J-S32025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MICHAEL L. LINDSTROM, Appellant No. 1828 WDA 2014

Appeal from the Judgment of Sentence of October 24, 2014 In the Court of Common Pleas of Warren County Criminal Division at No(s): CP-62-CR-0000085-2014 BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ. MEMORANDUM BY OLSON, J.: FILED JULY 2, 2015 Appellant, Michael L. Lindstrom, appeals from the j udgment of sentence entered on October 24, 2014. We affirm. The factual background of this case is as follows. On February 28, 2014, two-year-old D.D. (“Victim”) was living with Appellant’s girlfriend, N.J. (“Mother”). Appellant watched Victim while Mother went to the grocery store. Upon returning home, Mother noticed new bru ising on Victim’s face and head. Mother and Appellant eventually transpor ted Victim to Warren General Hospital. At the hospital, Mother asked Vi ctim who had caused his injuries. Victim twice responded that Appellant ha d caused the injuries. Victim was later questioned by a forensics intervie wer; however, no usable evidence was gathered from that interview.J-S32025-15

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The relevant procedural history of this case is as follows. Appellant was charged via criminal information with simple as sault, 1 endangering the welfare of a child, 2 and harassment. 3 On September 30, 2014, Appellant

filed a motion in limine seeking to preclude physician’s assistant Matthew Minarik (“Minarik”) from testifying regarding causa tion. On October 3, 2014,

the Commonwealth filed a motion in limine pursuant to the Tender Years Hearsay Act (“TYHA”), 42 Pa.C.S.A. § 5985.1. On Oc tober 6, 2014, the trial court denied Appellant’s motion in limine . After the requisite in camera hearing, on October 7, 2014, the trial court grante d the Commonwealth’s

motion in limine . A one-day jury trial occurred on October 9, 2014

. Appellant was found guilty of endangering the welfa re of a child and harassment. On October 24, 2014, Appellant was sen tenced to an aggregate term of one to three years’ imprisonment. This timely appeal

followed. 4 Appellant raises two issues for our review:

1 18 Pa.C.S.A. § 2701(a)(1).

2 18 Pa.C.S.A. § 4304(a)(1).

3 18 Pa.C.S.A. § 2709(a)(1).

4 On October 28, 2014, the trial court ordered Appel lant to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(b). On November 17, 2014, Appellant filed his concise statement. On December 29, 2014, the trial court i ssued its Rule 1925(a) opinion. Both issues raised on appeal were include d in Appellant’s concise statement.J-S32025-15

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1. Did the trial court err in permitting physician’s a ssistant Matthew Minarik to testify at trial regarding medic al causation, as he lacked the specialized scientific knowledge to render an expert opinion in that area?

2. Did the trial court err in admitting the hearsay st atements of the alleged victim, as they were testimonial in nat ure and did not have adequate indicia of reliability? Appellant’s Brief at 7. In his first issue, Appellant contends that the tri al court erred by admitting Minarik as an expert witness. Minarik te stified as to his opinion

that the bruises on Victim were similar to marks th at could have been created by fingers and that the bruises were caused by blunt trauma. “[Q]ualification of a witness as an expert rests wi thin the sound discretion of the trial court, and the court’s determination in t his regard will not be

disturbed absent an abuse of discretion.” Commonwealth v. Malseed , 847 A.2d 112, 114 (Pa. Super. 2004), appeal denied , 862 A.2d 1254 (Pa. 2004) (citation omitted). “The standard for qualif ying an expert witness is a liberal one: the witness need only have a reasonabl e pretension to specialized knowledge on a subject for which expert testimony is

admissible.” Commonwealth v. Kinard , 95 A.3d 279, 288 (Pa. Super. 2014) ( en banc ) (citation omitted). Appellant concedes that a non-doctor may be qualif ied as an expert witness regarding medical issues. See Miller v. Brass Rail Tavern , 664 A.2d 525, 528-529 (Pa. 1995). For example, lay med ical examiners, Ph.D.’s in neuroscience, police officers, and nurses have a ll been qualified as expertsJ-S32025-15

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and permitted to testify regarding medical issues. Freed v. Geisinger

Med. Ctr. , 5 A.3d 212, 220 (Pa. 2010); McClain ex rel. Thomas v.

