Commonwealth v. McGinnis

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellee v. RICKEY MCGINNIS, Appellant

Court: Supreme Court of Pennsylvania

Date published: Dec 1, 2023

305 A.3d 547 (Pa. 2023)

Opinion

No. 26 WAP 2022

12-01-2023

COMMONWEALTH of Pennsylvania, Appellee v. Rickey MCGINNIS, Appellant

David R. Fine, Esq., K&L Gates LLP, Jonathan Richard Vaitl, Esq., for Amici Curiae Pennsylvania Innocence Project, The Innocence Network. Ronni Ellen Fuchs, Esq., Troutman Pepper Hamilton Sanders LLP, for Amici Curiae Support Center for Child Advocates, Women’s Law Project, AEquitas, Pennsylvania Coalition Against Rape, Zero Abuse Project. Craig Mitchell Cooley, Esq., for Appellant. Daniel Albert Vernacchio, Esq., Ronald Michael Wabby Jr., Esq., Allegheny County District Attorney’s Office, for Appellee.

PER CURIAM

Appeal from the Order of the Superior Court entered June 28, 2021 at No. 16 WDA 2020, affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered December 4, 2019 at No. CP-02-CR-0011014-2018. Jill E. Rangos, Administrative Judge

David R. Fine, Esq., K&L Gates LLP, Jonathan Richard Vaitl, Esq., for Amici Curiae Pennsylvania Innocence Project, The Innocence Network.

Ronni Ellen Fuchs, Esq., Troutman Pepper Hamilton Sanders LLP, for Amici Curiae Support Center for Child Advocates, Women’s Law Project, AEquitas, Pennsylvania Coalition Against Rape, Zero Abuse Project.

Craig Mitchell Cooley, Esq., for Appellant.

Daniel Albert Vernacchio, Esq., Ronald Michael Wabby Jr., Esq., Allegheny County District Attorney’s Office, for Appellee.

ORDER

PER CURIAM

AND NOW, this 1st day of December, 2023, the Court being evenly divided, the order of the Superior Court is AFFIRMED. The Commonwealth’s motion to dismiss, the appeal as improvidently granted is DISMISSED as moot.

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE MUNDY

In this appeal by allowance, we consider the admissibility of expert testimony regarding the possible falser or distorted memories of alleged child sexual-abuse victims.

The complainant, J.M., was born in June 2007 to Mother and her paramour, Appellant. Appellant and Mother began living separately in 2010. Thereafter, J.M. lived with Mother but visited Appellant at his home from time to time. Appellant would also see J.M. whenever Appellant visited Mother at her residence. In September 2012, all such visits ceased after Mother and Appellant permanently ended their relationship.

Four months later, in January 2013, J.M. disclosed to Mother that Appellant had sexually abused him. Mother took J.M. to the hospital. J.M. did not report the abuse at the hospital and a medical exam produced no evidence of abuse. Nevertheless, Mother, was advised to make a report with the police. Mother did so and was told someone would contact her for a forensic interview.^{1 1 1} After the interview, it was de- termined J.M. was unable to provide testimony due to his young age.^{2 2 2} Instead, he treated with therapists, who encouraged him to draw pictures if he was unable to express his thoughts verbally.

1 A police detective testified at trial that in child sexual assault cases, forensic interviews are used to evaluate whether a child accuser is qualified to testify at trial – meaning the child has an adequate fund of knowledge about the world and can distinguish between truth and imagination so as to articulate what occurred. The detective also noted that forensic interviews are administered outside the custodial parent’s presence; conducted by a third party using non-leading questions; and observed by the police through a mirror in another room. Children ages three to four are rarely qualified; children ages five and six are difficult to qualify; as they get older they are more easily qualified. And where an allegation exists but the victim is unable to articulate the incident adequately, counseling is recommended to aid in a developmental progression to the point where the child is able to describe the underlying facts. See N.T., 9/19/19, at 177-80, 184, 189. The police testimony also indicated that, during a forensic interview in a child sexual-abuse case, officers do not directly question a complaining witness less than thirteen years old "so they can’t be led in any direction." Id. at 193.

1 Justice Nigro filed a lone dissent in Delbridge I, explaining his view that taint is a matter of credibility and, therefore, not an issue of competency or "a proper subject of expert testimony." Delbridge I, 855 A.2d at 47 (Nigro, J., dissenting). Justice Eakin filed a concurring and dissenting opinion in Delbridge I, "disagree[ing] that ‘taint’ always goes to competency," and "tak[ing] issue on the use of expert witnesses on what is really a credibility issue." Id. at 49 (Eakin, J., concurring and dissenting).
Both Justice Nigro and Justice Eakin repeated their positions in their respective minority opinions in Delbridge II. See Delbridge II, 859 A.2d at 1261 (Nigro, J., concurring) ("[T]aint is a matter of credibility, not competency, and is therefore not the proper subject of either expert testimony or a competency hearing."); id. (Eakin, J., concurring) ("[T]his is a matter of credibility, not competence, and should have been dealt with accordingly.").

1 Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 837 (1992).

2 J.M. also suffered from speech delays which led to him receiving early intervention services starting at about three years of age. See N.T., 9/19/19, at 217 (testimony of Mother); N.T., 9/20/19, at 303 (testimony of Appellant).

2 An objection to the competency of a witness is subject to waiver. See Commonwealth v. Harris, 492 Pa. 389, 424 A.2d 1245, 1249 n.3 (1981) ("[W]e are of the view that … [the] appellant was obliged at trial to put the competency of [the witness] in issue and, [the] appellant not having done so, the issue is not preserved for appellate review."); see also Kosh, 157 A. at 482 ("If a party knows, before trial that a witness is incompetent …, he must make his objection before die, witness has given any testimony, and, if the incompetency appears on the trial, an objection must be interposed as soon as the incompetency becomes apparent.").

2 625 Pa. 450, 92 A.3d 766 (2014).

J.M. drew pictures which, though rudimentary, depicted Appellant sexually abusing him. J.M. continued to treat with therapists and draw pictures for several years. Eventually, when J.M. was eleven years old, he gave a forensic interview (his third) with a disclosure sufficient to qualify him as a witness and for charges to be brought against Appellant. Police obtained statements from J.M.’s therapists and collected the booklet of the drawings J.M. made during therapy. In August 2017, four years and seven months after J.M.’s first disclosure, Appellant was charged with rape of a child, involuntary deviate sexual intercourse with a child, incest of a minor, endangering the welfare of children, corruption of minors, and indecent exposure.^{3 3}

3 See 18 Pa.C.S. §§ 3121(c), 3123(b), 4302(b)(1), 4304(a)(1), 6301(aX1)(ii), 3127(a).

3 State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1374 (1994).

Appellant filed an omnibus pretrial motion, seeking to preclude J.M. from testifying. Appellant alleged, among other things, that J.M.’s memories had been tainted by Mother’s hostility toward Appellant, combined with a protracted course of investigative interviews with detectives and counselors in which the counselors had allegedly influenced J.M.’s memories of what occurred when he was five years old. This request was denied.

Citing Section 5920 of the Judicial Code, the Commonwealth filed a notice of intent to offer the expert testimony of Jamie Mesar, M.S.W., concerning how children generally disclose sexual abuse. That provision states, in relevant part:

(b) Qualification and use of experts.

(1) In a criminal proceeding [involving certain enumerated offenses], 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) (emphasis added).^{4 4}

4 In Commonwealth v. Olivo, 633 Pa. 617, 127 A.3d 769 (2015), this provision was upheld as a valid exercise of legislative power to enact a rule of evidence. The Court concluded the rule was "substantive rather than procedural as it permits both parties to present experts to testify to facts and opinions regarding specific types of victim responses and victim behaviors." Id. at 780 (internal quotation marks and citation omitted). Separately, unlike in Commonwealth v, Dunn, 300 A.3d 324 (Pa. 2023), there is no allegation in the present case that the Commonwealth’s notice of its intent to present such evidence was untimely.

4 Id. at 1380.

In response, Appellant filed a motion in limine to preclude Ms. Mesar’s testimony. He also moved to proffer his own expert witness on false memories in children, cognitive psychologist Bruce Chambers, Ph.D. The common pleas court held a hearing on the motions at which Ms. Mesar testified. The court ultimately permitted the Commonwealth to call Ms. Mesar as an expert witness under Section 5920.

The court indicated, however, that Dr. Chambers’ testimony could not be admitted absent a Frye hearing. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (holding novel scientific evidence based on a scientific technique is only admissible if the technique has gained general acceptance in the relevant scientific community). The court also expressed skepticism that Dr. Chambers’ testimony fell within the scope of Section 5920. As well, the court requested decisional authority addressing the type of evidence Dr. Chambers would provide, his curriculum vitae, and information as to whether he had testified as an expert in this area in Pennsylvania or had been subject to a Frye hearing in the past. Defense counsel responded he "believed" Dr. Chambers had testified in other Pennsylvania judicial proceedings.

On August 5, 2019, Appellant sent the prosecution a letter from Dr. Chambers setting forth his curriculum vitae and indicating his testimony would include such matters as: the role of interview bias; the effects of repeated questioning; the tainting effects of suggestive interviewing; the role of suggestion in delayed recall of child sexual abuse; and the creation of false memories. Dr. Chambers added he would not testify about J.M. specifically, but about the topic of false memories generally. In his curriculum vitae, Dr. Chambers stated he had testified as an expert witness in hundreds of child sexual abuse cases in Pennsylvania. Although this was sent to the prosecution, the record does not indicate it was filed with the court. Thereafter, on August 19, 2019, Appellant filed with the court a brief in support of the admissibility of Dr. Chambers’ testimony.

