Opinion
No. 10 WAP 2022
06-23-2023
COMMONWEALTH of Pennsylvania, Appellee v. Ryan Michael DUNN, Appellant
ORDER
PER CURIAM AND NOW, this 23 rd day of June, 2023, the Court being evenly divided, the order of the Superior Court is AFFIRMED and the Commonwealth's Application to Strike is DISMISSED .
CHIEF JUSTICE TODD, in Support of Affirmance
I join Justice Mundy's Opinion in Support of Affirmance ("OISA"), except for Part IV(b). On the question of whether Dunn was prejudiced by the Commonwealth's violation of Pa.R.Crim.P. 573, I conclude he has failed to demonstrate that prejudice.
In his principle brief to this Court, Dunn contends that, because of the Commonwealth's late disclosure of Jamie Mesar's expert report, he was unable to conduct his own research on her opinions; unable to effectively cross-examine her; unable to determine whether to retain his own expert; unable to challenge the admissibility of Mesar's opinions; unable "to meaningfully reflect upon and evaluate how the expert's proposed testimony could bear upon all of the facts"; and was diverted from other last-minute trial preparation issues. Dunn Brief at 50-51 (emphasis omitted). Further, because, in his view, the report was overly generic, Dunn contends he was unable to monitor the scope of Mesar's testimony. Id. at 51-52. Yet, having gone to trial and having seen Mesar's actual testimony, Dunn has had time to "reflect" on it, and yet he does not describe, in any detail, what he would have done differently had he been given proper notice and what he viewed as a compliant report. For example, he does not proffer research that would have undermined Mesar's testimony; provide questions he would have asked on cross examination or suggest which parts of her testimony were inadmissible or irrelevant. It is true that, after being criticized by the Commonwealth for these lapses, see , e.g. , Commonwealth Brief at 28 ("Dunn contends that he might have been able to counter Mesar's testimony better had he had earlier notice of it, but he does not specifically say how that would have been accomplished, instead relying on vague assertions ...." (emphasis omitted)), Dunn attempts to provide some such detail in his reply brief. In my view, however, that effort was too late. See Pa.R.A.P. 2113(a) ("the appellant may file a brief in reply to matters raised by appellee's brief ... and not previously addressed in appellant's brief ." (emphasis added)); Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 218 n.8 (1999) ("a reply brief cannot be a vehicle to argue issues raised but inadequately developed in appellant's original brief"); Michael G. Lutz Lodge No. 5, of Fraternal Ord. of Police v. City of Philadelphia , 634 Pa. 326, 129 A.3d 1221, 1226 n.5 (2015) (same). Accordingly, on this basis, I agree with the OISA that Dunn is not entitled to a new trial.
JUSTICE MUNDY, in Support of Affirmance
I. Introduction
This Court granted discretionary review to address the notice requirement for the admission of expert testimony under 42 Pa.C.S. § 5920 (permitting expert testimony concerning victim responses and behaviors to sexual abuse in certain criminal proceedings) as it relates to Pa.R.Crim.P. 573 (concerning pretrial discovery and inspection in criminal proceedings). We hold that Rule 573 applies to Section 5920, and that the trial court erred as a matter of law in concluding the Commonwealth's last-minute disclosure of an expert witness report did not violate Rule 573. As to the proper remedy, with this Court being equally divided on whether the Commonwealth's error prejudiced Appellant Ryan Michael Dunn, the Superior Court's order denying relief is affirmed.
II. Background
Dunn was charged with various sexual offenses related to the repeated sexual abuse of his girlfriend's daughter ("the victim"). The abuse began in June 2015 when the victim was thirteen years old and lasted for approximately two and one-half years. Dunn's trial for these offenses was scheduled for June 4, 2019. On the night before trial, at 4:25 p.m., the Commonwealth informed Dunn via email of its intent to call Jamie Mesar, MSW, as an expert witness pursuant to Section 5920. The Commonwealth attached to its email a report in the form of a letter from Mesar, dated May 31, 2019, providing an outline of her proposed testimony concerning the typical ways children disclose, react to, and cope with sexual abuse. She then detailed specific topics she was prepared to discuss within these three categories:
Disclosure of abuse and children's behaviors regarding disclosure:
• Children who disclose abuse often do not disclose right away and the disclosure may be initially tentative and/or gradual over a period of time.
• Many children who have been victims never disclose their abuse for a wide variety of reasons (threats, fear, relationship to the abuser, unintended consequences of the disclosure, bribes, shame)[.]
• Denial of the abuse or recantation of the allegations are not uncommon[.]
Victim behavior at the time of the abuse:
• There is no "normal" response for all victims. Child sexual abuse victims experience a wide range of emotions and responses[.]
• Some victims (especially young victims and those who have experienced multiple incidents of child sexual abuse) may not know they have been a victim of child sexual abuse[.]
• Child sexual abuse victims may feel helpless and show accommodating behaviors.
Victim behavior after disclosure[:]
• There is no "standard" response following a disclosure. Some children display emotional and behavioral changes and others do not. If a child does display an emotional/behavioral change they can vary by intensity and type. Others[’] responses to a child's disclosure greatly impacts the short terms and long term response of a child sexual abuse victim.
Mesar Letter, 5/31/19, 1-2. The letter also included citations to several articles that might be discussed during the course of Mesar's testimony. The Commonwealth further provided Dunn with a copy of Mesar's curriculum vitae detailing her educational background and professional experience.
The following day, Dunn filed various motions in response to the Commonwealth's proposed expert testimony but never explicitly requested a continuance. Among these, Dunn filed a motion to compel the preparation and disclosure of an expert witness report. He asserted that "[n]o expert report has been generated or provided detailing the substance of the facts to which the expert is expected to testify, the actual opinions arrived upon by the expert, or the basis or grounds for said opinion." Motion to Compel, 6/4/19, at 3. As a result, Dunn maintained he was unable to "fairly or adequately confront said expert testimony, or seek the opinion of his own expert, within the generation of a report by the Commonwealth's opinion witness. Preparation and disclosure of such a report is appropriate under Pa.R.Crim.P. 573(B)(2)(b)." Id. Dunn also filed a motion to preclude Mesar's testimony for similar reasons. Motion to Preclude, 6/4/19, at 2-3.
Rule 573(B)(2)(b) provides as follows:
(b) If any expert whom the attorney for the Commonwealth intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.
Pa.R.Crim.P. 573(B)(2)(b).
Dunn filed an additional motion arguing Mesar's testimony did not comport with the standards set forth in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923) (outlining the test under which novel scientific testimony is admissible), and requested a hearing on that issue. The trial court denied this motion. Dunn did not raise any further challenges regarding whether Mesar's testimony satisfied the Frye test. The only issue before us concerns the Commonwealth's belated disclosure.
The trial court held a hearing on Dunn's motions, after which it denied his requests and proceeded with the trial as scheduled. In reaching its decision, the trial court focused heavily on the admissibility of Mesar's testimony under Section 5920 but did not directly address Dunn's argument that the Commonwealth's tardy disclosure was problematic:
[The Commonwealth]: [The] Commonwealth intends to call Jamie Mesar from the Child Advocacy Center to have her testify. As you know, the way we normally call her is to have her answer hypothetical questions. She has not reviewed anything specific to this case. She's not met with this victim. She's not reviewed the police records or any of the preliminary hearing testimony, so she would be testifying as an expert answering hypotheticals. And just so the record's clear, Your Honor, I did provide [defense counsel] via e-mail both a letter that Ms. Mesar generated which details exactly what she will be testifying to based upon her expertise as well as her CV, which lists her entire background and professional experience.
The Court: This is under the statute perfectly admissible testimony. It's not uncommon in a delayed report to explain for the jury .... It is generic in nature, simple to explain to jurors the concept of delayed report[ing] and not specific in any way to the facts of this case.
[Defense Counsel]: I understand, Your Honor. Just for the record, that's part of my objection to the introduction of the testimony, that it has really nothing to do with this case and is generic and generalized conversation about things that may not even apply to this matter. But the problem that we have and what I put in my motion is we – getting this one the eve of trial, we have no opportunity to confront this testimony by doing our own research, consulting with our own expert for possible rebuttal expert testimony. There might be a divergence of opinions based upon what the proposed testimony would be.
Instead of just accepting it as is and unchallenged, I think my client has the
right to confront this witness as well as any other, and we would appreciate the opportunity to conduct our own research and consult with our expert.
The Court: So[,] when did you receive the – when was the notice filed?
[The Commonwealth]: Well, Your honor, we just – I did send him the information yesterday. The statute doesn't actually require a time frame within which notice has to be provided and that's actually because the statute itself allows for either party to call a witness to testify in this manner. So[,] the Commonwealth doesn't have to provide a pretrial notice of this because the defense is on notice. The statute permits them to do the very same thing.
...
The Court: So[,] it's been clear for some time now that no Frye hearing is necessary. If the statute doesn't require notice, then it would be the typical notice requirements, and this is an expert that either side could call. It's not even objectionable, to my knowledge it's a delayed report.
N.T. Motion Hearing, 6/4/19, at 4-9.
At trial, the Commonwealth presented the testimony of Mesar, the victim, as well as two officers involved in the investigation. As reflected by the trial transcript, the Commonwealth's direct examination of Mesar spans just under twenty pages. Mesar first discussed the topic of disclosure. She explained "[t]here is not a normal" in terms of the amount of information disclosed, the manner in which victims disclose, or whom they choose to tell. N.T. Trial, 6/5-10/19, at 90. She also indicated disclosure can be affected by the victim's relationship with the perpetrator, such as instances where there is familial abuse, due to the effect it may have on the victim's relationship with the abuser and on the family as a unit. In terms of familial abuse, Mesar also discussed the concept of grooming, whereby an abuser may start with small gestures to see how a child reacts before escalating to sexual abuse. Id. at 90-97.
Mesar next discussed the topic of victim behavior during sexual abuse, explaining that "[e]veryone reacts to their victimization personally." Id. at 97. She explained that some victims disclose their abuse and move forward, while others may fixate on the abuse. Mesar also explained that some victims may become "excellers" in terms of academics or extracurriculars in an attempt to regain control, while others may become avoidant of relationships with others and decline participation in academics or extracurriculars. She also explained that some victims may engage in self-destructive behavior or develop soothing techniques. The Commonwealth then asked Mesar to discuss victims’ emotional responses to sexual abuse. Mesar explained that some victims focus on the cognitive or physical sense of things while abuse is taking place, while others may cry, fight back, or do nothing. She also noted that a victim's emotional response may differ depending on his or her relationship with the abuser. In cases involving familial abuse, the victim and abuser may become closer. Id. at 97-102.
Mesar lastly explained that it may be difficult for victims to recall specific dates and times of abuse. At no point throughout Mesar's testimony did Dunn's attorney object on relevance grounds or otherwise. Dunn's attorney cross-examined Mesar for approximately eleven pages. Both parties then had an equal opportunity to ask additional questions during re-direct and re-cross. Following the Commonwealth's presentation of evidence, Dunn testified in his own defense and denied that any sexual abuse had occurred. The jury ultimately convicted Dunn of statutory sexual assault, involuntary deviate sexual intercourse of a person less than sixteen years of age ("IDSI"), aggravated assault of a person less than sixteen years of age, indecent assault of a person less than sixteen years of age, corruption of minors, and endangering the welfare of a child. The trial court imposed a sentence of 214 to 428 months’ imprisonment, followed by five years’ probation. Dunn filed a post-sentence motion, followed by a supplemental post-sentence motion, both of which were denied by operation of law. He then filed a direct appeal arguing, inter alia , that the trial court improperly denied his motion to exclude Mesar's testimony, or alternatively, to order the preparation of an expert witness report, thereby violating his due process and confrontation rights.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) addressing these claims collectively. It reasoned that admission of Mesar's testimony was appropriate given Section 5920 and Rule 573 do not contain notice requirements. The trial court further opined that Dunn was on notice that the Commonwealth may call an expert under Section 5920, as the statute permits either party to do so. It further explained that the Commonwealth turned over the only document that could have qualified as an expert report under Rule 573(B)(2)(b) and its decision not to order preparation of an additional expert witness report was discretionary and found to be unnecessary. Trial Ct. Op., 6/24/20, at 5-6. The trial court lastly addressed Dunn's argument concerning the development of rebuttal evidence, explaining:
It is unclear from the record what [Dunn] would have intended to rebut. Any rebuttal expert witness would have to comply with the statute regardless of the existence of Mesar's report. Since Mesar's report complied with the requirements of the statute, and her testimony furthered the cause of avoiding jury confusion on this issue, this [c]ourt did not err in permitting Mesar to testify[.]
