J-A03031-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

MATTHEW J. DOUGHERTY,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 60 WDA 2018

Appeal from the Judgment of Sentence August 15, 2017

in the Court of Common Pleas of Mercer County 

Criminal Division at No(s): CP-43-CR-0000635-2016

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

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 12, 2019

Matthew J. Dougherty (Appellant) appeals from the August 15, 2017 

judgment of sentence of 9 to 18 months of incarceration followed by 31⁄2 

years of probation after a jury found him guilty of indecent assault. Upon 

review, we affirm.

We provide the following background. Appellant was charged with two 

counts of aggravated indecent assault and one count of indecent assault for 

numerous incidents of improper touching involving Appellant’s stepdaughter, 

J.M., which occurred between 2011 and 2013, when J.M. was approximately 

9 to 12 years old.
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Prior to trial, Appellant filed, inter alia, a motion in limine seeking a

hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),

1

on any testimony the Commonwealth intended to introduce regarding the 

“uniformity of behavior exhibited by sexually abused children[.]” Motion in 

Limine, 3/9/2017. The Honorable Christopher St. John, who was then 

presiding over the case, granted Appellant’s request for a Frye hearing. 

Order, 3/15/2017, at 2. 

Thereafter, Appellant’s case was transferred to President Judge 

Thomas Dobson. During a discussion with Appellant’s counsel and the 

Commonwealth, the Commonwealth indicated that it was no longer seeking 

to present such evidence through its expert. Accordingly, over Appellant’s 

objection, Judge Dobson ordered that the scheduled Frye hearing instead 

serve as a hearing to “determine what testimony is admissible in light of the 

restrictions set forth in 42 Pa.C.S. § 5920(b)(2).”2 Order, 3/23/2017. 

 

1 A Frye hearing “is a hearing held for the trial court to determine whether 

the general scientific community has reached a general acceptance of the 

principles and methodology used by the expert witness.” Commonwealth 

v. Walker, 92 A.3d 766, 769 n.1 (Pa. 2014).

2 Section 5920 provides as follows.

(a) Scope.--This section applies to all of the following:

(1) A criminal proceeding for an offense for which 

registration is required under Subchapter H of Chapter 97 

(relating to registration of sexual offenders).

(2) A criminal proceeding for an offense under 18 Pa.C.S. 

Ch. 31 (relating to sexual offenses).

(Footnote Continued Next Page)
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That hearing was held on April 17, 2017, during which the 

Commonwealth offered the testimony of Kimberly Duffy, a forensic 

interviewer at the York County Children’s Advocacy Center, as a section 

5920 expert. At the conclusion of the hearing, the trial court permitted Ms. 

Duffy to testify at trial but limited her testimony to her own experiences with 

sexual abuse victims that she has interviewed, and prohibited any mention 

of “grooming.” Order, 5/18/2017. 

(Footnote Continued) _______________________

(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.

(4) A witness qualified by the court as an expert under this 

section may be called by the attorney for the 

Commonwealth or the defendant to provide the expert 

testimony.

42 Pa.C.S. § 5920 (footnote omitted).
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A jury trial occurred from April 18-24, 2017. During trial, Ms. Duffy 

testified as an expert in accordance with the trial court’s ruling. At the 

conclusion of the trial, the jury found Appellant guilty of indecent assault and 

not guilty of aggravated indecent assault. On August 15, 2017, the trial 

court sentenced Appellant as indicated supra. 

Appellant filed a post-sentence motion, which the trial court denied on 

November 30, 2017. This timely filed appeal followed.3 Appellant raises 

three questions for this Court’s review, which we have reordered for ease of 

disposition. See Appellant’s Brief at 4.

Appellant first argues that the trial court erred in precluding Appellant

from questioning his wife, who is J.M.’s mother (Mother), about her 

knowledge of Appellant’s taking a polygraph examination regarding the 

allegations in this case. Appellant’s Brief at 22.

Our standard of review for the admission of evidence is well-settled.

The admission of evidence is solely within the discretion of the 

trial court, and a trial court’s evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion. An abuse of 

discretion will not be found based on a mere error of judgment, 

but rather occurs where the court has reached a conclusion 

that overrides or misapplies the law, or where the judgment 

 

3 Following the filing of Appellant’s notice of appeal, his case was transferred 

to Senior Judge John Reed. On January 31, 2018, Judge Reed issued an 

order directing Appellant to file a Pa.R.A.P. 1925(b) statement, and, for 

purposes of Pa.R.A.P. 1925(a), relying upon Judge Dobson’s November 30, 

2017 Opinion. Order, 1/31/2018. Appellant complied with Pa.R.A.P. 

1925(b). Thereafter, on September 25, 2018, this Court dismissed 

Appellant’s appeal for failure to file a brief. However, we granted Appellant’s 

application to reinstate his appeal, and the matter is now properly before us.
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exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Manivannan, 186 A.3d 472, 479-80 (Pa. Super. 2018) 

(citation omitted).