The following day, August 20, 2019, the trial court issued an order rejecting the defense proffer and indicating the testimony did not fall within Section 5920 because it did not relate to the dynamics of sexual violence, victims’ responses to such violence, or the impact of such violence. The court added Appellant had not provided the requested information, such as the curriculum vitae or an explanation of whether Dr. Chambers had been qualified as an expert in any area, and hence, it could not determine whether a Frye hearing was needed. Separately, the court stated Dr. Chambers’ testimony would invade the province of the jury to determine credibility, and as such, was inadmissible on that basis per Commonwealth v. Pugh, 101 A.3d 820 (Pa. Super. 2014) (en banc), which concluded that "expert testimony regarding false confessions is impermissible as it provides no pedagogical purpose and interferes with the jury’s, exclusive duty to assess the credibility of witnesses." Id. at 821.^{5 5}

5 Since Pugh dealt with false confessions, whereas Dr. Chambers’ proposed testimony would have addressed false or distorted memories, the trial court evidently referenced Pugh for the broader prohibition on interfering with the jury’s exclusive duty to judge credibility. See Pugh, 101 A.3d at 822-23 (citing Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 42 (2003) ("[E]xpert testimony will not be permitted when it attempts in any way to reach the issue of credibility, and thereby usurp the function of the factfinder.")).

5 Id. at 1377 (citations omitted).

One week later, on August 27, 2019, the court held an in camera hearing where J.M., now twelve years old, was questioned. Based on J.M.’s answers, the court found him competent to testify, and the matter proceeded to a jury trial.

At trial, the Commonwealth, called Ms. Mesar as an expert in child sexual abuse pursuant to Section 5920. Her testimony was general rather than being connected with J.M.’s behavior specifically. She stated: there is no "normal" way children disclose sexual abuse, and instead, the disclosure process differs with each victim; with a very young child, disclosure may be affected by the relationship between the abuser and the child and the abuser’s closeness with or supervision of the child; there is likewise no "normal" way in which victims behave, as children react differently to mistreatment, trauma, and other events; and some children may never disclose sexual abuse. The drawings J.M. made in therapy were introduced. J.M. testified about them and stated his father "put his penis in my butt." The Commonwealth also presented the testimony of Mother, two police detectives, and the two therapists J.M. had treated with. Appellant testified in his defense, stating he did not rape J.M., nor did he engage in any sexual contact with him.

The jury convicted Appellant on all counts and the court sentenced him to 14½-to-29 years in prison. Appellant appealed to the Superior Court.

In compliance with a trial court order, Appellant filed a Rule 1925(b) concise statement, see Pa.R.A.P. 1925(b), in which he maintained, inter alia, that the trial court erred in (1) precluding Dr. Chambers’ testimony to the effect that "certain ‘responses and behaviors’ may not be the result of actual sexual assaults," and (2) failing to allow Dr. Chambers to testify so as to discuss the "fallibility of ‘therapy’ that … resulted in the drawings/trauma narrative done by [J.M.] while in the care of [Mother]." In this latter issue. Appellant continued that "Dr. Chambers would have provided testimony as to the unreliability and/or suggestibility of the ‘therapy’ … that resulted in said drawings/trauma narrative." Commonwealth v, McGinnis, No. CP-02-CR-10014-2018, Concise Statement of Errors Complained of on Appeal, at 1-2 (C.P. Allegheny, filed Jan. 27, 2020).

The trial court issued a Rule 1925(a) opinion. The court noted it never received the information necessary to determine whether a Frye hearing was needed, such as whether Dr. Chambers had previously been qualified as, an expert, and in what area, a curriculum vitae, or an expert report. See Commonwealth v, McGinnis, No. CP-02-CR-10014-2018, slip op. at 7-8 (C.P. Allegheny Feb. 24, 2020). It explained, as well, that Appellant’s proffer did not fall within the scope of Section 5920, as it did not relate to 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." Id. at 8 (quoting 42 Pa. C.S. § 5920(b)(1)). Filially, the court repeated its prior assertion that the testimony was inadmissible under Pugh insofar as it related to false memories and, as such, would be used exclusively to undermine the victim’s credibility and thereby invade the province of the jury which is, solely tasked with determining credibility. See id.

A divided three-judge panel of the Superior Court affirmed in an unpublished decision. See Commonwealth v. McGinnis, No. 16 WDA 2020, 258 A.3d 554, 2021 WL 2652690 (Pa. Super. June 28, 2021) (table). In the lead opinion, authored by Judge McCaffery, the court noted initially the admissibility of evidence lies within the trial court’s discretion, and evidentiary rule 702 governs the admission of expert testimony – which is generally admissible if the witness holds specialized knowledge beyond that possessed by laypersons, such knowledge will help the trier of fact understand the evidence or determine a fact in issue, and the expert’s methodology is generally accepted in the relevant field. See id. at *5 (quoting Pa.R.E. 702). Additionally, the court referred to the principle, expressed in Pugh, that expert testimony concerning a witness’s credibility is prohibited. See id.

The court also acknowledged Appellant’s arguments to the effect that; young children may be deferential to adults’ beliefs and have particular difficulties identifying the sources of their beliefs; it. can be challenging to elicit information from children without asking leading questions; there was no physical evidence of abuse; J.M.’s testimony occurred after years of therapy; his "anal sex narrative" was non-descript; Dr. Chambers’ testimony would have leveled the playing field in light of the Commonwealth’s expert testimony admitted under Section 5920; and the testimony was admissible pursuant to Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766 (2014), which held admission of expert testimony in the field of human memory, perception, and recall, for purposes of challenging eyewitness identification of a defendant, was not per se impermissible, See McGinnis, 2021 WL 2652690, at *6. The court rejected these arguments on the basis that the proposed testimony would not have related to the dynamics of sexual violence or victim responses thereto, but rather, to the tainting effects of suggestive interviewing techniques, the role of suggestion in delayed recall of child sexual abuse, the creation of false memories, and the like. As such, the court found that the testimony fell outside the scope of Section 5920. See id. at *7.

Further, the intermediate court indicated the trial court appropriately rejected Dr. Chambers’ testimony on the basis that its sole use would have been to undermine J.M.’s credibility and, as such, would invade the jury’s province. See id. (citing 42 Pa.C.S. § 5920(b)(3) (prohibiting expert testimony regarding the credibility of another witness); Commonwealth v. Jones, 663 Pa. 20, 240 A.3d 881, 896 (2020) (same)). In this respect the court rejected Appellant’s suggestion that Dr. Chambers’ defense testimony would merely have been the mirror image of Ms. Mesar’s testimony for the prosecution. It added that in view of its determination, it need not address whether the testimony was otherwise admissible per the trial court’s discretion under Walker.

In terms of whether a Frye hearing was needed, the Superior Court recited that Appellant contended such a hearing was unnecessary because there was nothing novel about principles of cognitive psychology regarding false memories in children attained through manipulative, biased, or coercive interviews, as acknowledged in Commonwealth v. Delbridge, 578 Pa. 641,-855 A.2d 27 (2003).^{6 6} The court agreed that a Frye hearing was unnecessary, but for a different reason: because, again, in its view Dr. Chambers’ testimony would have been used exclusively to undermine J.M.’s credibility, an improper function for a trial witness. See McGinnis, 2021 WL 2652690, at *7

6 The Delbridge Court explained:
Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the "right" answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.
Id. at 39-40. We found persuasive decisions by other state courts acknowledging the phenomenon of "taint," that is, that young children’s memories can be corrupted by the way interviews and investigations are conducted. We determined the question of whether a child witness’s memory of an event has been tainted may be examined during a pretrial competency determination. See id. at 40. We declined, however, to render an opinion on the acceptance of taint within the relevant scientific community. See id. at 39 n. 12.

6 Id. at 1378.

Insofar as Delbridge indicates that taint relates to competency rather than credibility, and, as such, should be explored at a pretrial competency hearing, see supra note 6, the court noted Appellant argued no such hearing was necessary here because he wanted to use Dr. Chambers’ "generic" false-memory testimony to cast doubt upon the credibility of the government’s evidence, rather than impugn J.M.’s competency – and defendants have a constitutional right to challenge the credibility of the government’s evidence. See Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). The court found this claim waived as it was being asserted for the first time on appeal. See McGinnis, 2021 WL 2652690, at *8.^{7 7}

7 In fact, in his brief in support of Dr. Chambers’ testimony Appellant had included a claim that preclusion of such testimony would violate his Sixth and Fourteenth Amendment rights. However, he waived that claim by failing to repeat it in his Rule 1925(b) statement. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309(1998).

7 Id. at 1379.

Judge Bowes authored a memorandum concurring in the result on the basis that Dr. Chambers’ expert report was insufficiently specific to apprise the trial court and the prosecution of the nature and substance of the opinion testimony he would give at trial, how it would relate to the topics within the scope of Section 5920, or how it would rebut the testimony of the Commonwealth’s expert, Ms. Mesar. Thus, the concurrence agreed the trial court acted within its discretion. Judge Bowes declined, however, to join the lead opinion to the extent it suggested all, expert false-memory testimony lies outside that statutory provision. See id. at *9 (Bowes, J., concurring) ("I am unwilling to foreclose the possibility that an expert may proffer testimony about interview techniques or therapy that would implicate victims’ responses to sexual violence or its impact within the meaning of § 5920, without opining about the credibility of the witnesses."). In this regard, Judge Bowes read Delbridge and other Pennsylvania precedent as suggesting such testimony is not the type of novel scientific evidence that would have to be tested in a Frye hearing, and that it could be admitted in an appropriate case if it stopped short of opining the prosecution witness was, in fact, tainted. See id. Finally, the concurrence rejected Appellant’s contention he should have been allowed to present Dr. Chambers’ testimony at trial to undermine J.M.’s credibility (as opposed to competency), on the basis that case law expressly forbids expert testimony proffered with that objective because it invades the jury’s province. See id. at *10 (citing, inter alia, Jones, 240 A.3d at 897; Commonwealth v. Maconeghy, 642 Pa. 770, 171 A.3d 707, 712 (2017) (holding a medical expert’s opinion that a child had been sexually abused based solely on the child’s statements to that effect intruded into the jury’s assessment of witness credibility)).

