NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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KEVIN DUTCHER :
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Appellant : No. 181 EDA 2025
Appeal from the Judgment of Sentence Entered August 8, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009986-2021
BEFORE: LAZARUS, P.J., SULLIVAN, J., and STEVENS, P.J.E.* MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 19, 2026 Kevin Dutcher (“Dutcher”) appeals from the judgment of sentence following his convictions for unlawful contact with a minor, indecent assault of a person less than 13 years old, and endangering the welfare of a child.1 Because his claims are waived or without merit, we affirm.
The relevant factual and procedural history of this case follows. D.D.
(“the victim”) testified that Dutcher, her stepfather, physically, emotionally, and sexually abused her multiple times per week for several years, beginning when she was eleven to twelve years old. See N.T., 12/5/23, at 70-91, 119- 20. The victim did not report Dutcher’s abuse until her mother, Donna Bartle
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* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(7), 4304(a)(1).
(“Bartle”), and Dutcher split up, the victim and Bartle no longer lived with Dutcher, and the abuse had stopped. See id. at 105.
Dutcher sought to permit expert testimony regarding Parental Alienation Syndrome (“PAS”). See Motion in Limine, 11/22/23, at 1-2. His proposed expert, Mr. Dean Dickson2 (“Dickson”), would testify that a parent can cause false memories about the other parent through repeated negative comments to their young children. See id. at 1. Dutcher attached to his motion in limine a document discussing PAS, but the document had no attributed author or source. The Commonwealth filed a motion in limine seeking to exclude Dickson’s testimony, pursuant to Pennsylvania Rule of Criminal Procedure 702 (expert testimony) and the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) standard, as well as being irrelevant. See Commonwealth’s Motion in Limine, undated, at 2. After a hearing, the trial court denied Dutcher’s motion and precluded Dickson from testifying. See N.T., 12/5/23, at 15-26, 179.
Dutcher also sought to question Bartle about a second statement she gave to the assistant district attorney (“ADA”) at the Philadelphia District Attorney’s Office who had been handling the case earlier. See id. at 225-31. Bartle called the ADA to give additional information, and the ADA referred Bartle to a detective who reached out to her and took a second statement. Dutcher asked Bartle at trial about the content of the conversation between
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2 We note Dickson is also referred to as “Dixon” in multiple documents throughout the record.
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Bartle and the prosecutor, to which the Commonwealth objected, and the trial court sustained the Commonwealth’s objection to the line of questioning as to “why and what the conversation was,” but allowed further questioning on the topic of Bartle’s second statement to the detective. Id. at 229-32.
In the middle of trial, Dutcher moved for a mistrial because, although “[h]e said he would waive arraignment, . . . it was never done in front of the jury.” Id. at 176. The Commonwealth responded that the charges were stated on the record and mentioned in the opening statement and there were no grounds for mistrial. See id. at 177-79. The trial court denied the motion for a mistrial and offered to arraign Dutcher in front of the jury, which Dutcher declined. See id. at 178, 185-86. Trial proceeded.
At the conclusion of the trial, the jury convicted Dutcher of the above-
listed offenses. The trial court sentenced Dutcher to an aggregate sentence of five to ten years of incarceration. Dutcher filed a post-sentence motion which was denied by operation of law. Dutcher timely appealed. Dutcher and the trial court complied with Pa.R.A.P. 1925.
Dutcher raises the following issues for our review:
1. Did the [t]rial [c]ourt violate [Dutcher’s] rights under the Fourteenth Amendment of the U.S. and Pennsylvania Constitutions by preventing the defense from presenting expert testimony about [PAS] and for not conducting a Frye evidentiary hearing to afford the expert the opportunity to demonstrate that his methods and opinions are accepted in the scientific community?
2. Did the [t]rial [c]ourt violate [Dutcher’s] Sixth and Fourteenth Amendment rights under both the U.S. and Pennsylvania
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Constitutions when it denied the defense motion for a mistrial after the trial commenced and witness testimony was taken without [Dutcher] having been arraigned before the jury?