Welker , 761 A.2d 155, 158-159 (Pa. Super. 2000); Miller , 664 A.2d at 528-529; Commonwealth v. Gonzalez , 546 A.2d 26, 31 (Pa. 1988). Nonetheless, Appellant argues that Minarik should n ot have been admitted as an expert witness. Minarik testified that he is a licensed physician’ s assistant in Ohio, Michigan, and Pennsylvania. N.T., 10/9/14, at 33. He attended Ohio State University and Cuyahoga Community College. Id. He then attended a master’s program at Still University, an osteopathi c medical school. Id. He engaged in clinical programs for a year in various areas, including emergency medicine and general practice. Id. He has practiced as a physician’s assistant in Ohio, Michigan, the Distri ct of Columbia, and Pennsylvania. Id. at 33-34. He specializes in emergency care. Id. at 34. He completes 200 hours of continuing education ever y year. Id. at 35. As is clear by this recitation of Minarik’s qualif ications, he possessed specialized knowledge outside of that held by the g eneral public. He attended school for several years while learning ab out medicine. He served as a physician’s assistant in four jurisdictions du ring which he treated many patients. He is subject to continuing education re quirements and has spent, on average, four hours per week fulfilling those co ntinuing educationJ-S32025-15

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requirements. A member of the general public would not have this specialized knowledge. 5 Appellant focuses on the fact that Minarik has not published any journal articles nor has he previously been admitte d as an expert witness. These factors, however, are not dispositive. “[A] witness qualified as an expert by knowledge, skill, experience, training[,] or education may testify thereto in the form of an opinion or otherwise.” P a.R.Evid. 702. In other words, there are several manners in which an expert witness can obtain his or her specialized knowledge. In this case, it is evident from Minarik’s testimony that he obtained such specialized knowled ge by education and experience. An expert need only receive his or her specialized knowledge

from one of the above listed means – not all of the m. The absence of published material in Minarik curriculum vitae goes to the weight of his testimony, not its admissibility. Appellant cites a line of cases in which this Cour t held that a doctor in one specialized field was not qualified as an exper t regarding another specialized field. Those cases, however, are disti nguishable from the case at

bar. Almost all of those cases arose in the medica l malpractice area. In Pennsylvania, an expert witness in a medical malpra ctice case must be of

5 Minarik certainly had more education than the polic e officer in Gonzalez who testified as to the effect that alcohol had on the body. In Gonzalez , our Supreme Court noted that the police officer had merely taken several classes related to pharmacology and toxicology of a lcohol. Gonzalez , 546 A.2d at 32.J-S32025-15

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the same specialty as the defendant doctor. Anderson v. McAfoos , 57 A.3d 1141, 1144 (Pa. 2012), citing 40 P.S. § 1303.512(c). There is no such requirement for testimony regarding medical causati on in a criminal case. Furthermore, Appellant’s attempt to carve out medi cal causation as a specialty is unavailing. All forms of medicine dea l with causation. For example, a podiatrist testifying regarding injuries to a foot does not need specialized knowledge in medical causation in order to be admitted as an expert to testify as to whether a certain incident was the medical cause of a foot injury. Similarly, a cardiologist does not ne ed specialized training in medical causation to know whether a particular diet was the medical cause of a heart attack. Instead, medical causation is a t the heart of any medical professional’s knowledge in his or her field. In t his case, Minarik had training in general medicine and emergency medicine . Specialized knowledge in these two areas was sufficient to qual ify him as an expert regarding bruising. Accordingly, we conclude that the trial court did not abuse its discretion in admitting Minarik as an exp ert witness. In his second issue on appeal, Appellant contends that the trial court erred by granting the Commonwealth’s motion in limine and admitting

Victim’s statements under TYHA. “We will not rever se the trial court’s decision to admit evidence pursuant to [TYHA] absen t an abuse of

discretion.” Commonwealth v. Curley , 910 A.2d 692, 697 (Pa. Super. 2006), appeal denied , 927 A.2d 622 (Pa. 2007) (citation omitted).J-S32025-15

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TYHA provides, in relevant part, that: (a) General rule.--An out-of-court statement made b y a child victim or witness, who at the time the statement wa s made was 12 years of age or younger, describing [a series of offenses, inter alia , those at issue in this case,] not otherwise admis sible by statute or rule of evidence, is admissible in ev idence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstanc es of the statement provide sufficient indicia of reliability ; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. (a.1) Emotional distress.--In order to make a findi ng under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence present ed to it, that testimony by the child as a witness will resul t in the child suffering serious emotional distress that would sub stantially impair the child’s ability to reasonably communicat e. In making this determination, the court may do all of the fol lowing: (1) Observe and question the child, either inside o r outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. 42 Pa.C.S.A. § 5985.1. Appellant first contends, at least implicitly, tha t the trial court erred by concluding that Victim was unavailable. We disagre e. At the in camera hearing, the trial court asked Mother what the effe ct on Victim would be if he were called to the witness stand. N.T., 10/7/14, a t 54-55. MotherJ-S32025-15