After the trial court denied Dunn's post-sentence motions, the Commonwealth filed a response acknowledging that Dunn's sentence with respect to IDSI was illegal. Dunn was unable to be resentenced prior to filing his notice of appeal, as the resentencing hearing was postponed due to the COVID-19 pandemic. In its Rule 1925(a) opinion, the trial court acknowledged its sentencing error and asked that the case be remanded for a full resentencing hearing after the Superior Court rendered a decision on Dunn's remaining claims.
The Superior Court unanimously affirmed in an unpublished memorandum decision. See Commonwealth v. Dunn , 176 WDA 2020; 2020 WL 7682502 (Pa. Super. 2020) (unpublished memorandum). The panel explained that it reviews the trial court's decision to admit or exclude evidence for an abuse of discretion, which "may not be made merely because an appellate court might have reached a different conclusion, but requires the result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Koch , 630 Pa. 374, 106 A.3d 705, 710-711 (2014) (citations and quotations omitted).
The Superior Court rejected each of Dunn's claims, except for the trial court's admittedly improper IDSI sentence. Because the illegal sentence for this offense could upset the trial court's overall sentencing scheme, the Superior Court vacated Dunn's sentence and remanded for resentencing.
The panel first addressed whether the trial court erred in allowing Mesar to testify pursuant to Section 5920. It explained that Section 5920 permits a qualified expert to testify as to facts and opinions regarding specific types of victim responses and victim behaviors and does not provide a notice requirement or mandate the production of an expert report. Even so, the panel noted that the Commonwealth did inform Dunn of its intent to call Mesar under Section 5920 and provided a letter outlining her proposed testimony, which fit squarely into that permitted by the statute. In its view, Mesar's letter also adequately apprised Dunn of the subject matter of Mesar's testimony, and the defense conducted a lengthy cross-examination at trial. As to Dunn's argument concerning rebuttal evidence, the panel emphasized that Dunn had yet to produce or identify any such evidence. It also noted that Dunn was permitted to call his own Section 5920 expert in anticipation of trial regardless of whether or not the Commonwealth intended to call one. The panel therefore discerned no abuse of discretion in admitting Mesar's testimony pursuant to Section 5920.
The panel next considered Dunn's claim that the trial court erred in failing to order the preparation of an expert witness report under Rule 573. It emphasized that Rule 573 requires the Commonwealth to disclose before trial "any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney of the Commonwealth." Pa.R.Crim.P. 573(B)(1)(e). The panel also recounted the portion of Rule 573 applicable to experts proffered by the Commonwealth:
If an expert whom the attorney for the Commonwealth intends to call in any proceeding has not prepared a report or examination of tests, the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.
Pa.R.Crim.P. 573(B)(2)(b). It then noted that, consistent with the rule, the Commonwealth disclosed to Dunn a letter in its possession detailing the extent of Mesar's testimony. The panel further concluded the Commonwealth was not required to obtain an additional report, and the trial court properly exercised its discretion in denying Dunn's request.
The panel lastly addressed Dunn's claim as to the Commonwealth's belated disclosure of its Rule 5920 expert in light of Rule 573. It explained that Rule 573(E) gives the trial court broad discretion to impose remedies for discovery violations and "[a] defendant seeking relief from a discovery violation must demonstrate prejudice." Commonwealth v. Causey , 833 A.2d 165, 171 (Pa. Super. 2003). The panel also recognized that, like Section 5920, Rule 573 does not address the timing of disclosures. It therefore agreed with the trial court that the Commonwealth did not commit a discovery violation and that Dunn's bald assertions that the Commonwealth's late disclosure caused prejudice or affected his trial strategy were insufficient to warrant relief. The panel therefore denied Dunn's claim.
Dunn filed a petition for allowance of appeal to this Court. We granted discretionary review to address the following issue:
Are the Superior Court's holdings that the Commonwealth (1) need not provide notice to a criminal defendant of its intent to call an expert witness pursuant to 42 Pa.C.S. § 5920 (relating to [e]xpert testimony concerning victim responses
and behaviors) and (2) need not prepare and disclose a detailed expert report irreconcilable with the Superior Court's decision in Commonwealth v. Cramer , 195 A.3d 594 (Pa. Super. 2018) and this Honorable Court's decision in Commonwealth v. Jones , 240 A.3d 881 (2020) ? Are these same holdings inconsistent with the Pennsylvania Rules of Criminal Procedure and the Due Process provisions of the United States and Pennsylvania Constitutions?
Commonwealth v. Dunn , 274 A.3d 719 (Pa. 2022) (per curiam).
III. Parties’ Arguments
First, Dunn emphasizes that Section 5920 merely authorizes the admission of expert testimony concerning victim responses and behaviors to sexual abuse and does not supplant any of the rules governing the admission of expert testimony. In this regard, Dunn notes this Court previously recognized Section 5920 is a substantive rule, rather than a procedural rule, that "permits both parties to present experts to testify to facts and opinions regarding specific types of victim responses and behaviors[,]" but remains silent as to its presentation. Dunn's Brief at 16-17 (quoting Commonwealth v. Olivo , 633 Pa. 617, 127 A.3d 769 (2015) ). As such, Dunn avers that expert testimony under Section 5920, like all expert testimony, is subject to the discovery mandates of Rule 573.
Dunn continues that Rule 573 requires the Commonwealth to disclose any expert opinions it intends to offer at trial. He recognizes that Rule 573 indicates the trial court may, in its discretion, order the production of an expert witness report if one has not been prepared, though one is not required. Dunn explains that although an expert report is not required in every case, there is no categorical exclusion of expert reports in cases involving expert testimony under Section 5920. Indeed, Dunn notes the Superior Court has previously explained that Section 5920 does not alter the applicability of the Frye test. Id. at 22-23 (citing Commonwealth v. Cramer , 195 A.3d 594 (Pa. Super. 2018) ).
As to the Commonwealth's disclosure of its expert and the letter, Dunn claims the Superior Court missed the mark by focusing on the absence of internal notice provisions to conclude the Commonwealth owed no notice. Dunn argues that expert opinions like Mesar's must be "disclosed by the Commonwealth well in advance of trial and accompanied by a report that is sufficiently particular to permit criminal defendants to meet the government's evidence." Id. at 25. He claims that "[a]ny other procedure deprives defendants of their due process right to a fundamentally fair trial and his right to confront the witnesses against him." Id.
Dunn further emphasizes this Court's recent decision in Commonwealth v. Jones , 663 Pa. 20, 240 A.3d 881 (2020), to demonstrate notice and preparation of an expert report is required under Section 5920. He explains that in Jones , this Court addressed the continued validity of Commonwealth v. Dunkle , 529 Pa. 168, 602 A.2d 830 (1992) (holding inadmissible expert testimony about typical behavior patterns displayed by child victims of sexual abuse, reasoning it was easily understood by laypersons, did not require expert analysis, and invaded the jury's province of determining witness credibility), in light of the legislature's enactment of Section 5920. We ultimately concluded that " Dunkle remains valid insofar as it precludes expert testimony concerning victim responses and behaviors that touch upon witness credibility, but decline[d] to find that the case categorically precludes expert testimony concerning victim behavior and responses to sexual abuse." Jones , 240 A.3d at 897. In light of Jones , Dunn maintains it is essential that expert testimony offered under Section 5920 be assessed well in advance of trial to determine whether the expert's testimony comports with the prohibition of testimony touching on witness credibility.
Based on the foregoing, Dunn asserts the Commonwealth's notice in this case did not comport with due process. He emphasizes that the Commonwealth disclosed its intent to call Mesar as a witness via email at the close of business the night before trial. In doing so, Dunn avers the Commonwealth provided a brief and inadequate letter outlining Mesar's testimony. Dunn further asserts that such late and insufficient notice is "among the clearest examples of trial by ambush" and gamesmanship. Id. at 38. He avers the Commonwealth's email contained language meant to assess Dunn's willingness to accept a plea offer in light of the Commonwealth's evidence. Dunn cites a variety of federal cases where trial courts were found to have acted within their discretion by excluding expert testimony where a belated disclosure was likely to prejudice the defendant. He asserts the trial court could have, at minimum, required the Commonwealth to prepare an expert report. Relatedly, Dunn maintains Mesar's vague and boilerplate letter was insufficient to apprise him of the substance of her testimony. Mesar's testimony, though general, ultimately foreshadowed prosecutorial themes and corresponded to other testimony presented at trial. Dunn further maintains Mesar's testimony went beyond that proffered in the letter. Id. at 38-49.
Finally, Dunn acknowledges that Mesar never reviewed the specific facts of this case and merely intended to offer testimony as to the broad behavioral patterns of sexual abuse victims, but does not believe this willful blindness makes the testimony any less problematic. He then goes on to address the ways in which the admission of Mesar's testimony resulted in prejudice. Dunn specifically avers he was unable to conduct independent research, develop a comprehensive cross-examination, make a knowing and intelligent decision about whether to hire his own expert, make a robust pretrial challenge to the admission of the testimony, or reflect on how this testimony would bear upon all the facts. Dunn further notes that any last-minute trial preparation was derailed given the last-minute diversion. In light of the foregoing, Dunn's requested remedy is a new trial. Id. at 50-52.
The Commonwealth's argument focuses heavily on whether Dunn was prejudiced by the admission of Mesar's testimony. It explains that even where there has been an improper admission of expert testimony, "the defendant still bears the burden of proving he suffered prejudice from admission of the testimony." Commonwealth's Brief at 20 (quoting Commonwealth v. Poplawski , 634 Pa. 517, 130 A.3d 697, 718 (2015) ). In this regard, the Commonwealth maintains Dunn failed to demonstrate the same. It specifically avers that Dunn's characterization of the evidence as competing narratives is simply untrue. The Commonwealth points out that, in addition to the victim's account of events, it introduced extremely damning text messages Dunn sent to the victim leading up to his arrest plainly admitting guilt. Id. at 20-24.
The Commonwealth next argues, even ignoring the strength of its evidence, Dunn fails to demonstrate prejudice. It acknowledges that Dunn does not challenge the admissibility of Mesar's testimony under Section 5920, only whether Dunn received adequate notice and whether an additional report was necessary under Rule 573. With respect to the latter, the Commonwealth asserts that Mesar's letter met the requirements of an expert report pursuant to Section 5920 and Rule 573 and that Dunn failed to demonstrate a more detailed report was required. It explains Mesar's testimony merely informed the jury there is no "normal" behavior with respect to victims’ reactions to and disclosures of sexual abuse. While Dunn claims earlier notice of Mesar's testimony would have allowed him to conduct his own research and develop appropriate rebuttal evidence, the Commonwealth points out that Dunn has yet to produce any evidence to this effect. Id. at 24-30. As Dunn has failed to prove prejudice, the Commonwealth claims "any discussion of Mesar's correspondence and whether or not it satisfied the prosecution's discovery obligations is purely academic." Id. at 30. It notes that, for the purposes of this appeal, Rule 573 merely required the Commonwealth to disclose any expert opinion in its possession, which it did. It was then within the trial court's discretion to order something more. Id. at 30-33.
The Commonwealth next addresses Dunn's assertion that the Superior Court's decision in this case is irreconcilable with both Cramer and Jones . It explains that the Superior Court's decision in Cramer merely found that Section 5920 testimony does not alter the applicability of Frye , but nonetheless rejected the assertion that a Frye hearing was required because Cramer failed to demonstrate the Commonwealth's expert's testimony that victims respond counterintuitively to sexual abuse was novel scientific evidence. Id. at 34-35 (citing Cramer , 195 A.3d at 605-607 ). As to Jones , the Commonwealth explains that expert testimony vouching for victim credibility is never allowed, as explicitly noted in Section 5920. The Commonwealth contends there is nothing in the instant case that would tend to suggest Mesar's testimony violated this prohibition. Mesar provided general testimony, never reviewed the specific facts of this case, and responded to hypothetical questions. Mesar's testimony therefore did not run afoul of Jones . Id. at 41-43 (citing Jones , 240 A.3d at 895-97 ).
Finally, the Commonwealth addresses the specific question of whether its disclosure of Mesar's testimony the day before trial violated the discovery rules. In its view, the Superior Court was correct in concluding it did not, as Rule 573 does not address the timing of mandatory disclosures. In any event, the Commonwealth asserts that a discovery violation can only be assessed in terms of whether the particular piece of evidence impacted the defendant. In this regard, the Commonwealth asserts that the context of this specific evidence – the accepted and non-controversial opinions of Mesar – did not prejudice Dunn. Even if it did, the Commonwealth notes that the trial court has broad discretion to choose the appropriate remedy. Id. at 45 (citing Commonwealth v. Burke , 566 Pa. 402, 781 A.2d 1136 (2001) ). Here, the trial court offered no remedy because it did not deem one appropriate. In light of the foregoing, the Commonwealth asks this Court to affirm the Superior Court's denial of Dunn's claim.