Senior Judge Colins dissented, noting that in Jones, as well as Commonwealth v. Smith, 206 A.3d 551 (Pa. Super. 2019), the courts held experts could testify under Section 5920 on such topics as whether it was common for child victims of sexual assault to have trouble remembering dates and details of ongoing abuse, and whether it was common for such victims to share details of abuse in piecemeal fashion and relate details differently in separate accounts. Given this, together with the "broad-ranging" expert testimony given by Ms. Mesar in the present case concerning children who initially disclose but then recant or change, their accounts of the abuse, the dissent concluded Section 5920 is "expansive." McGinnis, 2021 WL 2652690, at *11 (Colins, S.J., dissenting). The dissent did not discern any principled rationale to exclude Dr. Chambers’ "proposed generic expert testimony to the effect that, as a result of repeated forensic interviews and psychotherapy sessions, some children mistakenly come to believe they are victims of sexual abuse." Id. (emphasis in original). Accordingly, the dissent would have vacated Appellant’s judgment of sentence and remanded for a new trial at which Dr. Chambers would be permitted to testify.

We allowed further review on the question of whether "generic" false-memories expert testimony in a child sexual abuse prosecution, which the defendant is seeking to present solely to educate jurors about how legitimate and false/distorted memories are and can be created in children, is admissible at trial. See Commonwealth v. McGinnis, 279 A.3d 506 (Pa. 2022) (specifying, as well, that the issue accepted for review does not subsume any question of constitutional dimension).^{8 8}

8 In addition to the party briefs, two amicus briefs have been filed. The Innocence Network and the, Pennsylvania Innocence Project, favoring Appellant, mainly urge this Court not to issue a per se rule that the type of evidence here at issue can never be admitted ai trial, The Support, Center for Child Advocates, the Women’s Law Project, and related organizations favor the Commonwealth; they contend the science of false/distorted memories is flawed and should be subject to a Frye hearing, and forensic interviews are reliable. They urge this Court to, at most, allow expert testimony on a case-by-case basis.

8 529 Pa. 168, 602 A.2d 830 (1992).

It has long been the rule that experts generally are not permitted to testify regarding a witness’s credibility, as that would invade the jury’s role as the sole arbiter of witness credibility. See, e.g., Commonwealth v. Seese, 512 Pa. 439,517 A.2d 920, 922 (1986).^{9 9} Lay jurors have been assumed to understand from common sense and common experience the reasons a given witness may testify falsely, and whether a particular witness is telling the truth, see Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988); Commonwealth V. Alicia, 625 Pa. 429, 92 A.8d 753, 761-62 (2014) (discussing cases); cf. Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 837 (1992) (indicating the reasons a child victim of sexual assault might delay reporting are "within the range of common experience" and thus are understood by juries), superseded by statute as recognized in Commonwealth v. Jones, 663 Pa. 20, 240 A.3d 881 (2020), particularly given the availability of cross examination. See Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 631 (1995). Courts have also expressed that expert testimony could invest the opinions of experts with an unwarranted appearance of authority on the subject of credibility, see Commonwealth v . Gallagher, 519 Pa. 291, 547 A.2d 355, 358 (1988), and could lead to rebuttal expert testimony by the Commonwealth, which would only serve to confuse the jury. See Commonwealth v. Alicia, 625 Pa. 429, 92 A.3d 753, 764 (2014) (plurality).

9 To help understand how judge-made rules which categorically exclude certain types of evidence interact with the Pennsylvania Rules of Evidence, the path, to admissibility has sometimes been, compared to clearing hurdles. See, eg., State v. Reece, 349 P.3d 712, 731 (Utah 2015) (noting evidence of prior bad acts "must clear several evidentiary hurdles before admission"). While the Pennsylvania Rules of Evidence set up these hurdles, see, e.g., Pa.R.E. 403, a judicial decision that precludes evidence on a categorical basis, like Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988) (prohibiting expert testimony that child sex abuse victims lack the ability to fabricate sexual experiences), prevents the evidence from entering the race in the first place – as does a statute such as the Rape Shield Law, see 18 Pa.C.S. 3104(a), subject of course to constitutional limitations. See Commonwealth v. Rogers, — Pa. — 250 A.3d 1209, 1216 (2021). An enactment such as Section 5920, or a court decision like Walker, lifts that prohibition for certain kinds of proofs, but it does not remove the hurdles otherwise established by the evidentiary rules such as the need for relevance and the requirement that an expert be qualified. See Jones, 240 A.3d at 891.

9 Id. at 838.

In recent years, however, the rule has been relaxed in some discrete contexts where credibility is viewed as having two parts: veracity, that is, whether the witness is being honest, and reliability, which addresses how a witness may incorrectly believe he or she is telling the truth. See Commonwealth v. Walker, 625 Pa. 450, 92 A3d 766, 779 (2014) (explaining eyewitnesses may offer inaccurate, but honestly held, recollections when identifying a perpetrator). The jury alone decides veracity, see Seese, 517 A.2d at 922, whereas there is now some, room to introduce expert testimony about reliability in certain situations. Such expert evidence serves a pedagogical purpose in that it tends to be generalized and aimed at assisting the jurors by instructing them on advances in the social, cognitive, and behavioral sciences, and it does not purport to evaluate any specific eyewitness testimony given at trial or comment on any witness’s truthfulness. Accord Walker, 92 A.8d at 784; see also id. at 785 (observing that per Rule 702 an expert may testify in the form of an opinion or otherwise, and the "or otherwise" phraseology contemplates a possible educational function for such testimony).^{10 10}

10 Rule 702 provides that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) 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; and (c) the expert’s methodology is generally accepted in the relevant field."

10 Id. at 837.

Thus, in Walker we recognized a valid purpose for expert testimony to educate jurors about phenomena that might impair the reliability of eyewitness identification. See id. at 792-93. These factors included the phenomenon of weapons focus; the reduced reliability of cross-racial identifications; decreased accuracy in relation to high-stress criminal events; the lack of a strong correlation between witness confidence and witness accuracy; and the "increased risk of mistaken identification when police investigators do not warn a witness, prior to viewing a photo array or line up, that the perpetrator may or may not be in the display." Id. at 773-74.^{11 11} In the companion case of Commonwealth v. Alicia, 625 Pa. 429, 92 A.3d 753 (2014), however, we disallowed expert testimony on police interrogation techniques and the resulting phenomenon of false confessions, as that would invade the province of the jury. Two Justices distinguished Walker on the basis that the proffered testimony in Alicia was designed to support the defense theory that the confession was, a lie, and as such, to opine on the defendant’s veracity at the time of the, confession. See id. at 762 n.12 (McCaffery, J., joined by Baer, J.).

11 In Commonwealth v. Thomas, 654 Pa. 378, 215 A.3d 36 (2019), we declined to extend Walker to a situation where there was other substantial evidence of guilt, as we understood Walker as mainly being concerned with situations where the Commonwealth’s case largely or wholly rests on the identification of a single eyewitness. See id. at 49-50.

11 Id. (emphasis in original).

The Alicia Court noted there was no claim the supposedly false confession was of the "internalized" kind in which the suspect confesses to a crime tinder the belief he committed it although he has no memory of doing so – as opposed to the more common "compliant" category in which the suspect is psychologically pressured to lie, giving a false confession so as to end the interrogation and perhaps obtain lenient treatment. See id. at 758 & n.8. This left the door open for consideration of whether similar testimony might be admissible-where tile defense argued the confession was an internalized false confession – and more broadly to other types of expert testimony relating to witness reliability. See id. at 765 (Saylor, J., dissenting) (observing Walker reflected "an emerging reluctance to adhere reflexively to nineteenth-century conventions and axioms, amidst growing evidence produced by social and behavioral scientists (among others) that these may have been precipitous").

Six years later, in Commonwealth v. Jones, 663 Pa. 20, 240 A.3d 881 (2020), we held a police detective could supply expert testimony under Section 5920, the provision at issue herein, concerning victim behavior in response to sexual abuse. That enactment superseded Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992), which found reversible error where an expert witness was permitted to testify concerning child "sexual abuse syndrome," ie., typical behavior patterns of sexually abused children – including why children might forget some details, omit details, or delay reporting.^{12 12} Finally, by per curiam order in Commonwealth v. Brown, 262 A.3d 1258 (Pa. 2021) (table), we granted review to address whether the trial, court erred in excluding expert testimony regarding "blood alcohol content and its effect upon memory and perception," id. at 1259, but we later dismissed the appeal as improvidently granted. See Commonwealth v. Brown, — Pa. —, 274 A.3d 1240 (2022) (Mem.).

12 Jones also held that, because Section 5920 recognizes expertisa is needed on this topic, lay opinion testimony on the subject is precluded. See Jones, 240 A.3d at 896.

12 Ric Simmons, Conquering the Province of the Jury: Expert Testimony and the Professionalization of Fact-Finding, 74 U. Cin. L. Rev 1013, 1015 (2006); id. at 1018-1023 (discussing the history of the "province-of-the-jury" prohibition, which "grew naturally out of" the rule that expert testimony is admissible only if: (1) "the expert possessed a specialized skill in a particular subject" and (2) "the expert’s opinion could assist the jury"); see Anne Bowen Poulin, Credibility: A Fair Subject for Expert Testimony?, 59 FLA. L. REV. 991, 993 (2007) ("The common-law prohibition against expert testimony on credibility should not continue to restrict the admissibility of evidence bearing on credibility. Instead, courts should set aside the maxim's broadly stated prohibition and should eliminate the overprotection of the jury’s ‘special province.’ "); see also Commonwealth v. Alicia, 625 Pa. 429, 92 A.3d 753, 765 (2014) (Saylor, J., dissenting) (suggesting that this Court’s preWalker decisions "adhere[d] reflexively to nineteenth-century conventions and axioms").

The broader impact of Walker remains an open question, and the present controversy is the latest expert-testimony dispute in the Walker line. It involves whether general, educational expert testimony concerning the false or distorted memories of a child invades the jury’s province, as well as the scope of Section 5920, i.e., whether that statute should be read broadly, as posited by the dissent below, to include such testimony.

