by Douglas Ankney

The Supreme Court of Pennsylvania held that a police officer testified as an expert without first being qualified by the court at the trial of Rod L. Jones, Sr. The Court also held that 42 Pa.C.S. § 5920 overruled, in part, Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992).

Jones was tried by jury on several counts related to his alleged repeated acts of sexual abuse upon his step-daughter. On direct examination of Scott Holzwarth, the Commonwealth first elicited testimony that Holzwarth was a detective working in the General Investigations Section of the Allegheny County Police for the last 10 years; he mostly investigated crimes against people that included sexual assaults and child abuse; and he investigated “at least hundreds” of child sexual assault cases.

Then the following exchange occurred:

Commonwealth: And in your training and experience, Detective, do kids often have trouble remembering each and every time when this is an ongoing incident?

Holzwarth: Yes, they do.

The trial court then overruled defense counsel’s objection that Holzwarth was testifying as an expert, and the exchange continued:

Commonwealth: And have you also found in your training and experience with your specific cases whether or not victims will have trouble recalling in each incident that they’re assaulted every single detail of the assault?

Holzwarth: Yes.

Commonwealth: And do they oftentimes get the times that those things happened confused with other times they discuss with you?

Holzwarth: Yes. Very often.

On cross examination, Holzwarth agreed with counsel that a victim’s delay in reporting and discrepancies in details could indicate no abuse had occurred.

The jury convicted Jones, and he appealed, arguing, inter alia, that Holzwarth testified as an expert and that absent qualification as an expert witness, the trial court should have precluded his testimony. The Superior Court affirmed, and the Pennsylvania Supreme Court allowed an appeal.

The Court observed “[w]e have explained that ‘[e]xpert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman.” Commonwealth v. Duffey, 548 A.2d 1178 (Pa. 1988). If the subject matter is not beyond the general knowledge of the average layman, expert testimony is impermissible. Dunkle. There is no qualifying distinction between expertise acquired by experience and that acquired by formal education. Commonwealth v. Auker, 681 A.3d 1317 (Pa. 1996). The standard for qualifying as an expert witness is a liberal one – the witness need have only any pretension to specialized knowledge on the subject matter – but the court must so qualify before the witness may testify in an expert capacity. Commonwealth v. Gonzales, 546 A.2d 26 (Pa. 1988).

Lay testimony, on the other hand, cannot be based on scientific, technical, or other specialized knowledge but must be rationally based on the witness’ perception. Pa.R.E. 701. Both expert and lay testimony must assist factfinders with understanding the witness’ testimony or with determining a fact in issue. Id.; Pa.R.E. 702.

The Court determined that Holzwarth testified as an expert because he was called upon to offer general opinion testimony concerning whether or not it was common for child victims of sexual assault to have trouble remembering dates and details of the assaults, and Holzwarth answered based upon his insights gained through specialized occupational training and experience not within the average layperson’s knowledge. The Court ruled that “testimony from a law enforcement officer concerning child victims’ typical behaviors and responses to sexual abuse, when based on that officer’s training and experience, falls within the realm of expert testimony.”

Because Holzwarth was not qualified by the trial court to testify as an expert, the Supreme Court had to determine if the error was harmless. The Court reasoned that the Commonwealth’s emphasis on Holzwarth’s training and experience prior to eliciting his testimony likely signaled to the jury that he was particularly qualified to offer his responses. Thus, the jury was able to infer that the victim’s behavior was consistent with similarly situated victims. The evidence may have affected the verdict because the jury may have placed undue weight on that testimony rather than the fact that Holzwarth agreed with defense counsel that such behavior is also consistent with fabricated reports of abuse, the Court stated. If there is a reasonable probability the error contributed to the verdict, the error is not harmless. Commonwealth v. Story, 383 A.2d 155, (Pa. 1978). Accordingly, the Court reversed and remanded for a new trial.

The Court also observed Dunkle held, among other things, that expert testimony explaining why sexually abused children are unable to recall details, omit details, and delay reporting was prohibited because it is knowledge easily understood by laypeople and such testimony invades the jury’s province of determining witness credibility. However, § 5920 was enacted after Dunkle and explicitly permits a qualified expert to testify as to these behaviors of children as long as the expert opinion doesn’t concern credibility of any victim or other witness. Because the Legislature is permitted to revise the substantive rules of evidence, Commonwealth v. Olivo, 127 A.3d 769 (Pa. 2015), the Court held that Dunkle is overruled to the extent it prohibits expert testimony regarding these behaviors of children. See: Commonwealth v. Jones, 240 A.3d 881 (Pa. 2020).

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