IV. Analysis
a. Application of Rule 573 and Section 5920
This Court generally reviews a trial court's evidentiary decisions for an abuse of discretion. Commonwealth v. Gallaway , ––– Pa. ––––, 283 A.3d 217, 222-23 (2022) (additional citation omitted). "An abuse of discretion is not simply an error of judgment, but is an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Id. at 223 (citing Commonwealth v. Talley , ––– Pa. ––––, 265 A.3d 485, 550 (2021) ). Because this case hinges on our interpretation of a statute and a rule of criminal procedure, it necessarily implicates a question of law for which the standard of review is de novo and scope of review is plenary. Commonwealth v. Lopez , ––– Pa. ––––, 280 A.3d 887, 894 (2022) (citation omitted); Commonwealth v. McCabe , ––– Pa. ––––, 265 A.3d 1279, 1287 (2021) (additional citations omitted).
With this background, Section 5920 relevantly provides:
(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 or domestic violence, that will assist the trier of fact in understanding the dynamics of sexual violence or domestic violence, victim responses to sexual violence or domestic violence and the impact of sexual violence or domestic 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(b). In addition, Rule 573 reads as follows:
(B) Disclosure by the Commonwealth.
(1) Mandatory . In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items.
...
(e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;
...
(2) Discretionary With the Court.
...
(b) If an expert whom the attorney for the Commonwealth intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.
...
(D) Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material
previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness.
Pa.R.Crim.P. 573(B) – (D).
As noted above, this case does not concern the admissibility of Mesar's expert testimony under Section 5920, but only whether the trial court erred in allowing the Commonwealth to introduce the testimony in light of its belated disclosure. Section 5920 is a substantive rule that "permits both parties to present experts to testify to facts and opinions regarding specific types of victim responses and victim behaviors." Olivo , 127 A.3d at 780 (citation and quotations omitted). Rule 573 is a rule of criminal procedure that governs pretrial discovery and inspection and outlines both mandatory and discretionary disclosures. Rule 573(B)(1) requires the Commonwealth to disclose "any results of reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations of the defendant that are within the possession or control of the attorney for the Commonwealth[.]"
In his brief, Dunn states "the instant challenge does not concern whether expert testimony about victim responses and behaviors is admissible – this Court has held that it is – but, rather, in the interests of promoting fundamentally fair trials, whether a party must provide reasonable notice to its opponent of its intent to admit such expert testimony at trial, along with the substance of the expert's proffered testimony in the form of a non-boilerplate expert report." Dunn's Brief at 19.
Given Section 5920 is merely a substantive rule, we have no trouble agreeing with Dunn that Section 5920 is subject to the procedural requirements for pretrial discovery and inspection in criminal proceedings under Rule 573. We recognize that neither Section 5920 nor Rule 573 defines a specific timeframe in which a party calling an expert to discuss dynamics of sexual abuse must inform an opposing party or provide the discovery materials outlined therein, respectively. Contrary to the Superior Court's conclusion, however, we disagree that the lack of internal notice requirements equates to no notice requirements. Rule 573(d) imposes a continuing duty to disclose "additional evidence, material, or witnesses[,] subject to discovery or inspection[.]" Moreover, this Court has repeatedly emphasized that the purpose of Rule 573 is to "permit parties in criminal matters to be prepared for trial" and that "trial by ambush is contrary to the spirit and letter of those rules and will not be condoned." Commonwealth v. Appel , 547 Pa. 171, 689 A.2d 891, 907 (1997) ( reversed on other grounds ) (citing Commonwealth v. Shelton , 536 Pa. 559, 640 A.2d 892, 895 (1994) ). Thus, Rule 573 required the Commonwealth to promptly disclose its intent to call an expert under Section 5920, as well as any expert reports in its possession.
The Commonwealth does not appear to challenge this point either, instead focusing on whether Dunn was prejudiced by the timing of its disclosure.
This case refers to Pa.R.Crim.P. 305, which was renumbered Pa.R.Crim.P. 573 in 2001.
We do not address whether Section 5920 and Rule 573 require preparation of an expert report in all cases involving testimony about victim behaviors and responses to sexual abuse because the Commonwealth did, for the purposes of Section 5920, provide an expert report in this case. Expert testimony under Section 5920 is, by nature, different than expert testimony on other subject matter, as its purpose is to inform the jury that a child victim of sexual assault may engage in behavior that may appear counter-intuitive to the layperson. As a result, the testimony elicited from expert witnesses in this area largely relates to common behavioral responses of sexual abuse victims, or stated differently, "facts and opinions regarding specific types of victim responses and victim behaviors." 42 Pa.C.S. § 5920(b)(2). Unlike many other types of expert testimony, Section 5920 experts generally abstain from reviewing the specific facts of the cases in which they testify, given the directive in Section 5920 that the expert witness abstain from discussing opinions regarding the credibility of the victim or any other witness. 42 Pa.C.S. § 5920(b)(3). Here, Mesar's letter detailed three specific categories she was prepared to discuss at trial – victim disclosure of sexual abuse, victim behavior at the time of abuse, and victim behavior following disclosure of abuse. Within these three categories, Mesar provided bullet points setting forth precisely what would be discussed. As detailed above, Mesar's trial testimony tracked these three categories.
Because the Commonwealth provided Dunn with an expert witness report, the trial court did not abuse its discretion in denying Dunn's motion to compel the production of one. See Gallaway , 283 A.3d at 222-23.
In her Opinion in Support of Reversal ("OISR"), Justice Donohue complains that Mesar's letter was too broad and generic to adequately apprise Dunn of the substance of Mesar's testimony and that her trial testimony was ultimately more specific than that detailed in the letter. OISR, Donohue J., at 345–46. Again, Section 5920 permits testimony related to the three categories listed in Mesar's letter. Justice Donohue's objection that the letter is broad and generic ignores the purpose of Section 5920 testimony, as well as the longstanding prohibition that experts testifying in this area must avoid encroaching on the jury's province of assessing witness credibility. To the extent Dunn and Justice Donohue aver Mesar's testimony went beyond that detailed in the letter, Dunn was required to lodge a specific objection at trial. The trial court's decision to permit Mesar's testimony based on the information set forth in the letter did not give Mesar carte blanche to testify about anything, nor did it relieve Dunn of the obligation to preserve a claim that Mesar's testimony exceeded that in the letter.
With this background, we now consider whether the Commonwealth complied with its duty to promptly disclose its intent to call Mesar and Mesar's letter, which we find to be an expert report. It is unclear exactly when the Commonwealth came into possession of Mesar's letter, only that it was dated May 31, 2019. Assuming the Commonwealth received the letter that day, it did not disclose the same to the defense until June 3, 2019 at 4:25 p.m., which was the night before Dunn's trial was set to begin. Even if the Commonwealth did not have the letter in its possession until the day it was disclosed to the defense, the Commonwealth was presumably aware of its intention to call Mesar and that such a letter was forthcoming. The Commonwealth has failed to advance any support or reasoning in defense of its eleventh-hour notice or why it did not relay the information later provided in a timely manner. Based on the foregoing, the Commonwealth failed to comply with its duty of prompt disclosure under Rule 573. We decline to prescribe a specific time frame for Rule 573 disclosures in this opinion, but refer this matter to our Criminal Procedure Rules Committee to consider whether adoption of an express time period or some alternative framework would clarify any uncertainty in the rule. See e.g., Commonwealth v. Morris , 565 Pa. 1, 771 A.2d 721, 730 n.8 (2001). We nevertheless have no trouble concluding the Commonwealth did not comply with the dictates of Rule 573 in this case.
May 31, 2019 was a Friday.
Although we need not address whether an expert report is required in every case, in light of the fact that one was provided in this case, we reject Dunn's argument that the Superior Court's decision in Cramer and this Court's decision in Jones support such a conclusion, as both of these cases are inapposite. In Cramer , the Superior Court merely concluded that Section 5920 does not alter the applicability of the Frye test or the general rule that an expert witness's methodology must be generally accepted in the relevant field set forth in Pa.R.E. 702(c). Cramer , 195 A.3d at 605. In Jones , this Court considered whether testimony from a detective about victim responses and behaviors, when based on that detective's training, experience, and specialized knowledge, constituted expert testimony and whether such testimony was permitted from a lay witness. Within that decision, we addressed the continued validity of our decision in Dunkle , in which we concluded expert testimony concerning typical behavior patterns displayed by child victims of sexual abuse was inadmissible, reasoning it was easily understood by laypersons, did not require expert analysis, and invaded the jury's province of determining witness credibility. Dunkle , 602 A.2d at 836-838. In Jones , this Court concluded that Section 5920 effectively overruled Dunkle with respect to its conclusion that testimony concerning typical behavior patterns of child victims of sexual abuse was inadmissible as it was understood by laypersons. We concluded " Dunkle remains valid insofar as it precludes expert testimony concerning victim responses and behaviors that touch upon witness credibility." Jones , 240 A.3d at 895-897. Dunn uses both of these cases to assert notice of an expert witness and preparation of a report is required to ensure a Section 5920 expert witness's testimony does not improperly touch upon witness credibility. Neither of these cases support the proposition Dunn makes. Unlike Cramer , this case does not concern the necessity of a Frye test. Nor does this case involve any allegation that Mesar's testimony did not comply with the prohibition that expert testimony must avoid touching upon witness credibility implicating Jones . This practice is also already expressly prohibited by Section 5920(b)(3).
We decline to address Dunn's constitutional claims concerning due process and confrontation having found the trial court improperly applied Rule 573. See Ballou v. State Ethics Commission , 496 Pa. 127, 436 A.2d 186, 187 (1981) ("[W]hen a case raises both constitutional and non-constitutional issues, a court should not reach the constitutional issue if the case can properly be decided on non-constitutional grounds.").
b. Remedy
We now turn to the appropriate remedy based on our conclusion that the Commonwealth failed to comply with Rule 573. Rule 573(E) gives trial courts broad discretion in choosing the appropriate remedy for discovery violations:
(E) Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant,
or it may enter such other order as it deems just under the circumstances.
Pa.R.Crim.P. 573(E). Here, the trial court declined to impose any of the remedies set forth above upon finding that the Commonwealth complied with its discovery obligations. In any event, discovery violations do not automatically entitle an appellant to a new trial; the appellant must demonstrate that the violation resulted in prejudice. Commonwealth v. Counterman , 553 Pa. 370, 719 A.2d 284, 298 (1998). Our case law suggests that prejudice in this context requires an appellant to demonstrate that a timelier disclosure would have affected his trial strategy or otherwise resulted in prejudice in the typical outcome determinative sense. See e.g., Commonwealth v. Chambers , 528 Pa. 558, 599 A.2d 630, 637-38 (1991) ; Commonwealth v. Jones , 542 Pa. 464, 668 A.2d 491, 512-13 (1995) ; Commonwealth v. Causey , 833 A.2d 165, 171 (Pa. Super. 2003).
As detailed above, Dunn's prejudice argument contains several broad themes. He claims that the Commonwealth's last-minute notice prevented him from conducting independent research, developing a comprehensive cross-examination, making a knowing and intelligent decision about whether to hire his own expert, making a robust pretrial challenge to admission of the testimony, and reflecting on how the testimony would bear upon all of the other evidence presented at trial. He additionally argues that his last-minute trial preparation was derailed in light of the Commonwealth's tardy disclosure. While these concerns may very well be true, Dunn's broad and non-specific allegations are insufficient to demonstrate the degree of prejudice necessary to warrant a new trial. See Counterman , 719 A.2d at 298 (explaining generalized allegation of prejudice related to Commonwealth's late disclosure of exculpatory evidence did not result in prejudice).
Importantly, Dunn also never explicitly requested a continuance, which is generally "deemed sufficient to eradicate possible prejudice and enable the defendant to assimilate new information." Commonwealth v. Rosa , 415 Pa.Super. 298, 609 A.2d 200 (1992). Rather, Dunn filed a motion requesting the preparation of an expert report, despite the fact that one had been turned over, and another requesting the exclusion of Mesar's testimony altogether. We decline to view Dunn's filing as an effective request for a continuance, particularly in light of the fact that the Commonwealth did provide an expert report detailing the substance of its proposed testimony under Section 5920. Stated simply, Dunn never asked for a continuance to make the previously mentioned preparations following the Commonwealth's disclosure, the majority of which could have been accomplished. This Court has declined to grant relief in similar scenarios where no continuance request was made. See Chambers , 599 A.2d 630 (holding appellant failed to demonstrate prejudice warranting mistrial for discovery violation and emphasizing counsel's failure to request continuance); Jones , 668 A.2d 491 (explaining failure to request a continuance following delayed disclosure of evidence indicated no additional time or strategy was necessary to prepare).