As for the scope of the statute, the issue is whether the Superior Court dissent was correct in stating that there is no "principled rationale" to exclude generic expert testimony along the lines of that proposed by Dr. Chambers. In our view, the principled rationale is that the statutory text does not refer to such evidence. Para- graphs (b)(1) and (2) are the substantive provisions describing what type of testimony may be admitted. Paragraph (b)(1) relates to testimony that can 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." 42 Pa.C.S. § 5920(b)(1). Paragraph (b)(2) states an expert qualified under Section 5920 may "testify to facts and opinions regarding specific types of victim responses and victim behaviors." Id. § 5920(b)(2). These provisions describe situations where there has in fact been sexual or domestic violence, not circumstances involving false memories of violence. Evidence regarding how a young victim’s memory might be tainted by suggestive or coercive interviewing or therapy techniques, moreover, relates to the impact of those techniques, not the impact of the violence. As Section 5920 is limited in scope to evidence concerning violence and victim responses thereto, it does not encompass the type of expert testimony proposed by Appellant in this matter. Accord Brief for Commonwealth at 29 ("The statute covers responses to sexual violence, not responses to any questioning that may happen after the fact.").^{13 13}

13 Contrary to the assertion of the Opinion in Support of Reversal (OISR), the scope of Section 5920 is properly before us. See OISR at 565–66. It was addressed by the Superior Court, and we accepted review on the issue of "[w]hether ‘generic’ false memories expert testimony in a child sexual abuse prosecution, which the defendant is presenting solely to educate jurors about how legitimate and false/distorted memories are and can be created in children, is admissible at trial?" Commonwealth v. McGinnis, 279 A.3d 506 (Pa. 2022) (per curtiam). If Section 5920 encompasses such testimony, the answer to the question presented is yes; if not, the answer depends on whether such testimony is admissible pursuant to other legal rules. In our order we expressly limited out any issue of constitutional dimension, but we did not limit out issues of statutory dimension. Further, both parties have briefed the issue. See Brief for Appellant at 39; Brief for Appellee at 29.

13 Brief for McGinnis at 45-46.

The question becomes, then, whether such testimony is otherwise admissible. There are conflicting policy considerations that surround the introduction of evidence about the reliability of an account given by children in sexual assault prosecutions. One is that a person should not be able to escape justice by victimizing children too young to be effective eyewitnesses; thus, there is an important societal interest in permitting such children to give an account of the underlying conduct long after the date of the offense when they have become competent to testify. As illustrated by the present case, during that interval they will likely have undergone counseling and forensic interviews. Conversely, society has an interest in assuring that innocent defendants are not criminally punished due to the susceptibility of young children to suggestion. Along these lines, the New Jersey Supreme Court has observed that investigative interviews can be "fraught with the elements of untoward suggestiveness and the danger of unreliable evidentiary results," State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1382 (1994), and this Court has indicated that children are particularly subject to suggestion and they often wish to give the "right" answer to an interviewer. See supra note 6 (quoting Delbridge, 855 A.2d at 39-40).^{14 14} Thus, as the Superior Court has succinctly stated:

14 See generally Modern Scientific Evidence The Law & Science of Expert Testimony § 16:13 (relating to the suggestibility of child witnesses); Proof of Reliability of Eyewitness and Earwitness Testimony, 92 Am Jur Proof of Facts 3d 379, at § 5 (relating to age and disability as witness factors, and expressing that, "[d]espite the courts’ willingness to consider children’s testimony, there is considerable evidence, both from scientific research and from court cases, that children can be lead [sic] into recalling events inaccurately or confabulating"); 2 Litigator’s Handbook of Forensic Medicine § 10:30 (discussing the McMartin Preschool abuse case in California).

14 Id. at 46-47.

One [concern] is that [the Commonwealth] should not be denied justice because reliance necessarily must be placed upon the testimony of a child of tender years. But, on the other hand, experience has informed us that children are peculiarly susceptible to the world of make-believe and of suggestions. Care must be exercised to keep the balance true as between these conflicting claims.

Commonwealth v. D.J.A., 800 A.2d 965, 970 (Pa. Super. 2002) (en banc). The tension reflected in these competing policy objectives is acute because it is widely recognized that the sexual abuse of children generally occurs where the only two witnesses are the perpetrator and the victim,^{15 15} and physical proofs are often absent due to a reporting delay. Also, in child sexual assault prosecutions, the stakes are high for all concerned. Accord Maconeghy, 171 A.3d at 713.

15 See, e.g., People v. Harlan, 222 Cal.App.3d 439, 271 Cal. Rptr. 653, 660 (1990); Opinion of the Justices to the Senate, 406 Mass. 1201, 547 N.E.2d 8, 9 (1989); State v. J.C.E., 235 Mont. 264, 767 P.2d 309, 311 (1988), overruled in part on other grounds, State v. S.T.M., 317 Mont. 159, 75 P.3d 1257, 1263 (2003); Commonwealth v, Huertas, 2020 WL 408887, at *12 n.l (Pa. Super, Jan. 24, 2020); State v. Hood, 438 P.3d 54, 69 (Utah Ct. App. 2018).

15 42 Pa.C.S. § 5920.

In attempting to "keep the balance true," and upon careful review, we see no basis to set down a per se rule precluding expert child-memory-taint evidence in all cases. Accord, e.g., United States v. Rouse, 111 F.3d 561, 571 (8th Cir. 1997); Jenkins v. Commonwealth, 308 S.W.3d 704, 711-13 (Ky. 2010); State v. Sargent, 144 N.H. 103, 738 A.2d 351, 354 (1999); Barlow v. State, 270 Ga. 54, 507 S.E.2d 416, 417 (1998); State v. Wigg, 179 Vt. 65, 889 A.2d 233, 241-42 (2005). But see State v. Gordius, 544 A.2d 309, 311 (Me. 1988). Generally speaking, testimony is hot inadmissible solely because it "allows the jury to draw inferences" about another witness’s credibility, Wigg, 889 A.2d at 241, and Walker reflects that in some instances expert evidence describing factors that may undermine the reliability of a fact witness’s memories may be admissible where the expert’s knowledge is beyond the ken of the average layperson as required by evidentiary rule 702(a). There is no reason in logic to exclude the area of child susceptibility to false or distorted memories from the more general precept reflected in Walker, particularly, as expert evidence on this topic can equip jurors with knowledge useful to their fact-finding role. So long as the question of the witness’s honesty or veracity is reserved exclusively for the jury, and all other conditions for the admission of such evidence are satisfied, we would find there is no per se bar. These other conditions include that the evidence is relevant and is not otherwise excluded by the Pennsylvania Rules of Evidence. See supra note 9.

In this latter regard, the admissibility of expert testimony is, notably, subject to other prerequisites. Rule 702 indicates the expert’s specialized knowledge must "help the trier of fact to understand the evidence or to determine a fact in issue," Pa.R.E. 702(b); see Maconeghy, 171 A.3d at 712 (summarizing Rule 702’s demands).^{16 16} This dovetails with the more general precept that to be admissible, the evidence must be relevant, see Pa.R.E. 402, meaning it must tend to make a fact of consequence in the case more or less probable. See Pa.R.E. 401; see also Walker, 92 A.3d at 787 (restricting expert evidence concerning factors impacting upon the reliability of eyewitness testimony to cases where such evidence is relevant). In Walker, the Commonwealth’s case relied almost exclusively on eyewitness testimony and, as this Court highlighted, such testimony was subject to the very factors the pertinent social science had flagged as leading to potential inaccuracies – including, inter alia, weapons focus, the reduced reliability of cross-racial identifications, and decreased accuracy in relation to high-stress criminal events. See id, at 791. We therefore determined such testimony was admissible at the discretion of the trial court assuming not only that the expert was qualified, but that the evidence was relevant and would assist the jury. See id. at 792. We explained that

16 Rule 702’s third requirement is that the expert’s ‘methodology be "generally accepted in the relevant field." Pa.R.E. 702(c); supra note 10, As such, a subsidiary issue to the one framed for review is whether the evidence proffered by Appellant in this case, involving cognitive psychology, memory formation, and memory taint, requires a Frye bearing. See Commonwealth v Topa, 471 Pa. 223, 369 A.2d 1277 (1977) (adopting the Frye rule in Pennsylvania). In Commonwealth v. Delbridge, 580 Pa. 68, 859 A.2d 1254 (2004) (opinion after remand), this Court deferred the question to a future case in which there is pretrial proof of taint so as to trigger the need for expert testimony at a competency hearing. See id. at 1260. The issue is complicated somewhat in the present matter because of the procedural history in the county court as summarized above. See generally Brief for Commonwealth at 20-23, Additionally, the Commonwealth posits that, even if child memory-taint science was once generally accepted, recent scholarly criticism has generated sufficient controversy over its continued validity that the science has gained revived novelty. See Brief at 18-19.
In light of our holding below relating to the predicate need for proof of taint, we need not resolve in this appeal whether an accepted area of science can reacquire novelty for Rule 702(c) purposes, or whether a Frye hearing is required for this particular type of evidence. Finally, and contrary to Appellant’s argument, see Brief at 39-41, this is not the same area of, science as how victims react to sexual violence – made admissible by 42 Pa.C.S. § 5920(b)(2).

16 Id.; see Commonwealth v. McGinnis, 258 A3d 554, 2021 WL 2652690, at *7 (Pa. Super. 2021) (holding that McGinnis’ "proffer did not relate to ‘the dynamics of sexual violence, victim responses to sexual violence[,] [or] the impact of sexual violence on victims during and after being assaulted[,]’ and thus, does not fall within the purview of Section 5920").

the defendant must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert’s testimony is relevant to the eyewitness identifications under consideration and how it will assist the jury in its evaluation. The proof should establish the presence of factors (e.g., stress or differences in race, as between the eyewitness and the defendant) which may be shown to impair the accuracy of eyewitness identification in aspects which are (or to a degree which is) beyond the common understanding of laypersons.