3. Did the [t]rial [c]ourt err, violating [Dutcher’s] constitutional rights under the Sixth and Fourteenth Amendments of the U.S.
and Pennsylvania Constitutions[,] when it granted the Commonwealth’s objection precluding the defense from fully questioning []Bartle about her having gone to the ADA just weeks before trial and giving a second statement?
Dutcher’s Brief at 7.3 In his first issue, Dutcher argues the trial court erred by denying his motion to admit Dickson’s expert testimony without conducting a full Frye hearing.
We review a trial court’s denial of a motion in limine for an abuse of discretion. See Commonwealth v. Brown, 200 A.3d 986, 991 (Pa. Super. 2018). The decision not to grant a Frye hearing is an evidentiary decision, which we also review for an abuse of discretion. See Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by
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3 To the extent these issues are framed as constitutional violations, they are
waived because Dutcher did not assert constitutional violations at trial or in his 1925(b) statement. See Pa.R.A.P. 302(a); see also Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020). We also note that a review of the record did not reveal any mention of the Confrontation Clause prior to this appeal.
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the evidence or the record, discretion is abused.” Id. (quoting Commonwealth v. Walker, 92 A.3d 766, 772 (Pa. 2014)).
Pursuant to Pennsylvania Rule of Evidence 702,
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.
Pa.R.E. 702. Trial courts are not required to conduct a Frye hearing any time a party seeks to introduce scientific evidence. See Commonwealth v. Brunson, 347 A.3d 808, 828 (Pa. Super. 2025), reargument denied, (Pa. Super. 2026) (internal citation omitted). “Rather, a hearing is warranted only when the trial court has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.” Jacoby, 170 A.3d at 1091. The initial burden is on the party seeking to keep the evidence out: that party must show that the purported expert testimony is based on novel scientific evidence, i.e., that there is a legitimate dispute about the expert’s conclusions. See Commonwealth v. Schofield, 312 A.3d 921, 926 (Pa. Super. 2024). If that party satisfies its burden, then the burden shifts back to the party offering
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the evidence to show the expert’s methodology is generally accepted in the relevant scientific community despite legitimate dispute. See id.
Lastly, as with all evidence, including scientific evidence, the threshold inquiry is whether the evidence is relevant. See, e.g., Walker, 92 A.3d at 791 (holding that a Frye hearing was warranted about contested expert testimony, but also noting that the evidence must also be relevant under Pa.R.E. 401 and not more prejudicial than probative under Rule 403).
Dutcher asserts Dickson has been qualified as an expert in PAS in seventeen Pennsylvania counties, as well as in New Jersey and the federal courts in this circuit. See Dutcher’s Brief at 11. Dutcher argues that the trial court, relying upon the fact that PAS has not been applied to any known criminal cases in Pennsylvania, erred in denying him the right to present PAS testimony. See id. at 17. Dutcher asserts that, because the trial court did not conduct a Frye hearing, it “could not have used that as a basis to preclude the expert at trial.” Dutcher’s Brief at 18. Further, it was prejudicial error for the trial court “to make a Frye ruling that failure to gain recognition by any of these bodies represents a failure to meet the standards set by relevant communities, making the proposed testimony inadmissible under Frye and rendering further hearings on its admissibility unnecessary.” Id. at 19 (quotation marks omitted).
The trial court explained its reasoning as follows:
Dutcher attempted to offer testimony from [] Dickson regarding [PAS. Dutcher] offered several documents in support of this
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theory but admitted that [sic] has rarely seen it used in criminal court. In fact, th[e c]ourt [could] find no precedent[ial] criminal cases in Pennsylvania that have allowed testimony of this nature.