Moreover, Dunn complains Mesar's letter was "generic" in nature and merely outlined "broad categories of information pertaining to disclosure by children of alleged sexual abuse." Dunn's Brief at 42. He goes on to aver that although Mesar's trial testimony "arguably" fell within the categories detailed in the letter, "none of the damning, case-specific opinions" adduced at trial could have been anticipated, resulting in prejudice. Id. at 46. First, aside from describing the letter as broad and general, Dunn fails to specify why Mesar's letter does not meet the requirements of an expert report. Rather, Dunn's chief complaint is that Mesar's trial testimony concerning typical victim responses and behaviors to abuse was consistent with the victim's testimony. That the victim testified consistently with the typical behaviors of sexual abuse victims outlined in the report does not make the report deficient or Mesar's trial testimony prejudicial. In essence, Dunn is bothered by the fact Mesar's testimony was relevant and informative, which was its purpose. Again, to the extent Dunn believes Mesar's trial testimony went beyond that set forth in the letter, Dunn did not raise these concerns at any point by objecting to Mesar's testimony as required. The mere fact that the trial court permitted Mesar to testify on the subject matter included in the letter did not relieve Dunn of this obligation. It bears repeating, however, this Court does not find Mesar's testimony went beyond the information detailed in the report. Finally, Dunn complains of "case specific" opinions, but Mesar did not offer case specific opinions, as she was purposefully blind to the specific facts of this case in order to comply with Section 5920.
Beyond this, we further conclude that the incriminating nature of the facts in this case do not lend themselves to a finding of prejudice. The specific facts surrounding Dunn's sexual abuse of the victim are not particularly relevant and will not be recounted herein. It suffices to say that Dunn sexually abused the victim numerous times beginning in June 2015 and ending in November 2017. N.T. Trial, 6/5-10/19, at 150, 265-36. At some point before the abuse ended, Dunn sent the victim a sexually explicit photograph of the victim's mother. In January 2018, the victim informed her mother about the image which led to involvement by Children, Youth and Families ("CYF"). The victim ultimately disclosed to her therapist that Dunn had been sexually abusive and, shortly thereafter, disclosed the same to her mother. During its subsequent investigation into the abuse, the Allegheny County Police Department recovered a series of text messages from Dunn's cellphone, which Dunn sent to the victim in August and September of 2018 at which point in time the victim was sixteen years old:
I didn't know what you see as abuse was abuse. I still love you and want to be with you, which is the definition of irony. I'm sorry. I don't know what else to do.
You didn't do anything. I didn't know it was abuse. I didn't know how to love properly. I thought it was. I'm sorry.
You were being you, and you're lovable and worthy and precious. Please don't ever let my mistake keep you from giving that freely to the world. I didn't know I was hurting you.
I barely recognized you were too young. I believe in destiny and fate. I was wrong.
I don't know how to love you right now. I'm sorry. I'm still trying my best. I will be patient and do everything in [sic] power not to make you uncomfortable or hurt more.
I have to meet with the District Attorney tomorrow at [the] police station. If they pulled cell phone transcripts, I'm going to jail for a long time. Out of my control. It's not your fault. Never was. I don't know if you really are clueless to the whole thing, then asking questions about cell phone texts and transcripts would only arouse suspicion if they didn't yet. I'm just telling you this in the chance that I don't come back tomorrow and to let you know that I'm sorry. I have been trying to change in every way, albeit too late. I never meant to hurt you or anyone else and that I suffer from the guilt and shame of not only that but everything else of a daily basis.
Sometimes hourly. Prison is most likely the next logical step. You're not at fault for anything.
N.T. Trial, 6/5-10/19, at 183-187. At trial, the victim explained that Dunn sent these messages after she disclosed receiving the sexually explicit photograph of her mother, but before anyone knew about the sexual abuse. According to the victim, Dunn was referencing the circumstances surrounding the photograph, as well as his past sexual abuse of the victim and fear that additional information may come to light during any investigation. Id . at 176-188. Given these admissions by Dunn, it is difficult to conclude Mesar's expert testimony prejudiced Dunn in any way, particularly as Dunn never objected to the substance of Mesar's testimony at trial. As there was no resulting prejudice from Mesar's testimony or question concerning its admissibility, Dunn's only genuine complaint is that of surprise. Thus, the trial court could have simply allowed a continuance had one been requested. See Commonwealth v. Smith , 955 A.2d 391 (Pa. Super. 2008) ("A continuance is appropriate where the undisclosed statement or other evidence is admissible and the defendant's only prejudice is surprise."). The fact that it did not order one, however, does not entitle Dunn to a new trial.
Dunn testified in his own defense at trial, providing an explanation as to the context of these messages and denying that any of them referred to a sexual relationship between himself and the victim. For example, Dunn maintained that his references to abuse and going to jail related to sending the victim a suggestive photograph of her mother or the potential uncovering of other unrelated crimes through review of his text messages. He also claimed that some of the messages were meant to serve as an apology for creating strife in the victim's relationship with her mother due to Dunn's disparagement of her to the victim. Lastly, Dunn claimed the text message in which he told the victim he wanted to be with her simply meant he wished to be with her in a family dynamic. N.T. Trial, 6/5-10/19, at 458-67. The jury clearly rejected these explanations in reaching its verdict.
Justice Donohue takes issue with our conclusion that Dunn failed to demonstrate the Commonwealth's discovery violation resulted in prejudice by merely citing broad and generalized complaints, coupled with his failure to request a continuance and the incriminating text messages introduced at trial. Focusing on the continuance request, Justice Donohue disagrees "that a continuance would have adequately remedied the prejudice incurred by Dunn" and "question[s] a rule that places the burden on the defendant to mitigate the Commonwealth's violation of the discovery rules and then penalizes him for not doing so." OISR, Donohue, J., at 348. At the same time, Justice Donohue acknowledges this Court has repeatedly engaged in a quasi-harmless error analysis for assessing the impact of discovery violations, placing that burden on the appellant. Id. at 351–52. Her point therefore appears to be a critique of precedent, as opposed to our application of the law. Moreover, as Justice Wecht recognizes, "[t]he resolution of the differing formulations and adoption of a uniform standard for evaluating prejudice in the context of discovery violations ... is outside the scope of the present appeal." OISR, Wecht, J., at 358.
V. Conclusion
In conclusion, we hold that Rule 573 applies with equal force to expert reports based on the subject matter in Section 5920, and that the trial court erred as a matter of law in concluding the Commonwealth's last-minute disclosure of an expert witness report did not violate Rule 573. As to the proper remedy, this Court being equally divided on whether the Commonwealth's error prejudiced Dunn, the Superior Court's order denying relief is affirmed. We remand this case to the trial court for resentencing as to Dunn's illegal sentencing claim addressed before the lower court.
Justice Brobson joins this opinion in support of affirmance.
JUSTICE DONOHUE, in Support of Reversal
I. Introduction
Today, Justice Mundy's Opinion in Support of Affirmance ("OISA") correctly reaches the inescapable conclusion that Pennsylvania's mandatory discovery rules apply when the Commonwealth intends to call child sex abuse experts to testify in criminal trials pursuant to 42 Pa.C.S. § 5920. Thus, I wholeheartedly agree with the OISA that Rule 573 of the Pennsylvania Rules of Criminal Procedure "applies to Section 5920, and that the trial court erred as a matter of law in concluding the Commonwealth's last-minute disclosure of an expert witness report did not violate [Rule] 573. OISA at 325–26. The OISA nevertheless fails to give weight to the prejudice suffered by appellant, Ryan Michael Dunn ("Dunn"), due to the Commonwealth's patently late notice of its intent to present the expert testimony of Jamie Mesar, MSW ("Mesar") at Dunn's trial and the vague disclosure of the expert's testimony. Instead, it faults Dunn for failing to request a continuance, which, in the OISA's view, would have cured any minimal prejudice. I disagree. Dunn was prejudiced by the Commonwealth's late notice and vague disclosure and the prejudice was not minimal. Further, I disagree with the OISA's conclusion that such prejudice could have been cured had Dunn requested a continuance. In my view, the trial court abused its discretion by failing to compel the production of a supplemental expert report. The prejudice resulting from the Commonwealth's discovery violation coupled with the trial court's failure to afford an appropriate remedy warrants a new trial. Therefore, contrary to the OISA, I would reverse the judgment of the Superior Court.
II. Pertinent Factual and Procedural History
Briefly, this case concerns allegations of sexual abuse levied against Dunn by his paramour's minor daughter ("the Victim"), which lasted from June of 2015 until November of 2017, but were not reported until September of 2018. Typical of a case involving sexual offenses against a minor, the only direct evidence of Dunn's purported sexual abuse came from the Victim's testimony. See N.T., 6/6/2019-6/7/2019, at 78-122. To buttress its case against Dunn, the Commonwealth called Mesar to testify about the wide range of behaviors exhibited by child sex abuse victims. Additionally, the Commonwealth called to testify two police officers who handled the investigation into the allegations against Dunn. Dunn testified in his own defense, denying all of the Victim's allegations, and he called his mother and sister to testify on his behalf. To corroborate the Victim's accusations in this clash of credibility, the Commonwealth offered text messages sent from Dunn to the Victim ("Texts") which purportedly evidenced consciousness of guilt, although Dunn never explicitly admitted to sexually abusing the Victim.
Officer Donald Stoner of the Fox Chapel Police Department testified regarding the Victim's initial report of abuse, and Detective Ronald Bodnar of the Allegheny County Police Department primarily testified regarding Dunn's recorded statement, in which Dunn denied engaging in any sexual misconduct with the Victim. See N.T., 6/6/2019, at 123-35 (Stoner); N.T., 6/7/2019, at 371-88 (Bodnar).
Dunn's sister and mother testified, inter alia, that Dunn's home was a chaotic space lacking privacy due to the presence of seven children and the Victim's mother's open-doors policy. Both women testified that the Victim complained about her lack of privacy as a result. N.T., 6/10/2019, at 526, 533-34. During closing argument, Dunn's counsel argued that, given these conditions, it would have been "impossible" for Dunn to sexually abuse the Victim "routinely" as alleged without being noticed by other house members. Id. at 564.
Of particular concern here, the Commonwealth did not inform Dunn of its intent to present Mesar's expert testimony until the eve of trial. Email from Assistant District Attorney to Trial Counsel (June 3, 2019, 16:25 EST) ("Please see attached documents. I inten[d] to call Jaime Mesar as per 42 Pa.C.S. [§] 5920. [ ] Please let me know whether [Dunn] is willing to consider other offers. I'll see you tomorrow."). Mesar's curriculum vitae and a letter from Mesar to the prosecutor were attached to the email. Mesar's letter stated the following:
Section 5920 permits parties to proffer expert testimony in criminal proceedings regarding victim behaviors in response to sexual violence. 42 Pa.C.S. § 5920.
As per our recent conversation, I am available to provide information and testimony that may assist a judge and/or jury in understanding the dynamics of child sexual abuse victims, their responses to child sexual abuse and the impact of child sexual abuse on the victims. As an expert witness in the area of child sexual abuse, I would be prepared to discuss, in general, the typical ways children disclose abuse, how they react to child sexual abuse and coping mechanisms they may use. This report is limited to three areas of relevance for the requested testimony: Disclosure of abuse and children's behaviors regarding disclosure (gradual, delayed and recanted disclosures), victim behavior at the time of the abuse and victim behavior after the disclosure.
My testimony will be based on my almost twenty years of experience in child welfare, which includes interviews and interactions of alleged and confirmed child sexual abuse victims, my education as a master's level social worker with a certificate in child welfare and professional training I have received over the course of my employment. I have provided citations of relevant research articles which will further my testimony (although my testimony will not be limited to this information) and I have also enclosed a copy of my curriculum vitae.
Disclosure of abuse and children's behaviors regarding disclosure:
• Children who disclose abuse often do not disclose right away and the disclosure may be initially tentative and/or gradual over a period of time.
• Many children who have been victims never disclose their abuse for a wide variety of reasons (threats, fear, relationship to the abuser, unintended consequences of the disclosure, bribes, shame)
• Denial of the abuse or recantation of the allegations are not uncommon
Victim behavior at the time of abuse:
• There is no "normal" response for all victims. Child sexual abuse victims experience a wide range of emotions and responses
• Some victims (especially young victims and those who have experienced multiple incidents of child sexual abuse) may not know they have been a victim of child sexual abuse
• Child sexual abuse victims may feel helpless and show accommodating behaviors.