Id. (emphasis added). This type of limitation, which helps filter out expert testimony that has little demonstrable relevance at trial and thus fails, to comply with evidentiary rules 702(b) and 402, was also endorsed by this Court in Delbridge in the context of a pretrial taint hearing. After surveying decisions by other state courts, we observed that exploring taint in the pretrial setting should be allowed "in those cases where there is some evidence that improper interview techniques, suggestive questioning, vilification of the accused and interviewer bias may have influenced a child witness to such a degree that the proffered testimony may be irreparably compromised," Delbridge, 855 A.2d at 39.

Applying the above rationale in the present context, we would hold the proffered expert testimony concerning implanted or distorted memories of sexual abuse must, as a predicate to admissibility, be linked in some way to the actual evidence in the case concerning possible taint, such as the interviews and counseling the alleged child victim underwent that may have led to such distortions, or a third party’s animosity toward the defendant that may have resulted in fabricated memories. It is insufficient to rely solely on the circumstance that the child was subject to interviews and counseling or that a third party harbored hostility toward the defendant. Something more must be present to suggest those occurrences could have had a distorting effect. See Pa.R.E. 104(b) (pertaining to relevance that depends on a fact); cf. Jones, 240 A.3d at 896-97 (courts must evaluate on a case-by-case basis whether expert testimony concerning victim responses to sexual assaults impermissibly invades the jury’s province to determine witness credibility).^{17 17}

17 The OISR criticizes this as a "new admissibility standard" that we would unfairly apply to Appellant. OISR at 563, 568. As can be seen, however, we would apply the reasoning reflected in prior cases together with our long-established rules of evidence.
The OISR also complains of "piecemeal" and "ad hoc" decision making because we do not address the admissibility of other types of expert evidence unrelated to this case. Id. at 567–68. Any questions along those lines, however, have not been raised, briefed, or accepted for review.
Finally, our proposed ruling is not internally "contradictory" or otherwise lacking in, clarity. Id. at 571–72. There is a material difference between testimony indicating only that one parent harbors animosity toward the other (a state of mind), and proofs suggesting an inference that such animosity may have had an influence on the alleged victim’s memories.
In this respect, the OISR’s blanket assertion that "[r]elevance does not require ‘proofs’ of anything," id., is inconsistent with the recognized concept of conditional relevance, see 1 McCormick On Evid. § 53 (8th ed. & July 2022 update); United States v. Tony, 948 F.3d 1259, 1263 (10th Cir. 2020) ("The necessity of expert testimony involves the principle of conditional relevance. Under this principle, a district court may exclude evidence if the jury could not reasonably find the existence of a preliminary fact essential to make the evidence relevant."); Kosmas v. State, 316 Md. 587, 560 A.2d 1137, 1144 (1989); Reilly by Reilly V. SEPTA, 330 Pa.Super. 420, 479 A.2d 973, 1001 (1984), and with Pa.R.E. 104(b) itself which, as noted, addresses relevance dependent upon whether a preliminary fact exists, As for when such evidence must be introduced, we would not foreclose that a trial court may admit expert testimony subject to later presentation of evidence of the preliminary fact, with the burden on the opposing party to move to strike if such proofs are not eventually adduced. See Pa.R.E. 104(b); accord Huddleston v. United States, 485 U.S. 681, 690 n.7, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (quoting 21 C. Wright & K. Graham, Federal Practice & Procedure § 5054 (1977)); cf. Edward J. Imwinkelreid, Judge versus Jury: Who Should Decide Questions of Preliminary Facts Conditioning the Admissibility of Scientific Evidence, 25 WM. & Mary L. Rev 577, 590-91 (1996) (proposing when two items of evidence are relevant only when the other exists, evidence of either may be forwarded first, conditioned on subsequent evidence of the other) (quoting Maine Rule of Evidence 104, Advisor’s Note).

17 McGinnis, 2021 WL 2652690, at *9 (Bowes, J., concurring) ("I am unwilling to foreclose the possibility that an expert may proffer testimony about interview techniques or therapy that would implicate victims’ responses to sexual violence or its impact within the meaning of § 5920, without opining about the credibility of the witnesses."); id. at *11 (Colins, J., dissenting) (suggesting that Dr. Chambers’ testimony was admissible under Section 5920).

Here, there was no such showing. Several days before trial, the common pleas court held a pretrial motion conference in which the subject of Appellant’s proposed expert testimony was discussed. The court began by expressing its view that, from what it had seen, J.M. never wavered concerning the disclosure he originally made at age five. The court continued that while J.M.’s failure to articulate the disclosure at that time sufficiently to be qualified as a witness and for charges to be brought would be explored at trial, there was no basis to think any unusual or experimental therapy was utilized, or any other basis to conclude J.M.’s memories had been "refreshed" or tainted by the therapy he was given. N.T., 9/4/19, at 3. Defense counsel responded that Dr. Chambers was proposing to

plac[e the] cognitive therapy that the child did undergo several years into a proper context to indicate, not necessarily that the disclosure could be false, but that certain criteria in terms of what should be done with cognitive therapy should be followed with everything in

the proper context and get the same picture. Eventually, there was certain criteria that he would testify to, if the Court permitted.

Id. at 4. The difficulty with this proffer is that it was insufficient to indicate a connection to specific factors to be brought out at trial that might evince memory taint. It refers to the "cognitive therapy that [J.M.] did undergo," but does not focus attention on any aspect of that therapy or any other factual predicate suggesting J.M.’s cognitive processes were affected in a manner tending to plant, distort, or otherwise interfere with his memories.

We have also carefully reviewed the record of Appellant’s trial. The evidence adduced in that proceeding indicates the police never directly interviewed J.M., but observed the forensic interviews conducted by others through a one-way mirror. The testimony given by the persons who conducted those interviews, or with whom J.M. treated, reflects that his story never changed throughout all the years he underwent counseling, and this is consistent with Mother’s testimony as well. See N.T., 9/10/19, at 234 ("He has been saying the same thing since he has been five-years old.").^{18 18} The drawings J.M. made as a means of communicating the abuse in question were consistent with those accounts and with the testimony J.M. himself provided at trial. J.M. made these drawings in 2013 when he was six years old. See N.T., 9/9/19, at 138 (trial testimony of J.M.’s therapist). Thus, the Commonwealth relied on J.M.’s testimony concerning the alleged abuse, as well as the drawings he made in its aftermath.^{19 19} There is nothing in the trial record to suggest interviewer bias or to indicate the therapists were attempting to influence J.M.’s memories of what had occurred, or that their interactions may have had that effect. Furthermore, although Mother expressed some antipathy toward Appellant based on the way their relationship ended, therapy and forensic interviews. occurred outside her presence and nothing in her testimony or that of anyone else indicated she instigated or shaped J.M.’s disclosures, including the drawings, at any point in time. On this record, therefore, we believe the required linkage to the other evidence in the case simply does not exist.

18 Mother related that through therapy, J.M. gained an understanding of what his father had done to him and thus transitioned from wanting to see Appellant to not wanting to see him. See id. at 274. However, this development does not suggest J.M.’s account of what had been done to him changed over time.

18 Justice Mundy’s OISA at 556 ("As Section 5920 is limited in scope to evidence concerning violence and victim responses thereto, it does not encompass the type of expert testimony proposed by [McGinnis] in this matter.").

19 As for the OISR’s suggestion the Commonwealth’s case "rested entirely on J.M.’s recollection of the events," OISR at 570, we note the Commonwealth also elicited expert evidence that some children who have been sexually abused engage in regressive behavior, including bedwetting and urinating on themselves even after they have been toilet trained. See N.T., 9/9/19, at 65-66 (testimony of Jamie Mesar). This dovetailed with Mother’s testimony that when J.M. was four years old he urinated on himself while standing with his clothes on, looking at Mother and refusing to speak – and then again after lying down that evening. When Mother went to change his clothing, she noticed redness between his buttocks. See N.T., 9/10/19, at 223-25, 261-63.

19 See Brief for McGinnis at 41 (arguing that "Walker answers the question presented").

Accordingly, we would affirm the Superior Court’s order.

Chief Justice Todd joins this opinion in support of affirmance.

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE BROBSON

I concur in the result of the Opinion in Support of Affirmance (OISA) authored by Justice Mundy. I agree with Justice Mundy’s OISA insofar as it concludes that ex- pert testimony regarding taint by the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques does not fall under the purview of Section 5920(b) of the Judicial Code, 42 Pa.C.S. § 5920(b). I respectfully disagree, however, that a party can present allegations of taint to a jury as a matter of reliability or credibility. Instead, I believe that allegations of taint constitute a challenge to the competency of a witness, which is a question properly addressed to the trial court. While I recognize that Appellant "state[d] on appeal that he did not proffer Dr. Chambers’[] testimony at the competency hearing as it was intended to challenge the credibility, not the competency, of the child’s testimony," I do not find this reframing of the issue persuasive. Commonwealth v. McGinnis, 2021 WL 2652690 (Pa. Super., No. 16 WDA 2020, filed June 28, 2021), slip op. at 5 (Bowes, J., concurring).

In my view, this Court has already addressed and decided the issue presented by Appellant in Commonwealth v. Delbridge, 578 Pa, 641, 855 A.2d 27 (2003) (Delbridge I), in which we held that "[a]n allegation that the witness’s memory of [an] event has been tainted raises a red flag regarding competency, not credibility." Delbridge I, 855 A.2d at 40. Issues of competency, in turn, "ha[ve] often been declared to be a question for the trial court." Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479, 482 (1931) (collecting cases). I see no compelling reason to alter this precedent.

While addressing Delbridge I, Justice Mundy’s OISA states that this Court held that "the question of whether a child witness’s memory of an event has been tainted may be examined during a pretrial competency determination." (OISA at 551 n.6 (Mundy, J.) (emphasis added).) I believe this is a mischaracterization of this Court’s holding in Delbridge I. Instead, this Court in Delbridge I held that "Pennsylvania law charges the trial court with the responsibility to investigate the legitimacy of … an allegation [of taint]" and "that such an investigation should occur within a competency hearing." Delbridge I, 855 A.2d at 40 (emphasis added); see also Commonwealth v. Delbridge, 580 Pa. 68, 859 A.2d 1254, 1256 (2004) (Delbridge II) ("The capacity to remember and the ability to testify truthfully about that memory are components of competency. … Therefore[,] we held that taint was best explored in a competency hearing.").