On the second day of trial, in Appellant’s case-in-chief, Appellant called 

Mother as a witness. N.T., 4/19/2017, at 106. On cross-examination, the 

Commonwealth asked her why she believed J.M. was lying about the 

accusations against Appellant. Id. at 119. Mother responded that she did 

not know why J.M. was lying, but that J.M. has lied historically. Id. As 

such, Mother does not believe anything criminal happened between 

Appellant and J.M. Id. at 121. Pertinent to Appellant’s claim on appeal, the 

Commonwealth never asked Mother why she believed Appellant over J.M.,

and in answering why she did not believe J.M., Mother did not mention

Appellant’s taking a polygraph examination. Id. at 119-130. Immediately 

after cross examination, the parties engaged in a sidebar discussion with the 

trial court. That sidebar discussion was not transcribed. Appellant then 

conducted his redirect examination of Mother. 

On appeal, Appellant contends that the trial court erred in precluding

Appellant from asking Mother about the polygraph examination on redirect 

examination. Appellant’s Brief at 22. However, it appears from the record 

that this request was made during the off-the-record sidebar discussion.

See N.T., 4/19/2017, at 130 (proceeding directly from the conclusion of 

cross examination into redirect examination, without any request for a 
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sidebar); Opinion, 11/30/2017, at 5. Appellant acknowledged in his brief 

that the trial court’s alleged ruling occurred in an unrecorded sidebar, which 

was held following cross examination. 

[I]t is an appellant’s duty to ensure that the certified record is 

complete for purposes of review. In addition, our Court has 

stated a [f]ailure to ensure that the record provides sufficient 

information to conduct a meaningful review constitutes waiver of 

the issue sought to be reviewed. Where portions of a proceeding 

are unrecorded, appellant’s burden to supply a record may be 

satisfied through the statement in absence of transcript 

procedures. See Pa.R.A.P. 1923.

Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (quotation 

marks and some citations omitted). No statement pursuant to Pa.R.A.P. 

1923 has been offered on appeal pertaining to this off-the-record sidebar. 

Because this Court is unable to ascertain on what basis the trial court made

its ruling, we are unable to evaluate whether the trial court abused its 

discretion. Accordingly, Appellant’s claim is waived.

Appellant next contends that the trial court erred in failing to hold the 

Frye hearing scheduled by Judge St. John in violation of the coordinate 

jurisdiction rule. Appellant’s Brief at 18-19.

At the outset, [our Supreme] Court has long recognized 

that judges of coordinate jurisdiction sitting in the same case 

should not overrule each others’ decisions. This rule, known as 

the “coordinate jurisdiction rule,” is a rule of sound jurisprudence 

based on a policy of fostering the finality of pre-trial applications 

in an effort to maintain judicial economy and efficiency.

In our view, this coordinate jurisdiction rule falls squarely 

within the ambit of a generalized expression of the “law of the 

case” doctrine. This doctrine refers to a family of rules which 

embody the concept that a court involved in the later phases of 
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a litigated matter should not reopen questions decided by 

another judge of that same court or by a higher court in the 

earlier phases of the matter. Among the related but distinct 

rules which make up the law of the case doctrine are that ... 

upon transfer of a matter between trial judges 

of coordinate jurisdiction, the transferee trial court may not alter 

the resolution of a legal question previously decided by the 

transferor trial court.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citations 

omitted). Departure from the coordinate jurisdiction rule or law of the case 

doctrine is permissible “only in exceptional circumstances such as where 

there has been an intervening change in the controlling law, a substantial 

change in the facts or evidence giving rise to the dispute in the matter, or 

where the prior holding was clearly erroneous and would create a manifest 

injustice if followed.” Id. at 1332. 

Here, Appellant filed a pre-trial motion in limine for a Frye hearing on 

any testimony the Commonwealth intended to introduce regarding the 

“uniformity of behavior exhibited by sexually abused children[.]” Motion in 

Limine, 3/9/2017. Judge St. John granted Appellant’s request based on 

Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992), superseded by 42 

Pa.C.S. § 5920, which held that, inter alia, “testimony about the uniformity 

of behaviors exhibited by sexually abused children[, referred to as, inter alia, 

abused-victim syndrome,] is not sufficiently established to have gained 

general acceptance in the particular field in which it belongs[,]” and 

therefore is inadmissible under Frye. 602 A.2d at 834 (citation and 

quotation marks omitted). 
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Thereafter, Appellant’s case was transferred to Judge Dobson. “[A]fter 

discussion with counsel and the Commonwealth indicating that [the 

Commonwealth was] not seeking to establish abused-victim syndrome as 

was attempted in Dunkle,” Judge Dobson ordered that the scheduled Frye 

hearing instead be treated as a hearing to “determine what testimony is 

admissible in light of the restrictions set forth in 42 Pa.C.S. § 5920(b)(2).” 

