Com. v. Higginbotham, D., 7 WDA 2015

Background

Appellant David Higginbotham was tried and convicted of multiple sexual offenses for abusing two minor sisters; convictions included aggravated indecent assault of a child (AIAC), unlawful contact with a minor, indecent assault, corruption of minors, and indecent exposure.
The case turned largely on the victims’ credibility; there was no corroborating physical or forensic evidence.
After both sides rested, the Commonwealth called Dr. Jennifer Wolford (children’s hospital physician) as a rebuttal witness; she testified that more than 95% of child sexual-abuse exams are normal, explaining why lack of physical findings is common.
The trial court admitted Dr. Wolford’s testimony over defense objections, explaining it rebutted defense counsel’s public comments to the media; appellate court found those media comments are not evidence and cannot justify rebuttal testimony.
The Superior Court held the admission of Dr. Wolford’s rebuttal testimony was an abuse of discretion and not harmless error in this credibility-driven case, vacated the judgment of sentence, and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dr. Wolford’s testimony was properly admitted as rebuttal evidence	Commonwealth: testimony rebutted defense assertions (including counsel’s media statements) and issues raised on cross-examination	Higginbotham: no defense evidence or argument at trial created a need for that rebuttal; counsel’s media comments are not evidence	Admitted as rebuttal solely to rebut media comments was improper; no trial evidence opened the door — abuse of discretion
Whether expert testimony was precluded by discovery violation	Commonwealth: expert testimony was proper and disclosures sufficient	Higginbotham: Commonwealth failed to disclose expert opinion pretrial, prejudicing defense	Court did not reach merits because rebuttal basis was improper; reserved discovery issue as unnecessary to decide
Whether erroneous admission was harmless error	Commonwealth: medical records and disclosures made the testimony cumulative and the statistic essentially unassailable	Higginbotham: case depended on credibility; expert remark impermissibly bolstered victims in close case	Not harmless — reasonable possibility testimony contributed to verdict given lack of corroboration and timing as last testimony heard
Whether sentence (mandatory minima under 42 Pa.C.S. § 9718) was legal	Commonwealth relied on Matteson to apply mandatory minima	Higginbotham: § 9718 unconstitutional post-Alleyne; trial errors require new trial anyway	Court noted later en banc decisions (Newman, Wolfe) render § 9718 facially unconstitutional; but remanded for new trial, so did not separately decide sentencing issue

Key Cases Cited

Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013) (trial-court discretion governs admission of rebuttal testimony)
Commonwealth v. Hickman, 309 A.2d 564 (Pa. 1973) (rebuttal evidence must actually rebut opponent's evidence)
Commonwealth v. Mangini, 386 A.2d 482 (Pa. 1978) (order of presenting evidence rests within trial-court discretion)
Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003) (standard for abuse of discretion)
Commonwealth v. Moore, 937 A.2d 1062 (Pa. 2007) (harmless-error standard: Commonwealth must prove error could not have contributed to verdict)
Commonwealth v. Thornton, 431 A.2d 248 (Pa. 1981) (harmless-error doctrine explained)
Commonwealth v. Passmore, 857 A.2d 697 (Pa. Super. 2004) (when erroneously admitted evidence is cumulative, error may be harmless)
Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) (harmless-error and prejudice analysis)
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (post-Alleyne analysis affecting mandatory-minimum statute § 9718)
Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014) (§ 9718 held facially unconstitutional following Newman)
Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014) (interpreting § 9718 in light of Alleyne; later abrogated)