Commonwealth v. Dunn

300 A.3d 324 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Ryan Michael DUNN, Appellant

No. 10 WAP 2022

Supreme Court of Pennsylvania.

Argued: October 26, 2022

Decided: June 23, 2023

ORDER

PER CURIAM

AND NOW, this 23 ^rd day of June, 2023, the Court being evenly divided, the order of the Superior Court is AFFIRMED and the Commonwealth's Application to Strike is DISMISSED .

CHIEF JUSTICE TODD, in Support of Affirmance

I join Justice Mundy's Opinion in Support of Affirmance ("OISA"), except for Part IV(b). On the question of whether Dunn was prejudiced by the Commonwealth's violation of Pa.R.Crim.P. 573, I conclude he has failed to demonstrate that prejudice.

In his principle brief to this Court, Dunn contends that, because of the Commonwealth's late disclosure of Jamie Mesar's expert report, he was unable to conduct his own research on her opinions; unable to effectively cross-examine her; unable to determine whether to retain his own expert; unable to challenge the admissibility of Mesar's opinions; unable "to meaningfully reflect upon and evaluate how the expert's proposed testimony could bear upon all of the facts"; and was diverted from other last-minute trial preparation issues. Dunn Brief at 50-51 (emphasis omitted). Further, because, in his view, the report was overly generic, Dunn contends he was unable to monitor the scope of Mesar's testimony. Id. at 51-52. Yet, having gone to trial and having seen Mesar's actual testimony, Dunn has had time to "reflect" on it, and yet he does not describe, in any detail, what he would have done differently had he been given proper notice and what he viewed as a compliant report. For example, he does not proffer research that would have undermined Mesar's testimony; provide questions he would have asked on cross examination or suggest which parts of her testimony were inadmissible or irrelevant. It is true that, after being criticized by the Commonwealth for these lapses, see , e.g. , Commonwealth Brief at 28 ("Dunn contends that he might have been able to counter Mesar's testimony better had he had earlier notice of it, but he does not specifically say how that would have been accomplished, instead relying on vague assertions ...." (emphasis omitted)), Dunn attempts to provide some such detail in his reply brief. In my view, however, that effort was too late. See Pa.R.A.P. 2113(a) ("the appellant may file a brief in reply to matters raised by appellee's brief ... and not previously addressed in appellant's brief ." (emphasis added)); Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 218 n.8 (1999) ("a reply brief cannot be a vehicle to argue issues raised but inadequately developed in appellant's original brief"); Michael G. Lutz Lodge No. 5, of Fraternal Ord. of Police v. City of Philadelphia , 634 Pa. 326, 129 A.3d 1221, 1226 n.5 (2015) (same). Accordingly, on this basis, I agree with the OISA that Dunn is not entitled to a new trial.

JUSTICE MUNDY, in Support of Affirmance

I. Introduction

This Court granted discretionary review to address the notice requirement for the admission of expert testimony under 42 Pa.C.S. § 5920 (permitting expert testimony concerning victim responses and behaviors to sexual abuse in certain criminal proceedings) as it relates to Pa.R.Crim.P. 573 (concerning pretrial discovery and inspection in criminal proceedings). We hold that Rule 573 applies to Section 5920, and that the trial court erred as a matter of law in concluding the Commonwealth's last-minute disclosure of an expert witness report did not violate Rule 573. As to the proper remedy, with this Court being equally divided on whether the Commonwealth's error prejudiced Appellant Ryan Michael Dunn, the Superior Court's order denying relief is affirmed.

II. Background

Dunn was charged with various sexual offenses related to the repeated sexual abuse of his girlfriend's daughter ("the victim"). The abuse began in June 2015 when the victim was thirteen years old and lasted for approximately two and one-half years. Dunn's trial for these offenses was scheduled for June 4, 2019. On the night before trial, at 4:25 p.m., the Commonwealth informed Dunn via email of its intent to call Jamie Mesar, MSW, as an expert witness pursuant to Section 5920. The Commonwealth attached to its email a report in the form of a letter from Mesar, dated May 31, 2019, providing an outline of her proposed testimony concerning the typical ways children disclose, react to, and cope with sexual abuse. She then detailed specific topics she was prepared to discuss within these three categories:

Disclosure of abuse and children's behaviors regarding disclosure:

• Children who disclose abuse often do not disclose right away and the disclosure may be initially tentative and/or gradual over a period of time.

