in the grant of a new trial uniformly arises in the context of 

claims of trial court error on appeal, as opposed to collateral review. See

Commonwealth v. Maconeghy, 171 A.3d 707, 710 (Pa. 2017).

10 The learned Concurrence suggests that we have committed an error by 

correctly reciting the standard for establishing prejudice under the PCRA for a 

claim of ineffective assistance of counsel, and then applying that standard to 

Appellant’s arguments of record. We respectfully disagree. Our conclusion 

that Appellant has not sustained his burden of demonstrating “actual 

prejudice” is not the product of some mistake in law, but the natural 

consequence of Appellant presenting insufficient evidence to establish such. 

While we commend the learned Concurrence for its solicitude concerning the 

heavy burden posed by such a standard, we are bound by well-established 

precedent in this area of law. See Commonwealth v. Williams, 9 A.3d 613, 

619 n.7 (Pa. 2010) (“[I]t is more difficult to obtain relief on collateral review 

because Strickland places a heavier burden on the defendant.”).
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proceedings. This standard is different from the harmless error 

analysis that is typically applied when determining whether the 

trial court erred in taking or failing to take certain action. . . . [The 

harmless error standard] places the burden on the Commonwealth 

to show that the error did not contribute to the verdict beyond a 

reasonable doubt, is a lesser standard than the Pierce prejudice 

standard, which requires the defendant to show that counsel’s 

conduct had an actual adverse effect on the outcome of the 

proceedings. This distinction appropriately arises from the 

difference between a direct attack on error occurring at trial and 

a collateral attack on the stewardship of counsel. In a collateral 

attack, we first presume that counsel is effective, and that not 

every error by counsel can or will result in a constitutional violation 

of a defendant’s Sixth Amendment right to counsel.

Id. at 315. Instantly, Appellant’s averments concerning prejudice are 

unavailing as a result of this distinction, as Appellant’s claims regarding 

prejudice are confined to unapplied speculation regarding how Dr. Jenssen’s 

testimony might have impacted the proceedings below. This Court has 

rejected such arguments, concluding that “[u]nsupported speculation does not 

establish reasonable probability” that the outcome of the proceedings would 

have been different. Commonwealth v. Charleston, 94 A.3d 1012, 1026 

(Pa.Super. 2014). 

“In making [a prejudice] determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence before the 

judge or jury . . . .” Commonwealth v. Lesko, 15 A.3d 345, 383 (Pa. 2011)

(emphasis in original).

11 Instantly, the Commonwealth’s case rested largely

____________________________________________

11 The learned Concurrence has also averred that we have impermissibly 

conflated sufficiency of the evidence with actual prejudice. However, our 
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upon testimonials from L.M. and N.D. that were uncorroborated by physical 

evidence, but Appellant was unsuccessful in eliciting significant inconsistencies 

or falsities in their respective testimonies. See N.T. Trial I, 12/1/15, at 64-

102 (cross-examination of L.M.); see also N.T. Trial II, 12/2/15, at 39-58 

(cross-examination of N.D.). At best, Appellant raised a question regarding 

whether Appellant’s bedroom door had a lock. Compare N.T. Trial I, 12/1/15, 

at 69-70 (L.M. testifying that Appellant would lock the door to the bedroom 

when the assaults took place) with N.T. Trial III, 12/3/15, at 28-29

(testimony that the bedroom could not be locked, but was held close by a 

large container filled with coins). Although uncorroborated with physical 

evidence, the victim testimonials in this case also remained uncontroverted at 

the close of the proceedings. As such, it seems clear that the discrepancy that 

resulted from trial counsel’s erroneous cross-examination of Dr. Jenssen was 

not of a sufficient magnitude to undermine confidence in the jury’s verdict

based upon the arguments advanced by Appellant. Accord Spotz, supra at 

315; cf. Commonwealth v. Sparks, 539 A.2d 887, 890 (Pa.Super. 1988) 

____________________________________________

discussion of the totality of the evidence presented at trial is commanded by 

the relevant precedent of our Supreme Court. See Commonwealth v. 

Lesko, 15 A.3d 345, 383 (Pa. 2011). The point of this evidentiary review is 

not to establish that the Commonwealth’s case was legally “sufficient,” but to 

ascertain whether trial counsel’s error had a palpable effect upon the outcome 

of the proceeding such that it constitutes “actual prejudice.” Based upon our 

review of the totality of the evidence, we conclude that it did not. Tellingly, 

the Concurrence does not explicitly opine regarding whether or not it would 

conclude that “actual prejudice” resulted in this controversy.
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(“The Commonwealth’s evidence was not overwhelming, and the 

contradictions and inadequacies therein, if pointed out to the jury, may well 

have created reasonable doubt as to whether appellant had committed the 

crimes with which he was charged.”).

In totality, Appellant has failed to demonstrate actual prejudice with 

respect to the arguable bolstering of L.M.’s and N.D.’s respective credibility by 

Dr. Jenssen’s testimony during cross-examination by Appellant’s trial counsel. 

As such, Appellant’s claim for relief must fail.12 

Order affirmed. 

Judge Shogan joins the memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/24/20

____________________________________________

12

 Although we affirm on a separate basis from that originally espoused by 

the PCRA court, “[t]his Court may affirm a PCRA court’s decision on any 

grounds if the record supports it.” Commonwealth v. Ford, 44 A.3d 1190, 

1194 (Pa.Super. 2012).