Additionally, as the Commonwealth noted, the documentation that [Dutcher] offered in support of [] Dickson’s testimony had no heading, was unsigned, and cited to unscholarly sources like relationshipsthatmatter.com and Psychology Today. The Commonwealth also presented evidence that the American Psychiatric Association and the American Medical Association have declined to recognize PAS as a legitimate medical or psychological diagnosis, and the World Health Organization recommends against its consideration at trial. Failure to gain recognition by any of these bodies represents a failure to meet the standards set by relevant communities, making the proposed testimony inadmissible under [Frye], rendering further hearings on its admissibility unnecessary.
Trial Court Opinion, 3/20/25, at 5-6 (record citations omitted).
After careful review, we determine the trial court did not abuse its discretion by denying Dutcher’s motion to admit Dickson’s testimony as an expert witness.4 Dutcher’s motion in limine included only an attachment to what appears to be copied-and-pasted from an unknown source, that broadly explained what PAS is, how it relates to false child abuse allegations, and “[h]ow to [f]ight [b]ack” against such allegations. Attachment to Motion in Limine, 11/22/23, unnumbered at 2. At the pre-trial hearing, Dutcher broadly asserted Dickson would testify that PAS may have affected the victim’s testimony. See N.T., 12/5/23, at 16-18. However, he failed to explain how
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4 We may affirm the decision of the trial court on any legal basis if the record
supports it. See Commonwealth v. Thomas, 340 A.3d 1053, 1058 (Pa. Super. 2025), appeal denied, No. 553 MAL 2025 (Pa. Apr. 24, 2026).
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PAS applied to the victim, who was: testifying in a criminal case; not his biological child; disclosed the abuse at the age of eighteen; disclosed after Dutcher and the victim’s mother had split up; and was twenty years old at trial. Dutcher did not address the relevance of PAS testimony under these circumstances in his motion in limine, at trial, or in his brief. Therefore, we are unpersuaded that Dickson’s testimony was relevant to the facts of the case. See Pa.R.E. 402. For this reason, Dutcher’s issue merits no relief.5 In his second claim, Dutcher argues the trial court erred by declining to order a mistrial because he was not arraigned in front of the jury. We review the denial of a mistrial for an abuse of discretion. See Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012).
Regarding arraignments, this Court has explained,
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5 Even if a Frye hearing were warranted, and the court failed to hold one, but
instead entertained only argument, Dutcher has nevertheless failed to show he would have prevailed had the court held a full hearing. Frye applies to novel scientific evidence. See, e.g., Schofield, 312 A.3d at 926. Considering Dutcher’s failure in his motion and at argument to: provide scholarly sources and identify the author and source of the document attached to his motion in limine; explain Dickson’s methodology and application of the criteria for PAS; or identify any of the cases in which Dickson has testified as an expert, we are not persuaded that Dutcher, based on his proffer as stated in his motion and orally at argument, could show that Dickson’s “methodology has general acceptance in the relevant scientific community despite the legitimate dispute.” Id.; see also Trial Court Opinion, 3/20/25, at 5-6 (reasoning that Dutcher could not show Dickson’s testimony was generally accepted in the relevant scientific community).
Thus, based on the record before this Court, even if Dickson’s testimony were relevant, we cannot find that the trial court abused its discretion in denying Dutcher’s motion to permit Dickson’s expert testimony about PAS.
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[t]he Rules of Criminal Procedure provide that during an arraignment, the court must notify the defendant of the nature of the charges against him, his right to counsel, his right to file motions, and the potential consequences for his failure to appear without cause for any proceeding in which his presence is required. [See] Pa.R.Crim.P. 571(C) . . . .
[T]he purpose and necessity of an arraignment is to fix the identity of the accused, to inform him of the nature of the charges against him and to give him the opportunity of informing the court of his plea thereto. Due process of law does not require that any technical form of procedure be followed so long as the identity of the accused is definite, sufficient notice of the charges is given, and ample opportunity to plead afforded.