In reaching our conclusion in Delbridge I, this Court considered the law of other jurisdictions, which

found the issue capable of examination within the context of existing legal procedures such as, a hearing probing the competency of the child witness or, within the context of a suppression hearing examining whether the evidence was obtained by improper techniques, and, finally, during the course of the trial itself.

Delbridge I, 855 A.2d at 39. Ultimately, however, this Court "h[e]ld that a competency hearing is the appropriate venue to explore allegations of taint."^1a, Id. at 40 (emphasis added). In the present matter, Appellant now asks this Court to, essentially, reconsider the arguments forwarded in Delbridge I and Delbridge II and reach a contrary conclusion. I would deny this request. The Court has already considered whether "taint is a legitimate question for examination" and "whether a competency hearing is the appropriate venue to explore possible taint of a child witness," and we answered both inquiries in the affirmative. Id. at 39-40.

The record in this matter reveals that the trial court addressed Appellant’s allegations of taint at the competency hearing—i.e., in the appropriate venue—and found that Appellant failed to prove taint. Appellant chose not to proffer expert testimony at the competency hearing. McGinnis, slip op. at 5 (Bowes, J., concurring). The trial court, proceeding in normal course, "reviewed the mental health records in this case", and "did not find evidence of taint." (R.R. at 109.) The trial court explained that it was "aware that the child was forensically interviewed initially" but found that "nothing in the record at [that] point indicate[d] that his better ability to communicate what happened to him when he was five is the result of coaching of any sort as opposed to a result of natural maturity of a child from age [five] to [twelve]." (Id. at 110.) Accordingly, the trial court concluded that, "without further evidence," it "would not be able to find the child is incompetent for any reason specifically for taint. … [T]he defense has not met that burden." (Id. at 110-11.)

"[A]s with all questions of competency, the resolution of a taint challenge to the competency of a child witness is a matter addressed to the discretion of the trial court" Delbridge I, 855 A.2d at 41. Appellant does not presently argue, nor can he argue for the first time on appeal, that the trial court abused its discretion.^2a Thus, based upon this record, I cannot conclude that Appellant should be permitted another opportunity to challenge the competency of J.M. where Appellant failed to establish taint at the appropriate stage of litigation. Appellant’s attempts to reframe the issue of taint as a matter of reliability are, to me, unavailing. I would, therefore, affirm the order of the Superior Court on alternative grounds and hold that Appellant could not present to the jury expert testimony regarding taint because it is a matter of competency properly addressed to the trial court.

OPINION IN SUPPORT OF REVERSAL

JUSTICE WECHT

I support lifting the categorical prohibition on expert testimony informing the jury that certain forensic interviewing techniques have the potential to produce false memories of abuse in young children. While some of this Court’s past decisions have suggested that such testimony "would infringe upon the jury’s right to determine credibility,"^1b our more recent precedent, in particular Commonwealth v. Walker, ^2b eschews this per se exclusionary approach. I agree with Justice Mundy’s opinion in support of affirmance ("OISA") that the , rationale of those earlier decisions should be abandoned in favor of a rule that allows. trial courts to admit relevant expert testimony that is otherwise admissible under our Rules of Evidence.

But my agreement with Justice Mundy’s OISA ends there. Justice Mundy would simply replace one misguided exclusionary rule, with another by creating vague new prerequisites to admissibility. Justice Mundy would then retroactively impose this new admissibility standard on Rickey McGinnis, who had no reason to know that he would bear such a burden. Even if this proposed admissibility rule was justified and retroactive application was not blatantly unfair, Justice Mundy’s OISA also ignores ample evidence suggesting the possibility of taint in this case.

Many of our sister courts have addressed the issue of false memories in suspected abuse victims. In 1985, a pediatric nurse took the temperature of a, four-year-old child with a rectal thermometer and the child said, "this is what my teacher does to me at nap time at school."^3b The nurse reported the, comment to the local authorities, and all children enrolled at the Wee Care Nursery School in Maplewood, New Jersey were questioned. Social workers and therapists collected testimony from fifty-one children, aged three to five. During the interviews, the children made horrifying accusations about their teacher,

Margaret Michaels. They said that Michaels forced them to lick peanut butter from her genitals, that she penetrated their rectums and vaginas with knives, forks, and other objects, that she forced them to eat cakes made from human excrement, and that she made them play duck, duck, goose naked.

Somehow, Michaels’ colleagues at the school never witnessed her engage in abusive behavior of any sort, let alone the disturbing acts that the children reported to interviewers. Michaels ultimately was charged, tried, and convicted of oyer one hundred sexual offenses and was sentenced to forty-seven years’ imprisonment. After Michaels spent five years in custody, the New Jersey Supreme Court overturned her convictions, finding that "the interviews of the children were highly improper and utilized coercive and unduly suggestive methods."^4b The New Jersey court’s decision provides essential background for understanding how an investigatory interview of a young child can be coercive or suggestive, even unintentionally, and thus shape the child’s responses. The court explained that:

a fairly wide consensus exists among experts, scholars, arid practitioners concerning improper [forensic interviewing] techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers.

The use of incessantly repeated questions also adds a manipulative, element to an interview. When a child is asked a question and gives an answer, and the question is immediately asked again, the child’s normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner. The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the children.

The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. Similarly, an interviewer’s bias with respect to a suspected person’s guilt or innocence can have a marked effect on the accuracy of a child’s statements. The transmission of suggestion can also be subtly communicated to children through more obvious factors such as the interviewer’s tone of voice, mild threats, praise, cajoling, bribes and rewards, as well as resort to peer pressure.^5b

The court also noted that governmental and law enforcement agencies understand that improper interviewing techniques risk corrupting the memories of young children. That’s why law enforcement and other interested groups like the Center for the Prosecution of Child Abuse, the District Attorney’s Association, and the American Prosecutor’s Research Institute "have adopted standards for conducting interviews designed to overcome the dangers stemming from the improper interrogation of young children."^6b Those standards and guidelines generally indicate, among other things, that interviewers should: (1) remain neutral, open, and objective; (2) avoid lead ing questions; (3) never threaten a child or try to force a reluctant child to talk; and (4) refrain from telling a child what others, especially other children, have reported. Similarly, the New Jersey Governor’s Task Force on Child Abuse and Neglect encourages interviewers to attempt to elicit the child’s feelings about the alleged perpetrator, but states that interviewers should refrain from speaking negatively about the suspect. It also stresses that multiple interviews with various interviewers should be avoided.

A key takeaway from the New Jersey Supreme Court’s decision in the Wee Care Nursery School case is that "a sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events."^7b Yet, even as the potential perils associated with interviewing young children about suspected sexual abuse have become widely recognized, experts who could inform jurors about the limits of forensic interviewing have been exiled from Pennsylvania courtrooms. That’s because of this Court’s decision in Commonwealth v. Dunkle, ^8b where we held that the Commonwealth could not introduce so-called "profile testimony," in which an expert seeks to explain to the jury that children who have been sexually abused might not recall certain details of their abuse, might omit other details, or might delay reporting the abuse. The Dunkle Court believed that it "is well within the common knowledge of jurors" that children who are sexually assaulted may delay reporting their abuse or may not remember some details surrounding it.^9b The Court therefore reasoned that an "instruction to the jury that they should consider the reasons why the child did not come forward, including the age and circumstances of the child in the case, [is] sufficient to provide the jury with enough guidance" to assess the child’s credibility.^10b The Court also remarked that, "[n]ot only is there no need for testimony about the reasons children may not come forward, but permitting it would infringe upon the jury’s right to determine credibility."^11b

Dunkle, in my view, is a regrettable decision. The Court’s insistence that the average juror brings to the deliberation room a broad understanding of how children of different ages and backgrounds might respond to sexual abuse was pure conjecture dressed up as legal reasoning. Just as unsound was the Court’s alternative rationale that allowing expert testimony on victim responses to sexual violence would infringe upon the jury’s credibility-determining function. The idea that expert testimony relating to credibility constitutes an invasion of the jury’s province is a centuries-old notion that "is poorly defined, lacks a legitimate doctrinal basis, and should be abolished in its entirety[.]"^12b Courts have never applied the maxim universally, which is actually a good thing given that virtually all expert testimony can be framed as undermining the credibility of some opposing witness.

In his brief to this Court, McGinnis offers examples from cases that his counsel personally has tried where expert testimony has been introduced in an effort to convince the jury that the defendant is not credible. In one of McGinnis’ examples, a defendant testified that he was out of the country when he was alleged to have murdered the victim.^13b To corroborate that alibi, the defendant introduced his stamped passport into evidence. In response, the Commonwealth called an expert who testified that the passport stamps were forged. But how was that passport expert not infringing upon the jury’s right to determine credibility? In another case that McGinnis recounts, a defendant testified that his wife grabbed his firearm during a confrontation and shot herself with it, so the Commonwealth called a crime scene expert to testify that the physical evidence was inconsistent with the defendant’s account.^14b No one would suggest that either the passport expert or the crime-scene expert should have been kept from the Jury, yet the experts in these examples arguably "invade the jury’s province" every bit as much as testimony about false memories would.

Although Dunkle was wrongly decided, the legislative fix to Dunkle hardly improved matters. In 2012, the General Assembly enacted 42 Pa.C.S. § 5920, which provides that expert testimony is admissible in a criminal case if it "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."^15b This statute effectively abrogates Dunkle, at least for expert testimony that falls within the scope of Section 5920.