Victim behavior after disclosure[:]
• There is no "standard" response following a disclosure. Some children display emotional and behavioral changes and others do not. If a child does display an emotional/behavioral change they can vary by intensity and type. Others[’] responses to a child's disclosure greatly impacts the short
term and long term response of a child sexual abuse victim.
Mesar's Letter, 5/31/2019, at 1-2 ("Mesar's Letter"). Mesar's Letter concluded with citations to five articles ostensibly supporting her proposed testimony. Id. at 2.
The following morning, Dunn's trial counsel immediately filed a Motion to Compel Additional Discovery, Preparation and Disclosure of Expert Witness Report ("Motion to Compel"), and a separate Motion to Preclude Expert Witness ("Motion to Preclude"). In the Motion to Compel, Dunn argued that no "expert report has been generated or provided detailing the substance of the facts to which the expert is expected to testify, the actual opinions arrived upon by the expert, or the basis or grounds for said opinions[,]" and requested that the court "compel the preparation and disclosure of an expert report consistent with the standards provided under Pa.R.Crim.P. 573(B)(2)(b)." Motion to Compel, 6/4/2019, at 3. In his Motion to Preclude, Dunn asked the court to exclude Mesar's testimony based on similar rationale. Motion to Preclude, 6/4/2019, at 2-3.
The trial court held a hearing on the motions where trial counsel reiterated that Mesar's Letter provided only " generic and generalized conversation about things that may not even apply to this matter[,]" and that the late disclosure did not allow Dunn the opportunity to conduct his own research or consult an expert for "possible rebuttal[,]" in part because there "might be a divergence of opinions based upon what the proposed testimony would be ." N.T., 6/4/2019, at 6 (emphasis added). The trial court ultimately denied Dunn's Motion to Compel, reasoning that no additional report was required because the Commonwealth's disclosure of Mesar's Letter, "combined with the statute under which this expert was testifying, adequately put defense counsel on notice as to the nature of her testimony." Trial Court Opinion, 6/24/2020, at 6.
After deliberating for several hours over two days, the jury returned a guilty verdict on all counts. On September 11, 2019, the trial court sentenced Dunn to an aggregate term of 214 to 428 months’ incarceration. Dunn then timely filed a notice of appeal to the Superior Court.
The Superior Court ascertained no abuse of discretion in the trial court's denying the Motion to Compel. Commonwealth v. Dunn , 176 WDA 2020, 2020 WL 7682502, at *5 (Pa. Super. Dec. 23, 2020) (non-precedential decision). The court reasoned that Section 5920 "has no notice requirement and does not require the production of an expert report[,]" Dunn , 2020 WL 7682502, at *4, and that Mesar's Letter nevertheless adequately apprised Dunn "of the subject matter" of Mesar's "anticipated testimony[,]" id. at *4 n.5.
III. Parties’ Arguments
Dunn filed a timely petition for allowance of appeal, and we granted review of the following question:
Are the Superior Court's holdings that the Commonwealth (1) need not provide notice to a criminal defendant of its intent to call an expert witness pursuant to 42 Pa.C.S. § 5920 (relating to Expert testimony concerning victim responses and behaviors) and (2) need not prepare and disclose a detailed expert report irreconcilable with the Superior Court's decision in Commonwealth v. Cramer , 195 A.3d 594 (Pa. Super. 2018) and this Honorable Court's decision in Commonwealth v. Jones , 240 A.3d 881 (2020) ? Are these same holdings inconsistent with the Pennsylvania Rules of Criminal Procedure and the Due Process provisions of the United States and Pennsylvania Constitutions?
Commonwealth v. Dunn , 274 A.3d 719 (Pa. 2022) (per curiam).
In his brief, Dunn concedes that Mesar's expert testimony "arguably f[e]ll within the broad, generic categories of potential testimony identified in her letter," but that none of Mesar's "case-specific opinions fairly could have been anticipated therefrom." Dunn's Brief at 46. In this regard, Dunn identifies several parts of Mesar's testimony that directly foreshadowed issues involving the Victim's particular behavior in relation to her accusations against Dunn. Id. at 43-46. Dunn asserts that "Mesar's in-court testimony veered far beyond the platitudes outlined in her letter." Id. at 46. "In short," Dunn argues, "Mesar's [L]etter failed to meaningfully apprise [him] of the substance of her expert testimony, which touched upon extremely fact-specific themes and elements of the prosecution against [ ] Dunn. Fundamental fairness and the truth-determining process are frustrated, if not subverted entirely, by this strategy." Id. at 46-47.
The Commonwealth expends virtually no effort defending its late disclosure of Mesar's Letter. As to Dunn's claim that Mesar's Letter was too vague, the Commonwealth argues that "no more was required" under Rule 573. Commonwealth's Brief at 17. The bulk of the Commonwealth's argument focuses on Dunn's burden on appeal to demonstrate prejudice. In that vein, the Commonwealth contends that Dunn cannot establish prejudice given the weight of the evidence supporting the conviction, and that he "does not reference any expert whom he has uncovered who could refute anything that Mesar said, and he does not set forth any particular line of cross-examination that he has now developed that would have augmented the cross-examination that his defense counsel conducted at trial." Id. at 26-27 (footnotes omitted).
IV. Analysis
Initially, I agree with the OISA that "the lack of internal notice requirements" in Section 5920 does not equate "to no notice requirements[,]" and that Section 5920 is a substantive rule regarding the admissibility of evidence for which notice is governed by the pretrial discovery rules set forth in Rule 573. OISA at 335. And while I also agree with the OISA that the Commonwealth violated its duty to promptly disclose under Rule 573, I would go farther to hold that Mesar's Letter lacked the specificity required for admissible Section 5920 testimony to the extent that the trial court abused its discretion by failing to grant Dunn's Motion to Compel a more detailed expert report in compliance with Rule 573(B)(2)(b). Finally, I would conclude that Dunn is entitled to a new trial because he was prejudiced by the Commonwealth's unremedied discovery violations.
Section 5920 provides, in pertinent part, as follows:
§ 5920. Expert testimony in certain criminal proceedings
(a) Scope.-- This section applies to all of the following:
[list of applicable offenses]
(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 or domestic violence, that will assist the trier of fact in understanding the dynamics of sexual violence or domestic violence, victim responses to sexual violence or domestic violence and the impact of
sexual violence or domestic 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.
...
Violation
I agree with the OISA that the Commonwealth violated the discovery rules by failing to disclose its intent to call Mesar to testify until the eve of Dunn's trial. Rule 573 requires that, "on request by the defendant, ... the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case." Pa.R.Crim.P. 573(B)(1) (emphasis added). The enumerated items include "any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth[.]" Pa.R.Crim.P. 573(B)(1)(e). Additionally, Rule 573(D) imposes a continuing duty on both parties to promptly disclose new evidence or new witnesses. Pa.R.Crim.P. 573(D) ("If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness." )
Here, if Mesar's Letter constituted an expert report or opinion, it was discoverable under Rule 573(B)(1)(e), and therefore also subject to the continuing disclosure requirements of Rule 573(D). Regardless, even if Mesar's Letter did not constitute an expert report or opinion within the meaning of Rule 573(B)(1)(e), and even if it did not trigger Rule 573(D) ’s mandatory disclosure as to "evidence or material previously requested or ordered to be disclosed by it," the Commonwealth's intent to present Mesar's testimony would nevertheless trigger Rule 573(D) ’s prompt notification requirement for "the identity of an additional witness or witnesses" discovered prior to trial. Pa.R.Crim.P. 573(D).
However, I would also hold that Mesar's Letter failed to satisfy the Commonwealth's disclosure requirements because it was insufficiently tailored to the facts of this case. Section 5920 permits a sex abuse expert to testify "regarding specific types of victim responses and victim behaviors." 42 Pa.C.S. § 5920(b)(2) (emphasis added). Furthermore, to be admissible, Section 5920 testimony must be relevant to the proceedings. Pa.R.E. 402 ("Evidence that is not relevant is not admissible."). "Evidence is relevant if : (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action ." Pa.R.E. 401 (emphasis added). Finally, Rule 702 provides that an expert may only testify if "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue [.]" Pa.R.E. 702(b) (emphasis added).
The Superior Court has held that Rule 702 applies to Section 5920 testimony. Cramer , 195 A.3d at 606.
Reading Section 5920 in conjunction with these rules, expert testimony involving victim responses and victim behaviors must be tailored to the evidence in each individual case. Section 5920 should not be read as an invitation to lecture to the jury about a myriad of potential topics that might arise in any case involving sexual abuse; instead, it is designed to address specific issues stemming from a particular set of facts and circumstances. Testimony regarding generic victim responses and victim behaviors is too general to meet Section 5920(b)(2) ’s specificity requirement, otherwise the term "specific" is rendered superfluous in that provision. Furthermore, testimony regarding particular responses and behaviors by victims is irrelevant if it does not pertain to the facts specific to the matter before the trial court, and expert testimony is inadmissible if it does not address "the evidence" or "a fact in issue." Pa.R.E. 702(b). Under our rules, an expert is confined to expressing opinions relevant to the matter being tried.
Here, Mesar's Letter was far too general to meet Section 5920(b)(2) ’s specificity requirements and, because it promised testimony regarding victim responses and victim behaviors that went well beyond evidence of the Victim's actual responses and behaviors, it contained topics that were irrelevant under Rule 401 and outside the scope of Rule 702. Thus, Mesar's Letter left Dunn only able to speculate as to the relevant facts and opinions that Mesar would subsequently provide at trial. Indeed, Mesar's Letter contained nothing that narrowed the scope of her proposed testimony to the facts and circumstances of this case, as recognized by the trial court when it stated that Mesar's Letter "is generic in nature" and proffered testimony "to explain to jurors the concept of delayed report[ing] and not specific in any way to the facts of this case." N.T., 6/4/2020, at 6.
Dunn's counsel responded that the court's description of the proposed expert testimony was precisely what made it objectionable: "Just for the record, that's part of my objection to the introduction of the testimony, that it has really nothing to do with this case and is generic and generalized conversation about things that may not even apply to this matter." N.T., 6/4/2020, at 6. When the court later stated that it was not novel science that sexual assault victims of all ages do not always promptly report, Dunn's counsel asserted that the Victim's delayed reporting was "not even part of our defense. We have really no issue with the [delayed] reporting in this case." Id. at 10.
Thus, in addition to finding that the Commonwealth violated Rule 573(D) ’s prompt disclosure mandate, I also conclude that Mesar's Letter failed to apprise Dunn of " specific types of victim responses and victim behaviors" at issue in this case, 42 Pa.C.S. § 5920(b)(2) (emphasis added), because it only provided Dunn with notice of generic victim responses and victim behaviors, much of which was irrelevant and inadmissible in the circumstances of this case. , Remedy
Further highlighting the problem with Mesar's Letter and the trial court's embrace of it is the fact that the Commonwealth called Mesar as its first witness. The testimony was presented in a vacuum and the only possible purpose for it was to shore up any evidence that would follow, including the testimony of the Victim. Section 5920(b)(3) specifically prohibits opinion testimony regarding the credibility of a witness, including the victim. Allowing generic testimony that validates any and all otherwise anomalous behavior of sexual abuse victims, offered as a preface to the Commonwealth's case, serves as an opinion on the credibility of the testimony to follow.
With a sense of precision akin to buckshot, the OISA counters that Mesar's Letter "detailed three specific categories she was prepared to discuss at trial" within which Mesar provided "bullet points setting forth precisely what would be discussed." OISA at 335–36. It is difficult to conceive of what Mesar was not prepared to discuss with respect to child sexual assault victims’ behaviors, given the broad and generic platitudes that constitute Mesar's Letter. Inverting the nature of this problem, the OISA again transfers responsibility for the Commonwealth's discovery violations onto Dunn, stating that "Dunn was required to lodge a specific objection at trial" to the extent that "Mesar's testimony went beyond that detailed in the letter[.]" Id. at 336. However, I have no dispute with the general proposition that Dunn was required to object at trial if he sought relief solely from testimony that exceeded the scope of Mesar's Letter. The nature of this problem, however, is that the scope of Mesar's Letter was so broad and generic that it failed to narrow the vast array of possible topics that the letter envisaged in such a way as to provide useful notice to the defense. Dunn's other arguments aside, the prejudice I am concerned with had fully materialized when the trial court denied Dunn's motions to preclude or compel.
