v.
H.C.
J-S24037-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : H.C., : : Appellant : No. 3378 EDA 2017
Appeal from the Judgment of Sentence April 10, 2017 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006886-2015
BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 07, 2020
H.C. (Appellant) appeals from the April 10, 2017 judgment of sentence
entered after a jury found Appellant guilty of aggravated indecent assault of a child, indecent assault of a person less than 13 years of age, and endangering the welfare of a child (EWOC). Upon review, we vacate
Appellant’s judgment of sentence and remand for resentencing.
We provide the following background.
Appellant was arrested on January 27, 2015 in connection with the sexual abuse of J.H., who at the time was six years old.[1] [] Appellant’s actions came to light when J.H. told [S]tepmother[] that Appellant had “touched her private parts.” J.H. was subsequently interviewed by various experts, including Dr. June
1 At that time, biological mother (Mother) split custody 50-50 with biological father (Father). Stepmother resided in the house where Father lived. Appellant, Mother’s paramour, resided with Mother and was akin to a stepfather. *Retired Senior Judge assigned to the Superior Court. J-S24037-20 Elcock-Messam, who testified that J.H. had sustained a laceration to her genitals. Trial Court Opinion, 8/15/2019, at 2 (citation omitted). Appellant was charged with one count each of aggravated indecent assault, indecent assault, EWOC, corruption of minors, and disorderly conduct. On August 12, 2015, a hearing was held on the Commonwealth’s motion to allow J.H. to testify by alternative means, pursuant to 42 Pa.C.S. § 5985 (testimony by contemporaneous alternative method). On November 16, 2015, the trial court granted the motion to allow J.H. to testify via closed-circuit television at trial.2 Following several continuances, Appellant proceeded to a jury trial on January 10-13, 2017.3 The Commonwealth presented testimony from J.H. 2 In this order, the trial court also granted the Commonwealth’s petition to admit out-of-court statements made by J.H. to Stepmother; Portia Nicholson from Delaware County Children and Youth Services; and Jodi Kaplan, a child forensic interview specialist from Delaware County Children’s Advocacy Center, pursuant to 42 Pa.C.S. § 5985.1 (tender years hearsay exception), and denied Appellant’s petition for a competency hearing. None of the motions disposed of in this order appears in the certified record. 3 The Commonwealth proceeded to trial on the first three counts: aggravated indecent assault, indecent assault, and EWOC. On the first day of trial, the trial court granted the Commonwealth’s request to amend the information as follows: Amend count one, aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1), to aggravated indecent assault of a child, 18 Pa.C.S. § 3125(b); (Footnote Continued Next Page)
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(via live video from another room); Stepmother; Nicholson; Kaplan; and Dr.
Elcock-Messam, an expert in the fields of general pediatrics and child abuse pediatrics, who examined J.H. The jury heard audio recordings of J.H.’s
interviews with Nicholson (12/12/2014) and Kaplan (12/17/2014 and 1/2/2015), wherein J.H. disclosed details surrounding Appellant’s kissing of her face and body, and his reaching inside her pants to penetrate her digitally, scratching her genitals with his fingernail in the process. Dr.
Elcock-Messam testified that J.H. suffered a genital laceration that was consistent with J.H.’s account of Appellant’s actions. In defense, Appellant
and Mother testified that Appellant was never alone with J.H. At the conclusion of the trial, the jury found Appellant guilty as indicated above.
Prior to sentencing, the trial court ordered Appellant to undergo
psychological and psychosexual evaluations, as well as an assessment by the Sexual Offenders Assessment Board. On April 10, 2017, the trial court
sentenced Appellant to a term of 78 to 156 months of incarceration for aggravated indecent assault of a child, 16 to 32 months for indecent assault of a person less than 13 years of age, and 16 to 32 months for EWOC. All
(Footnote Continued) _______________________
Amend count two, indecent assault, 18 Pa.C.S. § 3126(a)(1) (without consent), to subsection (a)(7) (complainant less than 13 years of age); and
Amend the offense date from December 17, 2014 to between November 30, 2014 and December 17, 2014.
See N.T., 1/10/2017, at 9-11.
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sentences were set to run consecutively, for a total aggregate sentence of 110 to 220 months of incarceration.[4] Appellant was also required to register as a sex offender for life.
On April 19, 2017, Appellant filed a post-sentence motion challenging, inter alia, the weight and sufficiency of the evidence. 5 On September 8, 2017, the trial court denied Appellant’s post-sentence motion.
This timely-filed notice of appeal followed.6 On appeal, Appellant raises five issues, which we have reordered for ease of disposition. See
Appellant’s Brief at 7-8.