The problem is that the scope of Section 5920 is at best unclear. Some lower courts, including the Superior Court below in an unpublished decision, have held that Section 5920 does not apply to expert testimony about suggestibility or false memories in children, since the statute concerns only "victim responses to sexual violence" and "the Impact of sexual violence or domestic violence on victims."^16b Others, including some judges on the panel below, would hold that expert testimony about false memories and suggestibility may be admissible under Section 5920.^17b

Though Justice Mudy’s OISA purports to answer it anyway, the question of Section 5920’s scope is not properly before this Court.^18b McGinnis does not include a statutory interpretation argument in his brief, nor did he in his petition for allowance of appeal. Instead, he argues that Dr. Bruce Chambers’ false memories testimony was admissible in light of Walker, which in turn signals this Court’s retreat from the exclusionary approach espoused in earlier cases like Dunkle. ^19b

In Walker, we lifted the per se bar on expert testimony regarding eyewitness misidentification. We did this, as other state courts did around the same time, in the face of mounting evidence that judge-made rules shielding jurors from entire bodies of science were leading to wrongful Convictions.^20b The Walker Court correctly abandoned the legal fiction that lay jurors already possess encyclopedic knowledge about complex subjects like human behavior and perception.^21b However, the Court did not fight the similarly flawed premise that expert testimony is inadmissible if it invades the province of the jury in making credibility determinations.

20b See Walker, 92 A.3d at 775 ("[I]n the past 15 years, numerous states, including Iowa, Kentucky, Tennessee, and Utah, which had previously utilized the absolute prohibition approach, have reversed themselves[.]"); id. at 780 ("[T]here is no doubt that wrongful conviction due to erroneous eyewitness identification continues to be a pressing concern for the legal system and society."); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev 55, 60 (2008) (noting that 79% of the first 200 prisoners exonerated by DNA testing were convicted based upon mistaken eyewitness testimony); see also Alicia, 92 A.3d at 766 (Saylor, J., dissenting) (arguing that the "blanket exclusion of relevant evidence based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science, is no longer satisfactory").

21b Walker, 92 A.3d at 789 ("[W]e are no longer willing to maintain a preclusive rule based on equating common knowledge among jurors with a developed understanding of the factors which potentially impact eyewitness testimony.").

Instead, the Walker Court distinguished our unfortunate precedent and concluded that expert testimony on eyewitness misidentification in particular is not one of the forbidden, province-invading lands of expert testimony. The Court reasoned that eyewitness misidentification testimony does not speak to whether a particular witness, is credible; rather, it teaches the jurors to decide for themselves whether the witness is credible.^22b This illusory distinction was problematic from its inception, Take for instance Walkers companion case, Commonwealth v. Alicia, ^23b in which we held incongruously with Walker that allowing expert testimony on the phenomenon of false confessions would "constitut[e] an impermissible invasion of the jury’s role as the exclusive arbiter of credibility."^24b

22b Id. at 784 ("Expert testimony on relevant psychological factors which may impact eyewitness identification … does not directly speak to whether a particular witness was untrustworthy, or even unreliable, as the expert is not rendering an opinion on whether a specific witness is accurate in his or her, identification. Rather, such testimony teaches—it provides jurors with education by which they assess for themselves the witness’s credibility.").

23b 625 Pa. 429, 92 A.3d 753 (2014).

24b Id. at 764.

The only firm conclusion that can be drawn from our precedent in this area is that this Court has needlessly complicated already complex criminal matters by creating (and then inconsistently applying) admissibility rules that arose from dusty "nineteenth-century, conventions and axioms[.]"^25b Beginning in the late 1980s, this Court authored a series of decisions prohibiting juries from hearing relevant expert testimony on certain subjects.^26b Neither of the two justifications given for these holdings is persuasive. First, the idea that "jurors’ life experience and common sense will necessarily guide them to the truth"^27b is obviously farfetched when complex issues of psychology, memory, and perception are at issue. As a matter of fact, the reason why, litigants seek to introduce expert testimony on topics like false confessions and false memories is precisely because the concepts are highly counterintuitive to lay jurors. Second, as I have explained already, the supposed rule that experts cannot give general opinion testimony that undercuts the credibility of a witness would, if we really believed it, bar virtually all expert testimony in criminal cases.

25b Alicia, 92 A.3d at 765 (Saylor, J., dissenting):

26b See Dunkle, 602 A.2d at 837 ("Not only is there no need for testimony about the reasons children may not come forward, but permitting it would infringe upon the jury’s right to determine credibility.") (emphasis in original); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355, 359 (1988) (holding that expert testimony regarding "rape trauma syndrome" is inadmissible because it would encroach upon the jury’s prerogative); Walker, 92 A.3d at 780 ("While in Pennsylvania the admission of expert testimony is generally a matter left to the discretion of the trial court, our decisional law from the mid–1990s has repeatedly barred, without exception, the admission, of expert testimony regarding eyewitness identification.").'

27b Alicia, 92 A.3d at 765 (Saylor, J., dissenting).

While Walker rejected some of Dunkle’s unsound reasoning, the decision did not go far enough. Post-Walker, these matters now proceed piecemeal, with this Court applying in each individual case what we have termed a "flexible framework" to determine whether we think jurors ought to hear about certain kinds of expertise.^28b These decisions are essentially arbitrary. Expert testimony about false confessions is inadmissible, expert testimony about eyewitness misidentification is not inadmissible, expert testimony about victim responses to sexual violence may or may not be inadmissible, and I suppose we will address other kinds of experts another day.^29b Indeed, Justice Mundy foreshadows that today’s appeal is but "the latest expert-testimony dispute in the Walker line."^30b

28b Walker, 92 A.3d at 791 ("A more flexible framework strikes a crucial balance in determining the admission of expert testimony, as well as between protecting a defendant’s rights while enabling the Commonwealth to meet its responsibility of protection of the public.").

29b Id. at 791 ("[I]n light of the magnitude of scientific understanding of eyewitness identification and marked developments in case law during the last 30 years, it is no longer advisable to ban the use of expert testimony to aid a jury in understanding eyewitness identification."); Alicia, 92 A.3d at 764 (holding that expert testimony regarding the phenomenon of false confessions "constitutes an impermissible invasion of the jury’s role as the exclusive arbiter of credibility"); Commonwealth v. Jones, 663 Pa. 20, 240 A.3d 881, 896-97 (2020) ("While some testimony on [victim responses to sexual assaults] may be prohibited for impermissibly invading the jury’s province of determining credibility, we disagree that all testimony will. Whether or not this prohibition has been violated must instead be assessed on a case by case basis.").

30b Justice Mundy’s OISA at 555–56.

This ad-hoc approach is not only unprincipled, but also unnecessary, since our rules of evidence already allow trial courts to exclude expert testimony for many reasons, including when it is irrelevant, when it risks confusing or misleading the jury, when it is not based on generally accepted science, or when it concerns matters already understood by average laypersons.^31b The risk of haphazardness with Walker’s piecemeal approach can be seen here, where Justice Mundy’s OISA would end the per se prohibition on expert testimony regarding false memories, only to then replace it with an entirely new admissibility standard under which:

31b Pa.R.E. 402 ("Evidence that is not relevant is not admissible."); Pa.R.E. 403 ("The court may exclude relevant evidence if its probative value is outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."); Pa. R.E. 702(c) (providing that an expert witness’ methodology must be "generally accepted in the relevant field"); Pa.R.E. 702(a) (stating that an expert may offer opinion testimony if his or her "scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson").

expert testimony concerning implanted or distorted memories of sexual abuse must, as a predicate to admissibility, be linked in some way to the actual evidence in the case concerning possible taint, such as the interviews and counseling the alleged child victim underwent that may have led to such distortions, or a third party’s animosity toward the defendant that may have resulted in fabri

cated memories. It is insufficient to rely solely on the circumstance that the child was subject to interviews and counseling or that a third party harbored hostility toward the defendant. Something more must be present to suggest those occurrences could have had a distorting effect.^32b

32b Justice Mundy’s OISA at 558–59.

Justice Mundy suggests that this admissibility test originates from Walker, but it plainly does not. Walker simply held that a defendant must explain on-the-record "precisely how the expert’s testimony is relevant to the eyewitness identifications under consideration and how it will assist the jury in its evaluation."^33b Walker also said that this proffer must "establish the presence of factors" that the expert will testify about which are "beyond the common understanding of laypersons."^34b Both of these requirements come directly from our Rules of Evidence, which state that testimony must be relevant and that any expert must have specialized knowledge "beyond that possessed by the average layperson[.]"^35b In other words, Walker does not exclude any testimony that Rules 401 and 702 would not also keep out.^36b

33b Walken, 92 A.3d at 792 (emphasis added).

34b Id.

35b Pa.R.E. 402 ("Evidence that is not relevant is not admissible."); Pa.R.E. 702 (stating that an expert may offer opinion testimony if, among other things, his or her "scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson").

36b Walker, 92 A.3d at 792 ("We now allow for the possibility that such expert testimony on the limited issue of eyewitness identification as raised in this appeal may be admissible, at the discretion of the trial court, and assuming the expert is qualified, the proffered testimony relevant, and will assist the trier of fact.") (emphasis added).

Dr. Chambers’ expert testimony would be admissible under the Walker approach. McGinnis could, upon remand, make a proffer to the trial court detailing specifically which aspects of forensic interviewing and/or cognitive therapy Dr. Chambers would address in his testimony. As courts have recognized, some factors that can undermine the neutrality of a forensic interview include: "a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers."^37b "[I]ncessantly repeated questions," the "explicit vilification or criticism of the person charged with wrongdoing," and the use of "multiple interviews with various interviewers" also risk distorting the memories of suspected abuse victims.^38b Surely these (and other) factors are beyond the common understanding of laypersons and testimony about them therefore would comply with Rule 702 so long as the expert’s methodology is generally accepted in the relevant field.

37b Michaels, 642 A.2d at 1377.

38b Id. at 1377-78.

As for relevance, there is no question that expert testimony regarding specific factors that can undermine the reliability of a forensic interview would have been relevant at McGinnis’ trial. Evidence is relevant so long as it has "any tendency to make a fact more or less probable than it would be without the evidence" and that fact "is of consequence in determining the action."^39b Here, J.M. was roughly five years old when the alleged abuse occurred and he underwent his first interview, ex- actly the age in which experts agree children may be suggestible.^{40 b} J.M. sat for multiple interviews and underwent extensive therapy with numerous providers, in between those interviews, increasing the potential for such distortions to occur.^{41 b} During this extended period, which lasted years, outside influences on J.M.’s statements were left entirely uncontrolled.^{42 b} It would not be a leap for jurors to suspect, for example, that J.M. might have had conversations about McGinnis with Mother, who ended her relationship with McGinnis on bad terms.^{43 b} The Common-wealth’s case against McGinnis also rested entirely on J.M.’s recollection of the events, thus making the reliability of his memory particularly relevant.