Furthermore, it is no excuse that "experts testifying in this area must avoid encroaching on the jury's province of commenting on witness credibility." Id. An expert witness can surely comment on a victim's behaviors without reaching specific conclusions about credibility, as expert witnesses routinely do in our courts despite a global ban on experts’ direct commentary on the credibility of witnesses. Moreover, it strains credulity to believe that a jury will distinguish between the Commonwealth's asking hypotheticals of an expert that directly track the specific behaviors of a victim of sexual violence versus the Commonwealth's directly asking the expert about the specific behaviors of that victim. Rule 5920 does not forbid an expert's discussion of a specific victim's behaviors; it explicitly permits them. 42 Pa.C.S. § 5920(b)(2) ("If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors."). That this charade has become common practice, see OISA at 336 (stating " Section 5920 experts generally abstain from reviewing specific facts" in the cases in which the testify), does not justify its continuation on the false pretense that an expert's opinion about the victim's behaviors is identical to an "opinion regarding the credibility" of that victim. 42 Pa.C.S. § 5920(b)(3).
Rule 573 provides a variety of remedies for discovery violations. The trial court may order a violating party "to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances." Pa.R.Crim.P. 573(E). Additionally, regardless of whether a discovery violation has occurred involving an expert witness, "the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion." Pa.R.Crim.P. 573(B)(2)(b). Here, Dunn requested the exclusion of Mesar's testimony in his Motion to Preclude pursuant to Rule 573(E), and he separately requested a supplemental expert report in his Motion to Compel pursuant to Rule 573(B)(2)(b).
In assessing the trial court's failure to afford any relief for the Commonwealth's discovery violation, the OISA emphasizes that Dunn "never explicitly requested a continuance, which is generally ‘deemed sufficient to eradicate possible prejudice and enable the defendant to assimilate new information.’ " OISA at 338 (quoting Commonwealth v. Rosa , 415 Pa.Super. 298, 609 A.2d 200, 204 (1992) ). The OISA further declines to view Dunn's Motion to Compel "as an effective request for a continuance, particularly in light of the fact that the Commonwealth did provide an expert report detailing the substance of its proposed testimony under Section 5920." Id. at 338. The OISA then concludes that "the majority" of Dunn's proposed preparations ostensibly precluded by the Commonwealth's discovery violation could have been remedied had he requested a continuance. Id. at 338–39. I disagree.
I acknowledge that Dunn did not include a request for a continuance in his written motions, but the record reveals that the trial court denied a continuance, or at least thought it had done so. Nevertheless, Dunn does not maintain that the trial court erred in failing to grant a continuance to the defense, focusing instead on the trial court's failure to grant his Motion to Compel. However, I disagree with the OISA that a continuance would have adequately remedied the prejudice incurred by Dunn, and I question a rule that places the burden on the defendant to mitigate the Commonwealth's violation of the discovery rules and then penalizes him for not doing so. Nonetheless, as discussed above, Mesar's Letter was too vague to adequately apprise Dunn of the specifics of Mesar's proposed Section 5920 testimony, and the prejudice he incurred from that inadequacy could only have been cured by a more detailed report, i.e., a real expert report.
While addressing the Commonwealth's late disclosure of Mesar's testimony at the pretrial hearing, trial counsel stated: "I think my client has the right to confront this witness as well as any other, and we would have appreciated the opportunity to conduct our own research and consult with our own expert." N.T., 6/4/2019, at 6. Despite the use of the past tense, trial counsel's statement might be interpreted as request for additional time to conduct research and consult an expert. At least the Commonwealth thought so, see id. at 8 ("[T]he Commonwealth would ask the [c]ourt to deny the defendant's request for additional time to prepare for discovery purposes."), as did the trial court, see Trial Court Opinion, 6/24/2020, at 6 (stating "counsel sought additional time to rebut or undermine [Mesar's] testimony").
As to the trial court's denial of Dunn's Motion to Compel, the OISA summarily rejects Dunn's argument, stating: "Because the Commonwealth provided Dunn with an expert witness report, the trial court did not abuse its discretion in denying Dunn's motion to compel the production of one." OISA at 336 n.8. This mischaracterizes the nature of Dunn's request and the procedural history of this case.
Although the OISA now concludes that Mesar's Letter was an expert report "for purposes of Section 5920 [,]" OISA at 335, the document itself did not purport to be an expert report, nor did the prosecutor indicate in her email to defense counsel that the Commonwealth was disclosing an expert report. Nevertheless, Dunn argued in his Motion to Compel that "[n]o expert report has been generated or provided detailing the substance of the facts to which the expert is expected to testify, the actual opinions arrived upon by the expert, or the basis or grounds for said opinions ." Motion to Compel, ¶ 4 (emphasis added). The OISA waves away Dunn's request by declaring that an expert report had been provided, ignoring that Dunn was clearly requesting the production of an expert report that was compliant with Rule 573 , and that he implicitly, but no less obviously, argued that Mesar's Letter did not meet that standard. Id. ¶ 5. If the OISA now contends that Mesar's Letter was an expert report all along, it should at least treat Dunn's Motion to Compel as a request for a supplemental expert report. To treat it solely as a motion to compel production of an expert report, despite the arguments made therein, is to elevate the form of the Motion to Compel over its substance while simultaneously purporting to elevate substance over form with respect to Mesar's Letter.
I would reach the opposite conclusion, and instead find that the trial court abused its discretion by failing to grant Dunn's Motion to Compel because supplementation of Mesar's Letter was necessary to comply with the specificity requirement of Section 5920(b)(2). While Mesar's Letter broadly identified the subject matter of Mesar's proposed testimony, it lacked the specificity required under Section 5920(b)(2) which comports with Rules 401(b) and 702(b). Accordingly, contrary to the OISA, I would find that the trial court abused its discretion by failing to grant Dunn's Motion to Compel in accordance with Rule 573(B)(2)(b).
I believe the trial court abused its discretion in failing to grant the Motion to Compel, and that Dunn was prejudiced by its denial to a degree that warrants a new trial. However, that prejudice could have also been avoided had the trial court granted Dunn's Motion to Preclude Mesar's testimony.
Prejudice
The OISA correctly notes that "discovery violations do not automatically entitle an appellant to a new trial; the appellant must demonstrate that the violation resulted in prejudice. Commonwealth v. Counterman , 553 Pa. 370, 719 A.2d 284, 298 (1998)." OISA at 338. As noted above, the OISA believes that most of the prejudice alleged by Dunn could have been cured by a continuance. Id. at 338–39. From there, the OISA addresses the "several broad themes" that comprise Dunn's prejudice argument, concluding that these "concerns may very well be true" but are nonetheless "insufficient to demonstrate the degree of prejudice necessary to warrant a new trial[,]" again citing Counterman . Id. at 338. "Beyond this," the OISA opines, Dunn cannot prove prejudice anyway. Id. at 339 (stating "the incriminating nature of the facts in this case do not lend themselves to a finding of prejudice"). The OISA then summarizes the Texts, construing them as so overwhelmingly inculpatory that "it is difficult to conclude Mesar's expert testimony prejudiced Dunn in any way[.]" Id. at 340.
The OISA notes that Dunn
claims that the Commonwealth's last-minute notice prevented him from conducting independent research, developing a comprehensive cross-examination, making a knowing and intelligent decision about whether to hire his own expert, making a robust pretrial challenge to admission of the testimony, and reflecting on how the testimony would bear upon all of the other evidence presented at trial. He additionally argues that his last-minute trial preparation was derailed in light of the Commonwealth's tardy disclosure.
OISA at 338.
In Counterman , the defendant was sentenced to death for killing his children by means of arson. Counterman's wife initially gave police a statement corroborating Counterman's claim that he was asleep when the fire began (although she recanted that statement at trial). Counterman also made an inculpatory statement to a social worker regarding insurance coverage. On appeal, Counterman challenged the late disclosure of these statements "during the course of the trial." Counterman , 719 A.2d at 297. Although this Court agreed that the Commonwealth violated the discovery rules, and that the prosecutor had violated the rules of professional responsibility with his gamesmanship, the Court nevertheless concluded that Counterman had failed to demonstrate prejudice because 1) he only made generalized allegations that the late disclosures impeded his cross-examination of the Commonwealth's expert witnesses and his approach to voir dire and 2) because Counterman was permitted to admit the exculpatory statement through his wife and to cross-examine her about it. Id. at 298. Thus, the Counterman Court concluded that Counterman was not entitled to relief because "his ability to present the evidence in issue was not impaired by the late disclosure." Id. The Counterman Court did not specify why Counterman had not been prejudiced by the late disclosure of his inculpatory statement.
First, I reject the OISA's conclusion that the prejudice incurred by Dunn due to the late and generic disclosures in Mesar's Letter could have been substantially cured had he requested a continuance. I cannot discern how more time studying the generalities set forth in Mesar's two-page letter could have led Dunn's counsel to better anticipate any case-specific opinions subsequently offered during her testimony. I would conclude that the trial court abused its discretion by denying Dunn's Motion to Compel, and I would analyze prejudice in this case by accounting for not only the impact of the Commonwealth's eleventh-hour disclosure in temporal terms (for which a continuance is generally an appropriate remedy), but also the substantial gap between the generalities contained in Mesar's Letter and the specificity required by the statute and rules governing expert testimony.
Second, taken together, the lateness and vagueness of the Commonwealth's disclosure invariably affected trial counsel's strategy in this case and, thus, the unavoidable effect of these unremedied discovery violations was to deny Dunn a fair trial. I would conclude that Dunn has adequately demonstrated prejudice that could have been completely ameliorated had the trial court simply granted Dunn's Motion to Compel (or his Motion to Preclude). Trial counsel had virtually no time to prepare to cross-examine an expert witness and, more importantly, even the most thorough and lengthy preparations could not have equipped counsel to anticipate Mesar's specific opinions because of the vagueness of Mesar's Letter. Although the Commonwealth contends that Dunn fails to establish how he would have rebutted Mesar's testimony had he been given more time to prepare, that argument focuses too much on the lateness of the Commonwealth's disclosure of Mesar's Letter, and too little on the inadequate disclosure that it provided. Dunn was prejudiced because he was deprived of the opportunity to make a reasonable, calculated decision as to whether it was worthwhile to obtain an expert to either rebut Mesar's testimony or to aid the defense in minimizing any negative effects Mesar's testimony would have in this clash-of-credibility case. Because Mesar's Letter was too vague to enable counsel to anticipate the specific opinions Mesar ultimately offered at trial, Dunn was unfairly deprived of that opportunity, and a continuance without a supplemental report would have been meaningless. The inability to prepare for cross-examination of an expert witness and to prepare a strategy to address the testimony affects the fairness of the proceedings. As Dunn succinctly explains, he "was deprived of the opportunity to meet the government's evidence and develop his trial strategy." Dunn's Reply Brief at 5.
This Court has applied several different modes of ascertaining whether prejudice resulting from discovery violations is sufficient to warrant relief. In Commonwealth v. Chambers , 528 Pa. 558, 599 A.2d 630 (1991), where the Commonwealth failed to disclose an inculpatory pre-trial statement by the defendant, this Court stated that a mistrial based on that discovery violation was only required if the " unavoidable effect is to deprive appellant of a fair trial ." Id. at 637 (emphasis added). In Commonwealth v. Jones , 542 Pa. 464, 668 A.2d 491 (1995), where the Commonwealth failed to disclose the identity of certain witnesses prior to trial, this Court concluded that Jones was not entitled to relief because he failed to develop an argument as to how a "more timely disclosure would have affected his trial strategy [.]" Id. at 513 (emphasis added). We applied an outcome-determinative test in Commonwealth v. Small , 559 Pa. 423, 741 A.2d 666, 677 (1999) (holding that the Commonwealth's failure to produce evidence pertaining to unrecorded conversations was meritless because, inter alia, the appellant failed "to show how this evidence, even if produced, would have caused a different outcome"). In Commonwealth v. Poplawski , 634 Pa. 517, 130 A.3d 697 (2015), this Court applied different standards to similar discovery violations. Poplawski was convicted of murdering three police officers during an ambush. The Poplawski Court considered, inter alia, whether he was prejudiced when the medical examiner offered an opinion as to the order of wounds that had not been discussed in the medical examiner's report. Id. at 718. Applying some variation of a harmless error test, we held that Poplawski could not demonstrate prejudice because the " uncontradicted evidence admitted elsewhere during trial overwhelmingly established" that he had fired the fatal shot. Id. at 719. Elsewhere in the same opinion, addressing a similar discovery violation, we held that relief was not warranted because Poplawski failed to explain how the alleged discovery violation "would have created a reasonable possibility of a different outcome ." Id. at 721 (emphasis added).