Commonwealth v. Leland, 204 A.3d 461, 465–66 (Pa. Super. 2019) (formatting altered) (internal citation omitted). However, as long as the purpose of arraignment is eventually satisfied and there is no resulting prejudice, “the court’s failure to follow the Rules of Criminal Procedure to the letter” is harmless error. Commonwealth v. Jennings, 285 A.2d 143, 148 (Pa. 1971).
Dutcher argues that the lack of formal arraignment on 18 Pa.C.S.A.
§ 6105 (“Section 6105”) was a fundamental error, as he did not receive notice of the exact charge and was unable to fully defend himself. See Dutcher’s Brief at 22. He explains that “[k]nowingly proceeding to trial on some charges cannot be automatically be [sic] interpreted as knowingly proceeding to trial on other charges which the defendant was not arraigned on.” Dutcher’s Brief at 23.
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The trial court considered Dutcher’s argument and concluded it merits no relief:
[T]he lack of formal arraignment before the jury did not result in any substantial prejudice to [Dutcher]. The record shows that [Dutcher] was fully aware of the charges against him. In its opening argument to the jury, the Commonwealth stated on the record that it was proceeding with four charges, including aggravated assault of a minor, indecent assault, unlawful contact with a minor, and endangering the welfare of a child. Because [Dutcher] had sufficient notice of the charges that the Commonwealth was proceeding with, this procedural error, though a true error, is “not an error of constitutional proportions,”
and [while Dutcher] proceeded to trial without a formal arraignment, he should be deemed to have waived it, as all parties agree was his intention to begin with.
Trial Court Opinion, 3/20/25, at 6-7 (record citations omitted).
Following our review, we conclude Dutcher presents a moot or abstract question. Dutcher’s argument is premised upon his assertion that he did not receive notice of a Section 6105 charge. See Dutcher’s Brief at 22 (stating “[a]s argued by counsel, [Dutcher] did not receive notice of the exact charge ([Section] 6105) to permit him to fully defend himself.”). However, Dutcher was neither charged with nor convicted of Section 6105 of the Crimes Code. See Information, 12/15/21; Verdict Report, 12/6/23, at 1-2. A review of the record reveals that Section 6105 was solely discussed during court recess in the context of a different case. During this conversation, the trial court, the ADA, and Dutcher’s counsel discussed caselaw regarding situations in which lack of formal arraignment could warrant a mistrial. See N.T., 12/5/23, at 181-83 (discussing a Section 6105 charge in the context of Leland and
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comparing and contrasting Leland with Dutcher’s case). Because Dutcher acknowledges that he knowingly proceeded to trial on the charges he was actually charged with, and only contests a non-existent Section 6105 charge, his claim is moot because any ruling upon this issue would have no legal force or effect. See Commonwealth v. Nava, 966 A.2d 630, 633 (Pa. Super. 2009); see also Commonwealth v. Barr, 79 A.3d 668, 677 n. 15 (Pa. Super. 2013) (holding this Court will not decide moot or abstract questions). 6 In his third and final issue, Dutcher argues the trial court erred by limiting cross-examination of Bartle’s communications with an ADA that referred her to a detective for a follow up statement.
As noted above, our standard of review for evidentiary rulings is abuse of discretion. See Commonwealth v. Vance, 316 A.3d 183, 189 (Pa. Super. 2024). This standard applies to our review of a trial court’s limitations on cross-examination. See Commonwealth v. Rivera, 983 A.2d 1211, 1230 (Pa. 2009).
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6 This situation may not fall squarely within the definition of mootness because
Dutcher was never charged with Section 6105, therefore no changes in the facts or law occurred to deprive Dutcher from a stake in the outcome regarding that charge. See Commonwealth v. Smith, 486 A.2d 445, 447 (Pa. Super. 1984) (emphasis added) (explaining “the existence of an actual controversy is essential to appellate jurisdiction[ and,] if, pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed.”). However, Dutcher’s claim falls closest within the umbrella of a moot or abstract question because it would be impossible for this Court to grant any relief on this claim and our ruling would have no practical effect. See Nava, 966 A.2d at 632-33.