• Many children who have been victims never disclose their abuse for a wide variety of reasons (threats, fear, relationship to the abuser, unintended consequences of the disclosure, bribes, shame)[.]

• Denial of the abuse or recantation of the allegations are not uncommon[.]

Victim behavior at the time of the abuse:

• There is no "normal" response for all victims. Child sexual abuse victims experience a wide range of emotions and responses[.]

• Some victims (especially young victims and those who have experienced multiple incidents of child sexual abuse) may not know they have been a victim of child sexual abuse[.]

• Child sexual abuse victims may feel helpless and show accommodating behaviors.

Victim behavior after disclosure[:]

• There is no "standard" response following a disclosure. Some children display emotional and behavioral changes and others do not. If a child does display an emotional/behavioral change they can vary by intensity and type. Others[’] responses to a child's disclosure greatly impacts the short terms and long term response of a child sexual abuse victim.

Mesar Letter, 5/31/19, 1-2. The letter also included citations to several articles that might be discussed during the course of Mesar's testimony. The Commonwealth further provided Dunn with a copy of Mesar's curriculum vitae detailing her educational background and professional experience.

The following day, Dunn filed various motions in response to the Commonwealth's proposed expert testimony but never explicitly requested a continuance. Among these, Dunn filed a motion to compel the preparation and disclosure of an expert witness report. He asserted that "[n]o expert report has been generated or provided detailing the substance of the facts to which the expert is expected to testify, the actual opinions arrived upon by the expert, or the basis or grounds for said opinion." Motion to Compel, 6/4/19, at 3. As a result, Dunn maintained he was unable to "fairly or adequately confront said expert testimony, or seek the opinion of his own expert, within the generation of a report by the Commonwealth's opinion witness. Preparation and disclosure of such a report is appropriate under Pa.R.Crim.P. 573(B)(2)(b)." ¹ Id. Dunn also filed a motion to preclude Mesar's testimony for similar reasons. Motion to Preclude, 6/4/19, at 2-3. ²

The trial court held a hearing on Dunn's motions, after which it denied his requests and proceeded with the trial as scheduled. In reaching its decision, the trial court focused heavily on the admissibility of Mesar's testimony under Section 5920 but did not directly address Dunn's argument that the Commonwealth's tardy disclosure was problematic:

[The Commonwealth]: [The] Commonwealth intends to call Jamie Mesar from the Child Advocacy Center to have her testify. As you know, the way we normally call her is to have her answer hypothetical questions. She has not reviewed anything specific to this case. She's not met with this victim. She's not reviewed the police records or any of the preliminary hearing testimony, so she would be testifying as an expert answering hypotheticals. And just so the record's clear, Your Honor, I did provide [defense counsel] via e-mail both a letter that Ms. Mesar generated which details exactly what she will be testifying to based upon her expertise as well as her CV, which lists her entire background and professional experience.

The Court: This is under the statute perfectly admissible testimony. It's not uncommon in a delayed report to explain for the jury .... It is generic in nature, simple to explain to jurors the concept of delayed report[ing] and not specific in any way to the facts of this case.

[Defense Counsel]: I understand, Your Honor. Just for the record, that's part of my objection to the introduction of the testimony, that it has really nothing to do with this case and is generic and generalized conversation about things that may not even apply to this matter. But the problem that we have and what I put in my motion is we – getting this one the eve of trial, we have no opportunity to confront this testimony by doing our own research, consulting with our own expert for possible rebuttal expert testimony. There might be a divergence of opinions based upon what the proposed testimony would be.

Instead of just accepting it as is and unchallenged, I think my client has the right to confront this witness as well as any other, and we would appreciate the opportunity to conduct our own research and consult with our expert.

The Court: So[,] when did you receive the – when was the notice filed?

[The Commonwealth]: Well, Your honor, we just – I did send him the information yesterday. The statute doesn't actually require a time frame within which notice has to be provided and that's actually because the statute itself allows for either party to call a witness to testify in this manner. So[,] the Commonwealth doesn't have to provide a pretrial notice of this because the defense is on notice. The statute permits them to do the very same thing.

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The Court: So[,] it's been clear for some time now that no Frye hearing is necessary. If the statute doesn't

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