While this Court clearly has applied different prejudice tests for discovery violations in different cases, and even different prejudice tests to address similar discovery violations within the same case, it has never provided an explanation for this lack of uniformity. In my view, it remains the case that the denial of a fair trial is prejudice warranting the grant of a new trial. My view is reinforced in Counterman , upon which the OISA relies. See OISA at 337–38. Citing Chambers , the Counterman Court stated that a mistrial is warranted "when a discovery violation is of such a nature as to deprive the defendant of a fair trial." Counterman , 719 A.2d at 298. The OISA also cites to the Superior Court's decision in Commonwealth v. Causey , 833 A.2d 165 (Pa. Super. 2003), which does not explicitly state the "denial of a fair trial" standard but, nevertheless, also cites to Chambers approvingly. Id. at 171.
I further observe that in Chambers and Jones , both cited by the OISA for the proposition that the failure to request a continuance weighs against a finding of prejudice, see OISA at 337–38, this Court was addressing discovery violations significantly more diminutive in scope and involving the Commonwealth's failure to disclose evidence of which the defendants should have been aware. Chambers concerned an undisclosed statement by the defendant indicating that he had been involved in unrelated illegal activity "at some point in the evening following the murder" for which he was on trial. Chambers , 599 A.2d at 637. In Jones , the Commonwealth failed to disclose its intent to call a hotel employee witness it proffered to authenticate a hotel registration form filled out by Jones’ co-defendant, where Jones was already "aware of the hotel stay and could have interviewed" the witness himself. Jones , 668 A.2d at 513. Neither of those cases addressed circumstances similar to those here, where the Commonwealth failed to provide adequate notice of its intent to call an expert witness (who would subsequently provide a substantial amount of unanticipated testimony), nor did those cases involve the vagueness problem associated with the Commonwealth's disclosure in this case that failed to comply with the specificity required of an expert's report.
The Commonwealth contends that the trial court could not have abused its discretion in failing to offer a remedy because Dunn "has never offered anything" contrary to the opinions "to which Mesar would be testifying." Commonwealth's Brief at 45.
Third, the OISA appeals to the notion that the weight of the evidence of Dunn's guilt was so great that it rendered any discovery violation involving Mesar's Letter and proposed testimony insignificant by comparison. I disagree. While I generally agree that the Texts were inculpative, I am less convinced than the OISA as to what extent, and to which crimes, they implicated his guilt. In the Texts, Dunn told the Victim that he did not know he had been abusing her, that he loved her, that she was too young, that he was wrong, that he did not want to hurt her, that he felt guilt and shame, and he further admitted that he was going to prison. OISA at 339–40 (quoting N.T., 6/6/2019, at 183-87). It would be reasonable for the jury to infer Dunn's consciousness of guilt of something from the Texts, and so it is certainly fair to assume they tended to bolster the Victim's credibility and simultaneously undermined the credibility of Dunn's denials.
However, the Texts did not contain explicit admissions or other direct evidence of Dunn's guilt as to specific crimes. To reach a conviction, the jury still had to believe the Victim's testimony and disbelieve Dunn's testimony. Thus, at its core, Dunn's prosecution was still primarily a clash of credibility between the accused and the accuser, and the Texts only served to buttress the Victim's credibility in that battle. How much or how little the Texts affected this clash of credibility is clearly a question for a jury, not an appellate court. As damaging as the Texts might have been in the jury's eyes as a practical matter, Dunn did not admit to committing any of the sexual offenses for which he was convicted. As such, the Texts were only indirect evidence of Dunn's guilt, requiring the jury to make inferences that his messages to the Victim undermined his credibility and buoyed hers.
"The law is well settled that it is the exclusive province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded their testimony." Commonwealth v. Garvin , 448 Pa. 258, 293 A.2d. 33, 39 (1972).
This is particularly important since the OISA appears to be applying a variation of the harmless error doctrine, albeit with the burden ostensibly flipped to Dunn.
Harmless error exists if the state proves either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475, 493 (2018) (citation omitted) (emphasis in original). Despite this Court's recent recognition that appellate courts may, in limited circumstances, invoke the harmless error doctrine sua sponte, see Commonwealth v. Hamlett , 660 Pa. 379, 234 A.3d 486 (2020), it remains the general rule that the "Commonwealth bears the burden of proving that the error was harmless beyond a reasonable doubt." Commonwealth v. Holt , ––– Pa. ––––, 273 A.3d 514, 540 (2022), cert. denied sub nom., Holt v. Pennsylvania , ––– U.S. ––––, 143 S. Ct. 380, 214 L.Ed.2d 186 (2022). However, as discussed above, I acknowledge that without providing a principled reason on for doing so, this Court has previously engaged in similar, quasi-harmless error analysis when determining whether prejudice stemming from discovery violations warrants relief. See Poplawski , 130 A.3d at 719.
Regardless, when applying the third prong of the harmless error test, "the properly admitted evidence of guilt must be uncontradicted for error to be held harmless beyond a reasonable doubt." Commonwealth v. Williams , 524 Pa. 404, 573 A.2d 536, 539 (1990) (emphasis added); accord Poplawski , 130 A.3d at 719 (stating the " uncontradicted evidence admitted elsewhere during trial overwhelmingly established...") (emphasis added). Here, the Victim's accusations of sexual abuse were directly contradicted by Dunn's testimony, as were the inculpatory inferences stemming from the Texts. As implausible as Dunn's explanations for those Texts might seem to the OISA and this Author, harmless error analysis is simply inapplicable in the circumstances of this case because there was no "uncontradicted" evidence of guilt. Thus, I respectfully disagree with the OISA's application of a modified harmless error analysis and its conclusion the Commonwealth's discovery violation could not have prejudiced Dunn to any significant degree because of the weight of the evidence against him. To the contrary, because this was still a clash-of-credibility case, the Commonwealth's violation of the discovery rules, coupled with the trial court's failure to provide an appropriate remedy including a supplemental expert report, affected trial counsel's strategy to an extent that compromised the fairness of the proceedings, thereby undermining confidence in the jury's verdict.
The OISA responds that I am merely critiquing "precedent, as opposed to" the OISA's "application of the law," OISA at 340 n.12, but I do not dispute that this Court previously applied a harmless error test to address discovery violations. However, our precedent also dictates that that the harmless error test only applies when the uncontradicted evidence of guilt is overwhelming. Williams , 573 A.2d at 539 ; Poplawski , 130 A.3d at 719. The OISA has no answer for that precedent other than to simply ignore it.
V. Conclusion
In sum, I agree with the OISA that the trial court erred 1) in failing to recognize that Section 5920 testimony is subject to the discovery rules set forth in Rule 573, and 2) by failing to hold that the Commonwealth violated the prompt disclosure requirements of Rule 573 by not disclosing its intent to call an expert witness until the eve of trial. However, I would also conclude that the trial court abused its discretion by denying Dunn's Motion to Compel an expert report in compliance with Rule 573(B)(2)(b), because Mesar's Letter was too generic to meet the specificity requirements of Section 5920(b)(2), which comports with Rules 401(b) and 702(b). Furthermore, I would find that Dunn was prejudiced by the Commonwealth's violation of the discovery rules which was perpetuated by the trial court's denial of Dunn's Motion to Compel. Consequently, I would hold that Dunn is entitled to a new trial where he can adequately prepare to confront the Commonwealth's expert. Moreover, while the OISA applies a type of harmless error analysis to conclude that Dunn was not prejudiced, its conclusion is wrong because there was no uncontradicted evidence of guilt in the trial. Accordingly, I would reverse the judgment of the Superior Court and remand for a new trial.
Justices Dougherty and Wecht join this opinion in support of reversal.
JUSTICE WECHT, in Support of Reversal
I join Justice Donohue's Opinion in Support of Reversal ("OISR"). I write to supplement that well-reasoned analysis with a few additional thoughts.
I agree with Justice Mundy's Opinion in Support of Affirmance ("OISA") that our discovery rules apply with full force to expert witnesses who testify pursuant to 42 Pa.C.S. § 5920. I also agree that the Commonwealth's last-minute disclosure of its intent to call such an expert in this case violated the requirement of Rule 573(D) of the Pennsylvania Rules of Criminal Procedure that the Commonwealth "promptly notify" the defendant of the identity of any additional witness that it intends to call at trial. The language of the Commonwealth's belated disclosure in this case indicates that it represented an attempt to induce Ryan Michael Dunn into accepting a guilty plea rather than proceeding to trial. The Commonwealth sent this correspondence mere hours before jury selection. The trial court should have appreciated that it was palpably unfair for the Commonwealth to threaten Dunn with "trial by ambush" in this manner. The trial court's refusal to provide any remedy to Dunn was error.
Hereinafter, uses of "OISA" generally refer to the Opinion authored by Justice Mundy. References to Chief Justice Todd's OISA are so specified.
Pa.R.Crim.P. 573(D) ("If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness.") (emphasis added).
Although it concludes that the Commonwealth violated this prompt notification requirement, the OISA notes that there is no fixed period specified in Rule 573 within which such notifications must be provided, and it refers that matter to the Criminal Procedural Rules Committee for consideration. OISA at 336–37. I agree that this is a worthy task. The committee should explore whether Rule 573 would benefit from a more concrete framework for the timeliness of the required disclosures, in order to alleviate any ambiguity and to avoid potential litigation over the meaning of a "prompt" notification. A specified number of days might be warranted. Alternatively, a requirement that trial courts set individualized discovery deadlines tailored to the needs and schedule of each case may be beneficial.
See Email from Assistant District Attorney to Trial Counsel, 6/3/2019, at 4:25 p.m. (reproduced in Dunn's Br. at 9) ("Please see the attached documents. I intent [ sic ] to call Jamie Mesar as per 42 Pa.C.S.A. [§] 5920. Please let me know whether the defendant is willing to consider other offers . I'll see you tomorrow.") (emphasis added).
See Commonwealth v. Shelton , 536 Pa. 559, 640 A.2d 892, 895 (1994) ("It is well established in this Commonwealth that the purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial. Trial by ambush is contrary to the spirit and letter of those rules and cannot be condoned.").
As for the nature of the remedy, the OISA faults Dunn for declining to explicitly request a continuance, and it suggests that a continuance would have sufficed to cure any prejudice that Dunn sustained. Justice Donohue rightly "questions" a rule that "places the burden on the defendant to mitigate the Commonwealth's violation of the discovery rules and then penalizes him for not doing so." I would do more than question such a rule. I would reject it outright. The consequences of one party's abuse of the discovery rules should not fall upon the other. Forcing Dunn to clean up the Commonwealth's mess is no remedy at all.
See OISA at 338 ("Importantly, Dunn also never explicitly request[ed] a continuance, which is generally ‘deemed sufficient to eradicate possible prejudice and enable the defendant to assimilate new information.’ ") (quoting Commonwealth v. Rosa , 415 Pa.Super. 298, 609 A.2d 200, 204 (1992) ).
OISR (Donohue, J.) at 348.
Moreover, a continuance may not be in the defendant's best interest. The defendant may be incarcerated while awaiting trial, and thus every day that trial is delayed is a day that he is deprived of his liberty. To make the consequence of that delay more concrete, the party who requests a continuance is typically the party to whom the delay is attributable for purposes of assessing the Commonwealth's compliance with its speedy trial obligations under Rule 600. Accordingly, it very well may be against the defendant's interest for him to request a continuance that he would not need but for the Commonwealth's gamesmanship or neglect (whichever it may be). Dunn's trial counsel here made a reasonable calculation that Dunn's best interest would be served by exclusion of the expert testimony, or, failing that, the provision of an adequate expert report that would fairly apprise him of the substance of the forthcoming testimony. Dunn should not be punished for declining to request a continuance that would merely have excused the Commonwealth's dereliction and given it yet more time to prepare its case against him.
Pa.R.Crim.P. 600. See Pa.R.Crim.P. 600(C)(3)(a)(i)-(ii) (providing that when a trial court grants a continuance, it shall "record the identity of the party requesting the continuance" and shall "record to which party the period of delay caused by the continuance shall be attributed"). The Comment to Rule 600 gives examples of delays attributable to the defendant and includes delay resulting from "any continuance granted at the request of the defendant or the defendant's attorney." Pa.R.Crim.P. 600, Comment .