4 This converts roughly to an aggregate term of 9.16 to 18.33 years of incarceration. 5 Appellant sought leave to file a supplemental motion following transcription of the notes of testimony. The relevant transcripts were filed by May 9, 2017. However, Appellant did not file a supplemental motion. Because it was approaching the 120-day deadline pursuant to Pa.R.Crim.P. 720(B)(3), the trial court granted Appellant’s oral request for a 30-day extension to decide Appellant’s post-sentence motion. Order, 8/8/2017. 6 We note our displeasure with the delays holding up this Court’s review. This case originated in 2015 and did not proceed to trial until 2017 due to several continuances. Following the filing of Appellant’s notice of appeal, Appellant timely filed his ordered Pa.R.A.P. 1925(b) statement on October 18, 2017. However, the trial court inexplicably did not file its Pa.R.A.P. 1925(a) opinion until August 16, 2019, almost two years later. Once this Court finally received the trial court’s opinion and the record was transmitted, our review was again delayed by Appellant twice seeking an extension of time to file his brief. Despite our granting these requests, Appellant filed his brief six days late. Pursuant to Pa.R.A.P. 2188, “If an appellant fails to file his ... brief ... within the time prescribed by these rules, or within the time as extended, an appellee may move for dismissal of the (Footnote Continued Next Page)
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J.H.’s Closed-Circuit Television Testimony
We first address Appellant’s claim that the trial court erred in allowing
J.H. to testify by closed-circuit television, thereby denying Appellant his right to face his accuser. Id. at 7, 26. We review this claim mindful of the following.
Section 5985 of the Judicial Code governs testimony by a contemporaneous alternative method:
(a) Contemporaneous alternative method.— Subject to subsection (a.1), in any prosecution or adjudication involving a child victim [], the court may order that the testimony of the child victim [] be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child victim [], including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child victim [] but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross- examination of the child victim [] shall proceed in the same manner as normally permitted.
(Footnote Continued) _______________________
matter.” The Commonwealth filed its brief after one extension, and did not move for dismissal based upon Appellant’s late-filed brief. While we do not dismiss this appeal, we caution all parties against such unnecessary and significant delays in the future.
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(a.1) Determination.—Before the court orders the child victim [] to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant’s presence will result in the child victim [] suffering serious emotional distress that would substantially impair the child victim’s [] ability to reasonably communicate. In making this determination, the court may do all of the following:
(1) Observe and question the child victim [], either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim [] in a medical or therapeutic setting.
42 Pa.C.S.[] § 5985(a), (a.1).
In Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super. 2006), [] the Commonwealth presented the expert testimony of the child victim’s treating psychotherapist. The psychotherapist testified that the victim suffered depression, suicidal thoughts, and post-traumatic stress disorder[,] which likely would impact her ability to testify effectively. Likewise, the psychotherapist testified that the defendant’s presence in the courtroom would send the victim “into an emotional tailspin.” Id. Given this testimony, we found no error in the trial court’s decision to permit the victim to testify via closed[-]circuit television. Id.
Similarly, in Commonwealth v. Torres–Kuilan, 156 A.3d 1229, 1230 (Pa. Super. 2017), the victim, seven years old at the time of trial, broke down and cried and refused to enter the courtroom to testify. The trial court conducted an in camera hearing to determine whether to permit the child to testify via closed[-]circuit television. The court heard testimony from the victim and a woman who had been keeping the victim company that morning and ultimately decided to permit the victim to testify remotely. Id. We affirmed, reasoning that the trial court’s observations are a sufficient basis for permitting remote testimony under § 5985(a.1)(1).
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Commonwealth v. Tyrrell, 177 A.3d 947, 951-52 (Pa. Super. 2018) (some quotation marks and citations omitted). We note that “[f]ew published decisions address § 5985, and those that do have not announced a standard for reviewing the trial court’s decision. In Torres–Kuilan, this Court employed the principles of statutory construction to determine whether the Commonwealth’s proffer complied with § 5985’s terms.” Tyrrell, 177 A.3d at 952 (citation omitted). Instantly, the trial court held a hearing on August 12, 2015 to address the Commonwealth’s request pursuant to section 5985. The Commonwealth presented testimony from Stepmother, Nicholson, and Kaplan, all of whom testified about J.H.’s demeanor when speaking about the incident. When J.H. disclosed to Stepmother in early December 2014, J.H. slouched and covered her face. N.T., 8/12/2015, at 12. Nicholson interviewed J.H. on December 12, 2014, and noted that during the interview J.H. said she was afraid, and was shaking with tears in her eyes throughout the interview. Id. at 34-35. During Kaplan’s December 17, 2014 interview, J.H. appeared frightened prior to the interview after Mother and Mother’s sister-in-law were yelling in the waiting area. Id. at 39. When Kaplan questioned J.H. about Appellant, J.H. covered her face and began shaking and crying. Id. at 40. During Kaplan’s second interview on January 2, 2015, J.H. shook less and appeared less frightened, which J.H. attributed to her not having seen
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Appellant recently. Id. The Commonwealth introduced audiotape recordings of Nicholson’s interview and Kaplan’s two interviews.