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Generally, all relevant evidence is admissible unless otherwise provided by law, and evidence that is not relevant is inadmissible. See Pa.R.E. 402. Evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action.” Pa.R.E. 401. Pennsylvania Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. “The permissive language ‘may’ in Rule 403 affords trial courts significant discretion in deciding whether to exclude relevant evidence as unfairly prejudicial under Rule 403.” Commonwealth v. Rivera, --- A.3d ----, 2026 WL 971818 at *18 (Pa. Super. 2026).
Importantly, the trial court decides, within its sound discretion, the scope of cross-examination, which this Court will not reverse, absent a showing of “palpable error.” Commonwealth v. Ross, 498 A.2d 972, 973 (Pa. Super. 1985). Where a defendant seeks to inquire into a matter on cross- examination, the trial court may properly sustain an objection where there the defendant has not established a basis for the question. See id.
Dutcher’s argument is nearly fully premised on a Confrontation Clause violation. However, as we held above, Dutcher never made a Confrontation Clause argument to the trial court; therefore, this argument is waived. See
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supra at 3 n.3. In the portion of his argument that is not waived, Dutcher asserts “the questions [he] sought to elicit were more than just ‘marginally relevant.’” Dutcher’s Brief at 27 (citing Trial Court Opinion, 3/20/25, at 8).
He explains that:
[w]hat [Bartle] told the assigned prosecutor was relevant to whether or not her testimony ‘evolved’ and how and why that happened. If the witness was influenced by [the victim] and/or the prosecutor, that would be highly relevant for the jury’s consideration of [] Bartle[’]s and [the victim’s] bias and motivation for accusing the Appellant of these crimes.
Id. at 27-28.
The trial court considered Dutcher’s argument and determined it was meritless. The court explained:
[Dutcher] sought to question [] Bartle on cross-examination [about] a prior [ADA] that had been assigned to this case and conversations they had had weeks before the trial, to which the Commonwealth objected. Applying . . . Rule 403, th[e c]ourt found [Dutcher’s] line of questioning to be only marginally relevant to the issues at trial and highly likely to confuse the jury, and sustained the Commonwealth’s objection. What [the victim’s]
mother reported to a prior [ADA] in the weeks before trial had little relevance on the issue of [Dutcher’s] sustained molestation and abuse of his stepdaughter over the course of years . . . .
Trial Court Opinion, 3/20/25, at 8.
Dutcher has failed to establish that the trial court abused its discretion by precluding him from this specific line of cross-examination. The bulk of Dutcher’s asserted error concerns his waived Confrontation Clause claim. Dutcher’s remaining argument consists of speculation that, but for the trial court sustaining the Commonwealth’s objection, he might have uncovered
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whether Bartle’s account of the abuse “evolved,” and “how and why that happened.” Dutcher’s Brief at 27-28. As discussed above, Dutcher had the opportunity to cross-examine Bartle about her second statement she made to a detective following her communication with an ADA about giving additional information. See N.T., 12/5/23, at 231. During the cross-examination, Dutcher asked about additional details in Bartle’s second statement that were not in the first statement. See id. Dutcher’s speculation as to what further cross-examination—about Bartle’s prior conversation with the ADA—might have uncovered is unavailing. The scope of cross-examination is “within the sound discretion of the trial court,” and this Court will not reverse the trial court’s decision absent “palpable error.” Commonwealth v. Ross, 498 A.2d 972, 973 (Pa. Super. 1985) (affirming a limitation on cross-examination where there was no showing that there was a basis for the contested question). The trial court heard argument and properly analyzed the evidence under Pennsylvania Rules of Evidence 401 and 403. Seeing no palpable error, Dutcher’s claim is waived in part and otherwise meritless.
Judgment of sentence affirmed.
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Date: 8/19/2026