Notice to Call Expert Witness; Disclosure of Expert Reports

Commonwealth v. Dunn, 2020 WL 7682502 (Pa. Super. 2020) (unreported), allocatur granted March 8, 2022, appeal docket 10 WAP 2022

This case centers on the expert disclosure and expert report requirements under 42 Pa.C.S. § 5920 and Rule of Criminal Procedure 573. Section 5920 is a statutory rule of evidence that permits qualified experts to testify in certain criminal proceedings about “the dynamics of sexual violence, victim responses to sexual violence[,] and the impact of sexual violence on victims during and after being assaulted.” 42 Pa.C.S. § 5920(b)(1). Section 5920 limits the scope of such testimony to “opinions regarding specific types of victim responses and victim behaviors” and specifically precludes an expert witness from opining on “the credibility of any other witness, including the victim[.]” 42 Pa.C.S. § 5920(b)(3). Rule 573 provides that the Commonwealth is required to disclose, prior to trial “‘any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth.’” Pa.R.Crim.P. 573(B)(1)(e)).

Ryan Michael Dunn was charged with a number of sexual assault offenses arising from the sexual abuse of Dunn’s girlfriend’s 13-year-old daughter. Superior Court summarized the relevant facts as follows:

On the eve of trial, the Commonwealth notified [Appellant] via email of its intent to call an expert in victim behaviors and responses pursuant to 42 Pa.C.S. § 5920.

The Commonwealth attached to its email a letter from Jamie Mesar, the Commonwealth’s proffered Section 5920 expert, dated May 31, 2019, and addressed to [the Commonwealth]. The letter indicates that as “an expert witness in the area of child sexual abuse, [Mesar] would be prepared to discuss, in general, the typical ways children disclose abuse, how they react to child sexual abuse and coping mechanisms they may use.[”] The letter also provides citations to five articles on various subjects “which will further [Mesar’s] testimony (although [Mesar’s] testimony will not be limited to this information).”

The following morning, on June 4, 2019, [Appellant] filed a motion to preclude expert witness testimony. Specifically, [Appellant sought] to preclude Mesar’s testimony on the grounds that (1) the Commonwealth failed to disclose an expert report “detailing the actual opinions of the expert, or the basis and grounds for said opinion. . . .”

Appellant also filed a motion to compel additional discovery [and the] preparation and disclosure of an expert witness report. Therein, he argued that, in the absence of an expert report which details the substance of Mesar’s expert opinions and/or conclusions and the bases therefore, [Appellant] could not effectively confront said testimony, or seek the opinion of his own expert and, thus, preparation and disclosure of a report pursuant to Pa.R.Crim.P. 573(B)(2)(b) was appropriate.

Slip op. at 5-6 (quoting Dunn’s Brief at 10-11). 

Following trial, a jury convicted Dunn of statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, corruption of minors, endangering the welfare of a child, and indecent assault, and Dunn was sentenced. Dunn filed for post-sentence relief, which the trial court denied. Dunn appealed to Superior Court, arguing that:

the Commonwealth’s notification of its intent to call a Section 5920 expert “at the close of business on the night before jury selection was to commence” was “egregiously late and insufficient” which “resulted in a trial by ambush [that] deprived [Appellant] of a fundamentally fair trial[.]” Appellant also claims that the “two-page letter” from the proffered expert did not apprise him of the subject matter, the substance of the facts, or a summary of her opinions and expected trial testimony. For this reason, Appellant argues that it was essential for the Commonwealth’s expert to prepare a report in order to limit the scope of her trial testimony and to allow Appellant effectively to cross-examine her.

Slip op. at 6 (internal citations omitted). Dunn thus contended that the Commonwealth’s delay of disclosure until the eve of trial resulted in a trial by ambush thereby depriving him of a fundamentally fair trial, and therefore, the trial court erred in denying Dunn’s motions to preclude Mesar’s testimony and to compel the production of an expert report from Mesar.

Superior Court concluded that Section 5920 does not contain a notice requirement, nor does it require that an expert report be produced. Superior Court explained that the Commonwealth sent Dunn a notice of intent to call Mesar as a witness and that “the letter from the Commonwealth’s proffered sexual abuse expert disclosed the nature and scope of her anticipated testimony within the parameters permitted by Section 5920.”. Slip op. at 9. Superior Court further noted that, pursuant to Section 5920, Dunn could have called his own expert witness, which he did not do. Accordingly, Superior Court affirmed the trial court’s admission of Mesar’s testimony.

With respect to Dunn’s argument that the trial court erred by not mandating that an additional or supplemental expert report be prepared, Superior Court explained that under Rule 573, “the Commonwealth, upon request, must disclose any expert report in its possession” and, that if the Commonwealth intends to call an expert who has not prepared an expert report, “the court, under Rule 573(B)(2)(b), may direct the preparation and disclosure of a report.” Slip op. at 10. Moreover, Rule 573 does not specifically address the timing of disclosures and merely provides the trial court with discretion to direct the preparation and disclosure of a report. Thus, Superior Court reasoned that the Commonwealth’s disclosure of Mesar’s letter outlining her proposed testimony satisfied Rule 573, there were no additional reports possessed by the Commonwealth subject to disclosure, and the trial court did not err in refusing to order that an additional report be prepared.

In petitioning the Supreme Court for review, Dunn argued that Superior Court’s decision conflicts with its decision in Commonwealth v. Cramer, 195 A.3d 594 (Pa. Super. 2018) and Commonwealth v. Jones, 240 A.3d 881 (Pa. 2020), which recognized that whether expert testimony concerning victim responses and behaviors to sexual assaults impermissibly invades the jury’s province of determining credibility in a sexual assault prosecution must be assessed on a case by case basis.

The Supreme Court granted allocatur to consider the following issues:

Are the Superior Court’s holdings that the Commonwealth (1) need not provide notice to a criminal defendant of its intent to call an expert witness pursuant to 42 Pa.C.S. § 5920 (relating to [e]xpert testimony concerning victim responses and behaviors) and (2) need not prepare and disclose a detailed expert report irreconcilable with the Superior Court’s decision in Commonwealth v. Cramer, 195 A.3d 594 (Pa. Super. 2018) and this Honorable Court’s decision in Commonwealth v. Jones, 240 A.3d 881 (Pa. 2020)? Are these same holdings inconsistent with the Pennsylvania Rules of Criminal Procedure and the Due Process provisions of the United States and Pennsylvania Constitutions?


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