Additionally, Stepmother testified that J.H. misses Appellant, is anxious about him being in trouble, and expresses that she wants things to go back to normal as long as Appellant does not do what he did again. Id. at 16. According to Stepmother, “to go in front of [Appellant] and to know that he’s in trouble is just going to be too much for her. She’s already going through separation anxiety.” Id. at 15. Stepmother also testified regarding
J.H.’s change in behavior; prior to the incident J.H. was very neat and organized, but after the incident she began to rip apart her room. Id. at 14.
The trial court took the matter under advisement, and on November
16, 2015, granted the Commonwealth’s motion for J.H. to testify
contemporaneously by alternative means. In its Rule 1925(a) opinion, the trial court explained that in light of the testimony presented at the August
12, 2015 hearing, it concluded that “forcing J.H. to testify in court in front of her abuser would undoubtably [sic] cause her to suffer serious emotional distress.” Trial Court Opinion, 8/16/2019, at 3. Specifically, the trial court credited J.H.’s behavior change, demeanor of crying and shaking during interviews, and stating that she could not speak to Nicholson because she was afraid due to her “mom’s boyfriend [being] dangerous.” Id. (record citations and internal quotation marks omitted).
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Although framed as a challenge to the trial court’s permitting J.H. to testify by closed-circuit television pursuant to section 5985, Appellant’s argument on appeal is slightly different. In the argument section of his brief, Appellant argues that the trial court erred in permitting J.H. to testify via closed-circuit television “without conducting a hearing to make any determination as to whether [J.H.] was incompetent to testify, due to her capacity to communicate being overwhelmed by serious emotional distress.”
Appellant’s Brief at 27. According to Appellant, the failure to test J.H.’s competency violated Appellant’s “constitutional right to confront his accuser”
under the United States and Pennsylvania constitutions. Id. Thus, Appellant’s arguments on appeal focus on (1) the lack of a competency hearing, and (2) an alleged violation of the Confrontation Clause due to
J.H.’s testifying by closed-circuit television.
We begin with Appellant’s argument that the trial court erred in failing to conduct a competency hearing prior to granting the Commonwealth’s
request to permit J.H. to testify by contemporaneous alternative means, mindful of the following. “A decision on the necessity of a competency hearing is addressed to the discretion of the trial court.” Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa. 2003) (citation omitted).
Although competency of a witness is generally presumed, Pennsylvania law requires that a child witness be examined for competency. See [] Delbridge, []855 A.2d at 39 (citing Rosche v. McCoy, [] 156 A.2d 307, 310 ([Pa.] 1959) and Pa.R.E. 601).8 As we have recently reiterated, “this Court historically has required that witnesses under the age of fourteen be subject to
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judicial inquiry into their testimonial capacity.” Commonwealth v. Ali, 10 A.3d 282, 300 n. 11 (Pa. 2010). “A competency hearing of a minor witness is directed to the mental capacity of that witness to perceive the nature of the events about which he or she is called to testify, to understand questions about that subject matter, to communicate about the subject at issue, to recall information, to distinguish fact from fantasy, and to tell the truth.” Delbridge, supra at 45. In Pennsylvania, competency is a threshold legal issue, to be decided by the trial court. ______ 8 Pa.R.E. 601(a) provides as follows:
General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these Rules. The Comment to Rule 601 expressly states that Pa.R.E. 601 “is intended to preserve existing Pennsylvania law.” In Rosche [], this Court stated that, under the prevailing rule, competency was presumed when the witness was over 14 years of age; however, when the witness was under 14 years of age, “there must be judicial inquiry as to mental capacity, which must be more searching in proportion to chronological immaturity.” Commonwealth v. Hutchinson, 25 A.3d 277, 289-90 (Pa. 2011). Before reaching the merits, we must address whether Appellant has preserved this issue for our review. In Appellant’s Rule 1925(b) statement, he asserted that “[t]he trial court erred in not allowing [Appellant] to face his accuser and permitting the victim to testify at trial by video television.” Pa.R.A.P. 1925(b) Statement, 10/18/2017, at ¶ 1. Completely absent is any reference to the trial court’s failure to conduct a competency hearing for J.H. See Commonwealth v. Scott, 212 A.3d 1094, 1112 (Pa. Super. 2019) (observing that “issues not raised in a Rule 1925(b) statement will be - 10 - J-S24037-20 deemed waived for review”) (citation omitted). Accordingly, this issue is waived. As to Appellant’s Confrontation Clause argument, the current version of section 5985 was specifically amended to comport with the Confrontation Clause after the prior version was found to violate it. [Sections 5984 and 5985] were deemed unconstitutional because they allowed the use of a child’s videotaped depositions or testimony by closed-circuit television if the court approved their usage upon “good cause shown.” This standard was deemed insufficient to afford an accused his or her constitutional guarantees to confront a witness “face to face” as provided for by the Pennsylvania Constitution.[4] Accordingly, the statutes were amended to require the trial court to find that “testifying either in an open forum in the presence and full view of the finder of fact or in the defendant’s presence will result in the child victim [] suffering serious emotional distress that would substantially impair the child victim’s [] ability to reasonably communicate.” 42 Pa.C.S.[] §§ 5984(b) and 5985(a.1). ______