Turning to the adequacy of the "expert report" in this case, I share Justice Donohue's view that Mesar's boilerplate letter was overly generic and insufficient to inform Dunn of the substance of Mesar's proposed testimony. But specificity has its own dangers as well. Should an expert's trial testimony become too specific, there is a risk of it running afoul of this Court's decisions in Commonwealth v. Dunkle and Commonwealth v. Jones as impermissible commentary on the credibility of the victim. In Dunkle , we held that expert testimony concerning the typical behaviors of sexually abused children was impermissible, in part because it "would infringe upon the jury's right to determine credibility." In Jones , we acknowledged that the General Assembly, by enacting 42 Pa.C.S. § 5920, "effectively overruled" Dunkle to the extent that Dunkle held that such expert testimony was categorically impermissible. Yet, we concluded that Dunkle remains viable to the extent that it prohibits expert commentary on the credibility of the victim. Whether expert testimony violates this prohibition, Jones holds, is to be "assessed on a case by case basis."
See OISR (Donohue, J.) at 345–46.
529 Pa. 168, 602 A.2d 830 (1992).
663 Pa. 20, 240 A.3d 881 (2020).
Dunkle , 602 A.2d at 837.
Jones , 240 A.3d at 895.
Id. at 896-97. Moreover, as emphasized in Jones , Section 5920(b)(3) additionally precludes an expert from offering an opinion on the credibility of another witness. 42 Pa.C.S. § 5920(b)(3) ("The [expert] witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.").
Jones , 240 A.3d at 896-97.
In light of Jones and Dunkle , it would seem that the more that an expert's testimony is specifically tailored to the facts of the case and to the behavior of the victim, the more likely it is to be deemed to constitute impermissible bolstering of the victim's credibility. Of course, this is a concern about the conduct of the trial. But it is all the more reason for prompt and meaningful pretrial disclosure of the substance of an expert's opinion. Otherwise, the defendant cannot ascertain whether there is a basis for objection on Jones / Dunkle grounds or on some other basis. For this reason, I join Justice Donohue in concluding that the purported "expert report" provided to Dunn—a form letter containing only a few paragraphs of generalities about sexual abuse victims—was woefully inadequate to apprise Dunn of the testimony that the Commonwealth intended to present at trial imminently.
See Dunn's Br. at 35 ("In light of Dunkle ’s continued viability ... along with Jones ’s mandate that the appropriate scope of Section 5920 expert opinions must carefully be assessed on a case-by-case basis, it is nothing short of essential that criminal defendants be given notice, well in advance of trial, of the Commonwealth's intent to call such an expert and that they be provided with a detailed report of the expert's proposed testimony.") (emphasis in original).
However, like Justice Donohue, my most significant disagreement with the OISA lies in its analysis of the prejudice that Dunn sustained as a result of the Commonwealth's tardy disclosure. The OISA dubiously asserts that Dunn has presented only "broad and non-specific allegations" of prejudice. This characterization is undermined by the OISA's own words. Immediately preceding that portrayal of Dunn's advocacy, the OISA provides a summary of the "themes" that Dunn argues: that the Commonwealth's last-minute disclosure "prevented him from conducting independent research, developing a comprehensive cross-examination, making a knowing and intelligent decision about whether to hire his own expert, making a robust pretrial challenge to the admission of the testimony, and reflecting on how the testimony would bear upon all of the other evidence presented at trial." These assertions of prejudice are neither "broad" nor "non-specific." They are clear recitations of the particular ways in which the Commonwealth's conduct deprived Dunn of his ability to optimize his trial preparation and strategy.
OISA at 338.
Id.
But Dunn's advocacy is even more precise than that. Dunn's present counsel tracked down and reviewed all of the articles that Mesar cited as support in her "expert report," and discovered numerous potential inconsistencies between Mesar's proffered testimony and the medical research upon which she purported to rely. These inconsistencies could have undercut Mesar's opinions about matters such as whether certain characteristics of sexual abuse predict delayed disclosure, whether a familial relationship between the victim and abuser makes it more difficult for a child to disclose, and whether an abuser's threats affect the rate of disclosure. Dunn's counsel notes that some of these articles were not readily available online, so she had to seek the assistance of a medical librarian at UPMC-Mercy Hospital, which is "definitely not something trial counsel could have accomplished overnight." Plainly, had defense counsel been able to review this medical literature and to discover inconsistencies between the prevailing research and Mesar's testimony, this would have allowed for a much more robust cross-examination. This line of advocacy further distinguishes the present circumstance from Commonwealth v. Counterman , which the OISA cites for the proposition that "generalized allegations of prejudice" are insufficient. Counterman qualified this "generalized allegations" characterization by noting that the appellant failed to explain how earlier disclosure of the statements at issue in that case "would have altered his cross-examination or voir dire." Not only are Dunn's allegations of prejudice highly specific, but he also demonstrates precisely how earlier disclosure of Mesar's letter would have allowed him to challenge Mesar's testimony on cross-examination.
See Dunn's Reply Br. at 26-28.
Id. at 26-27.
Id. at 26 n.12.
OISA at 337–38 (citing Commonwealth v. Counterman , 553 Pa. 370, 719 A.2d 284, 298 (1998) ).
Counterman , 719 A.2d at 298.
Moreover, Dunn has identified another expert that the defense could have retained to counter Mesar's testimony. William O'Donohue, Ph.D., is a professor of psychology at the University of Nevada, Reno, who has testified for the defense and been qualified as an expert under Section 5920 in previous cases in this Commonwealth. Dunn provides a detailed summary of the opinions that Dr. O'Donohue offered in a previous case, which opinions would have contradicted much of Mesar's testimony. But the substance of Dr. O'Donohue’s previous testimony is not the point; Dunn merely uses it to highlight the fact that there were options available had the defense been afforded sufficient time to retain its own expert before trial. And it is obvious that the ability to hire a defense expert such as Dr. O'Donohue would have had a significant impact upon Dunn's trial strategy.
See Dunn's Reply Br. at 14-26.
For these reasons, the OISA's dismissive depiction of Dunn's assertions of prejudice as "broad and non-specific" is an abject mischaracterization. It is telling that the OISA makes no effort to address Dunn's highly particularized illustrations of the ways that a timely disclosure of the Commonwealth's intent to call Mesar would have allowed him to better prepare his defense. Dunn explains exactly how the Commonwealth's last-minute notice harmed his trial strategy and preparation. He details precisely how he could have used Mesar's own materials to poke holes in her testimony. And he identifies an expert whom he might have been able to employ in his defense, had he not been deprived of time by the Commonwealth's eleventh-hour ambush. One is left to wonder what more Dunn possibly could have argued in order to clear the hurdle that the OISA erects.
Chief Justice Todd likewise finds Dunn's arguments concerning prejudice to be inadequate, less because of their substance than their timing. The Chief Justice contends that Dunn "does not describe, in any detail," what he would have done differently at trial had he been provided sufficient notice of Mesar's testimony, suggesting that he does not, for instance, "proffer research that would have undermined Mesar's testimony" or "provide questions he would have asked on cross examination." Of course, as discussed above, none of this is correct. Indeed, in her very next sentence, Chief Justice Todd readily acknowledges that Dunn does , in fact, provide such details; yet, because these arguments appear in his reply brief, "that effort was too late." This curious conclusion comes notwithstanding the Chief Justice's acknowledgment that Dunn provided these arguments in reply to the Commonwealth's argument. And although the Chief Justice's objection to Dunn's advocacy is that he did not develop these points in his principal brief, she emphasizes that reply briefs are intended to allow a response to "matters raised by appellee's brief ... and not previously addressed in appellant's brief ," which would seem to be exactly what we are talking about here. This reasoning—"too late"—is an elevation of form over substance, and bad form at that. Unlike most overly formalistic justifications, this one is not even faithful to the language of the governing Rule. Such a conclusion comes dangerously close to sending the message to litigants that reply briefs just don't really matter.
OISA (Todd, C.J.) at 325.
Id.
Id. ("It is true that, after being criticized by the Commonwealth for these lapses, Dunn attempts to provide some such detail in his reply brief.") (citation omitted).
Id. (quoting Pa.R.A.P. 2113(a) ) (emphasis in original).
Perhaps aware that its analysis of the prejudice to Dunn's trial strategy is less than fully persuasive, the OISA falls back upon an assertion that the "incriminating nature of the facts in this case do not lend themselves to a finding of prejudice." The OISA then proceeds through what is effectively a repackaged harmless error analysis, opining that certain text messages that Dunn sent to the victim were so overwhelmingly inculpatory that there is no way that the absence of the Commonwealth's discovery violation could have affected the outcome. It is true that some of this Court's precedents appear to endorse such an "outcome-determinative" standard for evaluating prejudice in the context of discovery violations. However, like Justice Donohue, I question whether this variety of "prejudice" is suitable to the present inquiry, particularly where other precedents of this Court have analyzed the matter in different ways without acknowledging any disparity, e.g. , by looking for an impact upon the defendant's trial strategy, or by determining whether a discovery violation deprived the defendant of a fair trial. The word "prejudice" carries numerous meanings in the law. The resolution of the differing formulations and adoption of a uniform standard for evaluating prejudice in the context of discovery violations is an issue that is worthy of this Court's attention in a future case. That, however, is outside the scope of the present appeal.
OISA at 339.
Of course, if this is true, then it raises the question of why the Commonwealth ostensibly believed that it required Mesar's expert testimony to explain the victim's behavior in the first place. Moreover, if this was such an open-and-shut case, then it is curious that the Commonwealth elected to run the risk of giving Dunn such a late and minimal disclosure of its intent to call Mesar, effectively handing Dunn a potentially reversible issue on appeal. Apparently, at the time of trial, the Commonwealth was not content to rest its case solely on Dunn's text messages.
See OISR (Donohue, J.) at 350 n.13, and the cases cited therein.
For instance, "[p]rejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Commonwealth v. Keaton , 615 Pa. 675, 45 A.3d 1050, 1061 (2012). This is the "outcome-determinative" sense in which the OISA uses the term, at least in part of its Opinion. But that flavor of prejudice is very different than, for example, the "prejudice" assessed under Rule of Evidence 403, which instructs a court to exclude evidence "if its probative value is outweighed by a danger of ... unfair prejudice." Pa.R.E. 403. Prejudice in that sense "means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Pa.R.E. 403, Comment . And that is different still from dismissal of a claim "with prejudice," meaning that it may not be brought again. The word "prejudice" is not a universal signal that we must determine whether an error affected the outcome of a trial.
I agree with Justice Donohue that the OISA's approach to the prejudice inquiry "appears to be applying a variation of the harmless error doctrine, albeit with the burden ostensibly flipped to Dunn." I further agree that the OISA errs in this effort. Although the OISA is correct that the text messages it highlights appear to be highly inculpatory, Dunn presented the jury with an explanation for them—namely that he had sent the victim a risqué photograph of her mother, and that all of the referenced text messages concerned that photograph. To be sure, I do not find this explanation particularly compelling. Many of Dunn's text messages strike me as inculpatory. But I am not a juror. For an error to be deemed "harmless because there is properly admitted overwhelming evidence of guilt, the untainted evidence relied upon must be uncontradicted." As Chief Justice Emeritus Saylor once commented, "while there may be some divergent views regarding the precise contours of what constitutes contradicted evidence, the gravamen of that aspect of the harmless error framework is that the appellate courts should not attempt to replicate the jury's role in weighing the parties’ competing advocacies when assessing the comparative import of improperly admitted evidence." However implausible Dunn's explanation may appear from our appellate perch, evaluating the credibility of that explanation is not this Court's prerogative. Because Dunn refuted the inferences that the Commonwealth sought to have the jury draw from the text messages, there is no "uncontradicted" evidence upon which we may premise a harmless error analysis. And because we cannot rely upon contradicted evidence in the harmless error context, we also should not consider such evidence in assessing "prejudice," in the outcome-determinative sense.
OISR (Donohue, J.) at 352. Of course, because this Court in Commonwealth v. Hamlett , 660 Pa. 379, 234 A.3d 486 (2020), held that appellate courts may raise and decide the question of harmless error sua sponte , I do not believe that there is anything left of the Commonwealth's "burden" to prove harmless error. Rather, it is a matter that this Court may raise whenever we feel the inclination to advocate on the Commonwealth's behalf. See Hamlett , 234 A.3d at 495-523 (Wecht, J., dissenting).
The OISA acknowledges this explanation and notes that the victim even acknowledged that some of the text messages were in reference to the photograph. OISA at 340 ("According to the victim, Dunn was referencing the circumstances surrounding the photograph, as well as his past sexual abuse of the victim and fear that additional information may come to light during any investigation.") (citation omitted).
Commonwealth v. Story , 476 Pa. 391, 383 A.2d 155, 166 (1978).
Commonwealth v. Jacoby , 642 Pa. 623, 170 A.3d 1065, 1099 n.4 (2017) (Saylor, C.J., dissenting).
In all other respects, my views align with those expressed by Justice Donohue. I accordingly would reverse the order of the Superior Court.
Justices Donohue and Dougherty join this opinion in support of reversal.