Order, 3/23/2017. In that order, the trial court also noted for the record 

that “[Appellant] objects and says there should be a Frye hearing. The [trial 

c]ourt does not believe a Frye hearing is appropriate given the nature of the 

testimony as restricted by [section] 5920.” Id. 

Although Appellant objected to the trial court’s reframing the Frye 

hearing as a motion in limine hearing pursuant to section 5920, Appellant 

did not raise the coordinate jurisdiction rule as a basis for why the scheduled 

hearing should have remained a Frye hearing until he filed his brief on 

appeal. Compare Order, 3/23/2017 (trial court noting Appellant’s objection

for the record and averment that there should be a Frye hearing); PostSentence Motion, 8/25/2017, at 3 (claiming trial court erred in denying 

request for Frye hearing); Amended Statement of Matters Complained of on 

Appeal, 2/20/2018, at ¶ 8a (“The court erred in denying [Appellant] the 

opportunity to challenge whether the opinions of the expert were accepted 

pursuant to the Frye standard.”) with Appellant’s Brief at 18-19 (arguing 

that the reframing of the Frye hearing violated the coordinate jurisdiction 
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rule). “Because Appellant is improperly attempting to raise a new theory of 

relief for the first time on appeal, we conclude Appellant waived this []

claim.” Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)

(citations omitted).

Finally, Appellant contends that the trial court erred in permitting the 

Commonwealth’s section 5920 expert to testify in a manner that Appellant

claims improperly bolstered J.M.’s credibility. Appellant’s Brief at 13. He 

argues that while the expert testified that she was answering the questions 

without any knowledge of the underlying facts of the case, “[h]er testimony 

being limited to the behavior demonstrated in this case is a clear direct 

bolstering of the victim’s veracity.” Id. at 17. 

As detailed supra, we review a trial court’s evidentiary rulings for an 

abuse of discretion. See Manivannan, supra. This Court recently 

reviewed a claim similar to Appellant’s in Commonwealth v. Cramer, 195 

A.3d 594 (Pa. Super. 2018). We find Cramer dispositive. In Cramer,

Cramer alleged that the section 5920 expert’s testimony bolstered the 

victim’s credibility. In rejecting this claim, we held as follows. 

In 2012, the General Assembly enacted 42 Pa.C.S. § 5920 

as a statutory rule of evidence permitting qualified experts to 

testify in certain criminal proceedings about “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).

Section 5920 permits expert testimony limited to “opinions 

regarding specific types of victim responses and victim 

behaviors.” 42 Pa.C.S. § 5920(b)(2). [Subs]ection 5920(b)(3) 
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specifically precludes an expert witness from opining on “the 

credibility of any other witness, including the victim[.]” 42 

Pa.C.S. § 5920(b)(3).

Cramer, 195 A.3d at 608. 

After reviewing the expert’s testimony in Cramer, this Court held that 

the expert neither offered an opinion as to the credibility of the victim, nor 

as to whether the victim’s particular response was normal. 

Rather, [the expert] testified generally about the manner in 

which victims of sexual abuse respond to an assault.

The Commonwealth did not provide [the expert] with a 

factual account of the allegations against [Cramer], and she 

testified without knowing anything about the allegations, the 

[v]ictim, or [Cramer] in order to comply with Section 5920. 

Moreover, the Commonwealth’s questions in this case were 

general and generic enough that [the exper’s] testimony did not 

bolster the [v]ictim’s testimony as [Cramer] claims.

Since [the expert’s] testimony complied with Section 5920 

by responding to the Commonwealth’s general questions, she did 

not know the facts of the case before she testified, and she did 

not offer an opinion about the credibility of the [v]ictim or 

whether the [v]ictim responded “normally,” the trial court did 

not err in permitting Dr. Valliere to testify pursuant to Section 

5920.

Id. (footnote omitted).

Here, upon review of Ms. Duffy’s expert testimony, we reach the same 

conclusion. The Commonwealth did not disclose the facts of the case to Ms. 

Duffy. The Commonwealth asked general questions about broad, common, 

behaviors that Ms. Duffy has witnessed among sexual abuse victims that she 

had interviewed. That J.M. exhibited the same behaviors does not mean Ms. 

Duffy improperly bolstered J.M.’s credibility. Rather, Ms. Duffy’s testimony
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did exactly what section 5920 permits; it allows an expert to testify to 

“opinions regarding specific types of victim responses and victim behaviors.” 

42 Pa.C.S. § 5920(b)(2). Accordingly, we hold that the trial court’s

permitting Ms. Duffy to testify in exact accordance with section 5920 did not 

result in improper bolstering.

Finding Appellant’s claims on appeal either waived or without merit, 

we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2019