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responded, “It wouldn’t be good.” Id. at 55. She explained that “I think that he would cry or sit here and be completely sil ent.” Id. From that testimony, the trial court reasonable concluded tha t Victim was unavailable

due to emotional distress. Appellant next contends that Victim’s statements l acked sufficient indicia of reliability to be admitted under TYHA. It is undisputed that shortly after arriving at the hospital, Minarik prompted Mo ther to ask Victim who caused his injuries. Id. at 11, 33. At the in camera hearing, Minarik testified that Mother asked the question twice, sev en minutes apart. Id. at 11. He further testified that, both times Mother a sked the question, Victim responded that Appellant caused his injuries. Id. On the other hand, Mother testified that in response to these question s, Victim gave four different answers: Appellant, Victim’s grandmother, Victim’s cat, and

Victim’s sister. Id. at 30, 33. It is undisputed that after leaving the hospital, Victim was interviewed by a forensics int erviewer and was unable to name the perpetrator of the offense. N.T., 10/9 /14 at 109. At the

conclusion of the in camera hearing, the trial court found Minarik’s testimony to be credible and Mother’s testimony not credible. Specifically, the trial court found that Mother’s testimony was biased beca use she wished to continue her relationship with Appellant. See Trial Court Opinion, 12/29/14, at 3. Thus, the trial court found that Victim gave consistent answers to Mother’s questions regarding Appellant’s role in ca using Victim’s injuries.J-S32025-15

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We ascertain no abuse of discretion in the trial c ourt’s determinations. The trial court’s credibility determinations regard ing Mother and Minarik are supported by the record. As such, we may not overt urn those

determinations. See Commonwealth v. Simpson , 112 A.3d 1194, 1198 (Pa. 2015) (citation omitted) (“[W]e have emphasize d that the lower tribunal’s . . . credibility determinations which a re supported by the record will not be disturbed on appeal.”). Furthermore, t here were significant indicia of reliability regarding Victim’s statement s in the hospital. For example, our Supreme Court has held that consistent repetition of a statement is an indicator of reliability. Commonwealth v. Walter , 93 A.3d 442, 456 (Pa. 2014), citing Commonwealth v. Delbridge , 855 A.2d 27, 47 (Pa. 2003). In this case, Victim gave the same ans wer twice, seven minutes apart. Another indicator of reliability is when th e child’s statements are given in response to open-ended questions. Commonwealth v. Barnett , 50 A.3d 176, 186 (Pa. Super. 2012), appeal denied , 63 A.3d 772 (Pa. 2013). In this case, Mother’s questions were open-ended an d not leading. She merely asked Victim who caused his injuries. Simil arly, a good relationship between the child and the person that he reported t he abuse to indicates the

statement is reliable. Commonwealth v. Hunzer , 868 A.2d 498, 511 (Pa. Super. 2005), appeal denied , 880 A.2d 1237 (Pa. 2005). In this case, Mother testified that she had a good relationship w ith Victim. Finally, when a child has no incentive to lie, that is an indicat or of reliability. SeeJ-S32025-15

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Commonwealth v. Lyons , 833 A.2d 245, 255 (Pa. Super. 2003), appeal

denied , 879 A.2d 782 (Pa. 2005). In this case, there is no evidence that Victim had an incentive to lie. Thus, there are se veral indicia that Victim’s statements to Mother in the hospital were reliable. Accordingly, we conclude that the trial court correctly held that Victim’s s tatements possessed the requisite indicia of reliability. Appellant next argues that the trial court used th e TYHA to admit evidence despite the fact that Victim would not be competent to testify at trial. Even assuming arguendo that Victim would not have been competent to testify at trial, that fact is irrelevant. Our Supreme Court has ruled that it is permissible to admit statements pursuant to TYHA even if the witness would not otherwise be competent to testify. Walter , 93 A.3d at 452. Finally, Appellant argues that use of TYHA violate d his right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution. The Supreme Court of the United Stat es has held “that fidelity to the Confrontation Clause permit[s] admission of testimonial statements of witnesses absent from trial only where the declaran t is unavailable, and only where the defendant has had a prior opportunity to cross-examine[.]” Bullcoming v. New Mexico , 131 S.Ct. 2705, 2713 (2011) (internal quotation marks, alteration, ellipsis, and citation omitted). “A statement is testimonial if made for the purpose of establishing or proving some fact in a criminal proceeding.” Commonwealth v. Dyarman , 73 A.3d 565, 573J-S32025-15

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n.11 (Pa. 2013) (internal quotation marks and citat ion omitted). The statements by Victim were non-testimonial. A two-y ear-old child would not realize his statements, to his mother, in a hospita l emergency room, may later be used in a criminal prosecution. See Ohio v. Clark , 2015 WL 2473372, *6-7 (U.S. June 18, 2015); Commonwealth v. Allshouse , 36 A.3d 163, 181 (Pa. 2012). Therefore, Victim’s stat ements were nontestimonial and do not implicate the Confrontation Clause. As such, the trial court did not abuse its discretion in admitting Vic tim’s statements under

TYHA. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2015