39b Pa.R.E. 401.

40 ^bStephen J. Ceci & Richard D. Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 34 (2000) ("Within the mainstream scientific community, scholars agree that young children are more susceptible than older individuals to leading questions and pressures to conform to the expectations and desires of others."); Michaels, 642 A.2d at 1378 ("The debilitating impact of improper interrogation has even more pronounced effect among young children.").

41 ^b See Michaels, 642 A.2d at 1378 (stating that "multiple interviews with various interviewers should be avoided"); id. at 1377 (discussing "[t]he insidious effects of repealed questioning").

42 ^b Id. at 1377 (noting that "a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers" can "undermine the neutrality of an interview and create undue suggestiveness").

43 ^bJustice Mundy suggests that J.M, did not have contact with McGinnis because "J.M, gained an understanding of what his father had done to him and thus transitioned from wanting to see [McGinnis] to not wanting to see him." Justice Mundy’s OISA at 560 n.18. In fact, though, Mother prevented McGinnis from seeing J.M. beginning when the two broke up, many months before the allegation of abuse even arose. Notes of Testimony, 9/9/2019, at 254.

Furthermore, and contrary to Justice Mundy’s depiction, J.M.’s recollection of the events did evolve throughout the interview process. According to Mother, J.M. initially said that McGinnis "put a hole in" JM.’s "butt" and he stated that this happens "[a]ll day long."^{44 b} Mother then took J.M. to the hospital, where medical professionals found no physical evidence of sexual abuse. J.M. underwent his first forensic interview at the Child Advocacy Center ("Center") in February 2013. Records from the Center reveal that J.M. "did not demonstrate an understanding of the rules [of the interview]," did not know his age or date of birth, and could provide little to no information about his activities at school or his likes and dislikes.^{45 b} Regardless, J.M. did not allege sexual abuse of any kind in this first interview. He stated that McGinnis "cuss[es] too much," but he denied that McGinnis "bothers him in any other way" or "is mean in any other way."^{46 b} Justice Mundy suggests that McGinnis was not charged after J.M.’s initial forensic interview because "it was determined J.M. was unable to provide testimony due to his young age."⁴⁷ But testimony of what? There was no allegation of sexual abuse at all in the first interview.

44 ^b See McGinnis' Brief in Support of Omnibus Pre-trial Motion, 4/22/2019, at 5 (R.R. at 29). At the time J.M. made this allegation, McGinnis and Mother were not on good terms, to say the least. Four months earlier, Mother had found a naked photo of a woman on McGinnis’ cell phone and responded by ending their relationship and prohibiting McGinnis from having any contact with his son.

45 ^b Id.

46 ^b Id. J.M. went on to recount to the interviewer a (presumably make-believe) tale of McGinnis getting a "knife from the kitchen" and pushing it "oh top of [J.M.’s] clothes." Id. J.M, stated that McGinnis "push[ed] hard and hard all day," Id. He said that this took place on multiple occasions, sometimes in his room, sometimes in McGinnis’ room, and sometimes in the living room, According to J.M., Mother witnessed these incidents and stated; "You are gonna cut him in half." Id.

47 ^bJustice Mundy’s OISA at 547-48.

Following the first interview, J.M. underwent four hours of trauma therapy every week for approximately seven months before Mother contacted the Center and again claimed that J.M. was disclosing McGinnis’ abuse. J.M. then underwent a second interview. This time he alleged that McGinnis "hurt his butt with his penis" on one occasion.^{48 b} But J.M., also gave conflicting or nonresponsive answers to questions about where in McGinnis’ house the abuse occurred, whether anyone else was home, whether it was hot or cold outside at the time, and whether he said anything to McGinnis in response to the abuse.^{49 b} The interviewer’s, notes for this session also indicate that J.M. "did not demonstrate an ability to differentiate between real and not real" and that he "was not resistant to suggestibility."^{50 b} Unsurprisingly, the police declined to file charges against McGinnis at that time.^{51 b}

48 ^bMcGinnis’ Brief in Suppprt of Omnibus Pre-trial Motion, 4/22/2019, at 5 (R.R. at 29).

49 ^b Id. ("[J.M.] reported that it was ‘cold’ outside and then stated that It was warm.’"); id. at 6 ("[J.M.] denied that he said anything to Father and then stated, ‘I told him to stop.’").

50 ^b Id. at 5.

51 ^bAt trial, the lead Allegheny County Police detective, Timothy Steter, testified, that, while the second interview yielded something closer to an allegation of abuse, J.M. ultimately was not able to distinguish "between what’s real and not real[.]" Notes of Testimony, 9/4/2019, at 181 ("We did have a little more disclosure than we had initially, but it was not a disclosure[.]" According to Stetzer, JM "did a little bit better recounting … but [he] still had a little bit [of] trouble with colors, The differences between what’s real and not real, that was a big one that we ran into.").

J.M. continued in trauma therapy and received counseling from numerous providers for another half decade before Mother contacted the Center and re-reported the sexual abuse allegation again in June 2018.^{52 b} The Center then conducted a third interview in which J.M. stated that McGinnis had raped him. It was only after this third interview, more than half a decade after the initial allegation, that McGinnis was charged. Given J.M.’s age, lack of resistance to suggestibility, proximity to Mother, inconsistent statements, and long history of interviewing and treatment, Dr. Chambers’ expert testimony was both highly relevant and "linked in some way to the actual evidence in the case[.]"^53b Had the jury been aware that some children around J.M.’s age who participate in forensic interviews can develop false memories of abuse, that obviously would "make a fact" (i.e., the allegation of abuse) "more or less probable than it would be without the evidenee[.]"^{54 b} This is not even a close call.

52 ^bJ.M. received counseling from Glade Run between February 2013 and August 2013; from WJS Psychological Services between August 2013 and January 2015; from Mercy Behavioral Health between January 2015 and May 2016; and from Barber Behavioral Health Institute between May 2016 and August 2018.

53b Justice Mundy’s OISA at 558-59.

54 ^bPa.R.E. 401.

Put simply, Justice Mundy’s approach is not a mere relevance inquiry. Nor does it have any basis in Walker, Rule 401, or Rule 702. Under Justice Mundy’s test, McGinnis would have been required to identify some "aspect of [J.M.’s] therapy or any other factual predicate suggesting J.M.’s cognitive processes were affected in a manner tending to plant, distort, or otherwise interfere with his memories."^{55 b} Justice Mundy also suggests—in seemingly contradictory back-to-back sentences— that "a third party’s animosity toward the defendant that may have resulted in fabricated memories" would suffice to meet this test, but the fact "that a third party harbored hostility toward the defendant" would not,^{56 b} The apparent idea is that only "proofs suggesting [that a third party’s] animosity may have had an influence on the alleged victim’s memories" will justify admissibility.^{57 b} Setting aside the question of how one could ever make such a showing, Justice Mundy’s clarification proves that her proposed admissibility standard is not a mere relevance inquiry, as we called for in Walker. Relevance does not require "proofs" of anything. Evidence is relevant so long as it has any tendency at all to make a fact of consequence more or less probable than it would be without the evidence.^{58 b}

55 ^bJustice Mundy’s OISA at 559.

56 ^b Id. at 558-59.

57 ^bJustice Mundy’s OISA at 559 n. 17.

58 ^bPa.R.E. 401. Justice Mundy also seemingly misunderstands conditional relevance, which is implicated under Rule 104(b) when the relevance of some offered evidence depends upon the existence of some other additional fact or facts not yet established. In those circumstances, a trial court "may admit the proposed evidence on the condition that the proof be introduced later" during the trial. Pa.R.E. 104. Rest assured, my difference with Justice Mundy’s OISA has nothing to do with conditional relevance. My objection is that Justice Mundy would morph what should be a mere (continued…) relevance inquiry into a vague and unrecognizable standard. Under Justice Mundy's rubric, expert testimony explaining that outside influences such as parents and peers can undermine the reliability of a forensic interview is somehow irrelevant in a case where the victim resided with a parent who strongly disliked the defendant during key years in which the victim’s memories of abuse evolved. See Justice Mundy’s OISA at 559 ("Something more must be present to suggest those occurrences could have had a distorting effect."). That conclusion is plainly incorrect. It is bad law. Nothing in Rule 104(b) makes it any less so.

While a clear majority of this Court believes that expert testimony regarding false memories in suspected abuse victims should no longer be per se inadmissible, under Justice Mundy’s approach, the admissibility of such evidence would remain highly restricted and subject to vague judge-made standards found nowhere in our Rules of Evidence. Defendants seeking to undermine the credibility of a sexual abuse allegation with expert testimony would have to meet this heightened standard, while the prosecution could seek to admit expert testimony bolstering the allegation under Section 5920, which contains none of Justice Mundy’s made up admissibility restrictions. In doing so, Justice Mundy’s approach would subject the prosecution and the defense to entirely different admissibility rules.

While I support overruling Dunkle-era decisions that unwisely rendered expert testimony on entire categories of science per se inadmissible, Justice Mundy’s preferred path would achieve very little. Justice Mundy’s OISA would simply create new, misguided admissibility rules to replace our old, misguided admissibility rules. The only real solution is for this Court to fully abandon the province-of-the- jury prohibition once and for all and return control over the presentation of expert testimony back to trial judges. If it is honestly the case that a particular expert’s proposed testimony would be irrelevant or would concern matters known by average laypersons, then trial courts can exclude the testimony under our ordinary Rules of Evidence. Decisions that do not tackle the province-of-the-jury prohibition head on merely offer the mirage of progress.

Justices Donohue and Dougherty join this opinion in support of reversal.