J-S48013-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA,

 Appellee

v.

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.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

FILED JANUARY 24, 2020

I agree with the Majority that Appellant’s issue on appeal has arguable 

merit. Appellant contends that the questioning by trial counsel of the 

Commonwealth’s expert, Dr. Jenssen, improperly bolstered her testimony and 

violated the statute regarding the admissibility of expert opinion regarding the 

credibility of witnesses. Trial counsel’s questioning permitted Dr. Jenssen to

state over and over again that she indeed believed the victims. See N.T., 

12/2/2015, at 96-102. It has long been the law of this Commonwealth that 

“[i]t is an encroachment upon the province of the jury to permit admission of 

expert testimony on the issue of a witness’ credibility.” Commonwealth v. 

Seese, 517 A.2d 920. 922 (Pa. 1986). “Indeed, to permit expert testimony 
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for the purpose of determining the credibility of a witness would be an 

invitation for the trier of fact to abdicate its responsibility to ascertain the facts 

relying upon the questionable premise that the expert is in a better position 

to make such a judgment.” Id. (internal quotation marks omitted). 

Having concluded that Appellant’s issue has arguable merit, I now 

consider whether trial counsel had a reasonable basis for engaging in this line 

of questioning. At the PCRA hearing, trial counsel testified about why he 

questioned Dr. Jenssen regarding whether she believed the victims. According 

to counsel, his strategy was to show that Dr. Jenssen “was biased. Before she 

ever looked at these children, she had a preconceived notion that, in fact, they 

had been molested. Before the[y] ever stepped into her room, she believed 

they had been molested.” N.T., 1/28/2019, at 11. Trial counsel conceded 

that some questions he asked would have been inadmissible had they been 

asked by the Commonwealth, but it was his position that because he was 

asking the questions on cross-examination and for a specific purpose, he was 

not ineffective. See id. at 16.

“When assessing whether counsel had a reasonable basis for his act or 

omission, the question is not whether there were other courses of action that 

counsel could have taken, but whether counsel’s decision had any basis 

reasonably designed to effectuate his client’s interest.” Commonwealth v. 

Williams, 141 A.3d 440, 463 (Pa. 2016).
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Here, counsel offered a cogent reason for the line of questions at issue. 

Accordingly, I agree with the PCRA court that trial counsel’s strategy satisfies 

the standard for being reasonable. Based on the foregoing, trial counsel’s 

representation of Appellant was not ineffective, and I agree with the Majority 

and the PCRA court that Appellant is not entitled to relief.1

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1 Because trial counsel’s actions in questioning Dr. Jenssen had a reasonable 

basis, we need not reach the issue of whether Appellant was prejudiced by 

counsel’s questioning. I note, however, that the Majority places a virtually 

unattainable burden on Appellant, relying on Commonwealth v. Spotz, 84 

A.3d 294 (Pa. 2014). At one point, the Majority opines that “[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 

proceedings.” Majority, at 21. I agree with this standard. However, the 

Majority then concludes that Appellant has failed to establish this prong 

because his “claims regarding prejudice are confined to ... speculation 

regarding how Dr. Jenssen’s testimony might have impacted the proceedings 

below.” Majority, at 22 (emphasis in original). Short of getting affidavits from 

all the jurors, which of course is impermissible, there is no way any appellant 

could say conclusively that the verdict actually would have been different. 

The Majority then compounds its error by essentially noting that the 

Commonwealth presented sufficient evidence to support Appellant’s 

conviction and therefore, Appellant has failed to demonstrate actual

prejudice. The Majority conflates the standards for sufficiency of the evidence 

and prejudice where counsel is alleged to be ineffective.

Instantly, as in many cases of sexual abuse, the only witnesses to the 

abuse are the perpetrator and the victim or victims. Additionally, as in many 

cases of sexual abuse, the victim or victims delay in reporting the abuse and 

there is no physical evidence that the abuse occurred. This is such a case. 

Under such circumstances, even where the evidence is sufficient to sustain 

the convictions, as it is here, it is impossible to say the evidence is 

overwhelming. Accordingly, it is improper under these circumstances to 

dismiss a claim for ineffective assistance of counsel merely because the 

Commonwealth indeed presented sufficient evidence at trial.